Mr P Lawford v The Met Office: 6000172/2024 Mr P Lawford v The Met Office: 6000172/2024
EMPLOYMENT TRIBUNALS
Case No 6000172/2024
Between
Mr P LawfordClaimantThe Met OfficeRespondentDate 9 May 2025
JUDGMENT
The complaint that the claimant was unfairly dismissed is struck out.
REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The claimant was employed by the respondent for less than two years.[4]Therefore the claimant is not entitled to bring such a complaint.[5]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The claimant’s other complaints are not affected by this judgment. JUDGMENT having been sent to the parties on 21 May 2025 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.[1]The Claimant notified ACAS on 8 November 2023, and the certificate was issued on 20 November 2023. The claim was presented on 19 January 2024. The Claimant brings complaints of direct disability discrimination, disability discrimination arising from disability, and a failure to make reasonable adjustments. A complaint of unfair dismissal was previously dismissed on 27 February 2024 for lack of service. Complaints of breach of contract, wrongful dismissal, and for discrimination on the grounds of age were dismissed on withdrawal on 15 August 2024.[2]The Claimant raised at the beginning of the hearing that he wished to include harassment as an allegation against the Respondent. This was an application which the Claimant had previously made in writing. This application was rejected by me, in a decision sent to the parties on 4 April 2025. The decision stated “Although the Claimant has asked for harassment to be added, he has not provided the factual basis he is seeking to include under that head of claim, so this cannot be taken any further. No amendment is granted.”. He had not responded in writing to provide any factual particulars. In response to the Claimant raising this point at the hearing I said that for the Tribunal to re-open that decision, there must be a material change in the circumstances compared to when the decision had previously been made. I asked him if there was one. The Claimant did not point to any difference. I note that the List of Issues set out in the case management order dated 15 August 2024 were also confirmed by Employment Judge Roper in the Preliminary Hearing on 25 April 2025 as being those that applied in relation to the final hearing.[3]The Claimant also raised as a preliminary issue that the Tribunal that the evidence in the bundle did not include everything he wanted it to include. On 24 March 2025, the Respondent made an application for an unless order on the basis that, among other things, the Claimant had not provided any comments in relation to the draft bundle as to whether it was agreed or not. In the order sent to the parties on 4 April 2025 I refused to make an unless order. Instead, I had stated “The Claimant is to provide comments on the bundle of documents by 11 April 2025. If he does not provide such comments, the Respondent should proceed on the basis that the bundle is agreed in the form proposed by the Respondent.” The Claimant made a further application to extend time to do so on 4 April 2025. This was refused by Employment Judge Self. His order was sent to the parties at 11.29 am on 11 April 2025, stating that if the Claimant did not provide comments as set out in my order, the bundle would stand as set out by the Respondent. The Respondent wrote to the Tribunal on 22 April 2025 stating that it had not received any comments on the bundle from the Claimant. This matter was also discussed in the case management hearing before Employment Judge Roper on 25 April 2025 who explained that, in accordance with my order and that of Employment Judge Self, the documents prepared and exchanged by the Respondent would now stand as the Hearing Bundle. As such, this hearing proceeded on that basis.[4]The parties agreed at the beginning of the hearing that the circumstances applying to a material comparator would be a non-disabled person under the same contract as the Claimant and with the same absences. On the beginning of the second day, the Respondent made a submission that their position was also to include that the comparator provided the same level of (non) engagement regarding health information. Since the Claimant’s evidence was not yet concluded and the Claimant had not commenced his cross examination of the Respondent’s witnesses, the Tribunal accepted that this submission could be made at this point of the hearing without affecting the fairness of the process.[5]The Tribunal heard witness evidence from the Claimant and the following witnesses for the Respondent: Allison Semple, Elizabeth Harris and Andrew McKean[6]We also considered the Hearing Bundle of 882 pages. References to page numbers in this judgment refer to the Hearing Bundle.
The Issues
[7]The following List of Issues was set out in the Case Management Order of Employment Judge Roper dated 15 August 2024. 1. Time limits 1.1. The claim form was presented on 19 January 2024. The Claimant commenced the Early Conciliation process with ACAS on 8 November 2023 (Day A). The Early Conciliation Certificate was issued on 20 December 2023 (Day B). Accordingly, any act or omission which took place before 9 August 2023 (which allows for any extension under the Early Conciliation provisions) is potentially out of time so that the Tribunal may not have jurisdiction to hear that complaint 1.2. Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide the following. 1.2.1. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates? 1.2.2. If not, was there conduct extending over a period? 1.2.3. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.2.4. If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide: 1.2.5. Why were the complaints not made to the Tribunal in time? 1.2.6. In any event, is it just and equitable in all the circumstances to extend time? 2. Disability 2.1. It is not in dispute that the Claimant is a disabled person as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about, by reason of mixed anxiety and depression disorder. 3. Direct Disability Discrimination (s 13 Equality Act 2010) 3.1. The Claimant relies on the act of dismissal and the rejection of his appeal. The Respondent accepts that it dismissed the Claimant and that it rejected the Claimant’s appeal against his dismissal. 3.2. Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated, known as the Claimant’s comparator. There must be no material difference between the circumstances of this comparator and those of the Claimant. The comparator can be an actual person, or if there is no actual comparator then someone hypothetically. That is to say a hypothetical comparator whom the Claimant says would not have been treated in the (less favourable) way in which the Claimant was treated. The Claimant relies on a hypothetical comparator. 3.3. Paragraph 3.29 of the EHRC Code of Practice on Employment (2011) provides: The Comparator for direct disability discrimination is the same for other types of direct discrimination. However, for disability, the relevant circumstances of the comparator and the disabled person, including their abilities, must not be materially different. An appropriate comparator will be a person who does not have the disabled person’s impairment but who has the same abilities or skills as the disabled person (regardless of whether those abilities or skills arise from the disability itself). 3.4. If the Claimant did suffer less favourable treatment above, was this because of disability? Is the Respondent able to prove that it was for a nondiscriminatory reason unconnected to the protected characteristic of disability? 4. Discrimination arising from disability (Equality Act 2010 section 15) 4.1. The Claimant relies on the act of dismissal and the rejection of his appeal. The Respondent accepts that it dismissed the Claimant and that it rejected the Claimant’s appeal against his dismissal. 4.2. Did the following things arise in consequence of the Claimant’s disability of mixed anxiety and depression disorder? The Claimant’s case is that his extended sickness absence arose in consequence of his disability. 4.3. Was the unfavourable treatment because of any of these things which are said to have arisen from the Claimant’s disability? Put another way, did the Respondent dismiss the Claimant because of that sickness absence? 4.4. Was the treatment a proportionate means of achieving a legitimate aim? The Respondents say that their aim was “ensuring effective management of sickness absence of its staff”. 4.5. The Tribunal will decide in particular:(1) was the treatment an appropriate and reasonably necessary way to achieve those aims;(2) could something less discriminatory have been done instead; and(3) how should the needs of the Claimant and the Respondents be balanced? 4.6. Did the Respondents know or could they reasonably have been expected to know that the Claimant had the disability? From what date? 5. Reasonable Adjustments (Equality Act 2010 ss. 20 & 21) 5.1. Did the Respondent know, or could it reasonably have been expected to know that the Claimant had mixed anxiety and depression disorder? From what date? 5.2. A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP, namely a chaotic introduction to the Claimant’s position, (including a lack of clarity with regard to the Claimant’s job duties; insufficient induction procedures; insufficient training; and insufficient support from a “buddy”)? 5.3. The Claimant asserts that this PCP was in place from the commencement of his employment on 22 February 2023, and gave rise to a substantial disadvantage immediately. 5.4. The Respondent disputes that this PCP was ever in place. 5.5. Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the chaotic lack of clarity and lack of support explained above exacerbated his mixed anxiety and depression disorder, and he was unable to understand and/or satisfactorily complete his job duties? 5.6. Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage? From what date? 5.7. What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests: 5.7.1. a clear explanation as to his job duties and functions; and 5.7.2. an appropriate and reasonable induction process; and 5.7.3. adequate training to complete his job roles and functions; and 5.7.4. the provision of a “buddy” who was willing to assist and support him. (The Claimant asserts that the “buddy” actually provided had a conflict of interests and was actively seeking to undermine the Claimant). 5.8. Was it reasonable for the Respondent to have to take those steps and when? 5.9. Did the Respondent fail to take those steps? 6. Remedy: 6.1. What financial losses has the discrimination caused the Claimant? 6.2. Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 6.3. If not, for what period of loss should the Claimant be compensated? 6.4. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? 6.5. Is there a chance that the Claimant’s employment would have ended in any event? Should his compensation be reduced as a result? 6.6. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%? 6.7. Should interest be awarded? How much?
The Facts
[8]The Respondent is the UK’s national meteorological service, providing weather and climate services. It is a Trading Fund of the Government Department for Science, Innovation and Technology operating on a commercial basis. Its head office is in Exeter.[9]The Claimant commenced employment with the Respondent on 22 February 2023 on a fixed term contract for 21 months. His role was that of “Operational Contract Manager” as part of the Future Production Team within the Service Transformation Team and part of the Services Directorate, reporting to Allison Semple, the Head of Future Production.[10]As part of his onboarding process, the Claimant went through an Occupational Health screening process with a third-party Occupational Health provider. The Claimant disclosed to that third party provider that he had mixed anxiety and depression disorder. Following an assessment, a “medical certificate of fitness to work” was provided to the Respondent (page 213), which stated that the Claimant was “Fit for contracted duties: no adjustments likely to be required….Peter has a medical condition highlighted, that may fall within remit of the Equalities [sic] Act 2010, which currently does not require any adjustments or restrictions, but should the individual become symptomatic a further OH review is recommended”. There was no further detail as to what the medical condition was. No details regarding the Claimant having mixed anxiety and depression disorder were passed on to the Respondent at the time. This finding is based on Mr McKean’s and Ms Harris’ evidence which was consistent with the later draft Occupational Health referral (page 356) which states that no details were shared and Mr McKean’s contemporaneous notes before the appeal meeting (page 419).[11]The Claimant’s role was to provide operational contract management support to the suppliers to the Respondent’s Office Tools and Systems project. Although the Respondent had around 100 Operational Contract Managers working across the business, those roles were roles which were combined with other roles. The Claimant’s role was the first Operational Contract Manager role within the Services Directorate and the first dedicated Operational Contract Manager in the organisation. Ms Semple was involved in recruiting the Claimant and considered that he had extensive experience in contract management. The Claimant was to manage two “gold” contract suppliers, CGI and IBL.[12]The Claimant was based from home at his request, on the basis that he came to the office on a monthly basis.[13]On joining the Claimant initially completed the Respondent’s standard induction programme online which included matters such as DSE requirements, GDPR, equality training, IT systems, cybersecurity among other things.[14]At the time that the Claimant joined the Respondent, a new contract management assurance process, the Contract Management Agreement Framework (“CMAF”) was being introduced to improve the management of suppliers in line with ISO and Government commercial standards.[15]On his first day, 22 February 2023, Ms Semple forwarded the Claimant an email (page 558) saying the following. “As an OCM we want to help you achieve the best commercial obligations and contract management outcomes for the Met Office and the contracts you will be managing. We have introduced the CMAF to enhance the support available to everyone involved in contract and supplier relationship management as well as aligning our contract management approach more closely to the Government Commercial Functional standards and ISO. We understand there is a lot of information and resources available to support OCM’s therefore Commercial have complied a Top 10 'Where to Start?' list as a good place to start on the CMAF Comms Site: 1.Watch the 'What is a Contract Manager' introductory video. 2.Read the CMAF Handbook - this outlines the Met Office approach to Contract Management and whole [sic] your role includes. 3.Identify you [sic] Directorate Champion - this will be your first point of contact for any Contract Management questions going forward. 4.Join the Contract Management Community of Practice (CMCoP) by emailing CMAF@metoffice.gov.uk and attend future events. 5.Participate in the CMCoP Teams Channel - this should appear in your Teams, if you can't see it please email CMAF@metoffice.gov.uk. 6.Book your GCF Contract Management Foundation Training - these modules will build on your existing capability and give you additional tools to manage your contracts effectively. 7.Familiarise yourself with this CMAF comms site. 8.Check the Contract Management Responsibilities Matrix to understand the scope of your role and the support available to you. 9.Review the CCIAF Standards to enhance your understanding of best practise in Contract Management. 10.Explore the wider comms site resources, including tools and templates to support each stage of your Contract Management. Furthermore, in response to feedback from yourselves over the coming weeks we will be launching a range of new resources such as new ‘How To Guides’ which align to Cabinet Office working practices, as well as simplifying the CMAF Comms Site. All new and additional support aim to bolster your capability as OCM’s assist you in managing your contracts successfully.”[16]Ms Semple’s cover email also introduced the Claimant to Aled Evans to act as a buddy/mentor to the Claimant. Mr Evans was an Interim Contract Manager who had been involved in the procurement process for the contracts that the Claimant was going to be managing. He worked in the Commercial and Procurement Team. Ms Semple suggested that the Claimant arrange a meeting with Mr Evans. Mr Evans had his own role to undertake within the Respondent, and the role of buddy to the Claimant was additional to his normal working duties.[17]Ms Semple had regular catch-up meetings with the Claimant in which she would give him guidance on where to find information and resources. She also provided support via email and Teams messages.[18]The Claimant’s first meeting with Mr Evans was on 27 February 2023, during which Mr Evans provided an overview of the CGI and IBL contracts, key documents and explained key personnel (the Claimant’s note of the meeting is at page 206).[19]Ms Semple also arranged for the Claimant to meet with Jodie Potter, Senior Strategic Partnerships Manager, and Marie Stretch, Head of Commercial, Strategic Partnerships on 9 March 2023. The idea behind this was that Ms Potter and her colleague Sophie Brookes, Strategic Partnerships Manager would be able to provide the Claimant with advisory support, for example signposting to the CMAF and wider Government resources. Ms Potter and Ms Brookes had been involved in the development of CMAF, so Ms Semple felt that they would be a good source of support.[20]In fact, Ms Potter offered the Claimant a further earlier meeting (page 570) to take the Claimant through the CMAF site and the resources available to contract managers. This took place on 6 March 2023, and the Claimant considered it useful (page 582). On the same day the Claimant was provided with the draft “How to Guides”. The 9 March 2023 meeting also took place as planned with Ms Potter and Ms Stretch.[21]As recommended in the email referred to at paragraph 15 above, by 1 March 2023, the Claimant had booked himself onto for the “GCF Contract Management Foundation Training” (page 580). This was a contract management course applicable across Government. The Claimant had completed it by 11 April 2023 (page 823) and asked to be enrolled in the next level up, the “Practitioner” level. The Tribunal finds, on the basis of Ms Semple’s oral evidence, that this would have been progressed had the Claimant stayed in the role, even though there was a cost associated with it.[22]It is not proportionate to detail all of the email interactions between the Claimant and Mr Evans. The Claimant’s evidence was that Mr Evans did not provide effective assistance or support to him. He considered that Mr Evans might have a conflict of interest as the Claimant’s function had been one that would have previously been undertaken within Mr Evan’s team. However, the Tribunal having reviewed the documents, consider that Mr Evans provided helpful responses and responded quickly when the Claimant raised queries with him. Where he could not provide the specific information, he pointed the Claimant to the person or resource he could follow up with. Some examples are at pages 237, 261 584, 589, 590, and 642.[23]One particular issue arose in relation to the underlying contracts being managed by the Claimant. He requested that Mr Evans provide him with these contracts. The Respondent’s policy was that the Commercials team would hold originals in a protected area and provide duplicates for active management. However, the process of setting up the duplicates and granting access could take time and had not been completed yet. Mr Evans explained the position to the Claimant. This was escalated to Ms Stretch and her manager who both confirmed that Mr Evans had stated the correct policy in relation to these documents. The Claimant’s reaction was to send an email to Ms Potter which was highly critical of Mr Evans. Concerns were raised regarding the Claimant’s tone with Ms Semple who sought to discuss it with the Claimant and explain that Mr Evans approach was appropriate.[24]Notwithstanding this, the Tribunal panel consider that Mr Evans continued to be helpful and responsive to enquiries raised by the Claimant. He began to create a copy which the Claimant could access in order to find a solution to the desire to have access to the contracts (page 670, 671). Despite Mr Evans’ efforts, the Claimant continued to be critical of him saying that he had concerns about Mr Evans’ capability to perform an effective induction due to conflicts of interest and reticence (page 250).[25]The Claimant view was that he should be provided with a certain level of detailed instructions, such as prioritised organisation programs, lists of next steps and monthly activities and deliverables for his roles. However, since these were new contracts, and the Claimant’s was a new role within his team, these were matters which Ms Semple considered were to be developed (page 246).[26]The Claimant and Mr Evans had a meeting on 22 March 2023 lasting an hour and a half during which Mr Evans explained the contract management plan for both contracts, explained the formalities of contract management and the key areas to look out for (page 295). The Claimant asked Mr Evans for items which Mr Evans considered had been covered in the meeting (page 295), but Mr Evans nevertheless provided a lengthy response and said that he was available to have further discussions. The Claimant’s response was again very critical, accusing Mr Evans of being “reluctant to assist” (page 294). The Claimant continued to request more and more specific and detailed information and documents in each interaction with Mr Evans (page 294, 297) including requesting day-to-day activities to be documented in detail (page 297).[27]The Claimant wrote Ms Semple a lengthy Teams message raising concerns regarding the way that the change to the CMAF had been handled in the business.[28]In a one-to-one meeting on 31 March 2023, Ms Semple gave the Claimant feedback that she considered the tone of his emails in relation to Mr Evans was not in line with Met Office values. She did follow up with the Claimant’s concerns with Marie Stretch (page 301), whose feedback was that “We also have a new set of “How To Guides” which details [sic] all stages of the new Contract Management Assurance Checklist (this clearly explains to the OCMS the key stages of activity they should be following, along with link to the relevant GCF templates, and outline an audit process for Gold/Silver+ contracts), majority of the content is from the GCF and in layman’s terms therefore self explanatory and all OCM’s will be able to self serve and benefit. All OCM’s are aware of the above including Peter”. Although the “How to Guides” were in a developmental stage, the Claimant had previously been given drafts.[29]The Claimant had met with Christopher Beighton, Head of Operational Meteorological Technology in early April 2023. He offered to act as an informal mentor to the Claimant, since he had previous experience in operational contract management and would be able to offer project advice. The Claimant met with him on 14 April 2023. Sick Leave[30]On 16 April 2023 the Claimant sent a message to Ms Semple via Teams saying “Dear Allison, I am very sorry to advise I am taking mental health leave due partly to the difficult onboarding issues raised but particularly, the very odd, stressful, disempowering and demoralising interactions with Chris, which appear completely at odds with the MO People, Cultural and Leadership Values, which otherwise I have experienced and been impressed and empowered by. Kind regards, Peter” (page 363). Ms Semple responded sympathetically including asking if they could discuss support and any changes which could be made to support the Claimant’s return. The following day Ms Semple spoke to Mr Beighton to gather more information. He felt that the meeting had gone OK but was open to discuss it (page 314).[31]On 18 April 2023, the Claimant emailed the Respondent’s Chief Executive saying that he was off sick as a result of “substantial challenges and harassing behaviour from people who should know much better” (page 316).[32]Ms Semple and the Claimant met via Teams on 21 April 2023. In that meeting, the Claimant said that the first meeting with Mr Beighton had gone OK, although felt a bit like a job interview, but that at the meeting on 14 April 2023, he felt Mr Beighton’s approach had been intimidating (page 321). They discussed that the Claimant felt that the onboarding with Mr Evans and CMAF had contributed to the Claimant going off sick. The Claimant said that he was contemplating a formal grievance. Ms Semple encouraged the Claimant to engage with an informal resolution first.[33]On 21 April 2023, the Claimant submitted his first fit note which referred to “mixed anxiety and depression disorder” and stated that the Claimant would not be fit to work until 30 April 2023.[34]The Claimant and Ms Semple met again on 26 April 2023 (page 324), which Ms Semple had felt was positive. The Claimant followed up with an email on 28 April 2023 in which he was critical of Ms Semple’s approach. He stated that the “informal route to resolve these issues has failed, to enable the appropriate level of examination, should these now be best addressed via a formal grievance.” (page 325). He set out some details regarding his interactions with Mr Beighton (page 326) but also referred generically to “other issues raised with you both, regarding the lack of onboarding, information, CMAF, project and contract management issues” (page 327).[35]Ms Semple responded on 2 May 2023 (page 329) saying that she was committed to resolving the matter informally and to get the Claimant back to work. She went on to say: “I have attached the Raising Concerns policy and Grievance Guidance for your information and also attached the Grievance Resolution form, which although not needed to progress this informally, would help me to clarify the issues you raise and your desired outcome. I ask that either you complete the form or make use of the titles/questions to provide more structure around the matters you are raising and the outcome you are seeking in order that I may address them.”[36]The Tribunal does not have the grievance form before it, but the Respondent’s “Raising Concerns Policy” states under the heading “Formal grievance resolution”: “To handle your grievance effectively, we need to know:• What is your grievance and any additional information available?• What detriment did you suffer as a result?• What is your desired outcome?• What you have attempted to informally resolve it? A form is available in the People Centre to help you structure this information.” (page 146).[37]Ms Semple and the Claimant met again on 3 May 2023. Among other matters, Occupational Health was discussed in order to obtain workplace adjustment advice (page 330). The Claimant was positive about this.[38]The Claimant responded to Ms Semple’s email on 5 May 2023 saying he had not reviewed the grievance documentation (page 338), he did not provide the further details requested to progress the formal grievance process. Ms Semple responded on 9 May 2023, and suggested she could make a start for the Claimant to review (page 338).[39]Later that day, on 9 May 2023, Ms Semple sent the Claimant a table setting out headings for the Claimant’s grievance (such as onboarding support, CMAF, Chris’s behaviour,etc). Ms Semple asked that the Claimant fill in columns structured by reference to the questions set in the grievance policy: detriment, desired outcome, what action he had taken (page 340 and 341).[40]Ms Semple met with Mr Beighton on 9 May 2023 to get his view in relation to the issues raised by the Claimant. He was happy to do what was needed to resolve matters (page 339).[41]On 10 May 2023, the Claimant stated he would consent to an Occupational Health referral (page 342). He also included comments by way of response to Ms Semple’s email of 2 May 2023, he provided some general commentary regarding his concerns, but this did not address his desired outcome. He stated that “You have again asked me to provide more information as to what I think should be done to assist in addressing and resolving such issues. I can help to do this, just as I have already set out in the emails / issues raised to date. Please include these in the first instance.” (page 344). He followed up on 11 May 2023, saying that the additional details were contained in the 10 May 2023 email (page 345). He went on to say “I have not been able to perform the work you requested, on your Raising Informal Concerns template, due to being off sick. Should this work be more reasonably and effectively undertaken as part of a proposed Return to Work?”. Ms Semple confirmed in a meeting on 16 May 2023 that this process was paused until the Claimant returned to work (page 349). She also told the Claimant that the probation review would be postponed until the “appropriate time performing the role [had] passed” to allow enough evidence regarding objectives to be gathered.[42]In the Claimant’s 10 May 2023 email, he also stated that he was concerned that the Occupational Health process focussed on the individual and not the employer aspects (page 344). Ms Semple responded on 12 May 2023 forwarding HR guidance regarding Occupational Health as follows: “The report is written to provide line management with advice and guidance to support him whilst he is off work and on his return as well as for the longer term. The OH practitioner will also give Peter advice as they feel is appropriate for him to help himself or seek support in other ways.” (page 346). The Claimant responded on 15 May 2023 giving his contact details for Occupational Health contact (page 348).[43]Following a meeting between Ms Semple and the Claimant on 25 May 2023, Ms Semple emailed the Claimant confirming the matters discussed (page 361). This included the Claimant agreeing to have a conversation with Mr Beighton and Ms Semple asking the Claimant to consider whether he wanted to have this while off sick or wait for his return, and that she would get feedback from HR regarding managing this as a grievance. The Claimant’s comments on this included saying “I said this needed to be covered via the Grievance. You confirmed you understood this and I need not provide anything further. You would discuss all these issues in your meeting with HR today and let me know the outcome.” (page 361).[44]On 31 May 2023, Ms Semple and the Claimant again discussed that the grievance would form part of the return-to-work process (pages 369 and 373).[45]In a further meeting on 7 June 2023, Ms Semple again discussed that the grievance had been paused until the Claimant returned to work (page 376). Ms Semple followed this up on 9 June 2023 with an email (page 377) in which she said: “Following our discussions on Wednesday, you did say that you would think about whether or not to re-start the Grievance process, which I did mention would require you to fill out the form previously sent to you regarding the concerns raised with detail included on the outcome being sought. You said you would think about this and let me know what you decide.” In the Claimant’s response on 12 June 2023, he inputted comments, but did not provide a response to this point (page 380), other than to ask whether this pause meant that related deadlines were paused (page 382).[46]In the meeting on 7 June 2023, the Claimant raised concerns with the Occupational Health referral (page 376), in particular he objected to the summary in the job description (the contents of this summary are at page 183 under the heading “Summary of Role”). He raised that he had never seen it before and felt that it was not part of the job he had applied for, and that it was biased towards management. In Ms Semple’s follow up she explained that this was to provide context for the Occupational Health discussion, but that the Claimant could provide additional information to Occupational Health as he felt was appropriate in the meeting or ahead of the meeting.[47]The Claimant’s evidence is that he called Occupational Health but that he was not permitted to provide additional information. The Tribunal did not find this credible as he had initially responded that “he may have” contacted Occupational Health and this contact and refusal is not mentioned in the Claimant’s witness statement or the correspondence. He did attempt to input into the Occupational Health portal which was not successful.[48]The Claimant’s comments on 12 June 2023 in relation to Ms Semple’s email (page 380 and 381) expanded on his concerns regarding the referral and said that “I have notified OH I will be unable to attend the meeting tomorrow and that the referral is updated as required prior to proceeding with it.” (page 382). He withdrew his consent to the referral on 12 June 2023 (page 383).[49]Ms Semple emailed the Claimant on 16 June 2023 offering mediation between him and Mr Beighton and again re-iterating that if he did not want to attend mediation and to raise the matter formally, he would “therefore need to complete the form previously sent to you. This is so that an independent Grievance Manager can be appointed and they can clearly understand the concerns you are raising and what your desired outcome is.” (page 385).[50]The Claimant responded on 21 June 2023 saying that previous email trails contained all the relevant content and should be used (page 387). He asked that a file was created containing “related meetings, notes and emails” and sent to him (page 387).[51]On 22 June 2023, Ms Semple and the Claimant had a meeting in which he said that if it was an independent body such as ACAS he was happy to start mediation (page 388).[52]Ms Semple emailed the Claimant on 28 June 2023 saying that “I would like to propose that we complete a new OH referral for you, simply seeking medical advice on your fitness to work, possible return date and any reasonable workplace adjustments they can recommend for me to consider to support your return. As explained previously, the aim of the OH appointment is for me to obtain advice from a clinician about how I might best support you. However, as the current referral content appears to be the barrier to progressing this hopefully with this new referral you will feel more comfortable in attending the appointment. You will be able to view the content, as before, on the online portal once they have triaged the referral.” (page 390). She further stated that an independent external supplier could provide mediation.[53]On 1 July 2023, the Claimant emailed the Respondent’s Chief Executive, Chief People Officer and Services Director saying that Ms Semple was ignoring his concerns, that there was a conflict of interest and that she should not be managing the situation which was becoming “increasingly gaslighting and harassing behaviour”. Senior members of the HR team decided that Ms Semple should continue to manage the Claimant’s absence (page 390).[54]The Claimant wrote to Ms Semple on 4 July 2023 stating that their meetings were being suspended (page 399).[55]Ms Semple invited the Claimant to an informal absence review meeting (page 401) at which the Claimant could be accompanied. This was expressed to be a meeting to discuss among other things an update as the Claimant’s health, the likely duration of absence, barriers to a return to work, and possible support and adjustments to enable a return. The meeting was rearranged to allow more time for the Claimant to find a companion. He declined to attend on 12 July 2023 due to ill health (page 409). He again said that his previous correspondence included options and solutions which he said needed to collated and addressed.[56]Following the meeting, on 13 July 2023, Ms Semple sent the Claimant a letter stating that “if there is no likelihood of your return to work, within a reasonable period, we will need to consider whether the Met Office can continue to support your absence. However, I reiterate that I would still like to discuss all available options and support” (page 415). Formal Absence Management Meeting[57]On 21 July 2023 the Respondent invited the Claimant to a formal Hearing in accordance with the Met Office’s Managing Performance (during Probation) policy. The letter explained that this related to the Claimant’s absence and behaviour, and explained that a possible outcome was the Claimant’s dismissal. He was notified of his right to be accompanied (pages 426 and 427).[58]Mr McKean (Associate Director of Finance for the Respondent) and Dr Glenn Greed (Scientific Software Strategic Head) were independent managers with no prior involvement with the Claimant before this time. They were appointed to form a panel for the hearing, with Mr McKean chairing.[59]The Claimant emailed Mr McKean and Dr Greed on 25 July 2023 referring to unresolved issues and saying: “My case has been ongoing for months and key communications have occurred via email, Teams and Meetings, which I continually refer to but remain completely ignored by both Allison and now clearly Joanna too? … The emails and Teams information is available via my accounts as well as via these individuals’. In addition, Allison and I have written notes from all the related meetings. This information provides the basis, evidence and understanding regarding my raising concerns, grievances, illness, Occupational Health Referral, performance and related issues, which the Hearing (according to Joanna’s above response [)] is unlikely to be aware of, have any time and resources to include, understand, validate, verify or consider with regard to these key related issues.” (page 881 and 882). The Claimant also referred to Ms Semple having said that the probationary review would be delayed.[60]Dr Greed responded saying “if you would like to send any written submission for us as the panel to read before the hearing, please send to us as soon as you can. I would like to remind you that the hearing is your opportunity to present your case and assure you that no decisions will be taken until after the hearing.” (page 881).[61]On 26 July 2023, the Claimant was provided with a number of documents listed at page 439: the invitation to the hearing, emails and letters which had been exchanged between the parties, the Claimant’s statement of particulars, the Respondent’s Code of Conduct, the Respondent’s Managing Performance (Probation) policy and the Managing Performance (Probation) guidance. Only one document was new to the Claimant: the line manager’s submission for the meeting (page 429 to 438) which had been prepared by Ms Semple. This covered a summary timeline of the Claimant’s time at the Respondent, the challenges Ms Semple felt she had faced in managing the Claimant, information about the Claimant’s sickness absence, the unsuccessful attempts to make an Occupational Health referral, and the grievance process. In this document, Ms Semple suggested that the Claimant should be dismissed.[62]On 26 July 2023, the Claimant emailed the Respondent saying “the huge amount of additional and controversial information you have just provided, clearly makes it completely impossible for me (or anyone) to prepare an effective response to or attend the meeting you’ve scheduled for Monday. (page 441). The Claimant again referred to his previous correspondence being relevant.[63]Mr McKean responded re-iterating that the hearing was an opportunity for the Claimant to put forward his position, including any documentation which he considered had been omitted from the pack prepared by the Respondent. He also offered the Claimant the option of providing written representations in advance of the hearing (page 440). Mr McKean stated that since the Claimant had not provided an alternative proposed date within five days, the hearing would proceed in his absence. The Claimant responded saying that five additional days would not be sufficient for him to prepare (page 444).[64]In light of the Claimant’s failure to indicate when he would be able to attend a meeting and against a background of the Claimant previously ceasing engagement with Ms Semple, the panel decided to go ahead with the hearing on 31 July 2023. Having heard Ms Semple’s position, the panel decided that it would be helpful to have guidance from Occupational Health and also wished to ask the Claimant some questions. The questions and request to consent to an Occupational Health referral were sent to the Claimant on 31 July 2023 (page 462). The Claimant was asked to respond by 5pm on 2 August 2023. The Claimant did not respond or ask for more time to do so.[65]The panel decided to dismiss the Claimant in a meeting on 3 August 2023. The letter was not issued until 9 August 2023 in case the Claimant responded late to the questions and accepted the offer of Occupational Health input, but he did not do so. The dismissal decision was based on the length of the Claimant’s absence and the absence of information regarding when he would return to work and how that could be supported. The panel formed the view that whilst the Claimant had raised concerns, he had not engaged with attempts to resolve these formally or informally.[66]The Claimant was sent a letter informing him that he was being dismissed with three months’ notice, with his last day on 8 November 2023. He was notified of his right to appeal (pages 457 to 459).[67]The Claimant responded to the panels’ email on 10 August 2023 as follows (pages 462 and 463), the Claimant’s comments in the original document are marked blue - these are shown in bold below: “Andrew I have just seen your email below, unfortunately, missed due to my ill health. Please find responses below. Apologies, for any poor or repetitive content and delay, due to these circumstances. I also wish to Appeal the decision reached and propose the below is also the basis of my appeal. If there is anything fundamental, additionally required, please advise and I request you take into account, that as before and for the Performance Management Probation Hearing, I remain in ill health and an unnecessary and onerous requirement for me to perform significant repetition or work regarding what has been extensively communicated and ignored to date and exacerbated my condition; is likely to significantly impact this, as I previously advised. AS and HR have all of the notes of meetings, issues, progress, communications, correspondence and documentation to date covering the entire period and related issues. I previously communicated this to AS then Joanna (HR) and requested a copy of the Case File with the evidence but was informed there wasn’t one, which itself seems a significant omission, given the very serious nature of the case and its continuing impact of my health, as a result of the issues. I have cc’d Tammy Lillie not Joanna who too is implicated in the poor management and malignment of the case and related evidence. Kind regards, Peter From: Andrew Mckean <andrew.mckean@metoffice.gov.uk> Sent: Monday, July 31, 2023 1:45 PM To: Peter Lawford <peter.lawford@metoffice.gov.uk> Cc: Glenn Greed <glenn.greed@metoffice.gov.uk>; Joanna Harris <joanna.harris@metoffice.gov.uk> Subject: Hearing panel questions Peter, As notified to you in our letter of 21st July, a Hearing was held on Monday 31st July at 10.30 am. You informed us of your decision not to attend in your emails dated 26th July and 27th July, however as you did not offer an alternative date within 5 days of the original hearing date we proceeded with the hearing as planned and you were notified of this (PL1: Due to ill health) The panel base their decision on all available evidence and have a strong preference to include evidence from you if possible. As such they want to offer you the opportunity to address the panel questions which are outlined below. These are questions you would have been asked in the hearing had you attended. The panel would also like to offer you the opportunity to proceed with the Occupational Health assessment that has been previously offered to you. We note that you did not give your consent previously but the Panel feels this will provide an opportunity to better understand what adjustments, if any, that could be made to facilitate your return to work. For both the consent to the Occupational Health assessment and the response to the questions, please can you provide these by no later than 5pm on Wednesday 2nd August. (PL2: Please as previously notified, refer to my case file and communications regarding these issues, that I have written and rewritten numerous times and which have been completely ignored during these various ‘HR/Management’ processes.) To keep asking me to rewrite exactly the same information time and again is simply exacerbating my condition and it appears likely this is either a deliberate strategic or tactical approach, used to gain advantage). I also requested, as per Policy, due to a clear and worsening Conflict of Interest and mistrust and escalation that another manager, other than my Line Manager (AS) be responsible for my case. Again I had no response. Regards, Andrew Hearing Panel questions Do you consider your ill health to be caused by your work at the Met Office? If so, in what way? (PL3: Please see PL2 above, which I also referred to with my email submissions, concerning the Performance Management Hearing yet again, apparently ignore, not reasonably investigated or responded too?) Do you think you will be able to return to work at the Met Office in the near future? If so, what sort of time frame? (PL4: This is significantly dependent on the denial, lack of responses, bullying and harassing approach and mistrust generated via my work at the Met Office, as set out via PL2). Why have you refused to proceed with the Occupational Health Assessment? (PL5: Please see PL3) If you have decided not to give consent on this email, what would be required to allow you to proceed with the Occupational Health assessment? (PL6: Please see PL3) What is your grievance – can you briefly outline the specific key issues and what resolution/outcome you are seeking this? (PL7: Please see PL3 & PL10). Briefly: Lack of reasonable or effective management support or interest when I raised serious issues regarding lack of cooperation, information and documentation from key stakeholders (incl. buddies and managers); working to ‘process’ yet to be defined (‘guinea pig’ reference), bullying and harassing behaviours, evidenced and communicated with witnesses (emails), Why did you choose not to progress in raising your grievance via the MO formal route as requested? (PL8: Please see PL3). I was told that this should be done after the other related processes were complete. At this time I was told no Performance Management for my Probation was to be performed and was shocked when this came out of the blue. Why did you engage in some work activities, while off sick? For example, email a colleague (Jodie, 3rd May) and like a teams post by your manager (26th May). (PL9: Please see PL3). That was the extent of it, yet it has similarly been misleading highlighted as if I was performing work, which again is definitely not the case. I was simply responding to either HR or AS communications at the time and glanced at adjacent threads and made a simple helpful comment, as I generally do? Why are work facilities your preferred form of communication, when keeping in touch with your manager and HR? (PL10: Please see PL3 & PL7). Because of the increasingly serious issues and related concerns I have experienced throughout and that continue, as evidenced per Hearing Notes i.e. lack of knowledge, training, governance, processes, support & guidance, ignoring / not responding to my issues, denials, obfuscation, bullying, gaslighting & harassing behaviour, out-of-the-blue reversals of decisions, misleading and attributing blame to me e.g. OH Referral, etc. it seemed inane to significantly exacerbate these already complex issues and impact on my health by utilising yet another set of systems and communications, with the risk of further complexity and confusion of communications trails to date. Perhaps you could find out, why this issue is still being pursued with such significant importance, as at best it seems to be yet another spurious opportunity at an attempt to paint me in a poor light for no significant reason, other than maligning, misleading, misdirection and exaggerated claims? (PL11: Please let me know if you have any further questions.)”[68]Instead of substantively engaging with the question, many of his answers were simply cross references to “PL3”, which itself referred to “PL2”, which in substance said he did not want to rewrite things as he had already explained. He did not engage with question of when he might be able to return to work, only saying “This is significantly dependent on the denial, lack of responses, bullying and harassing approach and mistrust generated via my work at the Met Office” and again cross referring to the paragraph quoted above. He did not take up the offer of an Occupational Health referral. Appeal[69]The Claimant’s email of 10 August 2023 stated he wished to appeal the dismissal.[70]The Claimant sent a number of emails requesting that the Respondent pull together his “correspondence to date” (page 471) to form a common case file. The Respondent responded suggesting that if he wished to do so, the Claimant could make a data subject access request (page 476). The Respondent pointed out that the Claimant still had access to his email account and had not specifically identified a document that he required (page 482). The Respondent stated that it would endeavour to provide any specific document he requested (page 483).[71]Ms Harris (Programmes Director of Finance for the Respondent) was appointed as chair of the appeal hearing, with Will Lang (Head of Situational Awareness) also on the appeal panel. On 18 August 2023 the Claimant was invited to an appeal hearing which was to take place on 31 August 2023 (page 484). He was notified of his right to be accompanied. The letter stated that the panel would consider submissions and evidence provided by the Claimant.[72]The Claimant made a data subject access request. At the Claimant’s request, the appeal hearing was delayed to enable the Claimant to receive the documents by way of data subject access request.[73]The Claimant indicated by email on 9 October 2023 that he would be willing to consent to an Occupational Health assessment, provided it was on a “reasonable basis” (page 524). The Respondent clarified on 19 October 2023 (page 524) that the Occupational Health referral would cover timeline for return to work, adjustments and support needed, a return-to-work plan and any services or resources which could be used to help the Claimant return to his post following a breakdown in the relationship between him and his manager. The Claimant was requested to provide his contact details by 26 October 2023 to progress this. The Claimant responded on 20 October 2023 asking how his concerns regarding the content of the original referral were being dealt with (page 532 and 534). This was understood by the Respondent to be a refusal to consent.[74]The Claimant provided a 12-page appeal submission on 31 October 2023 (pages 545 to 556). The submission did not address the Claimant’s current state of health or his view on when he might be in a position to return. The majority of its content re-iterated his concerns regarding the induction, role, and individuals. In relation to the dismissal process, he stated: “The PMP-I Hearing was based on the direct opinion of the one person actually responsible for managing the issues raised and with a substantial COI, that was again raised and ignored. The Hearing did not reasonably investigate, include or address the specific reasons, criteria, measures, evidence, context and details related to apparent poor performance, behaviour and dismissal, nor the highly dependent mitigating circumstances and evidence available and was asked to consider.” (page 554). The Claimant submitted a bundle of 300 pages, which consisted of previous interactions with individuals at the Respondent. It did not include any information related to his health, likely return to work or support that might be required.[75]The appeal hearing took place on 6 November 2023 (the notes of the meeting are at pages 860 to 864). The Claimant attended and Mr McKean attended to put forward the position of the dismissing panel. The Claimant’s oral submission focussed on his grievances and complaints in relation to the time when he had been at work. He did not put forward any new information related to his health, give any timeframe when he could return to work or point to support or adjustments that could now be provided which would enable a return to work (although he covered historic points in relation to his induction and support in that regard).[76]The decision of the appeal panel was that they upheld the dismissal decision. This was confirmed in a letter dated 8 November 2023 (page 869). The panel considered (based on the outcome letter and the evidence of Ms Harris) that: 76.1. there had been no failures to follow the Respondent’s processes; 76.2. none of the information or points that the Claimant had raised during the appeal process were new. These had already been considered by the panel at the original hearing; 76.3. there was no information as to when the Claimant may be able to return to work or what adjustments could be made to support him back to work; 76.4. the fit notes that had been provided by the Claimant were for short periods of time but did not give any information other than he was suffering from mixed anxiety and depression; and 76.5. the Claimant had been given a number of opportunities to attend Occupational Health following the original referral which he had objected to. Direct Discrimination[77]The Claimant has made a complaint of direct discrimination, under section 13(1) of the Equality Act 2010 (“EqA”): “13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[78]As set out in Ayodele v Citylink Ltd & Anor [2017] EWCA Civ 1913, the following three issues may arise in respect of any specific complaint of discrimination: “(1) Did the alleged act occur at all? (2) If it did occur, did it amount to less favourable treatment of the claimant when compared with others? (3) If there was less favourable treatment, what was the reason for it? In particular, was that reason discriminatory? Accordingly, there may be cases in which the tribunal never has to address question (3), because it is not satisfied that it has been proved on the evidence that the alleged act took place at all; or it may not be satisfied that there was less favourable treatment.”[79]Direct discrimination is based on comparative treatment. It must be established that the Claimant was treated “less favourably” than someone else, who will be either an actual person or a hypothetical person.[80]In order to establish less favourable treatment, like must be compared with like. The actual or hypothetical comparator must be in materially the same circumstances as the claimant, save that they do not share the protected characteristic. This is set out in section 23 EqA: “23 Comparison by reference to circumstances(1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.(2) The circumstances relating to a case include a person's abilities if— (a) on a comparison for the purposes of section 13, the protected characteristic is disability”[81]Identifying a comparator is a question of fact for the Tribunal: Hewage v Grampian Health Board [2012] UKSC 37.[82]In Dr Nicholas Jones v The Secretary of State for Health and Social Care: [2025] EAT 76 HHJ Tayler set out the questions which may arise in relation to a direct discrimination complaint as follows: “35.1. What is the relevant treatment 35.2. Was that treatment different to that of another person 35.3. Were there any material differences between the circumstances of the claimant and any such other person? (where there are no material differences in circumstances the other person is an actual comparator – where there are material differences, but the circumstances are sufficiently similar in a more general sense, the other person may be an evidential comparator, whose treatment may assist in deciding whether to draw an inference of discrimination) 35.4. Was the claimant treated differently to how another person would have been treated? (in such circumstances that theoretical person is often described as a hypothetical comparator) 35.5. Are their facts from which the Employment Tribunal could conclude, in the absence of any other explanation, that the respondent breached the EQA 35.6. If so, has the respondent shown that it did not contravene the EQA”[83]Even if the Claimant is treated less favourably than an appropriate comparator, it must have been because of the protected characteristic. This requires the Tribunal to determine the “reason why” the Claimant was treated less favourably. This does not mean that the comparator issue is a threshold to be crossed before “the reason why” is addressed. “[T]his sequential analysis can give rise to problems because sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined” [8]: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11.[84]Discrimination is only made out if the protected characteristic had a “significant influence on the outcome”: Nagarajan v London Regional Transport [1999] 4 All E.R. 65. Nagarajan also set out that subconscious intention was sufficient in relation to direct discrimination.[85]Lord Nicholls in West Yorkshire Police v Khan [2001] ICR 1065 made clear that the “reason why” is very different to the question of causation. The Tribunal must make a finding of fact about why the person acted as they did: “29…..Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach…The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”[86]In relation to a direct disability discrimination complaint in Cordell v Foreign and Commonwealth Office [2012] I.C.R. 280, it was found that the disability itself must be the reason for the treatment, not something related to a disability. Discrimination arising from Disability[87]The provision relating to discrimination arising from disability is set out at section 15 EqA: “15 Discrimination arising from disability(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.” 64. Pursuant to Trustees of Swansea University Pension and Assurance Scheme and anor v Williams [2018] UKSC 65, there is a relatively low threshold required to establish unfavourable treatment and engage section 15 EqA. It is an analogous to concepts of disadvantage and detriment. 65. Mr Justice Langstaff explained the approach Tribunals should take to establishing causation in Basildon and Thurrock NHS Foundation Trust v Weerasinghe 2016 ICR 305, EAT, as follows. “26. The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something”, and therefore has to identify “something” — and second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages. In addition, the statute requires the Tribunal to conclude that it is A's treatment of B that is because of something arising, and that it is unfavourable to B. I shall return to that part of the test for completeness, though it does not directly arise before me. 27. In my view, it does not matter precisely in which order the Tribunal takes the relevant steps. It might ask first what the consequence, result or outcome of the disability is, in order to answer the question posed by “in consequence of”, and thus find out what the “something” is, and then proceed to ask if it is “because of” that that A treated B unfavourably. It might equally ask why it was that A treated B unfavourably, and having identified that, ask whether that was something that arose in consequence of B's disability. 28. The words “arising in consequence of” may give some scope for a wider causal connection than the words “because of”, though it is likely that the difference, if any, will in most cases be small; the statute seeks to know what the consequence, the result, the outcome is of the disability and what the disability has led to.” 66. Mrs Justice Simler also dealt with the question of causation in Sheikholeslami v University of Edinburgh 2018 IRLR 1090, EAT, in which she said: “this provision requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) something? and (ii) did that something arise in consequence of B’s disability? The first issue involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.” 67. In the same case, Mrs Justice Simler stated that in relation to determining whether the “something” arose in consequence of the disability, “The critical question was whether on the objective facts, her refusal to return [the “something”] arose in ‘consequence of’ (rather than being caused by) her disability. This is a looser connection that might involve more than one link in the chain of consequences.” Justification[88]Turning to objective justification, considering whether an action is objectively justified under section 15 EqA involves “weighing the employer's justification against the discriminatory impact. To do that, [the Tribunal] must engage in what is called critical scrutiny, considering whether the means correspond to a real need of the undertaking, are appropriate with a view to achieving the aim in question, and are necessary to that end….. while the test is an objective one and not a band of reasonable responses test, the authorities also establish that the test as to whether the measure is “necessary” does not mean that the employer must show that it was the only course open to it in order to achieve its aim. It effectively means “reasonably necessary”, as judged by the tribunal.” Stott v Ralli Ltd 2022 IRLR 126, EAT.[89]The Equality and Human Rights Commission Code sets out that, in order to be a “legitimate aim”, the aim should be “legal, should not be discriminatory in itself, and must represent a real, objective consideration.” (paragraph 4.28).[90]Seldon v Clarkson Wright and Jakes (A Partnership) 2012 ICR 716, SC noted that aims had to be relevant to the particular circumstances of the employment in question. “Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned. For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned. Avoiding the need for performance management may be a legitimate aim, but if in fact the business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for only one section of the workforce.” [61][91]In the context of an indirect discrimination complaint, but which can be applied in relation to discrimination arising from disability, in the case of NSL Ltd v Zaluski 2024 EAT 86, HHJ Auerbach summarised the authorities as follows: “76. However, the following particular points emerging repeatedly from the authorities (I cite only some examples) also need to be kept in mind. Firstly, the PCP must be "appropriate" to the aim or aims found to have been legitimately relied upon, which means that it must be rationally connected to that aim or aims, in the sense of being logically capable of furthering them (see, for example, Homer at [20] and [22]). 77. Secondly, the respondent does not have to show that the application of the PCP or PCPs was necessary to the achievement of the aim, in the sense of there being no alternative way to do so. Rather, the question is whether it is reasonably necessary: Hardys & Hansons plc v Lax at [28]. However, the balancing exercise may therefore include consideration of whether there were reasonable alternatives to the imposition of a discriminatory PCP: Homer at [24]. Further, in the proportionality or balancing exercise, the impact of the PCP on the affected group must be weighed against the importance of the employer's need. The more serious the disparate impact, the more cogent the justification must be: Hardys & Hansons plc v Lax at [19]; Homer at [20] and [24].” Knowledge[92]The principles relating to knowledge of disability in the context of section 15 EqA were summarised by HHJ Eady QC, as she then was, in A Ltd v Z [2020] ICR 199 (EAT) as follows. “(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39. (2) The Respondent need not have constructive knowledge of the complainant’s diagnosis to satisfy the requirements of section 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person(a) suffered an impediment to his physical or mental health, or(b) that that impairment had a substantial and(c) longterm effect, see Donelien v Liberata UK Ltd UKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J. (3) The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant. (4) When assessing the question of constructive knowledge, an employee’s representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017] ICR 610, per His Honour Judge Richardson, citing J v DLA Piper UK LLP [2010] ICR 1052), and (ii) because, without knowing the likely cause of a given impairment, “it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so]”, per Langstaff P in Donelien EAT at paragraph 31. (5) The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code, which (relevantly) provides as follows: “5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a ‘disabled person’. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.” (6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v TC Group [1998] IRLR 628; SoS for Work and Pensions v Alam [2010] ICR 665). (7) Reasonableness, for the purposes of section 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.” Failure to make reasonable adjustments[93]The provisions relating to the duty to make reasonable adjustments are to be found in sections 20 and 21 of the EqA. “20 Duty to make adjustments(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. … (8) A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. … 21 Failure to comply with duty (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.”[94]The constituent elements of claims in respect of an alleged failure to make reasonable adjustments are set out in Environment Agency v Rowan [2008] IRLR 20 EAT at paragraph 27. Before considering whether any proposed adjustment is reasonable, the Tribunal must identify:(i) the provision, criterion or practice applied by or on behalf of the employer (or the physical feature if applicable);(ii) the identity of the non-disabled comparators (where appropriate); and(iii) the nature and extent of the substantial disadvantage suffered by the claimant. Rowan was specifically approved by the Court of Appeal in Newham Sixth Form College v Sanders [2014] EWCA Civ 734. The matter to be identified at (i) would now also include the relevant auxiliary aid as a third alternative.[95]As set out in Newham Sixth Form College, “these three aspects of the case -- nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustments -- necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and the extent of the substantial disadvantage imposed upon the employee by the PCP. Thus an adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage” [14].[96]Per HHJ Richardson at para 37 of General Dynamics Information Technology Ltd v Carranza UKEAT/0107/14 KN: “The general approach to the duty to make adjustments under section 20(3) is now very well-known. The Employment Tribunal should identify(1) the employer's PCP at issue;(2) the identity of the persons who are not disabled with whom comparison is made; and(3) the nature and extent of the substantial disadvantage suffered by the employee. Without these findings the Employment Tribunal is in no position to find what, if any, step it is reasonable for the employer to have to take to avoid the disadvantage. It is then important to identify the "step". Without identifying the step it is impossible to assess whether it is one which it is reasonable for the employer to have to take”.[97]In Nottinghamshire City Transport Ltd v Harvey [2013] EqLR 4 EAT, the EAT found that the Tribunal had erred by identifying the one-off application of a flawed disciplinary process to the Claimant as something falling within a PCP: ““Practice” has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply….19. Given the fact, as it is conceded by Mrs Parkes to be, that there was no evidence here that the employer made a practice of holding disciplinary hearings in a way that eliminated consideration of mitigation or in a way in which there was no reasonable investigation, it seems to us that there was no sufficient evidence to show that the application of the Respondent's disciplinary process in the case of the Claimant was a provision, criterion or practice. It was something that represented unfair treatment of him, as the finding by the Tribunal in respect of unfair dismissal recognises, but not all unfair treatment involves a failure to adjust that which is a provision, criterion or practice.20. … A one-off application of the Respondent's disciplinary process cannot in these circumstances reasonably be regarded as a practice; there would have to be evidence of some more general repetition, in most cases at least.”.[98]In Ishola v Transport for London [2020] EWCA Civ 112, the Court of Appeal confirmed this approach: “37. In my judgment, however widely and purposively the concept of a PCP is to be interpreted, it does not apply to every act of unfair treatment of a particular employee. That is not the mischief which the concept of indirect discrimination and the duty to make reasonable adjustments are intended to address. If an employer unfairly treats an employee by an act or decision and neither direct discrimination nor disability related discrimination is made out because the act or decision was not done/made by reason of disability or other relevant ground, it is artificial and wrong to seek to convert them by a process of abstraction into the application of a discriminatory PCP.38. In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that "practice" here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or "practice" to have been applied to anyone else in fact. Something may be a practice or done "in practice" if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.39. In that sense, the one-off decision treated as a PCP in Starmer is readily understandable as a decision that would have been applied in future to similarly situated employees. However, in the case of a one-off decision in an individual case where there is nothing to indicate that the decision would apply in future, it seems to me the position is different. It is in that sense that Langstaff J referred to "practice" as having something of the element of repetition about it. In the Nottingham case in contrast to Starmer, the PCP relied on was the application of the employer's disciplinary process as applied and (no doubt wrongly) understood by a particular individual; and in particular his failure to address issues that might have exonerated the employee or give credence to mitigating factors. There was nothing to suggest the employer made a practice of holding disciplinary hearings in that unfair way. This was a one-off application of the disciplinary process to an individual's case and by inference, there was nothing to indicate that a hypothetical comparator would (in future) be treated in the same wrong and unfair way.”[99]As set out in Thompson v Vale of Glamorgan Council EAT 0065/20 by the EAT: “The Tribunal should identify the nature and extent of the “substantial disadvantage” caused by a PCP before considering whether any proposed step was a reasonable one to have to take… There must obviously be some causative nexus between disabilities relied on and the “substantial disadvantage”; the tribunal should look at the “overall picture” when considering the effects of any disabilities.”[100]The duty to make adjustments only arises in respect of those steps that it is reasonable for the employer to take to avoid the disadvantage experienced by the disabled person. The test of reasonableness is an objective test, which is for the Tribunal to determine based on its own assessment of what was reasonable (Smith v Churchills Stairlifts plc 2006 ICR 524, CA).[101]In Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 CA, the Court of appeal made the following comments regarding assessing reasonableness “Paragraphs 6.23 to 6.29 of the Code give guidance as to what is meant by “reasonable steps” and paragraph 6.28 identifies some of the factors which might be taken into account when deciding whether a step is reasonable. They include the size of the employer; the practicability of the proposed step; the cost of making the adjustment; the extent of the employer’s resources; and whether the steps would be effective in preventing the substantive disadvantage. So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed” [29].[102]An important factor in assessing reasonableness is the question of whether the adjustment would be effective. The Tribunal must engage with the question of the prospects of success of the claimant’s proposed adjustments. Not to do so is an error of law (North Lancashire Teaching Primary Care NHS Trust v Howorth EAT 0294/13 at paragraph 37). Knowledge[103]Paragraph 20(1) of Schedule 8 to the EqA provides that: “A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know…that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement”.[104]In relation to a complaint of a failure to make reasonable adjustments, it is a defence if the employer did not have actual knowledge and could not be reasonably be expected to know (also commonly referred to as not having constructive knowledge) of(i) the disability; and(ii) the disadvantage created by the PCP, physical feature or lack of an auxiliary aid.[105]The principles relating to knowledge of disability set out in A Ltd v Z (see above at paragraph 92) can be applied to reasonable adjustments. The parts of the summary set out which relate to constructive knowledge of disability are also applicable to constructive knowledge of disadvantage in relation to a failure to make reasonable adjustments complaint. Burden of proof in relation to EqA complaints[106]The provisions relating to the burden of proof are to be found in section 136 of the EqA: “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[107]Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC: the claimant is required to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Tribunal could infer an unlawful act of discrimination.[108]Igen v Wong [2005] EWCA Civ 142 remains the leading authority in relation to the application of the burden of proof set out in section 136 EqA in relation to discrimination cases. It is not sufficient for the claimant simply to prove facts from which the tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. It is clear that the claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the respondent did commit an unlawful act of discrimination it can.[109]It is not sufficient to shift the burden of proof (in relation to a direct discrimination complaint) for a claimant to show only a difference in status and a difference in treatment. These are bare facts which only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. (Madarassy v Nomura International Plc [2007] EWCA Civ 33).[110]Madrassy further sets out that “could conclude” “must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage (which I shall discuss later) the tribunal would need to consider all the evidence relevant to the discrimination complaint”.[111]In Artem Limited v Edwins [2024] EAT 136 this was also emphasised by HHJ Tayler, who stated that in relation to considering whether there was sufficient evidence to shift the burden of proof “an Employment Tribunal should not ignore evidence that suggests discrimination. However, I should also add that it is important that Employment Tribunals do not ignore evidence that suggests there has not been discrimination. What must be ignored at the first stage is any exculpatory explanation for the treatment.”[112]HHJ Tayler considered the interrelationship between the use of comparators and the shifting burden of proof in Virgin Active v Hughes [2023] EAT 130: “61. In many direct discrimination claims the claimant does not rely on a comparison between his treatment and that of another person. The claimant relies on other types of evidence from which it is contended that an inference of discrimination should be drawn, the comparison being with how the claimant would have been treated had he had some other protected characteristic. 62. In other cases, the claimant compares his treatment with that of one or more other people. There are two ways in which such a comparison may be relevant. If there are no material differences between the circumstances of the claimant and the person with whom the comparison is made (the person is usually referred to as an actual comparator), this provides significant evidence that there could have been discrimination. However, because there must be no material difference in circumstances between a claimant and a comparator for the purpose of section 23 EQA it is rare that a claimant can point to an actual comparator. The second situation in which a comparison with the treatment of another person may provide evidence of discrimination is where the circumstances are similar, but not sufficiently alike for the person to be an actual comparator. The treatment of such a person may provide evidence that supports the drawing of an inference of discrimination, sometimes by helping to consider how a hypothetical person whose circumstances did not materially differ to those of the claimant would have been treated (generally referred to as a hypothetical comparator). Evidence of the treatment of a person whose circumstances materially differ to those of the claimant is inherently less persuasive than that of a person whose circumstances do not materially differ to those of the claimant. … 67. If anything more is required to shift the burden of proof when there is an actual comparator it will be less than would be the case if a claimant compares his treatment with a person whose circumstances are similar, but materially different, so that there is not an actual comparator.”[113]Per Igen, in which the Court of Appeal approving the revised “Barton Guidance” if the burden of proof has moved to the respondent: “10) It is then for the respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act. 11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [the protected characteristic]... 12)That requires a tribunal to assess not merely whether the Respondent has proven an explanation for the facts from which such inferences can be drawn, but further 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.” [76][114]In relation to a complaint of discrimination arising from disability, in order to establish a prima facie case of discrimination, the claimant has the burden of proving(i) that they were treated unfavourably by the employer;(ii) that the “something” they rely on arose as a consequence of disability. If these elements are established and there are facts from which it could be inferred that the “something” was the reason for the unfavourable treatment, the burden of proof will shift to the respondent (Pnaiser v NHS England 2016 IRLR 170, EAT).[115]In relation to a complaint of a failure to make reasonable adjustments, establishing that there is a provision, criterion or practice (“PCP”) and demonstrating that this caused substantial disadvantage to the claimant, “[t]hese are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant.” [45] Project Management Institute v Latif 2007 IRLR 579, EAT. However, proving these is not sufficient to shift the burden of proof to the Respondent. Unless there is evidence before the Tribunal of an adjustment which at least on its face appears reasonable and which would mitigate or eliminate the disadvantage, the burden does not shift to the respondent (paragraphs 49 and 53, Latif).[116]If the burden does shift to the respondent, it must then show why it was not reasonable to make the relevant adjustment and/or the question of whether the proposed adjustment would have removed the disadvantage. Time Limits[117]Section 123 EqA provides that:[123]Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”118. Section 140B EqA permits an extension of time where ACAS early conciliation is undertaken: “In this section— (a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and (b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section. (3) In working out when the time limit set by section 123(1)(a) or 129(3) or (4) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If the time limit set by section 123(1)(a) or 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) The power conferred on the employment tribunal by subsection (1)(b) of section 123 to extend the time limit set by subsection (1)(a) of that section is exercisable in relation to that time limit as extended by this section.119. If the claim is brought outside of the three-month time limit, the Tribunal must make a determination in relation to section 123(1)(b) EqA: whether the claim has been brought within “such other period as the employment tribunal thinks just and equitable”. Conduct extending over a period120. For the purposes of calculating time limits, 123(3)(a) EqA refers to the concept of “conduct extending over a period” in relation to which the time will start to run at the end of that period. The case of Commissioner of Police of the Metropolis v Hendricks [2002] EWCA Civ 1686, related to predecessor legislation, but can be applied in relation to 123(3)(a) EqA regarding the concept of conduct extending over a period as follows. “52. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period”. I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the service were treated less favourably. The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”121. Conduct extending over a period may as a matter of law relate to more than one different protected characteristic – there is no requirement that the conduct relates to the same protected characteristic (Worcestershire Health and Care NHS Trust v Allen 2024 EAT 40).122. The EAT in South Western Ambulance Service NHS Foundation Trust v King [2020] IRLR 168 made clear that any act which is found not to be an act of discrimination cannot be part of a continuing act. The claimant cannot rely on acts which are found by the Tribunal not to be breaches of the EqA for the purposes of establishing conduct extending over a period. When does time start to run in relation to reasonable adjustments? 123. Under s123(4) EqA, in the absence of evidence to the contrary, the employer is to be taken as deciding not to do something either when it does an act inconsistent with doing it, or if there is no inconsistent act, on the expiry of the period in which it might reasonably have been expected to do it.[124]In in Fernandes v Department for Work and Pensions EAT [2023] 114, the EAT summarised the position established in the leading cases of Matuszowicz v Kingston Upon Hull City Council [2009] IRLR 288 and Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 as follows at paragraph 16. “The principles set out in the existing authorities amount to the following propositions:a. The duty to make an adjustment, under the statutory scheme, arises as soon as there is a substantial disadvantage to the disabled employee from a PCP (presuming the knowledge requirements are met) and failure to make the adjustment is a breach of the duty once it becomes reasonable for the employer to have to make the adjustment.b. Where the employer is under a duty to make an adjustment, however, limitation may not begin to run from the date of breach but at a later notional date. As is the case where the employer is under a duty to make an adjustment and omits to do so there will be a notional date where time begins to run whether the same omission continues or not.c. That notional date will accrue if the employer does an act inconsistent with complying with the duty.d. If the employer does not act inconsistently with the duty the notional date will accrue at a stage where it would be reasonable for the employee to conclude that the employer will not comply, based on the facts known to the employee.” Should the Tribunal use its discretion to extend time?[125]The Court of Appeal in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 summarised the position at paragraphs 18 and 19: “[18] … It is plain from the language used (“such other period as the employment tribunal thinks just and equitable”) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the equality act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in the circumstances to put a gloss on the words of the provision or to interpret it as if it contained such a list … [19] that said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).”[126]Legatt LJ went on to say [25] “As discussed above, the discretion given by section 123(1) of the Equality Act 2010 to the employment tribunal to decide what it “thinks just and equitable” is clearly intended to be broad and unfettered. There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard.”. Direct Discrimination: Discussion and
Conclusions
[127]The Tribunal considers that the material circumstances which should be attributed to the hypothetical comparator are a person who is not disabled but has the same level of absence, on a fixed term contract of 21 months who had provided the same level of information in relation to their health (i.e. no medical reports from their own doctor indicating a possible date of return and no Occupational health information).[128]The Tribunal finds that the hypothetical comparator would have been dismissed, and their appeal would not have been upheld. As such, the Tribunal finds that the Claimant has not been less favourably treated. This finding is based on the evidence of Mr McKean and Ms Harris. Based on their evidence, the Tribunal finds that that the reason for the dismissal was that the Claimant had been absent from work for three months, and the Respondent had no information from which it could assess whether and when the Claimant might return to work and what kind of steps or adjustments could be taken to enable this return to take place. In the circumstances it was felt that there was no other option than dismissal. The Tribunal finds that the same considerations would have applied to the hypothetical comparator who would have been treated in the same way.[129]There was simply no prima facie evidence of and conscious or subconsciously motivated direct discrimination. We asked the Claimant, and he could not point to anything other than a failure to follow process. The Tribunal has not found any failure on the Respondent’s part to follow process. In relation to the grievance process, it was reasonable to ask the Claimant to specifically identify the grievance he wanted to raise formally and the resolution he was seeking. Taking all of the circumstances into account, the Tribunal considered that there was nothing from which it could conclude that there had been direct discrimination. The burden does not shift to the Respondent. Even if it had shifted, the Tribunal finds that the “reason why” for the relevant treatment was the Claimant’s absence, there being no indication of when or if the Claimant might return as well as no indication of the steps or adjustments that would facilitate a return (due to the Claimant’s refusal to engage with Occupational Health).[130]The complaint of direct discrimination is not well founded and is dismissed. Discrimination arising from disability: Discussion and
Conclusions
[131]It is agreed between the parties that 131.1. the Claimant was dismissed and that his appeal was not upheld; 131.2. these are both acts of unfavourable treatment; 131.3. they were because of the Claimant’s absences from work; and 131.4. the Claimant’s absence arose from his disability.[132]This leaves the Tribunal to determine whether the Respondent can objectively justify the dismissal and failure to uphold the Claimant’s appeal.[133]The Tribunal considers that the Respondent’s aim of effectively managing sickness absence is a legitimate aim. It is not discriminatory in itself and it represents a real, objective consideration for the Respondent’s business. It is of particular relevance in a public sector organisation where taxpayers’ money is being spent.[134]The Tribunal must consider whether the treatment complained of was an appropriate and reasonably necessary way to achieve the aim of effectively managing sickness absence. The Tribunal takes the following into account.[135]Even though Ms Semple had given the Claimant an indication that the probationary meeting would be delayed, the circumstances changed when the Claimant ceased engaging with the Respondent and did not consent to Occupational Health input. The Respondent then invited the Claimant to the informal health review, giving a clear indication in the correspondence that the Respondent might need to consider the Claimant’s ongoing employment in light of his absence. It could not therefore have been a surprise when the formal meeting followed that informal meeting. This was a reasonable approach to take.[136]The Tribunal considers that the Respondent made several efforts to resolve the Claimant’s grievances informally by offering internal and third-party mediation. It was reasonable to ask the Claimant to clarify what his grievance was before it could be resolved formally. The Claimant was asked to do so numerous times and did not provide the information requested by the Respondent. It is not reasonable to expect the Respondent to identify from the Claimant’s voluminous and lengthy correspondence what his grievance was and how he wanted it to be resolved. It is for the Claimant to do so. The Tribunal considers that the Respondent took all the steps a reasonable employer could take to address the Claimant’s concerns. The Tribunal considered Ms Semple made sympathetic, genuine and ongoing attempts to seek resolution in the face of the Claimant’s constant criticism of the Respondent’s processes and employees. Without the Claimant’s engagement, it could not be taken any further[137]In relation to the dismissal itself. The Respondent found itself in circumstances where the Claimant had only been actively working for a period of 7 weeks. He was then off sick for three months. He was employed on a fixed term of 21 months. The Claimant had not provided any input into the dismissal meeting. The Respondent had asked the Claimant to give consent to Occupational Health input which he had refused, even after Ms Semple had offered to remove the part of the referral which he objected to. The Tribunal consider that there was nothing inappropriate in relation to the initial referral, but it was nevertheless a helpful step for the Respondent to take to offer to remove it.[138]The dismissal panel took into account the relevant information before it. It considered what could be done to facilitate a return. It gave the Claimant a further opportunity to consent to Occupational Health input, which the Claimant did not take up. It sent the Claimant questions when he did not attend. The Tribunal considers that if the Claimant had engaged with the Respondent positively at this point, there was every chance he would not have been dismissed.[139]The Claimant did not attend the hearing to put his position forward; he did not make written representations or ask for more time to do so. When he did provide his input, it did not provide clear answers to the questions he was asked, merely referring to all the correspondence which had gone before. Crucially, the Claimant did not give any indication of the time period within which he was likely to return to work. It is not for the Respondent to trawl all former emails and interactions to put the Claimant’s position for him. If the Claimant wanted the panel to take into account any particular documents he should have provided or identified them (such as by date and recipient) as part of his submission.[140]There was no indication of whether or if the Claimant could return and all reasonable attempts had been made to resolve the grievance, and obtain Occupational Health input regarding an anticipated return and recommended adjustments. Managing the Claimant’s absence was taking significant management input by Ms Semple, who was also having to take on board parts of the Claimant’s role, which others were having to undertake in the Claimant’s absence. The Tribunal finds a dismissal did strike the appropriate balance between the Claimant’s and the Respondent’s needs.[141]In relation to the appeal, again this was a fair process. The Respondent considered the Claimant’s 12-page appeal and 300 pages of evidence. However, these were primarily related to the Claimant’s grievances with the Respondent. The Claimant still did not provide the relevant information: namely any medical information which indicated a timescale for return. The Respondent offered the Claimant another opportunity to engage with Occupational Health but still he did not do so. As such, the circumstances which were relevant to the dismissal in relation to the Claimant’s absence remained unchanged. The dismissal of the appeal struck the right balance between the needs of the Claimant and the Respondent in all of the circumstances.[142]The Tribunal finds that the treatment complained of was an appropriate and reasonably necessary way to achieve the Respondent’s aim.[143]The Tribunal does not, therefore, need to go on to make a finding regarding knowledge of disability.[144]The complaint of discrimination arising from disability is not well founded and is dismissed. Reasonable adjustments[145]The first consideration in relation to this complaint is whether or not it is in time. In determining the date from which time starts to run, the Tribunal must identify the date on which the period expired in which the Respondent might reasonably have been expected to make the relevant adjustments.[146]The pleaded adjustments are: a clear explanation as to his job duties and functions; an appropriate and reasonable induction process; adequate training to complete his job roles and functions; and the provision of a “buddy” who was willing to assist and support him. All of the relevant adjustments relate to an induction and things that should have been provided by the Respondent in the induction period. The Claimant’s oral evidence was that he had concluded within a week or two that the Respondent was not providing these adjustments, which is why he started to raise issues regarding this.[147]In the circumstances of this case, the Tribunal considers that 14 April 2023 is the appropriate date. This marks, in the Tribunal’s finding, the end of a reasonable period of induction. Therefore, the Tribunal consider it is the notional date on which it would be reasonable for an employee to conclude that the employer will not comply, based on the facts known to the employee. This means that the three-month time period for making complaint of a failure to make reasonable adjustments ended on 13 July 2023. The ACAS conciliation having commenced on 8 November 2023, and the claim having been presented on 19 January 2024, this complaint was not presented within three months. It does not form part of a series of similar acts – only acts found to be a breach of the EqA can be taken into account, as such there are no other acts which can form part of a series. The Tribunal must therefore consider whether it is just and equitable to extend time.[148]Merits can be taken into account when making a decision as to whether to extend time. In taking merits into account in relation to the balancing exercise, the Tribunal takes the following finding into account. Pleaded adjustment 5.7.1: a clear explanation as to his job duties and functions[149]The Claimant does not provide a clear indication of what he considers was unclear in relation to his job duties. Having heard the evidence and considered the documents the Tribunal finds as follows in relation to job duties. The Claimant was a senior and experienced contract manager. He was provided with a video outlining his role. He was provided with a Contract Management Responsibilities Matrix to understand the scope of his role. He was provided with how-to guides, albeit in draft format which detailed all stages of the new Contract Management Assurance Checklist and the key stages of activity and outlined an audit process. The Claimant is experienced enough to understand what the role of contract manager entails. He seemed to expect a level of guidance and detail that you would not expect someone of his level of seniority to require. He was not a new graduate with no experience in the role. The Respondent provided ample guidance from Ms Semple, Mr Evans, and Ms Potter. Some aspects of the Claimant’s role were being developed. It is reasonable for employers to expect a certain level of adaptability from their employees. The Tribunal does not uphold the Claimant’s unspecified assertion that there was a lack of clarity in the role. Pleaded adjustment 5.7.2: an appropriate and reasonable induction process[150]Considering the training referred to below, the resources in the “top 10” email, the provision of Mr Evans as a buddy, the level of interaction provided by Ms Semple as line manager, and the contacts across the business that she introduced him to for support. The Claimant had access to the resources, information and support he needed. It is reasonable to expect someone with the Claimant’s level of seniority and experience coming into a new role to utilise those tools appropriately. In relation to the contracts he wished to have access to, steps were being taken to ensure access. The Tribunal finds that the induction process was sufficient. Pleaded adjustment 5.7.3: adequate training to complete his job roles and functions[151]The Claimant underwent extensive online training in relation to a number of topics. He undertook the “GCF Contract Management Foundation Training”, which he completed shortly before his sickness absence commenced. Steps were being taken to secure the next level of this training. The Tribunal considers the training provided by the Respondent was sufficient. Pleaded adjustment 5.7.4: the provision of a “buddy” who was willing to assist and support him.[152]The Tribunal finds that the support provided by Mr Evans as a buddy was appropriate. He was responsive and helpful at all times. He gave the Claimant the relevant information or pointed him in the right direction. The Tribunal finds, based on the email interactions and Ms Semple’s evidence, that the Claimant’s perception of this relationship did not reflect the reality of the interactions between the Claimant and Mr Evans. The Claimant sought to bring his interactions with Mr Beighton into this head of “insufficient support from a buddy”. However, the Tribunal finds that Mr Evans support had already provided what the Tribunal considers was sufficient support in that respect. Conclusions[153]The Tribunal finds that the Claimant’s pleaded failure to provide the relevant adjustments are not factually made out. The Claimant’s pleaded PCP is that there was a chaotic introduction to the Claimant’s position, (including a lack of clarity with regard to the Claimant’s job duties; insufficient induction procedures; insufficient training; and insufficient support from a “buddy”). Based on the findings regarding the adjustments, the PCP is also not factually made out (to the extent that it could constitute a PCP, which the Tribunal does not make findings on, having not factually upheld it).[154]The Tribunal takes into account the Claimant’s illness affecting his ability to bring the complaint but also that the Claimant was able to draft the lengthy correspondence in the bundle during the same period. The length of the delay in making the claim was just over five months. Taking into account the failure to factually make out the pleaded complaint, in balancing the prejudice between the parties, it does not create significant prejudice to the Claimant to be prevented from pursuing an unmeritorious complaint, whereas it is more of a prejudice for the Respondent to defend an unmeritorious complaint.[155]Taking all of these factors into account, the Tribunal does not consider that it is just and equitable to extend time.[156]The complaint of a failure to make reasonable adjustments is out of time and is dismissed for want of jurisdiction. Approved by[1]The complaint of direct discrimination is not well founded and is dismissed.[2]The complaint of discrimination arising from disability is not well founded and is dismissed.[3]The complaint of a failure to make reasonable adjustments is out of time, it is not just and equitable to extend time. The complaint is dismissed for want of jurisdiction. Approved by