Mr J Cowling v Royal Mail Group Ltd: 6001281/2024 and 6014205/2024
JUDGMENT
The following allegations/complaints, as set out and numbered in the deposit order dated 11 December 2024, are struck out:[1.1]Unauthorized deductions from wages;[1.2]Discrimination arising from disability;[1.3]Failure to make reasonable adjustments;[1.4]Direct age discrimination;[1.7]Direct disability discrimination when on/around 18 March 2024 by Richard Matthews ignored the advice of occupational health in its 18 March 2024 report that ill-health retirement was not appropriate. The following allegations/complaints will proceed to a hearing: 1.5 Direct disability discrimination when on 19 December 2023 Philip Wilmhurst trying to force him down the respondent’s LTBIH (ill-health retirement) process in order to exit him from the business; 1.6. Direct disability discrimination when on/around March 2024, Ateeq Rafiq referred the claimant to occupational health without his consent to consider whether he met the criteria to leave the business on the grounds of ill-health.REASONS
[1]The claimant was ordered to pay a deposit of £50 per allegation (totalling £350) following a preliminary hearing held on 10 December 2024. The Order was sent to the claimant on 11 December 2024. The claimant has failed to the whole of this deposit but has paid £100 in relation to the allegations set out at 1.5 and 1.6 above. The complaints numbered 1.1 to 1.4 and 1.7 are therefore struck out under rule 40(4) of the Employment Tribunal Procedure Rules 2024.[2]The complaints for which the deposit has been paid will proceed to a hearing on 2,3,4 June 2025. Employment Judge Bright Date: 26 February 2025 Notes All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunaldecisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here: www.judiciary.uk/guidance-and-resources/employment-rules-and-legislationpractice-directions/[1]Judgment in this case was delivered orally on 11 December 2025, at the conclusion of the hearing. The respondent’s representative requested written reasons on 24 December 2025. These are the reasons for the judgement.The issues
[2]The agreed issues which the Tribunal had to determine are set out in Annex A. The proceedings The first claim[3]Acas Early Conciliation took place in relation to the first claim between 19 and 23 February 2024. The claim form was issued on 25 March 2024. The claimant made claims of unpaid wages, age discrimination and disability discrimination.[4]A preliminary hearing for the purposes of case management took place on 29 August 2024. The claims were identified in part and the claimant was ordered to provide further information. A further preliminary hearing was listed for 10 December 2024.[5]At the hearing on 10 December 2024, the final hearing was listed to take place between 2 and 4 June 2025. An application to amend was made, but was largely refused. The physical impairments relied on by the claimant were clarified. Seven of the allegations were made the subject of Deposit Orders. Related case management orders were made. The claimant subsequently paid two of the Deposits. The remaining five allegations that were subject to Deposit orders were subsequently dismissed, on 11 March 2025. The second claim[6]The second claim was issued on 7 October 2024, following a period of Acas Early Conciliation between 23 and 27 September 2024. The second claim makes allegations of age and disability discrimination, harassment and victimisation. The two claims were consolidated on 1 April 2025.[7]At a Preliminary Hearing on 2 June 2025 the following actions were taken: 7.1. The first claim was amended to include a claim of unfair dismissal and victimisation (arising from the claimant’s alleged dismissal on 19 March 2025). 7.2. The claims of age discrimination were withdrawn and have since been dismissed on withdrawal. 7.3. It was noted that the disability discrimination and wages claims arising out of an incident on 18 March 2024 were struck out on 11 March 2025. 7.4. It was further noted that the allegations that would proceed to a hearing (and which were subject of a Deposit Order which the claimant had paid) were: 7.4.1. Direct disability discrimination when on 19 December 2023 Philip Wilmhurst tried to force the claimant down the respondent’s LTBIH (ill-health retirement) process in order to exit him from the business. 7.4.2. Direct disability discrimination when in or around March 2024, Ateeq Rafiq referred the claimant to Occupational Health without his consent to consider whether he met the criteria to leave the business on grounds of ill-health. 7.5. In relation to the second claim, it was noted that the claimant alleged that he had been subject to direct disability discrimination and harassment by Philip Wilmshirst on 12 July 2024.[8]This final hearing was listed and related case management orders were made. The parties were ordered to agree and file a list of issues. That had not been done before this hearing, so counsel for the respondent filed a list of issues on the first day. That was discussed and agreed, before the Tribunal started to hear evidence from the parties. Since the claimant’s witness statement gave evidence about some allegations that had previously been struck out, the Judge explained this to the claimant prior to evidence being heard.The hearing
[9]The hearing took place over three days. Evidence and submissions on liability were dealt with on the first two days. It was arranged that on the third day, the Tribunal would give its decision and reasons and, if the claimant was successful, would go on to deal with remedy. In the event, that was not necessary.[10]The Tribunal heard evidence from the claimant, and John Thompson, CWU representative; and for the respondent, from Ateeq Rafiq, Customer Operations Manager. There was an agreed hearing bundle of 581 pages. There was also a recording of meetings on 19 March and 8 April 2025. A transcript of the latter recording had also been produced and was agreed to be accurate. A recording of the 19 March 2025 meeting was also introduced by the claimant during the hearing. The respondent did not object to that being admitted and it was. An application by the respondent to admit a further 4 page document was refused.Findings of fact
[11]The claimant started work for the respondent on 27 January 2021, in the role of Operational Post Grade (OPG) Collection Driver. The respondent is a postal and courier provider, employing about 130,000 people in the UK.[12]The respondent has both a Sick Pay and a Sick Pay and Conditions Policy. Employees with over 12 month service are entitled to six months full pay and six months half pay. That right applies equally to employees absent due to industrial injury or disease. The Sick Pay Policy confirms the same.[13]The respondent also has an attendance procedure, which provides that if somebody is absent for 12 days during any 12 month period, they will be invited to a meeting to discuss their absence.[14]The claimant was initially managed by Philip Wilmshurst. He was later managed by Robert Hardie.[15]The claimant says that he had a workplace accident on 9 January 2023, when the sliding door of a Peugeot Expert van detached. It is the claimant’s case that he suffered spinal disc injuries as a result, causing nerve compression at C5-C7. For the purposes of this hearing, it is been assumed that there was a causal link between the disability relied on by the claimant, and his workplace accident; but that is only an assumption. It is not intended to bind any other court, in relation to the personal injury claim which the claimant is pursuing, based on alleged negligence by the respondent.[16]The claimant’s consultant has recommended cervical fusion surgery in C5- C7. The claimant is still undergoing treatment at the York Pain Clinic.[17]The claimant also says that he suffered knee injuries as a result of the accident. It was agreed with the parties at the outset of this hearing that the claimant’s back problems were the main issue and that it was not necessary for the Tribunal to make a decision whether the knee injuries amount to a separate disability. Similarly, the claimant says that he has developed a depressive disorder following the injury. Again, it was agreed that it was not necessary for the Tribunal to decide whether that amounted to a disability, because the claimant would have been absent due to the back problems alone, in any event. These clarifications helped to simplify matters, but have not affected adversely the outcome in the case.[18]The Respondent has a Leaving the Business Due to Ill-Health (‘LTBIH’) Policy. This Policy aims to provide Occupational Health advice and managerial support to assist employees in managing their health to recover; and where possible, return to work. Where this is not possible, leaving the business through ill-health may be considered, with either a lump sum payment (in circumstances in which an employee is unlikely to be fit to return for the foreseeable future) or income benefit (in circumstances in which an employee is permanently incapacitated).[19]Regular review meetings were held with the claimant during his absence. He was informed by letter on 30 May 2023 that his entitlement to sick pay would reduce to half pay on 9 June 2023. In the event, the claimant was paid 12 months full pay and six months half pay, before payments to him ceased altogether.[20]At a meeting on 10 July 2023, between Pam Wright, the claimant and John Thompson, the claimant’s CWU representative, the claimant was told: Given that the current absence sits at 182 days, and with no apparent return to work imminent, we are left with the conclusion that you are unlikely to return to work in the foreseeable future.[21]The steps agreed included: PW to consider appropriate time for OH referral (JC provided consent) in line with progress following injections to understand next steps.[22]By the end of November 2023, the claimant remained off work with no agreed return to work date. Mr Rafiq says the claimant agreed to consider ill health retirement at this stage. The Tribunal accepts Mr Rafiq’s evidence. This part of Mr Rafiq’s evidence was not challenged by the claimant during the hearing. The claimant was due to attend an OH appointment to discuss this on 14 December 2023.[23]On 5 December 2023, records show the claimant said to Mr Rafiq: [07:26, 05/12/2023] John Cowling Harrogate: Your employer is not allowed to suggest ill health retirement as a way to get you to leave the company. This could be disability discrimination [12:06, 05/12/2023] John Cowling Harrogate: Re our telephone conversation As discussed I no longer give consent to royal mail trying to retire me on III health after my industrial accident at work. Personally you should have explained this to me, I feel this is harassment again! As discussed can you go back to whoever is advising you and let me know the outcome. I explained to you as I did to Pam Wright my intention is to return to work once I am signed [off] by the medial doctor / pain clinic.[24]A doctor from Occupational Health called the claimant on 14 December, but since there was no caller ID, the claimant did not take the call.[25]On 19 September 2023, Mr Wilmshurst sent an email to Mr Rafiq, into which the claimant was inadvertently copied. The email states: To say I’m frustrated at another failed OH appointment for Mr Cowling is an under-statement following personal assurances and allowing a position of trust that this would take place in his home address as per planned date - we also have the additional business cost incurred. Last night was of the opinion I was going to do my upmost to find a way to either cease pay or move Mr Cowling to NIL pay....which is why when speaking to Ateeq last night wanted overnight to reflect on our conversation... so to be very clear on next steps:• Appointment re-arranged 8/1/24• This appointment will take place in Harrogate Hub• Mr Cowling will attend the Hub 30 minutes prior to the referral for a BAU manager/driver catch up• Mr Cowling will be given access to a room to take the call if he requests CWU attendance I have no issues• This will be the final appointment planned - if we have non-attendance on the next call I will progress exit from RMG via SOSR and non-cooperationpay will cease on 8/1/24 if this call does not take place which having reviewed policy I am well within right to have done so from non-attendance at the OH referral.[26]On 8 January 2024, the Claimant spoke with Occupational Health so they could consider whether or not the claimant met the criteria under the LTBIH Policy. The practitioner advised that the Claimant did not meet the criteria for ill health retirement, given that the Claimant was likely to be able to return to work following a course of medical interventions (specifically a 3-month pain management course). The report also confirmed that the claimant was not permanently incapacitated. The report states: In my opinion, and in light of the information above, it is quite possible that Mr Cowling could return to his role after he has engaged in the threemonth pain management course that he is due to attend in March. Therefore, I do not believe that he meets the criteria for LTBIH nor is he permanently incapacitated. In my opinion this case is likely to be covered by the disability provision of the Equality Act. Ultimately this is a legal rather than a medical decision. Further guidance on the Equality Act can be obtained from https://www.gov.uk/definitionof-disability-under-equality-act-2010.[27]The Claimant was referred to Occupational Health again on 18 March 2024 to consider whether or not he met the criteria under the LTBIH Policy. It is the claimant’s case that he did not consent to this referral. Mr Rafiq says he had the claimant’s consent. Having heard the evidence from both sides, the Tribunal finds the evidence of Mr Rafiq to be more reliable. This is because the claimant has made assertions during this hearing in his witness evidence which are not backed up by the contemporaneous documents. See in particular, references to the meetings on 19 March and 8 April 2025 below. The Tribunal has listened to the recordings of those meetings and they do not demonstrate what the claimant asserts they demonstrate. See also the references below to paragraph 9.1 of the claimant’s witness statement.[28]On 18 March 2024, the OH practitioner was told by the Claimant that he was unaware of the purpose of the referral and disagreed with the contents of it. The practitioner therefore deemed it inappropriate to continue with the meeting and asked the Respondent to discuss it with the Claimant and rerefer him.[29]On 12 July 2024, it is alleged by the claimant that Mr Wilmshurst suggested three options to the claimant, which were unrealistic and unachievable: 29.1. Return to work immediately although currently signed off by the 29.2. Sign a settlement agreement to leave the business as ill-health 29.3. Consideration of dismissal with no compensation.[30]No email of 12 July 2024 has been put before the Tribunal. There is however an email from Mr Wilmshurst to the claimant dated 15 July which states: As requested … [this] e-mail explains your options to bring your absence with RMG to a conclusion. 1 . Return to work as a Collection Driver in Harrogate Hub 2. I offer you a Settlement Package and we terminate your employment - the terms were detailed in my first e-mail 3. If you consider neither of these a viable option then I will be inviting you to a Consideration of Dismissal Interview in Leeds MC next Tuesday The points you make I have noted and if we move to a dismissal interview then we will discuss. Likewise regarding the alleged ADD which will move through the Legal process should you have a claim pending. I am offering you options to bring your absence to a conclusion and as per my original e-mail a response by 17:00 Tuesday please. Failure to do so will result in the interview being scheduled. I am happy to discuss via the telephone across the day should you wish to clarify anything. A similar message had been sent on 13 July.[31]There was a welcome back meeting between the claimant and Mr Rafiq on 2 August 2024, because it was anticipated that the claimant might be able to return to work shortly. The notes record: Pain clinic and consultant visits during my time off. I have also had 3 OH referrals with Royal Mail. One in August 2023, another in Jan 2024 and a further one that I gave consent to but then retracted my consent for the IHR referral in March 2024.[32]On 19 March 2025, the claimant asserts that he was dismissed. The claimant says in his witness statement at 9.1: PW verbally dismissed me during a recorded meeting attended by my union representative, John Thompson. PW stated: “Ultimately, to terminate your employment.” When I requested written confirmation, PW replied, “That’s absolutely fine.”[33]The claimant was cross examined by counsel for the respondent about various parts of that recording, which were played to him during the hearing. It was clear from the recording that Mr Wilmshurst was trying to explain to the claimant that there was a process to be followed. He wanted the claimant to attend a further meeting. The claimant kept saying that he was not willing to attend any further meetings. Towards the end of the conversation, Mr Wilmshurst said: I will follow a new process and ultimately the next steps will be that I will be following the process to terminate your employment. It is noted that this is not what the claimant says was said, at para 9.1 of his witness statement.[34]Mr Wilmshurst continued to inform the claimant that the respondent was going to follow due process. During the conversation, the claimant continued to talk over Mr Wilmshurst. Ironically, the claimant accused Mr Wilmshurst during the telephone call of verbally abusing him. There was simply no evidence of that on the call. To the contrary, Mr Wilmshurst was the one who was being frequently interrupted by the claimant, not the other way round.[35]The claimant accepted during cross examination, having listened to the recording, that at no time was he told he was dismissed. Nor was he told that if he did not accept a settlement agreement, he would be dismissed. The claimant then said it was in an email that he had been told that. It is noted that the emails the Tribunal was referred to contained no such ultimatum.[36]The claimant also accepted in cross examination that contrary to what is asserted in paragraph 9.1 of his witness statement, it was not at this meeting that the claimant asked for confirmation of his dismissal in writing; it was at the 8 April meeting he asked for that. Again, the marked contrast between what the claimant asserts in his witness statement at paragraph 9.1 and the objective evidence of the recordings, causes the Tribunal to question the reliability of the factual assertions makes in his witness evidence.[37]Mr Thompson says in his witness statement: During the meeting, Mr. Wilmshurst told Mr. Cowling that if he refused to accept a settlement agreement, he would be dismissed. He stated that he would inform HR and Royal Mail’s solicitors to arrange a dismissal meeting. Mr Thompson not unreasonably conceded during his cross examination, that this was not what was said during the call.[38]A further meeting took place between the claimant and Mr Wilmshurst on 8 April 2025, again by telephone. The claimant was told by Mr Wilmshurst, when the claimant asserted he had been dismissed at the 19 March 2025 meeting: So right so I mean how you construed the last meeting [inaudible] this is ultimately a dismissal interview [sic][39]Mr Wilmshurst told the claimant he wanted to go through five questions, for the purposes of the meeting that day. After some to-ing and fro-ing, the claimant eventually agreed to the questions being put. Later on, when the claimant again argued that he had been dismissed on 19 March 2025, Mr Wilmshurst replied: As employee still of Royal Mail you know how you have construed our last meeting on the 19th is up to you right the purpose of today is to hold a formal meeting with you to discuss your dismissal from Royal Mail right so one question five parts right yes or no answers that’s all I need right [inaudible] return to work[40]Towards the end of the meeting Mr Wilmshurst told the claimant: Right so what you need to understand … is that today right one of the outcomes is that you may be dismissed from Royal Mail.[41]The meeting concluded with the following exchange: PW Is there anything that you would like to JC No only thing I wanted from you Phil is it in writing that it’s a it’s a dismissal PW That’s absolutely fine John right JC Concluded PW One of the outcomes of today is dismissal JC Concluded thank you PW Concluded thank you very much[42]After this meeting, Mr Wilmshurst stopped line managing the claimant for reasons which the respondent says are confidential and which have not been shared with the Tribunal, but which are not material to this claim. Robert Hardie took over line management of the claimant in March/April 2025. On 23 May 2025 the claimant emailed Mr Hardie as follows: I am writing to express my continued and serious concerns regarding Royal Mail’s prolonged failures to resolve outstanding employment issues — namely, the mishandling of my industrial injury, the unresolved grievance against Mr. Philip Wilmshurst, the unlawful withholding of salary and holiday pay, and the lack of clarity regarding my current employment status. The claimant confirmed that one of the outcomes he wanted was:• Written confirmation of my current employment status, or formal notice of termination if that is Royal Mail’s intended course of action of which PW has constantly threatened me with for the record I have this in writing and a Recordings of the meeting when PE clearly states that it his plan of action Am I now to presume that [Royal Mail] has changed direction in its threats to termination of my employment. [sic][43]On 20 June 2025, Mr Hardie asked the claimant to agree to another OH referral. The claimant replied: Your request for my consent to another OH referral is inappropriate and insulting. I complied with Royal Mail’s OH request in 2022, 2023, 2024, and 2025 and saw an approved OH doctor. If you had reviewed all paperwork - especially documents from Mr. Wilmshurst - you would know the OH assessment reached a final decision, which Mr Wilmshurst blatantly disregarded. I therefore do not give consent to another OH referral. Repeating a process that was ignored previously only serves to prolong and obscure the reality of Royal Mail’s failures.[44]The claimant also asked Mr Hardie why Mr Wilmshurst had not issued a formal dismissal at the last meeting they had (on 8 April 2025). Mr Hardie replied: You have not received a formal letter of dismissal, as you remain employed by the business.[45]Despite this, the claimant continued to question his employment status and why his ‘appeal against dismissal’ had not been dealt with. So Mr Hardie confirmed in an email sent to the claimant on 10 July 2025: With regard to your other queries: 1. Your current employment status was confirmed in my most recent email correspondence with yourself. I can now confirm for you again in this email that you remain employed by the business. 2. You have not been dismissed from the business, you remain employed with Royal Mail. 3. With respect to your enquiries about Phil Wilmshurst, I have no knowledge of his current situation. His status is a confidential and internal matter. 4. The business cannot respond to your appeal as there is no procedure for you to appeal against a dismissal decision which has not been issued by the business.[46]The Tribunal was taken during this hearing to other emails which followed; but suffice to say that the claimant continued to query his employment status, despite the clear answers already given to him, that he remained employed by Royal Mail.[47]On 27 August 2025, Mr Hardie emailed a letter to the claimant which says: I am writing further to your meeting with Philip Wilmshurst on 08/04/2025. The purpose of the meeting was to discuss your continued absence from work as you have been off work since 09/01/2023, the prospects of you returning to work in the foreseeable future and to discuss your continued employment with Royal Mail. The letter contained an invitation to the claimant to a meeting on 5 September. That was subsequently rearranged, at the claimant’s request, to 12 September.[48]Mr Hardie held a meeting with the claimant on 12 September 2025, as arranged. The notes of that meeting record: RH explained that this meeting was an opportunity to discuss JC’s current absence from work, the prospects of JC returning to work in the foreseeable future, and JC’s continued employment with Royal Mail. … RH made it clear that, subject to the information which is discussed in todays meeting, the termination of JC’s employment with Royal Mail on the grounds of capability will be considered. … RH asked JC if he understood that a potential outcome from this meeting today could be the termination of his employment from Royal Mail? JC responded that he understood.[49]There was a discussion at the meeting about the claimant’s pay and holiday entitlement. The notes record: JC – I cannot understand why I am not on payroll, I have explained my position a number of times and I am wasting a lot of my time speaking with HR on the phone, communicating with you or other managers, seeking legal advice, etc. but I get nothing back from the business on why I am not being paid what I am entitled to. RH – I have explained the sick pay entitlements to you in previous correspondence so I am not going to go over that part again. I have also offered you the chance to be paid some of your annual leave entitlement. Would you like me to pay you your current entitlement of annual leave? JC – No because even on the holiday pay, you are giving me a different number to what I have been told I am due from HR. There is no consistency between what you say and what HR are saying. RH – Would you like me to get an up to date assessment of what you would be entitled to for annual leave? JC – Yes that’s fine.[50]Regarding the claimant’s ability to work, the following exchange is recorded: RH – Do you feel that, once you are able to drive again, returning to your previous role and completing a full collection for Royal Mail is something which is achievable? JC – Yes, it is still achievable in the future. There is no timeline on this though until we understand when the surgery is going to be scheduled. RH – What would happen if the surgery is scheduled but the procedure is not successful, what would you see happening in that scenario? JC – If the surgery is not successful, I still feel I would be able to do an office based job. I can do emails, I am sure I can do reports, I recently went through an accountancy exam and got some qualifications in that area of industry, I do have office-based capabilities. RH – Can I ask when you completed that qualification? JC – about 18 months ago.[51]Mr Hardie concluded the meeting by saying: At this point I would like to thank you for your participation in the meeting today, I will reflect on the topics discussed and consider how best to proceed with the management of your case. As a reminder, one option that may be considered is the termination of your employment with Royal Mail. Once I have received the confirmation of the meeting minutes from yourself, I will schedule a further meeting to confirm next steps in the management of your absence and any decisions which have been reached as a result of the discussion today.[52]A further meeting took place with the claimant on 28 November 2025. The claimant was told that a decision had been made to dismiss him, on that date, with 4 weeks pay in lieu of notice. He was informed of his right of appeal.Relevant law
[53]Counsel for the respondent provided written submissions, which contained a very helpful summary of the relevant legal principles. To save time, those are produced in full below, in Annex B. Save for two exceptions, those are accepted as a correct outline of the law. The first exception is the clarification noted at the end of the Annex B, that there is no need to establish less favourable treatment in a victimisation claim under s.27. Second, Judge James was not convinced about the applicability of Roberts v South West Trains. He did however accept that the continued engagement of the claimant following the alleged dismissal in March 2025, could be taken into account when considering whether or not, even if the claimant had been dismissed, he had accepted the withdrawal of that dismissal.Conclusions
[54]In arriving at the following conclusions on the issues before the Tribunal, the law has been applied to the facts found above. The Tribunal will not repeat every single fact, in order to keep these reasons to a manageable length. The issues are dealt with in turn.[55]In reaching these conclusions, the burden of proof provisions have been carefully considered. The Tribunal has however been able to make clear findings of fact and reach clear conclusions. The burden of proof has not shifted at any stage.[56]The Tribunal has considered each alleged incident of discrimination separately and has also considered them collectively. That did not change the outcome. The sub-headings below refer to the issues in the list of issues. Disability (Issue 1)[60]The Respondent concedes that the Claimant’s back condition amounts to a disability. It was agreed with the claimant at the outset of the hearing that it was not necessary for the Tribunal to reach any conclusions in relation to the knee injury, or depression. The primary reason for his continued absence was his back condition. Direct disability discrimination (Issue 2) Did the Respondent do the following things: On 19 December 2023 did Philip Wilmshurst try to force the Claimant down the respondent’s LTBIH (ill-health retirement) process in order to exit him from the business (Issue 2.1)[61]The findings of fact are referred to. As a matter of fact, the claimant was not forced to go down the ill-health retirement route. Ill-health retirement is an option to be considered, under the Attendance Process. There is nothing remarkable or unusual about the exploration of that option with a person on long-term sickness absence. To the contrary, a failure to consider that could lead to an Employment Tribunal concluding that a dismissal was unfair. The claimant was not forced to go down that route; he was given the option and following discussion, reasonably agreed to attend the 8 January 2024 OH referral.[62]Further, the claimant had the benefit of advice from an experienced and longserving CWU representative. The claimant having been copied inadvertently into Mr Wilmshurst’s email of 19 December 2023, Mr Thompson would no doubt have pushed back, if he considered that what was being said about an OH appointment was inappropriate or inaccurate and that the claimant was being ‘forced’ an OH appointment. He did no such thing.[63]Therefore this allegation is not made out on the facts. Had it been necessary to consider the reason why question, the tribunal would have concluded that the respondent was simply following its attendance procedure. The decision was not because the claimant had a disability. On or around March 2024 did Ateeq Rafiq refer the Claimant to occupational health without his consent to consider whether he met the criteria to leave the business on health grounds (Issue 2.2)[64]Again, reference is made to the findings of fact. The Tribunal has found that the claimant did consent to the referral. Even if the claimant felt he had not, it was Mr Rafiq’s reasonable belief that the claimant had consented.[65]Further, as to the reason, it is noted that the 8 January 2024 OH report had suggested that the claimant might be able to return within three months, if the pain clinic referral was successful. It was therefore entirely reasonable for the claimant to have been re-referred after two months. Had it been necessary to consider the reason why question, the Tribunal would have concluded that this was the reason for the referral being made, not that the claimant had a disability. On 12 July 2024 did Philip Wilmshurt suggested three options which were unrealistic and unachievable (issue 2.3): Return to work immediately although currently signed off by the doctor (Issue2.3.1 ) Sign a settlement agreement to leave the business as ill-health retirement was not appropriate at that time (Issue2.3.2 ) Consideration of dismissal with no compensation (Issue2.3.3 )[66]The Tribunal has found that the claimant was told that he could return to work, sign a settlement agreement, or he would be invited to a Consideration of Dismissal meeting. It is accepted that the first option was not realistic at the time. The second was a choice for the claimant to make and there is nothing unusual in an employer offering settlement terms in such circumstances. Whether the employee agrees to settle potential employment Tribunal claims, in return for a lump sum, is a matter for them. There is nothing inherently unrealistic and unachievable about such an outcome. Nor was it inappropriate to suggest it.[67]The third possibility was not so much an option, as the likely result of the other two options not being possible/agreed. Again, there is nothing unusual in an employer arranging such a meeting for an employee who has not been able to carry out their duties for over 18 months, regardless of whether or not their absence from work results from a workplace injury and/or disability. Had it been necessary to consider the reason why question, the Tribunal would have concluded that these were the reasons for the options being given, not that the claimant had a disability. Whilst disability related sickness absence was the context for these options being put forward, that is not sufficient for a direct discrimination claim to succeed. Such allegations should be dealt with as s.15 Equality Act 2010 claims but that is not one of the claims the claimant has brought and nor has it been identified as an issue.[68]There is no basis for concluding that giving the claimant the option to return to work, was because of his disability. It is agreed that it was not a realistic option at that point in time because the claimant remained unable to carry out his duties. What the employer was doing however was setting out the options for the claimant. Realistically, the only options for the claimant were to agree a settlement agreement or attend a Consideration of Dismissal Meeting. Was that less favourable treatment? (Issue 3)[69]The Claimant does not rely on a named comparator; a hypothetical comparator is relied on. This ,means that, where there is nobody in the same circumstances as the Claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated.[70]In relation to issue 2.1, that has failed on the facts. If the question of less favourable treatment had arisen, it is noted that at paragraph 7.4 of his witness statement, the claimant refers to a non-disabled employee on longterm sickness absence who was offered suitable alternative duties and flexible hours. However, no details have been provided; there is therefore no actual comparator for the Tribunal to compare the claimant’s treatment with. The Tribunal would have found that there was no less favourable treatment in any event; the respondent was simply following its attendance procedure and there is simply no evidence on which the Tribunal could find that the procedure was routinely disapplied to non-disabled employees.[71]In relation to issues 2.2, that issue fails on the facts too. Given the conclusion on the reason for the treatment in any event (see above), there is no need to consider the less favourable treatment issue.[72]In relation to issues 2.3, again there is no need to consider the less favourable treatment issue, given the conclusion on the reason for the treatment. If so, was it because the Claimant was because of his disability of: Knee pain (Issue 4.1)[73]Since this is not relied on as a separate disability, no conclusion needs to be reached. Back pain (Issue 4.2)[74]See above in relation to issue 2.1.[75]In relation to issue 2.2, that allegation fails on the facts as well. In any event, it would have failed on the reason why question for the reasons set out in relation to issue 2.2 above.[76]As for issue 2.3, that is partially made out on the facts. However, for the reasons set out above, it would in any event have failed on the reason why question. Did the Respondent’s treatment amount to a detriment?[77]In light of the conclusions already reached, no conclusion needs to be reached in relation to this issue. Harassment (Issue 6)[78]Did the Respondent engage in unwanted conduct as follows: On 12 July 2024 Philip Wilmshurst suggested three options which were Return to work immediately although currently signed off by the doctor. (Issue6.1.1 ) Sign a settlement agreement to leave the business as ill-health retirement was not appropriate at that time. (Issue6.1.2 ) Consideration of dismissal with no compensation. (Issue6.1.3 )[79]See the conclusions above, regarding issues 2.3.1 to 2.3.3. Was the conduct related to the Claimant’s protected characteristic? (Issue 7)[80]See the conclusions above regarding issue 4.2 (and see the reasoning set out in relation to issue 2.3). It is noted that the question as to whether unwanted conduct is related to a protected characteristic, is a broader question than whether the conduct is because of a protected characteristic. For the same reasons as set out above however, the conduct was not related to disability, in the way required by Section 26. Informing the claimant that he would be invited to a Consideration of Dismissal Meeting is indirectly related to disability, because his sickness absence was because of that disability. However, it was the long term sickness absence and the claimant’s inability to return to work which was the reason for treatment, not the disability itself. Whilst those facts may have given rise to a Section 15 claim, they are not sufficient for the allegation to succeed as a harassment claim. A section 15 claim is not before this Hearing. Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In deciding whether conduct has the effect referred to, each of the following must be taken into account, the claimant’s perception, other circumstances of the case, whether it is reasonable for the conduct to have the effect. (Issue 8)[81]In light of the conclusions already reached, no conclusion needs to be reached in relation to this issue. If the Tribunal decided that any harassment occurred, did the respondent take all reasonable steps to prevent the harassment or discrimination that was necessary in the circumstances. (Issue 9)[82]In light of the conclusions already reached, no conclusion needs to be reached in relation to this issue. Unfair dismissal (issues 10 to 12) Was the Claimant dismissed on 19 March 2025? (Issue 10)[83]The Tribunal has no hesitation in concluding that the claimant was not dismissed on 19 March 2025. For the sake of completeness, nor was he dismissed on 8 April 2025. In light of the content of the recordings, which were in the claimant’s possession, it was unreasonable for the claimant to suggest that he had been dismissed. In saying that, the Tribunal is not suggesting that Mr Thompson or the claimant have been trying to mislead the Tribunal deliberately. The Tribunal is saying however that their assertions as to the effect of that meeting are not sustainable.[84]Further, it is noted that in the email of 23 May 2025, referred to in the findings of fact above, the claimant asserted that he was threatened with dismissal during the telephone calls, not that he was dismissed during them. The Tribunal can understand why the claimant was concerned that a likely outcome of any Consideration of Dismissal Meeting would be his dismissal, in light of his inability to give a firm return to work date, following 18 months absence. Whilst he was not threatened with dismissal therefore, it was reasonable for him to consider that was a likely outcome. In any event, being threatened with dismissal is not the same as being dismissed. The claimant was clearly not dismissed, on the facts of this case, until 28 November 2025, following the meeting on 12 September.[85]Since the Tribunal has concluded that the claimant was not dismissed on 19 March 2025 (or 8 April), there is no need to consider whether there was a potentially fair reason for any dismissal, or whether a fair process was followed (Issues 11 and 12). Victimisation (Issues 13 and 14)[86]The Respondent accepts that the Claimant did a protected act on 25 March 2024 by issuing the Employment Tribunal claim number 6001281/2024 (Issue 13). Was the Claimant dismissed because of this protected act: dismissing the Claimant on 19 March 2025? (Issue 14)[87]The Tribunal has concluded that the claimant was not dismissed on 19 March 2025. Nor was he dismissed on 8 April 2025. The claimant was dismissed at a meeting which took place on 28 November 2025. The actual dismissal is not part of this claim.[88]Had it been necessary to determine the issue, the Tribunal would have concluded that the claimant’s ‘dismissal’ had nothing to do with him submitting an Employment Tribunal claim. There is no evidence whatsoever that there is any such link. Instead, all the evidence points to the conclusion that the ‘dismissal’ was because the claimant had been absent for nearly 3 years and was not able to return to work, whether in his previous role, or some other role. Costs 57. Both parties indicated an intention to make an application for costs against the other. Separate case management orders have been made in relation to those applications, which will be dealt with on the papers in due course, without a hearing, if they are made.