Employment Judge A.M.S. GreenIn person for claimantMr G Edwards (instructed by Solicitor) for respondentDate 2 May 2025
JUDGMENT
[1]The claims of direct disability discrimination and discrimination arising from disability were not presented within the applicable time limit, but it is just and equitable to extend the time limit. The claims will therefore proceed.[2]The complaint of direct disability discrimination is not well-founded and is dismissed.[3]The complaint of unfavourable treatment because of something arising in consequence of disability is not well-founded and is dismissed. JUDGMENT having been sent to the parties on 16 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:
REASONS
[1]The claimant was employed by the respondent, the UK postal service, as a driver from 11 January 2019 until he took early medical retirement in November 2024. He is claiming direct disability discrimination and discrimination arising from disability under sections 13 and 15 of the Equality Act 2010.[2]The claim was presented on 29 February 2024 after a period of early conciliation which started on 4 February 2024 and ended on 20 February 2024. Hearing[3]At the beginning of the hearing, I clarified the issues with the parties. It became apparent that the issues identified at the earlier case management hearing regarding the claim for discrimination arising from disability needed to be revisited. In particular, the “something” arising from the claimant’s disability had not been identified. After discussing this with the claimant, I updated the list of issues to address this.[4]We worked from a digital bundle.[5]The claimant and Mr Harry Wing (HW) adopted their witness statements and gave oral evidence.[6]I heard closing submissions from Mr Edwards and the claimant.
The claim
[7]The claimant alleges that he was indecently assaulted by a colleague, Curtis Spalding (CS) (who was also the late shift union representative) on 19 June 2023 at the end of a work shift. The incident occurred while the claimant was handing in his lorry keys to the office. Two meetings about the incident took place: one with the claimant's first-line manager, Jason Albarin (JA), and another with an independent manager and former first-line manager, Aaron Bramwell (AB). Written records were made of both meetings.[8]On 23 August 2023, the claimant received a letter stating that the matter had been referred to the senior manager, HW, for consideration, but no further response or resolution was provided, leaving the claimant to believe the case remained unresolved. The claimant also informed his area union representative but received no communication from the union, despite CS being a union representative who was aware of the claimant's health issues due to past representation.[9]The claimant claims that he has a disability under the Equality Act 2010, having suffered a heart attack in October 2020, and experiences PTSD and social anxiety. For the purposes of his claim, he relies on his heart disease as his disability; he clarified this at the hearing.[10]Occupational Health became involved in March 2023, resulting in a six-week absence and a phased return to work, with the claimant working four days a week from June 2023 onwards. The claimant was signed off sick from 25 January 2024 due to ongoing mental health symptoms and stress related to the incident and underwent an ablation procedure from a cardiologist.[11]The claimant feels that he has been treated unfairly and unequally, with insufficient action taken on a serious allegation. He reports detrimental effects on his mental and physical health, he feels disrespected, and wants the unresolved matter to be addressed. The response[12]The respondent has raised a preliminary issue concerning time limits. Under section 123 of the Equality Act 2010, any claims must be brought within three months of the act complained of. The claimant presented the claim on 29 February 2024, with ACAS early conciliation commencing on 4 February 2024. To the extent that the claim relates to matters before 4 November 2023, it may be out of time.[13]The respondent accepts that the claimant was disabled due to a heart condition from 19 June 2023 onwards.[14]The respondent accepts that the claimant had a heart attack in October 2020 and was absent periodically thereafter. The claimant’s working pattern was adjusted to four days per week from June 2023 following occupational health advice.[15]In June 2023, the respondent was informed of an altercation between the claimant and CS during a shift handover, involving mutual allegations of assault. The matter was initially reviewed by JA and then referred to senior manager HW. However, due to management oversight, the matter was not progressed under the formal conduct process.[16]Following the incident, the claimant and CS continued to work alongside one another. No further formal complaints or issues were raised in relation to the incident or process at that time.[17]The claimant went off work sick in January 2024, reportedly due to stress and/or issues related to the heart condition and remained absent.[18]The respondent denies that the failure to follow the formal process amounted to disability discrimination. It accepts that there was a failure, but states that this arose from a management oversight rather than discriminatory conduct.
The issues
[19]The issues were agreed at a case management hearing in October 2024. They are as follows: Time limits[20]The claim form was presented on 29 February 2024. The claimant commenced the Early Conciliation process with ACAS on 4 February 2024 (Day A). The Early Conciliation Certificate was issued on 20 February 2024 (Day B). Accordingly, any act or omission which took place before 14 November 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.[21]Were the discrimination complaints made within the time limit in section123 of the Equality Act 2010? The Tribunal will decide:a. Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act or omission to which the complaint relates?b. If not, was there conduct extending over a period?[22]If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?[23]If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:a. Why were the complaints not made to the Tribunal in time?b. In any event, is it just and equitable in all the circumstances to extend time? Disability[24]The claimant’s disability (his heart condition) was admitted in paragraph 10 of the Response. The other mental impairments referred to in the Claim Form, PTSD and social anxiety, are not relied upon for the purposes of the complaints set out below. Direct disability discrimination (Equality Act 2010 section 13)[25]Did the respondent and/or its servant or agent, CS, do the following things: a. Indecently assault the claimant on 19 June 2023; provide an outcome to it.[26]Was that less favourable treatment? The Tribunal will have to decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the claimant. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The claimant has not named anyone in particular who he says was treated better than he was and therefore relies upon a hypothetical non-disabled comparator.[27]If so, was it because of disability?[28]Is the respondent able to prove a reason for the treatment occurred for a nondiscriminatory reason not connected to disability? Discrimination arising from disability (Equality Act 2010 section 15)[29]Did the respondent treat the claimant unfavourably by: a. Indecently assaulting the claimant on 19 June 2023; provide an outcome to it.[30]Did the following things arise in consequence of the claimant’s disability? This was not identified previously. On discussion with the claimant, I identified the following “something” arising from the claimant’s disability:a. His heightened vulnerability; andb. Increased anxiety[31]Was the unfavourable treatment because of any of that thing?[32]Was the treatment a proportionate means of achieving a legitimate aim?
Remedy
[33]Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?[34]What financial losses has the discrimination caused the claimant?[35]Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job?[36]If not, for what period of loss should the claimant be compensated for? What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?[37]Has the discrimination caused the claimant personal injury and how much compensation should be awarded for that?[38]Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result? Should interest be awarded? How much? The preliminary issue – time limits[39]Under section 123(1)(a) of the Equality Act 2010, a claim of discrimination must be presented to the Tribunal before the end of the period of three months starting with the date of the act to which the complaint relates, subject to any extension to allow for early conciliation. Where a claim is not brought within this period, the Tribunal has a discretion under section 123(1)(b) to consider the claim if it considers that it is just and equitable to do so.[40]The claimant alleges he was indecently assaulted by a colleague, CS, on 19 June 2023. Early Conciliation commenced on 4 February 2024 and ended on 20 February 2024. The claim was presented on 29 February 2024.[41]The relevant three-month time limit, extended for the duration of Early Conciliation, expired on 5 November 2023. Accordingly, the claim was presented nearly four months out of time.[42]The claimant contends that the conduct complained of formed part of a continuing course of discrimination, and that time should not begin to run from the date of any single event but rather from the end of the alleged discriminatory course. The Tribunal accepts that there is evidence of ongoing workplace difficulties following the incident on 19 June 2023. These include the claimant’s experience of social ostracism from colleagues, alleged mocking behaviour, an apparent shift in workplace culture towards him, and the respondent’s failure to progress or conclude the complaint he reasonably believed was being treated as a grievance.[43]However, the Tribunal does not find that these matters, taken together, constitute a continuing act of discrimination in the legal sense. For the continuing act doctrine to apply, there must be evidence of a connected series of discriminatory acts, or a discriminatory policy or practice, maintained by the employer. The Tribunal finds that the June 2023 incident was a discrete event involving alleged misconduct by a colleague. The subsequent procedural failings, specifically the failure to progress or conclude the investigation, arose more from managerial omission.[44]Although the consequences of these events understandably extended over time and were experienced by the claimant as a cumulative source of distress, the Tribunal is not satisfied that they formed part of a coordinated or continuing discriminatory policy or practice. Rather, they are better characterised as individual and unconnected instances of procedural failure and interpersonal breakdown, rather than manifestations of a unified discriminatory campaign or policy. Accordingly, the claimant cannot rely on the continuing act doctrine to extend the time for bringing his claims.[45]The Tribunal therefore considers whether it is just and equitable to extend time.[46]In exercising this discretion, the Tribunal is mindful of the guidance provided in Southwark LBC v Afolabi [2003] ICR 800, Adedeji v UHB NHS Trust [2021] ICR D5, and Secretary of State for Justice v Johnson [2022] EAT 1. In particular, the Tribunal considers the following factors: Length and Reasons for Delaya. The delay was substantial but explained. The claimant reasonably believed his complaint was being addressed internally. He was not informed of any outcome to the investigation. HW, the responsible manager, accepted in evidence that the matter was not progressed and that he failed in his duty to do so. Claimant’s Health and Circumstancesb. The claimant was, and continues to be, disabled due to a serious heart condition. He also has mental health issues. In January 2024, he experienced a mental health crisis and was signed off work. The Tribunal accepts that these conditions materially affected his ability to pursue proceedings promptly. Belief in Internal Resolutionc. The claimant credibly stated that he believed the incident was under investigation and would be resolved internally. He received confirmation from AB that it had been referred to HW and repeatedly asked for updates. This belief was not unreasonable given the respondent’s failure to conclude the process or communicate its closure. Awareness of Legal Rightsd. The claimant had no knowledge of tribunal time limits. While he contacted the union shortly after the incident, he received no substantive response. He only became aware of the Tribunal process following advice from Citizens Advice in January 2024, whereupon he acted promptly to initiate Early Conciliation. Prejudicee. The respondent has not identified any specific prejudice arising from the delay. Witnesses remained available and contemporaneous records were kept. While the delay may cause some evidential difficulties, the Tribunal is satisfied that a fair hearing remains possible. Indeed, HW was present at the hearing and was available to give oral evidence. He had filed and served his witness statement.[47]In all the circumstances, and weighing the factors above, the Tribunal concludes that it is just and equitable to extend time under section 123(1)(b) of the Equality Act 2010. The claim may proceed.
Findings of fact
[48]Having considered the documentary and oral evidence, I make the following findings of fact. Background and employment[49]The claimant commenced work with the respondent as an agency driver in 2017 and became a permanent employee in January 2019.[50]The claimant has a heart condition and was diagnosed with atrial fibrillation following a heart attack in October 2020, which led to suspension of his HGV licence. He returned to work on phased duties in October 2021 and resumed full driving duties by May 2022 following DVLA clearance.[51]Occupational Health (OH) was involved in advising on the claimant’s work capacity and made various recommendations from 2022 onwards, including a four-day work week from June 2023.[52]The respondent accepts that the claimant is disabled for the purposes of the Equality Act 2010 in relation to his heart condition. The Tribunal makes no findings on the status of his PTSD or social anxiety for the purposes of the Equality Act 2010 in this context, as these were not central to the claims to be determined. The June 2023 Incident[53]On 19 June 2023, an incident occurred between the claimant and his colleague CS near the key office window during shift handover.[54]The claimant alleges that CS indecently assaulted him by grabbing his testicles. The claimant immediately reported the incident to his manager, JA, and was visibly distressed.[55]CS denied that he deliberately assaulted the claimant. In subsequent meetings with management, including the fact-finding interview on 20 June 2023 and the formal meeting on 18 July 2023, he stated that any contact with the claimant’s groin area had been entirely unintentional. He explained that it may have occurred inadvertently during what he described as a light-hearted exchange or moment of “banter” between colleagues and potentially involved an element of physical horseplay. CS did not recall specific details of the incident but acknowledged that tensions had been building between him and the claimant due to mutual teasing, he referred, for example, to previous comments about his legs. He stated that he had recognised the interaction may have crossed a line and therefore apologised to the claimant shortly afterwards. CS maintained throughout that there had been no intent to cause harm or distress.[56]There were no eyewitnesses who definitively saw what occurred, though JA and others were nearby. There is some consistency in both parties’ accounts that physical contact occurred, and that CS apologised shortly afterward. Post-Incident Conduct and Breakdown[57]The claimant and CS met with JA and later AB in follow-up meetings in July 2023. AB issued a letter on 28 August 2023 stating the matter had been referred to senior manager HW.[58]No formal grievance process was initiated by the claimant in 2023 in relation to the June incident involving CS. However, the Tribunal accepts that the claimant held a genuine and reasonable belief that his complaint was being addressed as a grievance by management. This belief was reinforced by the sequence of events following his initial report: he was interviewed by managers on more than one occasion; his concerns were acknowledged; and he was led to understand that the matter was being escalated. In particular, the letter from AB dated 28 August 2023 confirmed that the matter had been referred to HW, a senior manager, for further consideration. The tone and content of this correspondence reasonably suggested to the claimant that his concerns were being formally addressed, even though he was not explicitly told that a grievance process had been opened. The Tribunal finds that it was reasonable for the claimant to assume that the matter was being handled within the framework of the respondent’s internal grievance policy.[59]The matter was not progressed after referral to HW. The Tribunal finds that, following the letter from AB dated 28 August 2023 referring the case to HW for further action, no substantive steps were taken to advance or conclude the investigation into the claimant’s complaint. HW accepted in his oral evidence that he failed to act on the referral, citing personal difficulties, work pressures, and the absence of automated reminders in the respondent’s case management system as reasons for this oversight. He candidly admitted that the case "fell off [his] radar" and acknowledged that, in retrospect, this amounted to a serious omission. The respondent did not seek to dispute this failure and offered no evidence to suggest that any meaningful steps were taken to follow up or rectify the lack of progress during the intervening months. The Tribunal accepts that HW’s inaction was not deliberate or malicious but nonetheless constituted a significant procedural failure in the handling of a sensitive complaint by an employee with known health vulnerabilities.[60]Following the incident on 19 June 2023, the claimant described a marked deterioration in the workplace atmosphere. He reported experiencing mocking behaviour from colleagues, including being subject to ridicule such as being sung to with “The Great Pretender” by a clerical colleague, which he interpreted as belittling his account of the assault. He also stated that he was issued with older vehicles and was treated with increasing coldness and hostility by staff in the warehouse and clerical areas. On one occasion, a colleague aggressively told him to "f### off" from a loading bay. The claimant’s account of these events, though not supported by formal contemporaneous grievances, was detailed and consistent across his written and oral evidence. He acknowledged that he did not lodge formal complaints at the time, explaining that his health was deteriorating, and he did not feel psychologically able to challenge the treatment further. The Tribunal accepts that these experiences had a significant emotional impact on the claimant and contributed to his increased anxiety, social withdrawal, and eventual sickness absence. The Tribunal finds the claimant’s description of the workplace environment to be credible and his reaction to it to be sincere and grounded in his lived experience.[61]The claimant was signed off sick in January 2024 due to a mental health crisis. He later underwent a heart ablation procedure in May 2024 and began CBT.[62]In February 2024, the claimant submitted a formal grievance in which he used the term “sexual assault” for the first time to describe the incident involving CS on 19 June 2023. This marked a significant development in the framing of his complaint. The Tribunal accepts the claimant’s evidence that he was assisted by his family in preparing this grievance, particularly by his sister and brotherin-law, who encouraged him to be more forthright in characterising the incident. The claimant explained that he had felt deeply embarrassed and conflicted about how to escalate the matter sooner. He expressed concern about how it would be perceived, especially in a male-dominated workplace and given CS’s role as a union representative. The claimant’s reluctance was compounded by his deteriorating mental health, a sense of loyalty to the organisation, and a hope that the matter would be dealt with internally and informally. The Tribunal finds this context to be consistent with the delay in formally articulating the grievance using such language and does not infer from the delay any lack of credibility or genuineness in the claimant’s account. Rather, it reflects a complex mixture of personal and cultural factors, emotional distress, and perceived institutional dynamics.[63]HW did not at any stage meet the claimant to take his account of the June 2023 incident, despite being the manager responsible for progressing the matter after referral. In contrast, he did meet with CS, the other individual involved, shortly after the incident. The Tribunal considers this an omission of significance, especially given the seriousness of the allegation and the claimant’s known health vulnerabilities. The claimant credibly described how, between September and December 2023, he repeatedly asked AB, his earlyshift manager, for updates on the progress of the case. AB, in turn, confirmed that he had passed these requests on to HW. This was not disputed by HW in his evidence. Nonetheless, HW took no action to meet with the claimant or to advance the investigation. HW accepted during oral evidence that he failed to act, citing work pressures, a change in working patterns, and a lack of automated reminders in the respondent’s internal systems. While the Tribunal accepts that this failure was not deliberate, it nonetheless amounted to a significant procedural failure. The effect of this omission was to leave the claimant in a state of prolonged uncertainty, without resolution or support, which exacerbated his stress and sense of isolation.[64]The claimant accepted an offer of early medical retirement in November 2024. He remains unemployed and in receipt of state support (Universal Credit). Findings on Credibility and Procedural History[65]The claimant gave his evidence in a clear, measured, and consistent manner. He was cooperative during cross-examination and responded to questions without evasion. His account remained broadly consistent across his witness statement, oral evidence, and contemporaneous documentation. Where discrepancies existed, particularly in his use of terminology such as “indecent assault” and later “sexual assault”, the Tribunal accepts that these were not attempts to exaggerate or embellish his claims but rather reflected his evolving understanding of the seriousness of the incident and the emotional difficulty he experienced in naming and formalising what had occurred. His explanation that he first used the term “sexual assault” in his February 2024 grievance following discussion with his family, and that he had previously believed the matter was being dealt with as a grievance internally, was credible. The Tribunal also accepts his explanation that his reluctance to use more precise or legalistic terms earlier was due to embarrassment, his deteriorating mental health, and a longstanding trust in the respondent to address the matter appropriately without the need for formal escalation.[66]The Tribunal finds that the claimant’s belief that his complaint regarding the 19 June 2023 incident was being treated as a grievance was both genuine and reasonable. From the claimant’s perspective, he reported what he viewed as a serious assault to his line manager, JA, who conducted meetings with both the claimant and CS shortly afterwards. The claimant was then invited to a formal meeting with AB, a more senior manager, on 20 July 2023, which he reasonably understood to be a step in the grievance process. The language used in the correspondence and meetings was not clearly indicative of a conduct process, and at no point was the claimant informed that he himself was under investigation.[67]This belief was further reinforced by the letter from AB dated 28 August 2023, which stated that the matter had been referred “for further action to a senior manager,” without specifying that it had become a conduct issue concerning the claimant. In the absence of any clear communication to the contrary, the claimant’s interpretation that his complaint was being treated as a grievance was entirely understandable. It was not until the claimant received the disclosure bundle in early 2025 that he discovered he had, in fact, been the subject of an unresolved conduct case.[68]The Tribunal accepts that this lack of clarity and transparency on the part of the respondent materially contributed to the claimant’s confusion, distress, and eventual decision to raise a further grievance in February 2024.[69]The Tribunal finds that the respondent failed to progress or conclude the investigation into the June 2023 incident involving the claimant and CS. While the evidence does not suggest that this failure was a deliberate act of bad faith or an intentional attempt to disadvantage the claimant, the effect of the omission was nonetheless significant. HW, the senior manager to whom the matter was referred, accepted in his evidence that he failed to act due to a combination of personal difficulties, workload pressures, and the absence of automated reminders in the HR case management system. He admitted that he simply forgot about the case and did not undertake manual checks that would have revealed it remained open.[70]This failure meant that the claimant was left without any resolution or outcome to a complaint he reasonably believed was being investigated. He received no formal communication to clarify the status of the matter, nor was he provided with an explanation or update between August 2023 and early 2024. During this time, he continued to work in a state of uncertainty and distress, believing that his complaint had been accepted and was awaiting a decision. In reality, he had unknowingly become the subject of a conduct investigation that never progressed. The Tribunal considers that this lack of resolution and transparency resulted in a serious procedural unfairness to the claimant. It undermined his confidence in the process, exacerbated his mental health difficulties, and deprived him of the opportunity to engage with or challenge the allegations made against him.[71]This procedural failure reflects a breakdown in the respondent’s duty to handle workplace complaints with clarity, timeliness, and fairness, particularly where the complainant is a disabled employee raising a serious allegation of inappropriate conduct by a colleague. Applicable law Direct disability discrimination[72]Under section 13(1) of the Equality Act 2010, direct discrimination occurs when a person is treated less favourably than another person is treated, or would be treated, because of a protected characteristic, in this case, disability. The comparison can be made with an actual or hypothetical comparator who does not share the protected characteristic but is in materially the same circumstances. To succeed in a claim of direct disability discrimination, a claimant must show that they were subjected to less favourable treatment and that the reason for that treatment was their disability. This involves demonstrating a causal connection between the disability and the treatment. The disability must be the effective and operative cause of the less favourable treatment. It need not be the sole or even the main reason, but it must be more than trivial.[73]The burden and standard of proof in discrimination claims are governed by section 136 of the Equality Act 2010. The standard of proof is the civil standard, on the balance of probabilities. This means that the Tribunal must be satisfied that it is more likely than not (i.e. greater than 50%) that the unlawful discrimination occurred.[74]The burden of proof follows a two-stage process. At stage one, the claimant bears the initial burden. They must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that an act of discrimination has occurred. This is sometimes referred to as establishing a “prima facie” case. The Tribunal must not apply a strict “but for” test at this stage. The claimant does not need to prove the reason for the treatment, but rather facts that raise an inference of discrimination. These must be more than facts that are merely consistent with discrimination, they must be sufficient, taken together, to support a finding that discrimination could have occurred.[75]If the claimant discharges this initial burden, the burden of proof shifts to the respondent at stage two. The respondent must then show that the treatment in question was not because of the claimant’s disability, but for some nondiscriminatory reason. If the respondent provides a credible, nondiscriminatory explanation that the Tribunal accepts, the claim will fail. If the respondent fails to provide an explanation, or if the Tribunal does not accept it, the Tribunal may find that the discrimination occurred.[76]This two-stage test has been confirmed in key authorities such as Igen Ltd v Wong [2005] EWCA Civ 142 and clarified in Madarassy v Nomura International plc [2007] EWCA Civ 33. These cases make clear that it is not sufficient for a claimant merely to assert facts consistent with discrimination; those facts must allow the Tribunal to properly infer that discrimination may have taken place in the absence of an innocent explanation. Discrimination arising from disability[77]Discrimination arising from disability is governed by section 15 of the Equality Act 2010. This provision offers protection to disabled persons where they are treated unfavourably not because of the disability itself, but because of something arising in consequence of the disability.[78]To establish a claim under section 15, a claimant must show two things:a. That they were treated unfavourably by the respondent; andb. That this treatment was because of something (such as behaviour, absence, or limitations) that arose in consequence of their disability.[79]To establish a claim under this section, two distinct causative elements must be shown (Basildon and Thurrock NHS Foundation Trust v Weerasinghe [2016] ICR 305, EAT):a. The disability must have the consequence of some identified "something" (e.g. absence, behaviour, a belief, or need).b. The unfavourable treatment must be because of that "something".[80]The Tribunal must first identify what the unfavourable treatment is and who was responsible for it (Pnaiser v NHS England [2016] IRLR 170, EAT). The next step is to examine what motivated or influenced the treatment, which may involve conscious or unconscious factors in the mind of the decisionmaker. The Tribunal must then determine whether that reason was something arising from the claimant's disability. The final element is whether the treatment, if arising from disability, was justified.[81]The connection between the disability and the "something" must be more than trivial, but it need not be the sole or main cause of the treatment (Sheikholeslami Equality act 2010 v University of Edinburgh [2018] IRLR 1090, EAT; Risby v London Borough of Waltham Forest UKEAT/0318/15).[82]As confirmed by the Court of Appeal in City of York Council v Grosset [2018] ICR 1492, the employer's knowledge of the link between the disability and the "something" is not required under s.15(1); the test is objective.[83]The burden of proof follows section 136 Equality Act 2010. The claimant must first establish a prima facie case that they were treated unfavourably because of something arising in consequence of their disability. If they do so, the burden shifts to the respondent to show either that the treatment was not for that reason or that it was justified. Discussion and conclusions[84]Applying the law to the facts, I find as follows. Direct disability discrimination Did the respondent and/or its servant or agent, CS, do the following things: a. Indecently assault the claimant on 19 June 2023: i. The claimant’s account is that on 19 June 2023, while handing in his keys at the end of his shift, CS reached out and grabbed his testicles. The claimant reacted by pushing CS away with his knee. He reported the incident immediately and stated that CS later apologised, describing it as “banter”. ii. CS's account, as recorded in the contemporaneous meeting notes and confirmed in evidence, is that there may have been inadvertent contact with the claimant's groin area during a moment of interaction, but it was not intentional. CS accepted that it was inappropriate and apologised, saying it was not meant in that way. iii. No eyewitness (including the clerical worker nearby) gave direct evidence of the incident, and the CCTV evidence was either not preserved or not provided. The claimant's account was consistent over time, and while the terminology used (“indecent assault”, later “sexual assault”) evolved, the essential factual allegation did not change. The claimant explained credibly that he only began using legal terms after taking advice from family and Citizens Advice in early 2024. His oral evidence was consistent and measured. iv. On the balance of probabilities, the Tribunal finds that CS did touch the claimant in the groin area without consent. Whether that amounted to indecent assault in the criminal sense is not for this Tribunal to determine; however, for the purposes of this claim, I am satisfied that CS's actions were deliberate, inappropriate, and physical in nature, and that the claimant found them highly distressing. provide an outcome to it: i. The Tribunal finds that the claimant reported the incident to his line manager, JA, immediately. JA interviewed both parties and escalated the matter to AB and then to HW. The issue was classified by the respondent as a conduct matter rather than a grievance, although the claimant believed it was being investigated as a grievance made by him. ii. The internal conduct process was not concluded. HW, the second-line manager responsible, accepted in crossexamination that he failed to progress the case after receiving the referral in August 2023. No formal outcome was provided to the claimant at any stage, and he remained unaware until January 2024 that he himself was being investigated. iii. The Tribunal finds that the respondent did fail to address the claimant’s complaint adequately and did not provide any outcome to it. The conduct process was allowed to lapse entirely. The respondent's admitted failure to act on a serious workplace complaint, involving physical contact of a sexual nature, was a significant failing. Was that less favourable treatment? c. The Tribunal accepts that the handling of the incident was materially deficient. The claimant was left for over six months without any update, without support, and ultimately discovered he was being treated as a subject of investigation. d. There was no evidence before the Tribunal of how a hypothetical nondisabled employee in materially similar circumstances would have been treated. However, the Tribunal must consider whether a nondisabled comparator, similarly alleging inappropriate physical contact from a colleague, would have been treated in the same way. e. On the evidence, the Tribunal finds that the failure to act was not because of disability but rather due to a breakdown in internal processes, poor management, and oversight. These would have affected any employee who raised a complaint of this nature. The failings were organisational and procedural rather than discriminatory. If so, was it because of disability? f. The Tribunal finds that the failure to investigate and provide an outcome was not because of the claimant’s disability. HW gave credible evidence that he simply overlooked the case, and there is no suggestion that the decision not to act was prompted by or related to the claimant’s disability or its consequences. Is the respondent able to prove a reason for the treatment occurred for a nondiscriminatory reason not connected to disability? g. Yes. The respondent has established, on balance, that the failure to act arose from a combination of system failures, personal pressures, and oversight. HW admitted to forgetting the case and did not conceal or justify this error. While deeply unsatisfactory, the Tribunal finds the reason for the treatment was not disability related. h. For the reasons given above, the claimant has not established his claim for direct disability discrimination. The claim is dismissed. Discrimination Arising from Disability Did the respondent treat the claimant unfavourably by: i. Indecently assaulting the claimant on 19 June 2023 - The Tribunal finds that CS was the alleged perpetrator of the incident on 19 June 2023. The Tribunal accepts that the incident caused the claimant distress and that his account was consistent and credible. Did the respondent treat the claimant unfavourably by failing to address his complaint about the assault and/or provide an outcome? j. The Tribunal finds that the claimant was subjected to a prolonged period of uncertainty following the June 2023 incident. There was a failure to progress the investigation, a lack of clarity over whether he was the complainant or subject of investigation, and no outcome provided until the disclosure bundle in 2025. This was plainly unfavourable treatment. Did this arise in consequence of the claimant’s disability? k. The Tribunal accepts that the claimant suffered from stress, anxiety, and atrial fibrillation. However, the Tribunal does not find that the delay in addressing his complaint or providing an outcome was because of any of these consequences. The treatment by CS was not shown to arise in consequence of the claimant’s disability. The conduct complained of was not triggered by or connected to the claimant's vulnerability, anxiety, or any other feature arising from his disability. On the evidence, the incident was not motivated by a perception of disability or any consequence of it. HW’s failure to progress the matter was due to oversight and competing responsibilities. There is no evidence that the claimant’s health, anxiety, or any manifestation of his disability played any part in the decision or omission. The "something" did not operate on the mind of the decision-maker. Was the unfavourable treatment because of any of that "something"? l. The Tribunal does not consider that the claimant's vulnerability or anxiety had any significant influence on HW's failure to act. There is no evidence that his conduct was affected by any aspect of the claimant's disability. Therefore, the second stage of causation is not established. Was the treatment a proportionate means of achieving a legitimate aim? m. As the causative link under section 15(1)(a) is not made out, it is unnecessary to decide justification. Had I needed to, I would have had difficulty finding the treatment proportionate, given the complete failure to conclude the process over a 9-month period. n. For the reasons given above, the claimant has not established his claim for discrimination arising from disability. The claim is dismissed. Comment on the respondent’s conduct[85]Although the claimant has not succeeded in his claims of direct discrimination or discrimination arising from disability, the Tribunal considers it appropriate to comment on aspects of the respondent’s conduct.[86]The handling of the incident on 19 June 2023 and the subsequent grievance and conduct processes fell below the standards expected of a large and experienced employer, particularly one aware of the claimant’s ongoing health difficulties and vulnerability.[87]The respondent failed to communicate clearly with the claimant about the status of its investigation, leaving him unaware for many months that he had become the subject of a conduct case. The conduct matter was then allowed to drift, unresolved, which the Tribunal finds contributed to the claimant’s sense of injustice and stress. The respondent also missed opportunities to engage with the claimant more sensitively, especially in light of his disability. These failings did not amount to unlawful discrimination but were nonetheless poor practice, and the Tribunal trusts the respondent will reflect on them with a view to avoiding repetition in future cases involving vulnerable employees.