Mr I Obumneme v Arriva Rail London Ltd: 6002405/2024
EMPLOYMENT TRIBUNALS
Case No 6002405/2024
Between
Mr I ObumnemeClaimantArriva Rail London LtdRespondent
Before
Employment Judge MassarellaIn person for claimantDr Ahmed (instructed by Counsel) for respondentDate 6 October 2025
REASONS
Conclusions
[1]Judgment was sent to the parties on 21 July 2025. Written reasons were requested in accordance with Rule 60 of the Employment Tribunal Procedure Rules 2024 on 18 July 2024 and are provided below. Procedural history[2]There was a preliminary hearing before me on 9 September 2024, at which I began the process of clarifying the issues and listed a further hearing.
The law
[3]There was a further preliminary hearing before EJ Park on 18 December 2024, at which she finalised the issues for determination. The Claimant decided not to pursue as legal claims some historic matters, although he did rely on one of them as background to his live claims.[4]At a preliminary hearing on 27 February 2025, EJ Volkmer found that the Claimant was disabled by reason of depression and anxiety within the meaning of section 6 of the Equality Act 2010 at the relevant time (December 2023 and September 2024).[5]In correspondence in April 2025, Claimant raised an issue about a document which he wished to be included in the bundle; he also wished to amend his case to add an additional claim arising out of the document; the Respondent objected on the grounds that the document was covered by legal privilege. That application was dealt with on the papers by EJ Allen KC, who wrote to the parties refusing to permit the Claimant to rely on the document, refusing the application to amend, ordering that the hearing on 1 July 2024 go ahead as scheduled, and ordering that the document in question should not be placed before the Tribunal hearing the case, which it was not. Unfortunately, owing to an administrative error, that decision was not attached to the email purporting to send it to the parties. They did not realise that a decision had been taken and came prepared to deal with the application this morning. I provided them with copies of the letter at the hearing and explained that, should the Claimant wish to challenge EJ Allen’s decision, either by way of a reconsideration application or an appeal, time for doing so would run from the date on which it was sent to him. I arranged for that to happen the following morning.[6]On 23 June 2025, EJ Moor dealt with the Claimant’s application for witness orders, which she refused. She ordered that two other applications he had made should be left to the hearing. Of these, only the question of whether there was a typographical error in EJ Park’s list of issues was dealt with by agreement on the day: the reference to ‘Stage 2’ in Issue 4.2.1 was changed to ‘Stage 1’.
The hearing
[7]I had a 403-page bundle of documents. I told the parties that I would read the witness statements but that they would have to take me to any document in the bundle which they wanted me to read; in relation to longer documents they could ask me to put it on a reading list which I would work through in the course of the hearing.[8]I heard evidence from the Claimant and, on behalf of the Respondent, from: 8.1. Ms Andrea Stone (Rostering Manager); 8.2. Ms Alesha Allen (HR Advisor); 8.3. Ms Oyinda Odusanya (Grievance Manager); 8.4. Ms Charlotte Whitfield (Appeal Manager).[9]I also had a statement from Mr Hitesh Patel, the Claimant’s line manager, who did not attend the hearing. The only explanation given for his absence was that he was on holiday. There was no evidence that his holiday was pre-booked; to that extent it was an unsatisfactory explanation; I approached his evidence with caution and, on some issues, gave it less weight than I would have done had he attended to give evidence.[10]Dr Ahmad (Counsel for the Respondent) told me that knowledge of disability and disadvantage was not conceded. He clarified the legitimate aims. The issues in their final form are transcribed below into the underlined subheadings.[11]On the second day of the hearing the Claimant asked for additional breaks as an adjustment; I agreed.[12]On Day 4 of the hearing, I gave judgment and reasons orally. The judgment was as follows: 12.1. the claim of failure to make reasonable adjustments (Issue 4.2.1) succeeded; 12.2. the claims of disability-arising discrimination (Issue 3.1.1) and harassment related to disability (Issue 5.1.1), insofar as they were alleged against Ms Stone, were dismissed on withdrawal; 12.3. the claims of disability-arising discrimination (Issue 3.1.1) and harassment related to disability (Issue 5.1.1), insofar as they were alleged against Mr Patel and Ms Allen were not well-founded and were dismissed; 12.4. the claim of direct race discrimination (Issue 2.1.1) was not well-founded and was dismissed.[13]The Claimant's request for written reasons, sent to the Tribunal on 18 July 2025, was not referred to me until 3 September 2025. A date was assigned in the list for me to prepare the written reasons on 29 September 2025. Owing to an administrative error, that date was not effective; a further date was assigned on 6 October 2025. The Tribunal apologises to the parties for the delay.
Findings of fact
[14]The Respondent operates a rail passenger service under a concession agreement with Transport for London.[15]The Claimant began his employment on 12 July 2011; his employment transferred to the Respondent on 13 November 2016. He remains employed as a station assistant in a customer service role, based at Leytonstone High Road Overground station. Background matters[16]The Claimant referred in his statement (at paragraphs 10, 12 and 17) to events in 2017 and 2019. At the beginning of cross-examination, he confirmed that he was not relying on those as background to his live claims. He was relying as background on a refusal of a statutory parental leave request in 2021, and the classification of his absence in December 2021/January 2022 as being absent without leave. I make findings of fact in relation to those matters below. Parental leave policy[17]The Respondent’s parental leave policy says this: ‘8.5 Notice Requirements In order to consider your application to take Parental Leave, you must give your local manager at least 21 days’ notice of the dates required to be taken. Whilst it is appreciated this may not always be practical, you should give as much notice as possible. Even though you are applying for Parental Leave, you must still complete a leave application form, which your manager will countersign if your leave application is agreed. If it is felt necessary, your manager may ask to see evidence that you have become a parent or the person responsible, legally or otherwise, for a child. Evidence may be in the form of the child’s birth certificate, papers confirming a child’s adoption or, in the case of a disabled child, the award of Disability Living Allowance. All requests for Parental Leave will be dealt with by your Local Manager.’ The refusal of leave in 2021[18]By May 2021, the Claimant had already asked for, and been granted, annual leave on some but not all the dates over the Christmas and New Year period 2021/2022.
Conclusions
[19]On 26 May 2021, he made a written request to take three further days annual leave on 22, 28 and 29 December 2021. He also asked to take five further days as ‘unpaid leave due to childcare issues’: 23, 24, 27 December 2021 and 1 and 3 January 2022. He explained: ‘I would have taken the dates as annual leave but these dates in the annual leave planner are already filled up.’ It is clear that the Claimant knew from the outset that demand for time off on those days was high because the annual leave slots had already been booked up seven months in advance.[20]The Claimant did not use the term ‘parental leave’, but I accept that his request would have been understood as such.[21]The Claimant is right that the policy states: ‘All requests for parental leave will be dealt with by your local manager’.[22]The policy does not say that only the local manager is permitted to have input into the decision. That would be contrary to common sense because it would prevent the business from overseeing the overall question of leave in any given period, of which parental leave is merely a part. Part of dealing with a request may involve consulting others. There is nothing in this policy to prevent consultation with rostering or HR before the decision is taken; at busy periods it may be essential to do so.[23]The first three days were granted but the remaining five days were refused. The Claimant took no further action between then and mid-December.[24]On 15 December 2021, the Claimant wrote to Ms Pauline Lawler asking her to authorise unpaid leave for the same five days which had been refused in May. I note that this renewed request was made less than 21 days before the dates requested, as was usually required. He explained: ‘as my circumstance still stands, I still have childcare issues and unfortunately I will require these days mentioned as unpaid leave’. I observe that it would also have been helpful to explain in more detail why he was requesting them and what the specific childcare issues were.[25]Ms Lawler replied the following day authorising him to take 23 and 24 December 2021 from his annual leave and suggested that he cancel his leave on 12 January 2022. She explained that she was unable to authorise 27 December and 1 and 3 January, whether as paid or unpaid leave. She explained that it was an extremely demanding time of year in terms of staffing resources; the Respondent needed to protect business operations and not risk staffing failures. She said that her decision was consistent with her approach to requests from others over the festive season. If the Claimant was unable to get childcare for the three days, she suggested he call resources to notify them of domestic emergency in the usual manner, which would then be recorded as emergency unpaid leave.[26]I consider Ms Lawler’s response to be entirely reasonable. It also left the Claimant with a backstop solution of requesting emergency leave if he needed it.[27]I pause to note that I accept the Respondent’s evidence that it must be particularly careful in its allocation of leave at peak periods such as this. It must balance the needs of the individual against other factors. Above all, it has to ensure that the necessary shifts are covered. I understand the business’s preference for the shifts to be covered, where possible, by permanent employees, rather than agency workers, because they are likely to be more reliable; it is easier for agency workers to pull out at the last minute leaving the Respondent in the lurch; agency workers are usually booked late in the day and there is no guarantee, especially at peak periods, that they will be available. I also accept that the Respondent is entitled to take into account whether granting leave to an individual at peak times, when it is not available to other employees, may be perceived as unfair by employees whose leave has been refused.[28]The Claimant replied on 17 December 2021. He disagreed with her outcome. He did not want to take 23 and 24 December as annual leave because he only had one day of leave remaining and he still wanted to take 12 January as leave; he asked if he could take it as unpaid leave. For the first time he used the term ‘parental leave’ and suggested that a decision was inconsistent with the Respondent’s policy.[29]The Claimant then notified the Respondent on 20 December 2020, a day on which he was not rostered to work, that he was ‘not well to attend work until further notice, due to work’. No further details were given.[30]He did not then consult his GP to get a fit note, even though his evidence to me was that he was in the country until 29 December 2025.[31]Between 20 and 29 December Mr Patel repeatedly tried to contact the Claimant but there was no reply to his phone calls or emails.[32]The Claimant’s evidence was that he was so stressed by the Respondent’s conduct in relation to the leave issue he spoke to a medical friend who advised him to absent himself from work, to rest, to turn off his phone and not to speak to the Respondent.[33]If it is right that the Claimant’s friend gave him that advice (and there was no supporting evidence: the Claimant did not even identify the friend or his status), it was bad advice, and the Claimant was very unwise to follow it. The Claimant knew about his obligation to keep in touch during sickness absence because he had been warned about it in March 2020. By following his friend’s advice, the Claimant created a situation in which, for many days, his employer did not know where he was or when he would return. That would be unacceptable to any employer; it would also be a matter of concern to them from the point of view of their duty of care towards him.[34]Mr Patel eventually got through to him on 30 December and the Claimant told him that he was in Nigeria and could not say when he would be back.[35]Ms Allen was the person who first characterised the Claimant as being absent without leave in an email on 30 December 2021. Strictly speaking, that was not in accordance with the Respondent’s policy which provides that, if an employee has notified the Respondent that he is sick (which the Claimant had done), it ought to be assumed that their absence is genuine.[36]This was ten days after the Claimant reported in sick. By this point he ought to have provided a fit note; he had not done so and did not do so until several weeks later. With this in mind, and against the background of the fact that he had asked for leave but it had been refused and had then taken leave and gone abroad without telling his employer, it ought to have been obvious to him that this might give the impression (rightly or wrongly) that that that was what he had been planning to do all along. The fact that he then avoided contact with his manager could only reinforce this impression. I find it completely unsurprising that Ms Allen formed the belief that he was absent without leave. The Respondent now accepts in these proceedings her view was ‘erroneous’; I am satisfied, however, that it was her genuine view at the time.[37]The Claimant regards this as an example of HR targeting him in some way, as he believed they had done before. I reject that suggestion. This was a situation entirely of the Claimant’s own making. If he had taken emergency leave, as Ms Lawler had suggested, the problem would never have arisen. If he had contacted Mr Patel directly on 20 December 2024, told him what his friend had advised, told him that he was going abroad and why and explained that he would provide a fit note when he returned, the situation probably would not have arisen. If he had responded to Mr Patel’s calls, the situation would probably not have arisen. All that was required was the application of common sense on his part.[38]I do not go into the details of how this situation then developed. Suffice it to say that the Claimant was highly aggrieved; his trade union intervened to support him. The Respondent’s managers blamed each other for mishandling the situation. The term that has been used is ‘miscommunication’. I think that it a fair summary: there was a failure of communication on all sides, including as I have already explained on the Claimant’s part.[39]The Claimant did not raise a grievance about these events. The refusal of parental leave in November/December 2023 (Issues 2.1.1, 3.1.1 and 5.1.1)[40]I now turn to the first of the legal claims before me, which relates to something which happened two years after the events described above. The passage of time is relevant, because the Claimant alleges that there was a connection between the events.[41]On 5 October 2023, the Claimant asked for annual leave on 27 and 28 December 2023 and 1 January 2024. Rostering agreed to 27/12 and 1/1, but not 28/12.[42]On 25 November 2023, the Claimant submitted a request for parental leave on 28-30 December 2023 and 2 January 2024. He did so more than a month in advance of his requested leave dates.[43]The Claimant says that his manager, Mr Patel, encouraged him to apply and told him that requests were usually granted and that agency cover was available. Again, although technically Mr Patel was entitled to approve the request, it would have been sensible to check what the rostering position was before doing so.[44]Mr Patel approved it on 25 November 2023. He emailed Ms Stone of rostering asking for the Claimant to be shown as on unpaid parental leave for those dates. Ms Stone had had no involvement in the 2021/22 events. I accept her evidence that, when she sent her email seeking advice, she did not know the Claimant and was not aware of the events which had happened two years earlier[45]On 27 November 2023 Ms Stone sent an email to HR, seeking advice on the request. ‘Please can I have a prompt reply to the below request. Is this allowed? Isn’t it navigating the system and in advance of [sic]. There is no leave available on the given dates below and whilst I appreciate this is unpaid leave, if all staff were to submit above the quota, we would not be able to cover the remaining shifts.’[46]Although Ms Stone denies that she was suggesting that the Claimant was ‘gaming the system’, I think it is clear that she was suggesting he was trying to circumvent the fact that leave was in high demand over the Christmas and New Year period by going down the route of asking for parental leave. Even if that is what she thought, it was unprofessional to use that particular expression in an email and she was later criticised for it by the grievance appeal manager, Ms Whitfield. Apart from that inappropriate phrase, I see nothing inappropriate in Ms Stone’s request for advice.[47]In an email of the same day, one of Ms Stone’s rostering clerks, Mr Ali agreed with her: ‘I’m with you. I don’t think it should be allowed as many people have children and we could set a dangerous precedent by allowing this during a peak period for leave. I’m actually surprised the SDM has authorised it without speaking to anyone first. But maybe I shouldn’t be too surprised... Let me know what you hear back from HR. Thanks!’[48]The Claimant says that around 7 December 2023 Mr Patel told him that he was being pressured to withdraw the parental leave. Mr Patel showed the Claimant Ms Stone’s email to HR. That was not a sensible thing to do: it put his fellow manager in an awkward position and it was almost bound to stoke the Claimant’s sense of grievance, which it did.[49]Ms Allen gave her advice in an email of 27 November 2023: ‘Having looked at the request my advice is to decline the request for these dates and suggest a more operationally feasible time to take the leave based on the following; - unpaid parental leave must be booked in weekly blocks according to the policy. It cannot be booked on odd days as per the request below. - there is an operational reason as to why this does not work for the business; this is a reasonable position to take based on the policy Hitesh I can give you a call later today to talk through the policy so that you are aware of the rationale for my advice. Please note that unpaid parental leave cannot be flat out declined, you can provide the employee with dates that it may be more suitable to take the leave within 6 months of the dates requested. So effectively you postponed the request. This is a statutory piece and so we must adhere to these parameters.’[50]I note that Ms Allen’s advice was not to refuse the request outright but to postpone it; that was legitimate advice, in my view.[51]On 8 December 2023, Mr Patel told the Claimant that his request had been declined after consulting with HR; he said that the leave was being postponed and asked for alternative dates.[52]The Claimant objected to the decision in strong terms and, on 14 December, Mr Patel informed him that his leave would be granted as ordinary unpaid leave (as opposed to parental leave). Thus, the practical detriment that the Claimant suffered was limited. Nonetheless he put in a grievance on 9 January 2024 which progressed through three stages. I do not deal with it in detail as there no claims of discrimination relating to the handling of the grievance.[53]There was further disagreement between the managers (Mr Patel, Ms Stone and Ms Allen) as to whose fault this was. I am not going to go into detail about that, other than to say that Ms Whitfield concluded in her outcome letter at the grievance appeal stage on 8 July 2024 - in which she acknowledged that the process had been poorly handled - that Mr Patel’s original decision should have stood, and that the tone of Ms Stone’s email was inappropriate and could be perceived by the Claimant as offensive.[54]Around the same time as the Claimant’s request was declined, Mr Fazzlurrahman (of Asian origin) had his request for parental leave agreed for 12-19 January 2024. The Claimant relies on him as an actual comparator and says he was treated less favourably than him because of race. Application of the Respondent’s MFA policy (Issue 4.2.1)[55]Between 21 January and 21 February 2024, the Claimant had a period of sickness absence, recorded as ‘work-related stress’, supported by a medical certificate. On his return Mr Patel put him on a Stage 1 Managing for Attendance (MFA) procedure. The letter informing him of this stated:[56]The Claimant was put on Stage 1 [304]: ‘Thank you for meeting with me on 22nd February 2024 to complete your return to work. During the meeting we also discussed Stage 1 of the Managing for Attendance (MFA). Your recent absence has meant that you have triggered the informal stage of ARL’s MFA procedure. Those triggers are 5 or more days in a thirteen week period. The MFA procedure is designed to sustain and improve your attendance whilst supporting your welfare at work. We discussed your absence from 21st January 2024 to 21st February 2024. The reason for this absence was due to work related stress. There were no underlying medical or other reasons for your absence. There is no support that you felt ARL could provide to help you at this time. You are now being monitored under MFA Stage I. I will monitor your attendance over a 52 week monitoring period from 22nd February 2024 to 21st February 2025 over which time we expect that improvement will be maintained. The same trigger points apply to all stages of the procedure. They are the following: - 2 absences or five days in a thirteen week rolling period, or - 5 absences or ten days absence in a fixed fifty-two-week period If your attendance improves and is maintained at a satisfactory level, you will be removed from the MFA procedure at the end of this monitoring period. However, if at any time during this period, if attendance falls below an acceptable level and triggers the levels set out above, you will proceed to MFA Stage II. Stage I MFA is an informal stage in the procedure and there is ample opportunity to improve your attendance to a satisfactory level. However it is important that you attend work on time as failure may lead us having no alternative but treat employment as serious risk as part of later stages of the MFA procedure.’ The Respondent’s knowledge of disability[57]EJ Volkmer concluded that the Claimant was a disabled person in February 2024, indeed that he was already a disabled person by December 2023. I turn now to the question of whether the Respondent actually knew, or ought reasonably to have known, that the Claimant had a disability at the material time.[58]At the point when Mr Patel put the Claimant on MFA stage 1, he had known since the 2021/2022 incident that the Claimant had suffered from mental health problems, because the Claimant had told him so. Moreover, the Claimant told me (and Mr Patel was not present to contradict him) that he gave Mr Patel a short letter from a Nigerian practitioner in January 2022, which expressly referred to adjustment disorders, depression and anxiety.[59]The Claimant had had two previous referrals to OH, neither of which advised that the Claimant was probably disabled.[60]However, in June 2024, after the time I am considering, and as a result of a selfreferral by the Claimant, there was a further OH report which concluded: ‘Summary of fitness to work/recommendations: Mr Obumneme is fit for his role. It should be appreciated, that his mental health is severely influenced, by his disputes with management. Long-term mental health issues can be harmful to his health and should be beneficial if these disputes can be resolved timely. Longer-term medical capability: It is my medical opinion that he would most probably be able to render reliable service in the future. Equality Act 2010: It is my medical opinion that this Act is likely to apply due to his prolonged period of mental health issues and the fact that it does have an influence on his day-to-day living. However, this is a legal matter, which would be decided by appropriate legal processes if contested.’[61]At the point when Mr Patel decided to put the Claimant on stage 1, the Claimant had just returned from a four-week period of absence which was categorised as being ‘stress at work’. This was not his first substantial period of absence for stress at work. In my judgment, a reasonable employer would have referred the Claimant to OH at that point. It was mandatory under the Respondent’s own policy: ‘Disability-related absences Where an employee gives as a reason for absence an underlying health issue that could amount to a disability under the Equality Act 2010, the manager must refer the employee to OH. This includes where the employee states they are suffering from stress. Managers should remember that the organisation is under a duty to make reasonable adjustments for disabled employees. Where the absence is wholly or partly for a disability related reason, the trigger points referred to in this policy may need to be modified to take proper account of the employee’s disability and other adjustments to the procedures set out in this policy may need to be made. If in doubt the manager should contact OH via HR for further guidance.’[62]I find, on the balance probabilities, that if Mr Patel had referred to the Claimant to OH before making his decision in February 2024, OH would probably have advised that the Claimant was a disabled person within the meaning of the Equality Act. There was ample evidence of recurrent and significant mental health difficulties, leading to absences. If OH had asked him about medication (which it ought reasonably to have done), the Claimant would have told them that he had been taking anti-depressants, on and off, since 2014. Having regard to the doctrine of deduced effects, and taken together with Mr Patel’s own knowledge of the Claimant’s mental health difficulties, I am satisfied that he (and the Respondent generally) ought reasonably to have known that the Claimant was disabled at that point. The law Knowledge of disability[63]Knowledge of disability is relevant to claims under ss.15 and 20 EqA. The burden is on the Respondent to show that it did not know that the Claimant was disabled (actual knowledge), or that it ought not reasonably to have known that he was disabled (constructive knowledge).[64]The relevant case law was summarised by HHJ Eady QC (as she then was) in A Ltd v Z [2020] ICR 199 EAT at [23]. ‘23. In determining whether the employer had requisite knowledge for section 15(2) purposes, the following principles are uncontroversial between the parties in this appeal:(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, para 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) long-term effect: see Donelien v Liberata UK Ltd (unreported) 16 December 2014, para 5, per Langstaff J (President), and also see Pnaiser v NHS England [2016] IRLR 170, para 69, per Simler J.(3) The question of reasonableness is one of fact and evaluation: see Donelien v Liberata UK Ltd [2018] IRLR 535, para 27; none the less, 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 Equality Act purposes (see Herry v Dudley Metropolitan Borough Council [2017] ICR 610, per Judge David 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 has not [already] done so”, per Langstaff J in Donelien 16 December 2014, para 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 inquiries 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 inquiry where there is little or no basis for doing so: Ridout v TC Group [1998] IRLR 628; Secretary of State 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 inquiries, the likelihood of such inquiries yielding results and the dignity and privacy of the employee, as recognised by the code.[65]The Statutory Code of Practice deals with the question of knowledge in the context of a claim under Section 15 of the Equality Act 2010 in the following paragraphs: 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.[66]There is a further requirement in a reasonable adjustments claim: that the employer knew, or ought reasonably to have known, that the disability was likely to (‘could well’) put the Claimant at a substantial (more than minor or trivial) disadvantage in comparison with non-disabled persons. Failure to make reasonable adjustments: s.20-21 EqA[67]S.20 EqA provides as relevant:(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. […][68]S.21 EqA provides as relevant:(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. …[69]The burden is on the Claimant to show the PCP, to demonstrate substantial disadvantage, and to make out a prima facie case that there is some apparently reasonable adjustment which could have been made (and that, on the face of it, there has been a breach of the duty): Project Management Institute v Latif [2007] IRLR 579 at [45] and [54]. If the PCP contended for was not actually applied, the claim falls at the first fence: Brangwyn v South Warwickshire NHS Foundation Trust [2018] EWCA Civ 2235 at [40].[70]In Griffiths v Secretary of State for Work and Pensions [2016] ICR 76, a case concerning the application of an absence management policy, the Court of Appeal held (at [47]): ‘In my judgment, the appropriate formulation of the relevant PCP in a case of this kind was in essence how the employment tribunal framed it in this case: the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That is the provision breach of which may end in warnings and ultimately dismissal. Once the relevant PCP is formulated in that way, in my judgment it is clear that the minority member was right to say that a disabled employee whose disability increases the likelihood of absence from work on ill-health grounds is disadvantaged in more than a minor or trivial way. Whilst it is no doubt true that both disabled and able bodied alike will, to a greater or lesser extent, suffer stress and anxiety if they are ill in circumstances which may lead to disciplinary sanctions, the risk of this occurring is obviously greater for that group of disabled workers whose disability results in more frequent, and perhaps longer, absences. They will find it more difficult to comply with the requirement relating to absenteeism and therefore will be disadvantaged by it.’[71]The reasonableness of an adjustment falls to be assessed objectively by the Tribunal: Morse v Wiltshire County Council [1998] IRLR 352. Discrimination arising from disability: s.15 EqA[72]S.15 EqA provides as follows:(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.[73]The correct approach to a claim of this sort was considered by the Court of Appeal in City of York Council v Grosset [2018] IRLR 746 per Sales LJ (at para 36 onwards): ‘36. On its proper construction, section 15(1)(a) 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. 37. The first issue involves an examination of A's state of mind, to establish whether the unfavourable treatment which is in issue occurred by reason of A's attitude to the relevant "something" ... 38. The second issue is an objective matter, whether there is a causal link between B's disability and the relevant "something" ….’[74]The ‘something’ that causes the unfavourable treatment need not be the main or sole reason but must have at least a significant influence on the unfavourable treatment and so amount to an effective reason for or cause of it (Pnaiser v NHS England [2016] IRLR 170 per Simler J at [31]). It is not enough if the disability reason is merely the background to the treatment; it is not a ‘but for’ test (Leicester City Council v Gibbin [2024] EAT 138).[75]It is then necessary to look to the employer’s defence of justification. S.15(1)(b) EqA provides that the unfavourable treatment may be justified, if it is a proportionate means of achieving a legitimate aim. To be proportionate, the conduct in question must be both an appropriate means of achieving a legitimate aim and a reasonably necessary means of doing so (Allonby v Accrington & Rossendale College & Others [2001] ICR 1189 CA). Direct race discrimination[76]S.13(1) EqA provides: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[77]The question whether the alleged discriminator acted ‘because of’ a protected characteristic is a question as to their reasons for acting as they did; the test is subjective (Nagarajan v London Regional Transport [1999] ICR 877, per Lord Nicholls at 884).[78]It is sufficient that the protected characteristic had a ‘significant influence’ on the decision to act in the manner complained of; it need not be the sole ground for the decision (Nagarajan at 886).[79]The conventional approach to considering whether there has been direct discrimination is a two-stage approach: considering first whether there has been less favourable treatment by reference to a real or hypothetical comparator; and secondly going on to consider whether that treatment is because of the protected characteristic, here race/religion. More recently, the appellate courts have encouraged Tribunals to address both stages by considering a single question: the ‘reason why’ the employer did the act or acts alleged to be discriminatory. Was it on the prohibited ground or was it for some other reason? This approach does not require the construction of a hypothetical comparator: see, for example, the comments of Underhill J in Martin v Devonshires Solicitors [2011] ICR 352 at [30]. Harassment related to disability[80]Harassment related to race is defined by s.26 EqA, which provides, so far as relevant: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are— … race …[81]The Court of Appeal in Pemberton v Inwood [2018] ICR 1291 gave guidance on the correct approach to these provisions (per Underhill LJ at [88]): ‘In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances – sub-section (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant's dignity or creating an adverse environment for him or her, then it should not be found to have done so.’[82]The test for whether conduct achieved the requisite degree of seriousness to amount to harassment was considered (in the context of the formulation in s.3A Race Relations Act 1976) by the EAT in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 per Underhill P. at [22]: ‘We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and Tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.’[83]Elias LJ in Land Registry v Grant [2011] ICR 1390 at [47] held that sufficient seriousness should be accorded to the terms ‘violation of dignity’ and ‘intimidating, hostile, degrading, humiliating or offensive environment’. ‘Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.’[84]The EAT in Betsi Cadwaladr University Health Board v Hughes [2014] UKEAT/0179/13/JOJ at [12], referring to Elias LJ’s observations in Grant, stated: ‘We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.’[85]Guidance as to the construction of the wording ‘related to a relevant protected characteristic’ was given by the Court of Appeal in UNITE the Union v Nailard [2018] IRLR 730. It imports a broader test than that which applies in a claim of direct discrimination. It was intended to ensure that the definition covered cases where the acts complained of were associated with the prescribed factor as well as those where they were caused by it. However, there are limits. The Tribunal in that case had allowed that a failure to address a sexual harassment complaint, made against elected officials of the union, could itself amount to harassment related to sex 'because of the background of harassment related to sex'. That, the Court of Appeal held, went too far. The Tribunal had not made any findings as to whether the claimant’s sex formed part of the motivation of the alleged discriminator. The burden of proof in discrimination cases[86]The burden of proof provisions are contained in s.136 EqA:(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.[87]The operation of the burden of proof provisions was summarised by Underhill LJ in Base Childrenswear Ltd v Otshudi [2020] IRLR 118 at [18]: ‘It is unnecessary that I reproduce here the entirety of the guidance given by Mummery LJ in Madarassy.1 He explained the two stages of the process required by the statute as follows: 1 Madarassy v Nomura International plc [2007] ICR 867, CA(1) At the first stage the Claimant must prove “a prima facie case”. That does not, as he says at para. 56 of his judgment (p. 878H), mean simply proving “facts from which the Tribunal could conclude that the Respondent 'could have' committed an unlawful act of discrimination”. As he continued (pp. 878-9): “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal 'could conclude' that, on the balance of probabilities, the Respondent had committed an unlawful act of discrimination. 57. 'Could conclude' in section 63A(2) [of the Sex Discrimination Act 1975] must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. …”(2) If the Claimant proves a prima facie case the burden shifts to the Respondent to prove that he has not committed an act of unlawful discrimination – para. 58 (p. 879D). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the Tribunal must uphold the discrimination claim.” He goes on to explain that it is legitimate to take into account at the first stage all evidence which is potentially relevant to the complaint of discrimination, save only the absence of an adequate explanation.’[88]The burden of proof provisions should not be applied by the Tribunal in an overly mechanistic manner: see Khan v The Home Office [2008] EWCA Civ 578 per Maurice Kay LJ at [12]. The approach laid down by s.136 EqA will require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of s.136 will be of little assistance: see Martin v Devonshires Solicitors [2011] ICR 352 at [39], approved by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054 at [32]. Conclusions Issue 2.1.1 (direct race discrimination): On or around 7 December 2023 Mr Patel, Mr Stone and Ms Allen refused the claimant’s application for parental leave, even though Mr Patel had previously granted it on 27 November 2023. The Claimant relies on Mr Mohammed Fazlurrahman as an actual comparator. Issue 3.1.1 (disability-arising discrimination): as above; the ‘something arising’ is the Claimant’s absence for health reasons in 2021/2022; the legitimate aims are: 1. the need to maintain public transport services over the Christmas period and to ensure that there are adequate levels of staff in place to provide the assistance services delivered by Station Assistants such as the Claimant to the customers using the Respondent’s services during those periods; 2. the need to ensure sufficient cover was in place to meet the Respondent’s commitments to Transport for London over the 2023 Christmas period and in future Christmas periods; 3. the need to maintain industrial relations by ensuring that those accessing benefits like parental leave do so in accordance with the eligibility criteria agreed with the Respondent’s recognised trade unions. 4. the Respondent pursuance of its own statutory right to postpone the leave in circumstances where it considers that the operation of its business would be unduly disrupted if the employee took leave during the period identified in his notice (paragraph 6 (b) of the MPL Regulations). Issue 5.1.1 (harassment related to disability): as above.[89]The Claimant withdrew his allegation that Ms Stone refused his leave request as an act of disability discrimination (Issues 3.1.1 and 5.1.1). Those claims against her are dismissed.[90]As for the claim of direct race discrimination against her (Issue 2.1.1), the Claimant compares his treatment with that of Mr Fazzlurrahman, who asked for leave in a week-long block in the middle of January. That was not a period of high demand for leave. The Claimant was asking for individual days during a peak period of leave requests. In my judgment the circumstances were so completely different that Mr Fazzlurrahman is not only not a valid actual comparator, he is of no value as an evidential comparator.[91]I have concluded that the sole reason why Ms Stone wrote her email was because she wanted advice from HR about how to handle a request which caused her concern; and the sole reason why she refused the request was because that was what she was advised to do by Ms Allen. I am satisfied that Ms Stone would have acted in the same way if an employee of a different race from the Claimant had asked for leave during a peak period; her actions had nothing whatsoever to do with his race. The claim of direct race discrimination against her is not well-founded and is dismissed.[92]As for Mr Patel, all he did was to communicate to the Claimant a decision with which he did not agree; left to himself, the leave would have been granted. I am satisfied that the sole reason why he rejected the Claimant’s request was because he was advised to do so by Ms Stone. It had nothing whatsoever to do with the Claimant’s race, his disability or his absence over the Christmas period in 2021/22. The claims of race and disability discrimination against him in relation to these events are, in my view, misconceived and they are dismissed.[93]Turning to Ms Allen, I accept her evidence that she gave her advice based on the information which she had been given in the email thread. I also accept that the reason why she advised that the request should be rejected were the reasons she gave in her email. Her advice may not have been correct, but that does not mean that it was discriminatory.[94]As for the claim of disability-arising discrimination, I accept her evidence that she was not influenced by the events of 2021/2022. They happened two years earlier; they were resolved quickly without the Claimant having to make a complaint or grievance of any sort; I think it improbable that, even if Ms Allen remembered them, she would have been adversely influenced by them. She is an experienced HR professional, dealing with multiple employee relations issues every day, some of which were likely to be far more complex and acrimonious than the incident in 2021/2022. I accept her evidence that she dealt with this incident in 2023/2024 on its own facts.[95]Because I have concluded that the Claimant’s absence in 2021/2022 played no part in Ms Allen’s thinking, her actions could not be because of something in consequence of the Claimant’s disability and that claim must fail.[96]As for the harassment claim, there is no evidence that her advice was related to disability (including but not limited to the Claimant’s absence in 2021/2022) and the claim fails for that reason. Alternatively, in order for the claim of harassment to succeed, I must be satisfied that it was either Ms Allen’s purpose to violate the Claimant’s dignity, or to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant, or that it was reasonable for her advice to have that effect. That is a very high hurdle It was not put to her that her purpose was to create the proscribed environment, nor is there any evidence that it was. Nor am I satisfied her advice had the effect of violating the Claimant’s dignity or creating the proscribed environment. I accept that the Claimant was upset by the decision but mere upset is not enough to cross the threshold into harassment. For these reasons, the claim of harassment related to disability fails and is dismissed.[97]As for the race discrimination claim, Ms Allen describes herself as being of mixed black heritage. There is not a scrap of evidence that the Claimant’s race had any influence whatsoever on her advice. Although the Claimant was treated less favourably than M Fazzlurrahman who is Asian, I have already concluded that he does not assist me even as an evidential comparator. There is nothing from I could reasonably conclude that the Claimant’s race was a factor in Ms Allen’s advice to postpone the Claimant’s parental leave request. The claim of direct race discrimination against her is dismissed. Issue 4.2.1 (failure to make reasonable adjustments): the PCP relied on is ‘The Respondent’s MFA policy including the trigger point for Stage [1]’; the disadvantage is that ‘due to his depression and anxiety he was more likely to be absent from work so at greater risk of action being taken and potentially being dismissed’; the adjustment contended for is ‘adjusting the trigger points’.[98]I turned out to the Claimant’s final claim which is a claim of failure to make reasonable adjustments. I have already found as a fact that the Respondent had constructive knowledge of the Claimant’s disability at the material time (para 63).[99]The PCP relied on by the Claimant is the MFA policy including the trigger point for Stage I. Effectively, it is the requirement that the employee had to maintain a certain level of attendance at work in order not to hit the triggers and to progress through the MFA stages (see Griffiths above).[100]The next question is whether applying the triggers to the Claimant under the MFA policy put the Claimant at a more than minor or trivial disadvantage by comparison with people without his disability.[101]The disadvantage relied on by the Claimant is that, owing to his disability, he was more likely to be absent from work, and so at greater risk of action being taken and potentially being dismissed. In closing submissions, the Claimant made a further point about the disadvantage he experienced - that he avoided taking sickness absence which he needed for fear of triggering action - which at the time I suggested to him was not part of his case. However, during my deliberations I confirmed that in fact it was specifically referred to in his witness statement at paragraph 66 where he wrote: ‘In addition to the risk of sanctions/dismissal, which was that, as a result of being put on stage I, I have experienced emotional distress… And I have avoided further sick leave despite a decline in my mental health, for fear the Respondent is seeking a pretext to dismiss me.’[102]That evidence was not challenged in cross-examination. In any event it is merely a facet of the pleaded disadvantage. If a person is at risk of sanctions under an absence management policy, one way which they may respond is to avoid absence, even when it is needed.[103]I am satisfied that the likelihood of absence from work is increased if an employee has a disability which consists of significant long-term mental health difficulties; consequently, that person is more likely to hit the trigger points under the MFA policy, risking sanctions, and more likely to be anxious about taking sickness absence than a person without that disability; in my judgment that is a more than minor or trivial disadvantage.[104]I must then consider whether the Respondent had actual or constructive knowledge of the disadvantage. I am satisfied that it did: it appears to me to be self-evident that a person with a long-term mental health disability of this kind is likely to have a higher level of absence than a person without that disability.[105]The next question is whether it was reasonable for the Respondent to have to make an adjustment to the trigger point at which the Claimant was put on stage I and/or the trigger points within stage I.[106]It was Mr Patel who took the decision to put the Claimant onto stage I without adjusting the trigger points. His explanation in his witness statement for doing so was brief and unsatisfactory. He explained that the reason he did so was because, after a previous period of sickness absence for work-related stress in 2022, he had exercised his discretion not to put the Claimant on stage I, noting ‘usually this would trigger, however this is work-related’.[107]When the Claimant returned from a period of 32 days sickness absence which was marked as being for work-related stress in 2024, Mr Patel decided to put the Claimant on stage I ‘as I felt I had already used my discretion not to place him on a stage in 2022, so this would be fully justified’.[108]A 32-day absence is very substantial. However, in my judgment Mr Patel should have considered this later absence in its own right. The fact that he had been (in his view) generous on a previous occasion, two years earlier, was not a good reason for being inflexible on this occasion. He should have referred the Claimant to OH and he should have carefully considered whether any adjustments were needed in the light of the situation as it stood in 2024.[109]In answer to question from me, Ms Allen confirmed that, in appropriate circumstances, it is the Respondent’s practice to adjust the trigger points under its MFA policy. There was no evidence before me that the specific thresholds in the policy were of any particular significance to the Respondent, or that an adjustment to them could not be accommodated in this case by the Respondent for business reasons. I consider that an adjustment of the targets set out in the letter sent to the Claimant to three absences or eight days in a thirteen-week rolling period, or seven absences or fifteen days in a fixed fifty-two-week period could probably have been accommodated. I considered there was a reasonable prospect that, if those adjustments to the triggers had been made, the Claimant would have felt supported and consequently less anxious and would probably have maintained an appropriate level of attendance. Of course, if his attendance then fell below the adjusted targets, the Respondent would probably have considered whether it would be appropriate to progress him to the next stage, most likely with the assistance of further OH advice.[110]I have concluded that it was reasonable for the Respondent to have to adjust the trigger points in this way in February 2024; it did not do so. Accordingly, this claim of failure to make reasonable adjustments succeeds. Next steps[111]The Claimant is entitled to compensation for this single successful claim of discrimination, consisting of a breach of the duty to make reasonable adjustments.[112]I observed at the conclusion of the hearing that it appears to me that there are no financial losses flowing from this act; it is likely that the compensation will consist of an award for injury to feelings, possibly with an element of personal injury, although that would be subject to the need for medical evidence. There would also be interest. I expressed a preliminary view, to assist the parties in any discussions they may have, that the Claimant’s schedule of loss as it stood, was very high indeed. I observed that, in reviewing it, he should take into account that he did not succeed in the majority of his claims.[113]I also observed that the Respondent’s MFA policy was one of the most benevolent policies I have come across, with its focus firmly on providing support to employees with health difficulties. I was fortified in my view by the fact that the Respondent has only dismissed four people in the last 10 years for ill-health capability. That is a remarkably low figure.[114]I strongly encouraged the parties to see if they could resolve the question of compensation by agreement without the need for a further contested hearing. That is advice I always give at the end of a successful liability hearing. I considered it all the more appropriate in circumstances where the employment is continuing. There was an opportunity for both the Claimant and the Respondent to draw a line under the events of the past few years and to make a fresh start. As part of an agreed settlement, the parties could incorporate nonfinancial elements, such as the detailed terms of an agreed referral to OH (possibly with input from the Claimant’s GP so that OH is aware of the Claiamnt’s medical history), which might lead to greater clarity as to the adjustments which ought to be put in place, having regard both to the Claimant needs going forward and to the business needs of the Respondent, which must also be taken into account. They might also wish to agree to some form of internal mediation to try and re-establish relationships between individuals. Measures such as these might help to reset the relationship between the Claimant and the Respondent.[115]I also urged the Claimant to remember that, in taking any decision, his employer will have other factors it needs to take into account, apart for his own wishes and needs. They are unlikely to agree to every request he makes. I encouraged him to try and see things from the perspective of others and not to fall into the mindset of assuming that every decision his employer takes, which is not to his liking, is designed to target him, or is part of a conspiracy against him. I also encouraged him to reflect carefully before making serious allegations against individual colleagues which do not have a sure foundation.[116]I expressed a concern that, if both sides do not reflect carefully on their respective positions at this stage, this pattern of conflict, some of which appears to me to be founded on mutual misunderstanding, may continue and escalate, which would be unfortunate.[1]By email of 21 November 2025 the Claimant applied for reconsideration of the judgment on liability. The application was referred to me on 16 December 2025; the earliest date on which time could be allocated in the list to determine it was 26 January 2026.[2]The Claimant has settled the remedy aspect of the successful reasonable adjustments claim; there is an outstanding appeal to the EAT in respect of the unsuccessful claims.
The law
[3]Under rule 70(2), I must dismiss the application if I consider that there is no reasonable prospect of the original decision being varied or revoked. It is a mandatory requirement for a judge to determine whether there are reasonable prospects of a judgment being varied or revoked before seeking the other party's response and the views of the parties as to whether the matter can be determined without a hearing, potentially giving any provisional view, and deciding how the reconsideration application will be determined: T.W. White & Sons Ltd v White, UKEAT/0022/21 (a case under the 2013 rules, which are in substantially the same terms as the 2024 rules).[4]If I consider there are reasonable prospects, I must (under rule 70(4)) consider whether a hearing is necessary in the interests of justice to enable the application to be determined. If, however, I decide that it is in the interests of justice to determine the application without a hearing, then I must give the parties a reasonable opportunity to make further written representations (rule 70(5).[5]In Outasight VB Ltd v Brown UKEAT/0253/14 the EAT held (at [46-48]) that the ground for reconsidering Judgments (the interests of justice, rule 68) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC (as she then was) explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The 2013 rules remove the unnecessary specified grounds, leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the (then new) 2013 rules. The same must apply to the 2024 rules.[6]The key point is that it must be in the interests of justice to reconsider a judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments before a decision was reached and at which no error of law was made, then the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board [1975] IRLR 277).[7]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[8]In Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT, per Simler P, held at paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re- litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’[9]The test for determining whether fresh evidence is to be admitted is that laid down in Ladd v Marshall [1954] 1WLR 1489. The party seeking to adduce the fresh evidence must show:(1) that the evidence could not have been obtained with reasonable diligence for use at the original hearing,(2) that it is relevant and would probably have had an important influence on the hearing, and(3) that it is apparently credible. Assessment of the application under Rule 70(1) and (2)[10]The allegation of direct discrimination was brought against Mr Patel, Ms Stone and Ms Allen. A composite approach to an allegation of discrimination is unacceptable (Reynolds v CLFIS (UK) Ltd [2015] ICR 1010 at [36]). Accordingly, I considered the position in relation to each individual and reached positive conclusions as to the reason why each acted as s/he did. Those conclusions are set out at paras 91-93 and 97 of the written reasons. In my judgment, nothing in the reconsideration application casts doubt on those findings or identifies any error of law. I remain satisfied that the Claimant’s race played no part whatsoever in their decisions.[11]I acknowledged that the Claimant was treated less favourably than Mr Fazzlurrahman. That is not ‘a positive finding in [the Claimant’s] favour on the core factual question of race discrimination’ (para 3.1 of the Claimant’s application) because it does not touch on the question of causation.[12]Further, s.23 EqA requires the circumstances of claimant and comparator to be not materially different. I concluded that they were: Mr Fazzlurrahman requested leave in mid-January when demand was low; the Claimant over Christmas, the period of highest demand. Had the Claimant asked for leave in mid-January, I have no doubt his request would have been granted.[13]If I am wrong about that, and the burden of proof provisions come into play, the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which I could reasonably have concluded, on the balance of probabilities, that the Respondent had committed an unlawful act of discrimination so as to shift the burden of proof. There must be ‘something more’.[14]In his application the Claimant relies on Mr Patel’s evidence that there was ‘no peak period’ and that ‘shifts always get covered’. Mr Patel did not attend for cross-examination. On this issue I gave more weight to the witnesses who did. I set out in some detail at paragraph 27 why I accepted the Respondent’s evidence that the Christmas period is operationally sensitive and why it prefers shifts to be covered by permanent rather than agency staff. I set out at paragraphs 19 and 25 the evidence which shows that the Clamant knew in 2021 (if not before) that Christmas was an extremely demanding time of year in terms of staffing resources.[15]The Claimant relies on Ms Stone’s suggestion that he was ‘navigating the system’. I accepted that was an unprofessional phrase to use in an email. However, the fact that language may be inappropriate does not, without more, establish a prohibited motivation. I was satisfied that Ms Stone’s concern as to the consequences of allowing this request was a genuine one; her colleague, Mr Ali, shared it (para 47); there was nothing that suggested to me that it was motivated by the Claimant’s race. I concluded (para 91) that Ms Stone would have acted in the same way, had the request been made by an employee of a different race.[16]The fact that Ms Whitfield, the internal appeal manager, later regarded Ms Stone’s comment as ‘offensive’ cannot assist the Claimant in his claim of harassment related to disability against Ms Stone because he withdrew that claim, and it was dismissed (judgment point 2; written reasons para 89).[17]Neither Mr Patel nor Ms Allen made the impugned comment, so it is not relevant to the claims against them. I dismissed those claims because I concluded that their conduct was unrelated to disability and, in Mr Patel’s case, that the claims against him were misconceived (paras 92-96). Although no further analysis was required, I went on to deal with the other limbs of the test in relation to Ms Allen; I am satisfied that those (alternative) conclusions were open to me on the evidence I heard.[18]Finally, in my judgment the fact that the leave was eventually granted as unpaid leave indicates nothing more than that the Respondent took a decision - under pressure from the Claimant (para 52) - to do something it would rather not have done. A pragmatic reversal of that sort does not show that the original decision was not a genuine one, let alone that it was tainted by discrimination.
Conclusions
[19]For all these reasons, I am satisfied that there is no reasonable prospect of the Tribunal varying or revoking its judgment. The application for reconsideration is refused pursuant to rule 70(2). Because I have dismissed the application at the first stage of the procedure set out in Rule 70, I have not invited the Respondent to comment.