[1]That the respondent is vicariously liable for the act of harassment committed by one of it’s employees, AR, on the 29 October 2023 and that the sum of Three Thousand Pound (£3000) should be paid to the claimant as compensation for injury to feelings.[2]That the following acts of victimisation have been found proven namely: E.T. Z4 (WR)• On the 24 November 2023 causing or allowing an automatic door to shut that the claimant was approaching.• Purchasing food and drinks on the 29 November 2023 for staff and advising the claimant in front of others that he could not share in them.• On the 30 November 2023 walking past the claimant in the company warehouse and calling him a ‘‘grass’’.• On the 30 November 2023 entering the office in Inverkeithing and whilst looking at the claimant exclaiming ‘‘It fucking stinks in here’’. And that the respondent shall pay to the claimant the sum of Two Thousand Five Hundred Pounds (£2500) as compensation for injury to feelings.
REASONS
[1]The claimant in his ET1 sought findings that he had been discriminated against on the grounds of his sexual orientation in relation to a number of workplace incidents. He set these out in his ET1. The first incident took place on 10 October 2023.[2]The claimant was dismissed on the 9 January 2024. He began Early Conciliation proceedings 23 February 2024 and raised proceedings on the 23 April 2024. It was accepted that any acts prior to the 23 November 2023 would be out of time unless part of a continuing course of conduct involving incidents after this date.[3]The respondent, in their grounds of resistance accepted that on 10 October 2023 a homophobic slur had been used towards him by his Supervisor. They explained that following this the matter was fully investigated and the Supervisor disciplined. It was noted that the claimant had raised a further grievance on 7 December in relation to incidents that were said to have taken place on the 24 November and 30 November relating to the same Supervisor. They had investigated. Their position was that there was no evidence that these incidents had taken place or if they had they did not amount to harassment or victimisation in terms of the Equality Act. They accordingly argued that the initial incident on 10 October was time-barred.[4]In the week leading up to the hearing which was due to start on 10 February, the claimant sought to amend his pleadings to add an incident on the 29 November 2023 involving another employee who we will refer to as AR. The amendment was opposed. The Tribunal ultimately allowed the claimant to amend his pleadings to add this incident. We did so for a number of reasons. The claimant is a party litigant and unfamiliar with Employment Tribunals and employment law. He did not add it to the incidents in the ET1 because he had no corroboration. He did not know that his employers had investigated and disciplined the individual concerned until he saw documents about it in the Joint Bundle. The incident in question had been accepted to have occurred.[5]We could see no prejudice to the respondent company other than having to face an additional claim but one which they had been aware of at the time and which they accepted had been a situation where a further homophobic slur had been cast at the claimant whilst at work.
Evidence
[6]The Tribunal heard evidence from Mr McGhie on his own behalf and from Damon Lee, a former employee of RHT, the Branch Manager at the relevant time and from a Mr Tony McLachlan, Sales Director with RHT who had been involved in investigating the claimant’s grievances and in the disciplining of the Supervisor.[7]The Tribunal had the benefit of a Joint Bundle. The Tribunal allowed an additional document (Document 49) to be added to the Bundle by the claimant without objection from the respondent.
Issues
[8]The claimant is a party litigant. The respondent’s solicitors adjusted a List of Issues with him (JB60-64).[9]This document contains some additional commentary from the claimant about events but the core issues were not in dispute.[10]It had been accepted that the claimant has the protected characteristic of being homosexual. It was accepted that on 10 October 2023 the claimant’s Supervisor BD had called him a “wee woofter” twice. Other incidents involving BD on 24 November and four incidents on 30 November were denied.[11]The claimant in the course of the proceedings withdrew Issue 1G. An additional issue was added as noted above namely the incident involving AR which had taken place on 29 November.
Facts
[12]The claimant is a 36 year old man. He makes no secret of the fact that he is gay. He was comfortable discussing aspects of his sexuality with fellow employees. The fact that he was gay prompted male colleagues to ask him questions about his sex life and to discuss theirs. There was often such ‘‘banter’’ between employees which the claimant participated in relating to explicit sexual matters.[13]The respondent is a large company. Their principal office is in Inverkeithing. The respondent company has a dedicated HR Manager based in England. They are involved in fitting out offices and in the provision of equipment and furniture. Historically the company had been based in Perth but had moved to Inverkeithing. The consequence of this was that a number of long-standing employees lived in the Perth area and travelled each day to Inverkeithing.[14]The claimant lives in Perth. He does not have a driving licence and he was reliant on lifts from staff living in Perth to get to Inverkeithing where the respondent was based or to and from sites.[15]The claimant started work with the respondent as a Fitter on 9 August 2023. His employment was ultimately terminated on 2 January 2024 with notice meaning that his last day of employment was 9 January 2024.[16]The claimant applied for a post with the company because he had some knowledge of the company being friendly with one of their employees “Jack”. The claimant received a written statement of his terms and conditions from the respondent when he joined them (JB65-68).[17]The company has a warehouse in Inverkeithing and an attached office. The office is relatively small. It contains the workstations of the Sales Director and the Group Operations Director along with two other staff involved in operations Ms AC and MD. There was also a small kitchen and toilets.[18]In the course of the proceedings the claimant agreed to use the respondent’s figures for his gross and net week pay contained in their Counter Schedule of Remedy (JBp186).[19]In 2023 the respondent had an important contract in the centre of Glasgow which was being supervised by BD one of their Supervisors.[20]Prior to the 10 October 2023 the claimant felt that BD had tried to bully him. He would refer to him as “Mr Clean”. The claimant believed this to be because he washed and changed his clothes regularly and took an interest in his appearance.[21]The claimant began working at the site in Glasgow with BD.[22]The claimant was working at the site in Glasgow on 10 October. BD had been aware for a couple of days that there was an important site visit from their clients planned to take place that day. It meant that the team working there, including the claimant, would be likely to be delayed leaving site until after 5 o’clock (the usual finishing time) and possibly to 7pm to allow the clients to walk around the job and to ask questions.[23]BD was aware that the claimant needed a lift to work and a lift home. He had not alerted the claimant to this difficulty until the late afternoon on the day of the site visit. BD asked the claimant how he was getting home. The claimant told him that he expected to get home ‘‘the same way as normal’’. BD then made a comment about the claimant expecting to have a job “with travel”. The claimant then became aware that he might be delayed getting back to Inverkeithing. He had expected to be able to get a lift from Inverkeithing from other staff returning to Perth. He was annoyed about not being told earlier to allow him to make arrangements to get home and began arguing with BD about why he had not been told.[24]In the course of the argument BD referred to Mr McGhie as “You wee woofter……”. The claimant was taken aback and shocked at this comment. He asked BD to repeat it which he then did slowly and deliberately emphasising the words and looking the claimant in the face. The claimant responded by saying “that’s uncalled for” and left BD’s presence.[25]The claimant was upset and annoyed with BD and felt “mortified”. The remark had been witnessed by another employee.[26]The claimant telephoned the office to report the matter and spoke to AC and later to SD who both worked in the ‘‘Ops Department’’. Ms AC later provided the respondent with a note of her recollection of events (JB72/73). The claimant had told her that he had been called “a wee woofter” and that BD had repeated this to him. He was told to contact ‘‘Ian’’ a Supervisor at another site in Glasgow to get a lift home. The claimant then left site. While he was in a taxi going to the other site he was telephoned and txt’d by BD. He did not respond.[27]After speaking to the claimant SD told BD what had been reported to them. BD initially denied making the remarks but said that they had had an argument. BD also spoke to Ms AC.[28]Ms AC later spoke to the claimant about whether he wanted the issue raised with HR or if he would prefer an apology. The claimant said he would think about the matter.[29]On Wednesday 11 October 2023 the claimant advised Ms AC that he wanted an apology. SD spoke to BD to arrange for this to happen. At this point it became apparent that an employee BW who had been present when the comment had been made and who initially denied that he had heard it because he had had his earphones on accepted that he had heard the comment being made as described by the claimant.[30]On Friday 13 October SD asked BD to make an apology to the claimant. BD had been asked to address some concerns made about the claimant’s behaviour on site when discussing sexual matters and chose to raise these matters as well. He came across the claimant and told him he was sorry for his comment. He then repeated an allegation that the claimant had made a comment to a sub-contractor namely, that the claimant said “I’m going to shove my dick in your arse”.[31]The claimant was stunned at this. He denied he had ever made such a comment or would make such a comment. He felt that the apology was worthless. Mr McGhie later spoke to Ms AC explaining that this matter shouldn’t have been raised with him. BD later told her that following the apology “everything was fine”.[32]On 15 October Ms AC was advised by the claimant that he had spoken to the Police about the incident and reported it as a “hate crime” and asked for the matter to be taken further by RHT. The claimant felt there had been no genuine apology. BW had made what he regarded as a vile and untrue accusation to him. The claimant’s e-mail to Ms AC (JB71) stated: “I would like to log a complaint please. I was verbally abused by the Supervisor Brian Donaldson who called me a “wee woofter” in response to a disagreement we had regarding travel. I asked him to repeat what he said and he again said “wee woofter”. The intent of this comment was to insult and it resulted in me walking off a job, I don’t think my sexuality should be spoken about in a degrading manner as a result of a disagreement….”[33]The respondent’s HR department became involved and a Ms Kershaw the head of the department wrote to the claimant on 24 October advising of a date for a grievance meeting. She recorded: “I spoke with you on Thursday 19 October 2023 to discuss your grievance, in a further attempt to reach an informal resolution. You advised me that you had initially stated to AC, Operations Supervisor that you were seeking an informal resolution. In order to facilitate an informal resolution BD, Supervisor was asked by SD, Operations Manager to apologise to you. However, it is our understanding that when BD attempted to apologise to you on Friday 13 October he made a comment which exacerbated the situation somewhat and you felt further aggrieved. You confirmed to me that you wanted the matter to be treated as a formal grievance therefore I enclose a copy of the company’s grievance procedure.”[34]The grievance hearing took place on 30 October. It was minuted. It was conducted by Teams. T.McL, the Group Sales Director conducted the meeting. He asked the claimant what had happened on 10 October and the claimant narrated the background and the incident and said: “the intent of BD’s comment was to insult. I don’t think my sexuality should be discussed. I reported it to the Police. Brian committed a crime. I felt like walking off the job. SD said if he’s done that then you can walk off. I covered it in the e-mail that Steve told me to walk off site. I felt small. I’ve never had this at work.[35]He then explained he met BW another employee as he was leaving the site and told him that he was walking off because of BD’s comment. When he was in a taxi BD tried to contact him on his mobile but he didn’t answer. BD texted “Why did you walk off site? I could have got you home by 5pm.” TMcL then indicated that a full investigation would take place. He was asked about what he wanted and he responded: “I didn’t make it into a formal grievance. Brian turned it into a formal grievance. Brian should be punished, even fired. What he did was a hate crime. He shouldn’t be discriminating against people.”[36]TMcL interviewed BW (JB82-83). He told him that he had become aware that there was some friction between BD and Mr McGhie about getting a lift home. He said that in relation to the incident itself that he wasn’t sure what was said because he had his earphones on. He claimed he had not heard BD say “wee woofter”.[37]On 1 November TMcL interviewed BD. Notes of the meeting were taken (JB85-87). BD explained that he was preparing for the arrival of the VIP clients and asked the claimant how he was getting home if the job ran on. He stated: “At this point Sean’s attitude changed dramatically, it went from 0 to 100 in an instant.” He continued: “Sean then started questioning me why he hadn’t been made aware of this and why wasn’t he told of the potential late finish. Sean’s mood went from general site banter to bad attitude in an instant. He was demanding and becoming more irate. In the army banter was part of everyday life and it’s part of general site chat when everyone just moves on. I called him a wee woofter and laughed as I thought it may diffuse the situation, just banter, he laughed too then asked me to confirm what I said. I said it again thinking this is all banter and Sean then said that’s uncalled for.”[38]He said that he became aware that Sean had left site and had tried to telephone him “to apologise and make sure he was ok”. It was put to him that he was asked or told to apologise by the office staff. He denied this by saying no “but I had already tried to apologise and just left it about a week. Next time I saw Sean in the yard I pulled him to one side and said I want to apologise for what I said to you on site, I shouldn’t have said that and I want to apologise. I went on to add that as a Manager I’ve spoken to lots of the lads to make sure site banter and certain questions to Sean should not offend and to cut out any chat that may be seen as personal. I asked Sean also to do this as some of the guys found his chat on site offensive and if he could keep his comments to himself.” He was then asked about the inappropriate chat from Sean. BD said. “lots will have heard it, it’s common.” BD then named a number of employees including having spoken to DL, a manager, about having a word with the claimant.[39]TMcL contacted a number of staff about the alleged banter on site, CG and CA. CG indicated that the chat didn’t really bother him but on one occasion it upset an employee called Jay when he walked off in disgust and Sean was then in a mood with him for about a month. CA indicated that chat doesn’t bother him but “that some could be offended.” It was also noted that ‘‘Ryan’’ had been asked about gay chat but was not aware of having heard any.[40]TMcL considered the matter and decided to uphold the grievance. BD was disciplined. He was given a final written warning.[41]TMcL in his grievance outcome accepted that BD had tried to call the claimant three or four times to apologise and indicated that he accepted that before BD had made the offensive comments the atmosphere had been reasonably convivial. He uncritically accepted his version of events. He accepted that the claimant’s attitude had changed dramatically and he had become objectionable. He accepted BD’s evidence that the claimant laughed as well when he repeated the remark. He wrote to the claimant: “Whilst I uphold your grievance in respect of B’s wholly inappropriate comment to you, I must advise you that prior to the incident at JP Morgan, a colleague had approached DL, Branch Manager and advised him that a couple of guys were a bit shocked by some of the things you’d been saying (sexual connotations). DL recalled speaking to you the next day to ask you to ‘to tone it down’ your chat following several complaints on site. Damon stated that you accepted the fact that you shouldn’t have gone to so much inappropriate detail, however, you had felt that you were just joining in the conversation with the lads on site. You have spoken to at least three other members of staff who all confirmed the topic of your ‘chat’ could be deeply offensive to some people and whilst I acknowledge that the topic of conversations on sites can be colourful all staff need to be aware that clients and others on site may hear conversations and this could potentially damage RHT’s reputation.”[42]He confirmed that “RHT will instigate an appropriate program of equality and diversity training and that disciplinary action would be taken against Mr Donaldson.” He was given the right to appeal which he did not exercise.[43]On the 24 November the claimant was in the warehouse. The door to the office is self-closing. He was walking from the warehouse to the office carrying heavy boxes of paper. BD was standing on the warehouse side of the door. When he saw the claimant coming he went into the office allowing the door to close. To speed up its closing he pulled the door. He then watched through the glass mouthing what the claimant thought were taunts at him struggling with the boxes.[44]On 28 November 2023 TMcL contacted HR and advised that BD had contacted him to complain that Mr McGhie had been openly discussing the incident outside work and “volunteering this information to anyone who would listen.”[45]Ms Kershaw noted that on 29 November BD told her that he was becoming increasingly frustrated by Sean openly discussing the grievance. On the same day Mr McGhie contacted Ms Kershaw and advised her that BD was starting to bully him again. He referred to an incident in the warehouse on the 24th.[46]The claimant explained that on 29 November BD had gone to the burger van outside the warehouse and had bought everyone at work something from the van but not him. He took the food into the warehouse and said “help yourselves all bar one looking at him”. He told her that BD was trying to “get the rise out of him” and said that he was trying to remain stable but on Friday he and a friend drank six bottles of wine between them.[47]On the 30 November the claimant was in the warehouse. He walked past BD who looked down and when he walked past said ‘‘Grass’’. The claimant found this intimidating and upsetting.[48]On the same day in the afternoon the claimant was in the warehouse office when BD walked in. The claimant was with four other staff. BD loudly remarked ‘‘fucking stinking’’ as he looked at the claimant. The other staff thought that BD was commenting on a strong smell of onions in the room but the claimant was aware that the remark was also directed at him. He found this upsetting.[49]On the same occasion BD spoke to DL the manager trying to get everyone who was not either a supervisor or office staff, banned from the office. The claimant understood that this was directed at him.[50]On the 29 November the claimant was working with two colleagues BW and AR. His two colleagues were taking items up to an upstairs office by lift. Rather than block the passageway leading from the lift the claimant was standing with a trolley to assist move the materials and was out of sight of those exiting the lift. When the lift doors opened AR shouted ‘‘Where are you you gay cunt!’’ The claimant was stunned by the comment. He was in the vicinity of people working in the offices and was very embarrassed that they would have heard what AR had shouted. He was upset and “flabbergasted” that AR would say this. He had thought he had a good working relationship with him and had never experienced any indication in the past that he might say something like this to him.[51]The claimant complained and the company investigated the matter. A statement was taken from BW on 30 November. He accepted that AR shouted “Where are you, you gay cunt”. He indicated that he thought there was frustration with the claimant’s work performance.[52]On 4 December 2023 DL indicated that on Friday he had received a telephone call from a Police Constable Trickett because Mr McGhie had officially reported an incident involving AR to the Police. On the same date the claimant was signed off work with work related stress. His GP records stated: ‘‘Consultation Bullying/Harassment he says at work related to his sexuality. Doesn’t sound very good at all and he needs some time away from work, this is fine. He has gone through official channels which is the right thig (sic thing). IBS returned, mouth ulcers, not sleeping, fear of leaving home at time as well’’.[53]On 4 December the claimant was signed off work on the grounds of stress. He had attended his GP. The Fit Note recorded that he was complaining of bullying and harassment related to his sexuality. It stated: “IBS returned, mouth ulcers and not sleeping’’.[54]On 7 December the claimant was mulling over making a formal complaint against BD for recent events. He was worried and upset about the incidents at work involving BD. He couldn’t sleep and eventually sent the e-mail to Ms Kershaw at 00:47 he wrote: “Hello, I wish to lodge a formal complaint against B… D…. Since the last HR investigation where Brian admitted to calling me a Homesexual slur, Brian has been intimidating me in a number of ways. I made you aware of the 24/11/2023 incident by telephone on 29/11/2023. This was the same day I was also verbally attacked by AR who called me a ‘big gay cunt’. Please see the following dates Brian has intimidated me. 24/11/2023 Slammed a door on me whilst I was carrying boxes as I attempted to enter the hallway from the warehouse. 30/11/2023 Walked past me at warehouse and called me a ‘Grass’. 30/11/2023 Followed me into every room I entered in an effort to intimidate me. 30/11/2023 Walked into a room I was in with all the office staff – Alison, Damon, Steve and also Baz and said the office room was ‘fucking stinking’ as he looked at me. 30/11//2023 After I had been in the office, Brian spoke to Damon in front of me and tried to get everyone who was not either a supervisor or office staff, banned from the office. 07/12/2023 Damon sent an email regarding a meeting due for 11/12/23, Brian replied all on his email telling staff about details for the upcoming staff party. I had chosen not to attend this party as I was being bullied by Brian and I find this behaviour also intimidating. He could have removed me from the list before he sent his email and I feel like he was taunting me. I have attached a photograph of the email for your records. I find all of this behaviour completely unprofessional and unacceptable. Kind Regards”.[55]On 7 December Mr Bill Abrahams, the Operations Director was asked to provide some information about Mr McGhie. He sent an e-mail to HR and to Mr McLachlan. He wrote: “A few points that immediately come to mind regarding Sean: 1. Email from Raf (Supervisor) last week asking for him not to be put on his work; 2. Colin Garvie (Installation Manager) has requested Sean not be put on his work………….he stated that he would rather be a man down; 3. He is lazy on site and does not pull his weight; 4. He is slow and this has been addressed by Damon in the past; 5. He sat in the cab of a Luton van while the rest of the crew loaded empty pallets and waste from site… he is not a team player; 6. He has broken the confidentiality agreement around his grievance procedure as it has been discussed with the crew and external outlets such as Pam’s Snack bar and Greggs; 7. He is unhygienic and Damon had to speak to him regarding this; 8. He has sent this message in the early hours of the morning in my view suggesting this after a night out which on one occasion he was out with Jack Botham and failed to turn up the following day for work because he was drunk; 9. He feels he is entitled to a lift to and from work from Perth every day……….on occasion the Op’s team have adjusted the schedule to suit this but I have since stopped this. Please also see my comments below”.[56]A statement was taken from DL the depot manager on 8 December (JB106). He wrote: “After an incident on site where it was brought to my attention that Sean had been discussing his sexual activities over the weekend I had an informal chat with him to try and keep it to a minimum whilst on site. Sean’s defense was that everyone else was discussing their antics so he just joined in. This chat I had with Sean was approximately early October and was in the warehouse at the end of a working day. We both left that discussion in agreement that he would minimise that kind of chat on jobs.”[57]DL gave two examples of what had come to his attention to the claimant’s performance on 13 and 20 November namely, he had not joined in in assisting in the unloading of a lorry and that he had mentioned to a colleague, that one of the supervisors was “stealing components from a client”. The client was within earshot and heard the comment. No action had been taken in relation to these matters either formal or informal.[58]DL indicated that he had conducted Mr McGhie’s performance review on 8 November and that the review had shown that Sean was still enthusiastic about the role, keen to learn and gain more experience: “Highlighted during this review was the fact that Sean tends to talk a lot. And when he talks, he stops working. He also talks to a lot of clients. These elements are one of the biggest bugbears for the whole team. Feedback from all supervisors and some workers, is that Sean is lazy, not a team player and does not always assist when help is required.”[59]On 11 December Mr McGhie received a letter from Mr Abrahams (JB107) asking him to attend an investigatory meeting on 14 December in relation to workplace conduct. The meeting was put back to 18 December. He was advised that his own conduct would be discussed (JB114). The meeting took place and notes were prepared for the use of Mr McLachlan (JB109-111). The claimant set out the various incidents he believed Mr Donaldson had been involved in. It had also become to the attention of the company that the claimant had been convicted of assault and had received the punishment of community service. This appeared not to have been disclosed when he had been recruited. This matter was raised with the claimant as was his discussing the original grievance with others.[60]Mr McLachlan considered the matters raised and carried out investigations. He came to the view that there was no basis for the complaints made by the claimant in relation to BD. He reflected this in his grievance outcome. He made the following findings: “24/11/2023 Slammed a door on me whilst I was carrying boxes as I attempted to enter the hallway from the warehouse You claim to have been carrying three boxes of A4 copier paper from the warehouse into the main office. As each box of paper weights 12.5kg, the combined weight of these boxes is 37.5kg, which is 12.kg in excess of the recommended maximum 25kg limit for safe manual handling. A mechanical skate should have been used to move the three boxes of paper according to the guidance in the Manual Handling training module that you completed as part of your mandatory training in your Induction on 9 August 2023. The height of 3 boxes stacked is 645mm. HSE guidelines suggest there are many factors that need to be considered for safe manual handling, the task, the load; weight, shape, sharp edge, the working environment, i.e. doors, stairs, individual capacity, and any materials handling equipment or handing aids used. I am disappointed therefore that you chose not to follow the designated guidance on safe manual handling despite having recently completed the mandatory training module. The door which BD allegedly “slammed” on you is a fire door, which has a 2 stage closer mechanism; this means that stage 1 is slow, and stage 2 is fast, and this could be perceived as the door slamming. However, there is no handle on the inside of the door, therefore there is no way that Brian could have “slammed” the door on you; due to the mechanism of the door it would be difficult, if not impossible to make this door close faster than it is designed to. On the basis that there were no witnesses to this incident I cannot uphold your complaint. 30/11/2023 Walked past me at warehouse and called me a “Grass”. This incident was difficult for me to investigate. You stated that BD said this when you passed one another in the warehouse. There were no witnesses to this alleged incident, therefore I cannot uphold your complaint as I am unable to come to a conclusion. CCTV was checked but it did not support your version of events. 30/11/2023 Followed me into every room I entered in an effort to intimidate me. At the investigatory meeting you explained that “every room” related to the warehouse, canteen and the Operations team office. There are no witnesses to substantiate your claim. These three rooms are frequented by all staff at many times during the day. I also noted your comment during the investigatory meeting about the gent’s toilet and you stated that BD hadn’t followed you in there despite you thinking that BD may had done so. Considering all of the above, I cannot uphold your grievance in relation to this incident. 30/11/2023 Walked into a room I was in with all the office staff – A, DL, SD and also B and said the office room was “fucking stinking” as he looked at me. During the investigatory meeting you advised me that you were standing in the doorway in the Operations team office and BD was standing near AC’s desk. I interviewed all staff who were present in the room and all confirmed that BD had made the comment. Furthermore, it was widely acknowledged that BD was referring to a strong smell of onion from a colleague’s lunch. There was considerable distance between yourself and BD when BD made the comment, therefore I cannot uphold your complaint that BD was aiming the comment at you. BD’s comment was a factual comment about a strong food smell, and not body odour, which you have been previously reprimanded about by your manager DL. Given that nobody saw BD looking at you when he made the comment, I cannot uphold your grievance. 30/11/2023 After I had been in the office, BD spoke to DL in front of me and tried to get everyone who was not either a supervisor or office staff, banned from the office. This topic has been discussed on numerous occasions as several staff tend to congregate in the small Operations team office, which can be disruptive for the staff working in there. BD observed there were a number of non-Operations team staff present in the office and merely mentioned this to DL, Branch Manager as a recommendation. There is no evidence to suggest that BD’s comment was aimed personally at you therefore I cannot uphold this grievance. 07/12/23 DL sent an email regarding a meeting due for 11/12/23, BD replied all on his email telling staff about details for the upcoming staff party. I had chosen not to attend this party as I was being bullied by BD and I find this behaviour also intimidating. He could have removed me from the list before he sent his email and I feel like he was taunting me. I have attached a photograph of the email for your records. I investigated your complaint, and it was confirmed to me by DL, Branch Manager that you had previously stated in November 2023 that you would not be attending the staff party due to transport issues. The issue was the reply to all Email that BD had sent to the team, with a link to the menu for staff to choose their meal. In BD’s defence he did not cross-check the email group recipients with the list of confirmed attendees for the staff party, he merely replied to all. I believe that if BD had removed you from the email list you may have accused him of deliberately excluding you. I cannot agree that BD’s behaviour was unacceptable and therefore cannot uphold your grievance.”[61]The claimant was subsequently disciplined and dismissed. He received the outcome of the disciplinary hearing which took place on 28 December on 2 January (JB134-135). Police Involvement[62]The claimant first contacted Police Scotland on 14 October 2023 in relation to the incident on 10 October. On 14 November he contacted the Police once more and gave more details of the same incident. He advised the Police that he had heard that the complaint had been upheld and that BD had admitted making the comment complained of. He indicated that due to the comment “wee woofter” and that he “wanted to fuck a male colleague”, he had been subject to a hate crime.[63]The claimant contacted the Police once more on 30 November 2023 the following was recorded: “On 13th November 2023 Sean received a letter from his employer stating his complaint was upheld, and that…… had admitted to making the comment and that he would be disciplined by RHT Group, and they will be introducing a diversity and equality input for all staff. On Wednesday 15th November 2023 Sean reported the incident to the police. Sean stated due to the comment “wee woofter” and that he “wanted to fuck a male colleague” he was subject to a hate crime. The Reporting Officer is PC D1759 A report was sent to the Procurator Fiscal under ref PSSGPR6B70224. Sean McGhie contacted the police to report he has been victim of a hate crime yesterday by another employee Sean states that he was at a place called Noda in Edinburgh and was at the lifts with a frame – Sean states that a group of employees were coming out of the lift and…….looked over and they exclaimed very loudly “where is that big gay cunt?”………states that this caused people to stop and look over - …….states that he was mortified and had to walk away……states that he reported this to his manager and a final written warning was immediately issued to Aiden. ……..states that this has really affected him and his mental health. ……..also advised there have also been further incidents from the other male………in the last few days and states that the behaviours have been escalating. ………advised he has been through a lot of trauma over the last few years and he feels that he is being victimised……..states that he no longer feels safe at work and now at home as the male may know his home address. Police advice given.” Investigation into disciplinary matters[64]The company investigated the two disciplinary issues they had raised with the claimant. SD, the recruiting manager, was interviewed on 18 December and notes taken (JB145). He was asked if Mr McGhie had disclosed any past or pending criminal convictions and said no but he did say “he had beaten his boyfriend up and had got some community service. I want to say that I asked him if he had been in trouble with the Police, he said no but I did get some community service when I beat my boyfriend up.” He was asked if he thought this was serious and responded “not at all. I thought it was more a lover’s tiff, in the street and he had been told to do some community work.”[65]The claimant remained unwell with stress. He was signed off work for two months by his GP on the 3 June 2024 (JBp147). Witnesses[66]We found the claimant to be a generally credible and reliable witness. We did not accept all his evidence and concluded that he had probably minimised the true extent to which he spoke to colleagues about BD’s actions on the 10 October. He had been clearly upset and angered by the comment and subsequent behaviour. To an extent his actions were understandable given the impact the initial and subsequent events had on him. He was otherwise generally truthful. We observed that the incident on the 10 October had left him quite sensitised to later events leading us to the conclusion that we could not accept some of the incidents he narrated had occurred on the 30 November. We felt that there was insufficient evidence to uphold some of the claims said to arise from incidents on 30 November.[67]TMcL did not have much, if any, experience or training in conducting grievance and disciplinary hearings. Nevertheless, he tried to investigate matters fully although he seemed to rather readily accept at face value some of the evidence given by BD. He did not delve into the evidence or put the inconsistencies in BD’s position to him. That said he was patently honest and generally credible and reliable. DL was a straightforward witness who we regarded as credible and reliable in his evidence although the passage of time had blunted his ability to recall some matters in detail. He put very little weight on the concerns raised about inappropriate banter. Submissions[68]Mr Benjamin submitted that the first point he wanted to raise was that the incident that took place on the 10 October was out of time. He reminded us that the claims were only for harassment/victimisation and not unfair dismissal. He took us through the dates of the Early Conciliation application (23 February) and the lodging of the proceedings (23 April 2024). This also meant that the incident on the 24 November was out of time. The respondent’s position was that no incidents occurred on the 29 November and that the incidents spoken to by the claimant were either untrue and for the purposes of bolstering his case or magnified by him being overly sensitive towards BD. He then took the Tribunal through the evidence. The claim that the claimant subsequently dropped in the course of the proceedings namely the one relating to being contacted about the Christmas Party by BD showed the level of such sensitivity. While he sympathised with the claimant it could also not be said that the incident involving AR was part of any ongoing or continuing act. It was a discrete incident.[69]He urged the Tribunal to accept the evidence of the respondent’s witnesses. It was clear that they took homophobic abuse seriously and the upshot of this was that they made a full investigation and ultimately disciplined BD. Touching on remedy if the Tribunal was not with him much would depend on the factual position found by the Tribunal.[70]In response the claimant was highly critical of the respondent’s investigations. They had failed to detect a pattern of behaviour. They had given BD far too much credit accepting his version of what had happened on the 10 October and that he had telephoned to apologise when in fact he had been told to. He was still shaken by these events. Discussion and Decision[71]We first of all considered the terms of Section 26 of the Equality Act 2010 (‘‘EA’’). “26 Harassment(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.(2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b) the conduct has the purpose or effect referred to in subsection (1)(b).(3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and (c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.(5) The relevant protected characteristics are—• sexual orientation.”[72]We bore in mind that the section does not import a strict test of causation. The unwanted conduct need not be because of the protected characteristic, it need only be related to it. That is a broad test requiring an evaluation of the evidence (Hartley v. Foreign and Commonwealth Office Services UKEAT/0033/15).[73]We also considered the terms of Section 27 of the EA: “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.”[74]The Tribunal also had to bear in mind the relevant provisions of Section 136 of the Act in relation to the burden of proof. “136 Burden of proof(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.”[75]It was accepted that the claimant had the protected characteristic claimed. The respondent also accepted that if true the events founded upon by him that took place on the 30 November, which were in time, could amount to harassment but that the company did not accept that these events had occurred. We first of all had to consider the various incidents starting with what the claimant believed to be harassment.[76]It was accepted that the incident on the 10 October 2023 was time barred unless later incidents were proven which allowed the claimant to rely on ‘‘continuing acts’’ to bring the earlier incident within time.[77]We looked first of all at the incidents the claimant said occurred and the surrounding circumstances to ascertain if there was any support or corroboration or support for his evidence.[78]We examined the initial incident in some depth. We did so partly because we did not hear evidence from BD. His position was put to us second-hand. It is disappointing that he did not give evidence. We understand that he had left the company but were not advised what steps, if any, had been taken to seek his attendance.[79]The background to the initial incident involving BD was that, understandably, the claimant was concerned about how he was going to get home. There seemed to be an undercurrent of resentment that he was allowed to rely on lifts and we accept that BD by raising this so late in the day with him was probably to ‘wind him up’.[80]In the minuted interview BD attempted to minimise his actions by suggesting that it had been the claimant who had become unreasonable and that he had used the slur as ‘‘banter’’, had repeated it as a joke and had then telephoned the claimant to immediately apologise when he walked off. The notes prepared by AC (JB72/72) paint a somewhat different picture. They appear to be more consistent with the claimant’s evidence. They record that he had telephoned her immediately after the incident to report it. Her colleague was in contact with BD who initially denied using the slur and said that they had only had an argument.[81]The telephone calls made to the claimant before this occurred were characterized by BD as attempts by him to apologise to the claimant. We thought it more likely that BD was trying to find out where he had gone rather than to apologise for something that he, initially at least, denied had occurred. It was one of these managers who told BD to apologise after the claimant had agreed to accept an apology. The interviewing manager did not challenge BD’s version of events and seemed to accept what he said at face value including attempts to make it look as if it had been the claimant who had been unreasonable in some way.[82]BD then gave the claimant an apology but raised the claimant’s alleged behaviour in an incredibly inflammatory way. This frankly seemed to us to be an extraordinary way to proceed. We concluded that by raising this matter in this way or indeed at that point it reinforced the claimant’s view that the apology was not genuine and that there was underlying antipathy towards him.[83]We also considered the contemporaneous records that the claimant produced from Police Scotland. These showed what he said to them at the time and gave an insight into the seriousness with which the claimant regarded these events.[84]We can understand that BD might well have become angry with the claimant following these events. He was under some pressure supervising an important job. He had been forced to take part in an investigation. The claimant was told that BD was facing disciplinary action by letter dated 13 November. Shortly after this the claimant was told informally that he had been disciplined. In addition, BD would probably have been spoken to by the police (a report was sent to the PF around 14 November). He was apparently annoyed that the claimant was telling others about the incident and disciplinary and reported this to the employers at the end of November (JB97).[85]Turning to the incident on the 29 November. We accepted that the incident involving AR was a ‘’stand-alone’’ incident unconnected to BD’s behaviour. Whilst upsetting for the claimant it does not assist him in showing a continuing act or state of affairs. It was quite clearly sufficient to constitute an act of harassment on its own.[86]Although, as we were conscious that we had heard no direct evidence from BD we accepted the claimant’s evidence about the various incidents as being accurate. However, what gave us some pause was that although the incident on the 24 November (door incident) which the claimant spoke to and then the incidents on 30 November seem broadly consistent with the background evidence that BD would not let things go we wondered if they were truly ‘related’ to the claimant’s sexuality rather than the fact that the claimant had complained, reported BD to the Police and he had been disciplined.[87]The claimant was interviewed in relation to his second grievance. There appears to have been no interviews of BD. The respondent did not uphold his first allegation namely that BD had slammed a door on him. They seem to have taken a rather unsophisticated approach. The claimant in reality makes more than one complaint about BD’s behaviour that day. He describes how BD ‘grabbed’ the door (as there was no handle on his side/office side) in an attempt to override the door shutting mechanism. This was held by the employers to be improbable. (We would add that parties asked us to view a short video of the door in question. It did not particularly assist us). We do not agree with the employer’s assessment and the fact remains that the core allegation was that the claimant who was carrying heavy materials had a door closed on him, or BD allowed the door to close on him, by someone who could have left it open. Oddly it was the claimant that came to be blamed for carrying too much paper.[88]It was also commented upon that as he had sent in his grievance early in the morning of the 7 December that he might have been drunk. The written grievance itself gives no hint that the claimant was impaired through alcohol when he wrote it but these matters gives us a flavour of the employer’s attitude towards the claimant at this point. The second allegation was that the claimant had been called a ‘grass’. This seems entirely likely given the situation that had developed. There was no direct corroboration of the incident but, unlike the employers, we were prepared to accept the claimant’s evidence in relation to this matter as being likely to be true.[89]The next allegation was following the claimant around the warehouse. The claimant accepted that BD had cause to be in the premises on the day in question. He also accepted that he was not followed into the toilet by BD although that would have been a way to intimidate him further. In the round we are of the view that the claimant hasn’t been able to demonstrate a prima facie case in relation to this particular allegation. The impression he came to that BD was following him might well have been triggered by the previous upsetting events but we had to bear in mind that BD had cause to be there at that time and that the premises are not huge consisting of a modest office, kitchen and warehouse.[90]The respondent’s also rejected the allegation that the comment ‘‘fucking stinking’’ although made related to the smell of onions. It was interesting that the Group Operations Director made reference to the claimant being unhygienic in his email dated 7 December (JB103). This is no more than suggestive that there was some background allegation about the claimant’s cleanliness (one which we would add he strenuously denies). It says that DL had to speak to him about it but DL in his evidence had no recollection of this issue. We don’t place much weight on that in itself. It was a transitory occurrence. However, we accept that the claimant is correct that while BD might have used the smell as an excuse he did so while looking directly at the claimant to ‘wind him up’.[91]The final allegation related to BD raising whether employees such as the claimant should have free access to the office. A suggestion that was immediately shot down by DL who has an open door policy. The claimant may be entitled to feel suspicious why this matter was raised on the day of these other incidents but there is simply insufficient evidence to support the claimant’s suspicion that it was directed at him.[92]We then looked at the incidents we had found proven. We considered whether any of the incidents after the 24 November could be said to be an act of harassment on the grounds of the claimant’s sexual orientation that would allow the claimant to argue that the first incident in October was part of a course of conduct or continuing acts that would prevent time bar operating. We had difficulty regarding the proven incidents as relating to the claimant’s sexuality. Harassment does not require a strict causative test and in some way what happened after 10 October followed on and was related to the first incident of clearly homophobic abuse. However, there was nothing about the character of the incidents themselves that indicated homophobia.[93]We found some assistance in the case of Hartley. That case related to disability discrimination but there was a discussion about whether two remarks that had been found to have been made amounted to disability discrimination. The ET had found that although, made they were not related to the protected characteristic.[94]The Employment Appeal Tribunal upheld the claimant’s appeal. In considering whether the two remarks were ‘related to’ H’s disability, they found that the ET had erred by focusing on the perception of the person who made the remark and not the nature of the remark. The question posed by S.26 (1) of the Equality Act 2010 was whether the conduct related to disability. This is a broad test, requiring an evaluation of the evidence in the round. They also indicated that the correct interpretation of the law was reinforced by paragraph 7.9 of the EHRC Equality Code which says “Unwanted conduct ‘related to’ a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic.”[95]We also had to take account of the evidence that BD did not take kindly to being disciplined and had complained to HR that the claimant was talking about him having been disciplined. We also considered that the use of the word ‘grass’ gave us some insight into BD’s actions. Our reluctant view was that although the incidents were proven it was not demonstrated that they related to the claimant’s protected characteristic. The incident on the 10 October is accordingly out of time and cannot be considered.[96]We considered if was just and equitable for the claim to be heard late. The claimant was a party litigant and unaware of the time limits for raising claims. However, it is clear that soon after the ‘‘apology’’’ his attitude hardened. He was aware that such behaviour was unlawful. He told us that he contacted ACAS for advice about what he could do. He became aware of Employment Tribunals. There was some suggestion by the respondent that the later incidents were manufactured in some way to assist making a claim to the Tribunal. We rejected this but the fact remains that the claimant was alive to his rights at a relatively early stage. If ACAS had not advised him about time limits once he was considering a Tribunal claim he could have readily discovered the appropriate time limit. Amendment[97]We took a different view in relation to the incident involving AR. He explained that he wrongly thought that he needed some documentary evidence of the incident to support his version of events. Unlike with BD his position was that he did not know that the incident was admitted and had resulted in AR being disciplined until he received disclosure documents in January. As soon as he had this additional information he wrote on the 14 January to amend his claim to include this matter. Accordingly, his position was that he had sought to amend in this claim prior to the hearing. The matter had been left over for us to consider. It was clear that the respondent was aware of the potential claim and accepted that the incident had occurred. They could not dispute the fact that it had occurred.[98]The law is well trodden but nonetheless it can sometimes be difficult to apply in practice. The common factors that a Tribunal has to deal with are set out in the case of Selkent Bus Co Ltd v Moore [1996] ICR 836. In Selkent, Mummery J stressed that this overall assessment involves consideration of all of the relevant factors and stated that it is impossible and undesirable to attempt to list them exhaustively. He noted a number of factors that will generally be relevant to the assessment: the nature of the amendment, the applicability of time limits and the timing and manner of the application. Those factors are not a checklist to be ticked off (Abercrombie v Aga Rangemaster Ltd [2014] ICR 209) The paramount importance of balancing the injustice and/or hardship caused by allowing or refusing the amendment has been emphasised repeatedly (Vaughan v Modality Partnership [2021] ICR 535). It goes without saying that the Tribunal must be even handed in it’s approach and consider both sides’ positions.[99]Accordingly, in deciding if an amendment should be granted the first task is to identify the amendment being sought and the second to consider all the factors when considering the balance of injustice or hardship caused in refusing or granting the amendment. It is important to bear in mind that an amendment can be refused or granted. In balancing the issue of hardship to either party we concluded that the claim should be allowed as the balance favoured the claimant.[100]That leaves one incident of harassment related to the claimant’s sexuality namely the incident involving AR which took place on the 29 November for which the respondent company is liable.[101]That is not the end of the matter. The List of Issues refers to the possibility of the claimant characterising his claims as victimisation under Section 27. They accepted that the complaint relating to the incident on the 10 October was a ‘protected act’ for the purposes of Section 27(2) of the EA. It therefore appeared to the Tribunal that the intimidatory behaviour by BD could properly be regarded as a detriment arising out of the complaint that was made to the employer in October and that compensation would be appropriate for the injury to feelings caused by such behaviour.
Remedy
[102]The issue of remedy is not straightforward. The primary event was the incident on the 10 October which we have found to be out of time. It is noteworthy that the claimant did not get signed off work until the 4 December after a number of incidents had occurred but by that point he was clearly stressed and unwell.[103]We considered the Vento scales that apply to claims for injury to feelings. We began by looking at the incident involving AR. This was a one-off incident and although an upsetting and embarrassing one. There was an element of public shaming which increases it’s seriousness. Nevertheless, we concluded that it falls in the lower band. In respect of claims presented on or after 6 April 2024, the lower “Vento bands” is £1,200 to £11,700 for what are described as ‘‘less serious cases’’. We are of the opinion that £3000 is the appropriate level of compensation that should be awarded.[104]Turning to the victimisation that occurred. This was on one level childish (such as the exclusion from food bought at the Burger Van) but coming from the claimant’s supervisor who held a position of authority over him and given the background circumstances in which these behaviours occurred they are not wholly trivial. They took place over a short period of about a week. It was clear that BD had not really accepted that he had been in the wrong nor had he truly apologised for his behaviour. He was still intent on intimidating or punishing the claimant. He still bore a grudge about being disciplined. To his employer he minimised his fault but in acting this way to the claimant he chose to undermine and intimidate him at a time when he was already upset from the earlier incident. We considered that the lower Vento scale was appropriate and that looking at the matter broadly we concluded that the sum of £2500 was appropriate compensation.
Remedy
[1]A Preliminary Hearing took place on 7 February 2025. At the outset, of the hearing I explained to the claimant, who is a party litigant, what would happen and how the application to amend would be dealt with. I started by asking him to explain to me the background circumstances of his claims. I had noted that they generally related to incidents in October and November 2023. He had later raised proceedings on 24 April 2024 for discrimination on the grounds of sexual orientation. His claims arose out of his employment as a Fitter with the respondent company.[2]The claimant explained that his colleague had made a homophobic remark to him. He had not added the incident involving the colleague Aiden Russell which took place to his ET1. He had reported that incident along with others to the Police at the time. He then lodged an SAR in relation to his complaints and discovered in January 2024 (prior to raising his claim) that Brian Walter, a witness to the incident had refused to participate in the Police investigation Mr Aiden Russell the perpetrator of the homophobic abuse did not cooperate. There was therefore no criminal proceedings. This impacted on the claimant. He thought no one would believe him about the incident in November. He accordingly left it out of the ET1.[3]I asked the claimant how he had come to amend his claim to add this incident at this stage. He accepted that on the day of the incident in November he had reported it to his Manager Damian Lee. Mr Lee had told him rather than go through an HR process he had given Mr Russell a warning. He was unsure if it was a written or verbal warning. He wasn’t sure what had been said. It was only in the course of preparing for this hearing when he had access to the respondent’s draft Joint Bundle of Documents and in it he discovered that Mr Lee had obtained a statement from Brian Walter confirming that the abuse took place. In addition, Mr Russell had accepted that he had been abusive and had received a warning. This information became available to the claimant only recently and he then prepared an amendment to add this incident into his pleadings. He confirmed that he had been aware of the position taken by Police in January of 2024. That had disappointed him. He didn’t think he could add the incident without some sort of back-up which he had hoped to obtain through the Police involvement.[4]Mr Benjamin set out the respondent’s position. In essence the view was that the amendment referenced an incident which was clearly out of time. The hearing was due to start on Monday and gave them no proper time to reflect on what the company’s position would be or respond to the matter. Aiden Russell had left the company and could not be interviewed. There might be a context or history which they might wish to refer. There was no good reason why the amendment was made at this stage. I confirmed however that Mr Lee was available as a witness on Tuesday and could be called about this matter.[5]I suggested that the background was relatively straight forward in that the respondent company both knew about this incident at that time and had taken steps to deal with it (the signed statement from the witness, an admission from the perpetrator and a warning given by them). In these circumstances I struggled somewhat with the suggestion that the respondent was being put to any great disadvantage in the amendment being allowed. However, I indicated that if in the course of the hearing it became clear that they had been put to a disadvantage in some way that the Tribunal would be sympathetic to either a delay or postponement to allow them to address the particular matter. However, I was not convinced that at present there was any specific clear prejudice to them that had been demonstrated. Their position was that the additional incident was also out of time as were the other incidents in November 2023.[6]I advised the claimant that I did not regard his reason for lodging the amendment at this stage was terribly persuasive. However, the amendment was limited. It related to one incident. That incident appears to be within the knowledge of the respondent. I did not think that the amendment if allowed would lead to any significant complexity or indeed be likely to lengthen the hearing significantly.[7]I made reference to the various principles set out in the well known case of Selkent Bus Company v. Moore the requirement to make an overall assessment of the factors at play. I indicated that I had to consider the balance of hardship. It seemed to me that as indicated above there was little prejudice to the respondent in allowing the amendment and greater prejudice to the claimant in not being allowed to pursue this particular issue. I made reference to the case of Choudhry v. Cerberus Security & Monitoring Services Ltd and the helpful guidance given there. The starting point was the amendment itself and that amendment has been clarified. I addressed the balance of injustice/hardship in allowing or refusing the amendment and in that balancing exercise I had come to the view that the balance was just on the side of the claimant and although I expressed disappointment that the amendment had come to this stage and indicated that I thought the reasons for it coming at this point were weak but nevertheless the amendment should be allowed. Mr Benjamin indicated that he would not require to respond to the amendment.[8]We then discussed a potential timetable for the Hearing. The claimant will give evidence first. I suggested to him that it was important for him to know what he was going to say and perhaps take a note with him of the main points he wanted to address and the documents he wanted to refer the Tribunal to. I told the respondent’s agent that the Tribunal would be flexible in allowing Mr Lee to give evidence somewhat “out of order” as he is only available on Tuesday. I cautioned the claimant that if at the end of the day the respondent had been put to some expense in relation to the late lodging of the amendment that this might be regarded as unreasonable behaviour in terms of the Employment Tribunal Rules and lead to an application for expenses. I express no view on the merits of this at this stage.