Mr F Mooney v Lanarkshire Health Board: 8000577/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000577/2023

Venue Glasgow

Hearing 25 – 28 November, 2 – 4 and 16 - 18 December 2024 Deliberation: 19, 20 30 and 31 December 2024

Between

Mr F MooneyClaimant

Lanarkshire Health BoardRespondent

Before

Employment Judge D Hoey

Mr D James for respondent

Counsel [Instructed for respondent

by CLO] for respondent

Date 13 January 2025

JUDGMENT

[1]The complaint of unlawful deduction of wages is dismissed upon the claimant’s withdrawal of that complaint at the Hearing.

[2]The unanimous Judgment of the Employment Tribunal is that each of the discrimination complaints is ill founded and those complaints are dismissed.

[3]The complaint in respect of the respondent’s failure to provide the claimant with a written itemised pay statement on or before the date of payment in accordance with section 8(1) of the Employment Rights Act 1996 for the period April 2022 to December 2023 is well founded and a separate remedy hearing will be fixed if needed.

REASONS

[1]The claimant raised a number of complaints in connection with unlawful discrimination and non payment of sums he claimed were due to him together with a failure to provide an itemised pay slip. At various case management preliminary hearings, matters had been focussed and it was agreed a full Hearing would be convened which took place in person with the claimant representing himself.

[2]The Hearing began by a reminder of the overriding objective and the need for both parties to work together to assist the Tribunal in ensuring that everything that was done was fair and just with due regard to cost and proportionality. A discussion took place as to how evidence was taken and the importance of ensuring relevant questions were put to each witness to ensure both parties cases were fairly put to each other’s witnesses and that relevant evidence was led. The parties were reminded that the Tribunal would only consider evidence that had been agreed or that was led before it. Case management

[3]The parties had worked together to focus the issues in this case and in a case management Note the final issues to be determined were set out. There are a large number of complaints and issues, evidenced by the length of this judgment (and the list of 68 issues to be determined). At the outset of the Hearing, the list of issues was discussed and there was no suggestion that list of issues was in any way incorrect or incomplete. That list contained the issues to be determined by the Tribunal.

[4]Given the claimant was not a solicitor and the issues arising were complex and numerous, the parties were given time to consider the evidence that had been led prior to submissions. A day was given to allow the respondent to send to the claimant a written note of its submissions in light of the evidence and issues. The respondent sent those submissions to the claimant and the Tribunal. The claimant provided his own lengthy written submissions (commenting upon the respondent’s submissions).

[5]The claimant then wrote to the Tribunal and respondent prior to the final day when submissions were to be heard arguing that the list of issues was to be “indicative”. The communication suggested that the list of issues that had been agreed and in respect of which neither party had made any adverse comment at the commencement of the Hearing was not in fact a final list of issues. Prior to discussing each party’s written submissions and before the parties were able to supplement their position, the claimant was asked to confirm what adjustments he wished to make to the list of issues that had appeared to have been (and was not stated not to be) a final list of the questions the Tribunal was to determine, which had been discerned from the various complaints made (in various claim forms, which had been combined into this claim).

[6]The claimant’s position was that he considered the way in which the list of issues to be drafted to be, in essence, legalistic. He had not appreciated the list utilised the statutory wording. He confirmed at the Hearing that there were in fact no factual matters missing and that each of the complaints he wished to bring were covered by the list of issues. His concern arose because of the way it had been drafted but he confirmed that he was content the Tribunal adopt those issues as his claim and apply the statutory provisions to each of the complaints contained therein. The claimant confirmed there were no outstanding issues and the parties were able to proceed with their submissions pursuant to the issues which were before the Tribunal.

[7]At the submissions stage and having considered matters, the claimant withdrew his complaint in respect of unlawful deduction of wages and that complaint is dismissed.

[8]The parties had been able to agree timing for witnesses and the parties worked together to assist the Tribunal in achieving the overriding objective, in dealing with matters justly and fairly taking account of the issues, cost and proportionality.

[9]The Tribunal was able to assist the claimant to ensure that relevant questions were put to each witness and that the claimant’s case was advanced.

Evidence

[10]The parties had produced a joint bundle of 1,182 pages. The claimant had produced his own very large bundle of additional documents which was background material.

[11]The Tribunal heard evidence from the claimant, Ms Lewis (charge nurse to whom the claimant reported), Ms Smith (senior charge nurse), Ms Coyle (senior nurse). Ms Brown (depute chief of nursing), Mr Watson (chief of nursing), Ms Clark (chief of midwifery who undertook the investigation), Mr Simpson (deputy director of hospital services who chaired the conduct hearing), Ms Ritchie (director of hospital services), Mr Gray (head of health and safety), and Ms Dodd (nurse director and co-author of uniform policy).

[12]Written witness statements had been prepared for Ms Dougan, Ms Craw, Mr Kimber, Ms Tunmore and Ms Connor. There was no challenge to their evidence. Mr Docherty had also produced a witness statement but he was ill and Ms Dodd was able to give evidence on the relevant issues.

[13]The production of witness statements considerably assisted the claimant in the preparation of his cross examination and the Tribunal in ensuring the claim could be heard within the allocated time.

Facts

[14]The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it, both orally and in writing. The Tribunal only makes findings that are strictly necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence led before the Tribunal). There was a large amount of evidence given in this case, both in writing and orally, and the Tribunal only records facts it found as necessary to determine the issues in this case.

[15]Where there was a conflict in evidence, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the case with regard to what was written and said at the time (when viewed in context). The parties had tried to agree material facts and the Tribunal is grateful for the parties attempt to do so. The claimant’s comments in relation to the statement of agreed facts presented by the respondent together with each party’s submissions has been fully taken into account in resolving any material factual dispute. The context of each factual issue was carefully considered.

Background

[16]The respondent is a health board that provides hospitals and health care. The claimant was employed as clinical support worker from 4 April 2022 and is still employed. He was employed to facilitate meals for patients, wash patients, clean equipment and furniture, stock up medical supplies, carry out patient observations and interact with patients and complete paperwork for patients. The claimant’s duties involved direct patient care and he was regularly in close contact with patients (and other clinical colleagues). The claimant reported to the charge nurses (who reported to the senior charge nurse).

[17]The claimant worked in the Emergency Care Unit (“the unit”) which is the medical receiving unit for the hospital. All medical admissions enter the unit for assessment and remain in place until they find another bed or are discharged. Many patients entering the unit are elderly, confused, vulnerable or frail. Such patients can become violent or aggressive (often as a result of their medical conditions and often unexpectedly). Staff providing patient care have on occasion been subject to violence in the course of their work, including punching and kicking with patients lashing out and grabbing those caring for them. Such violent episodes can be unpredictable and can arise from patients with no history of violence or aggression. Given the pressure upon the NHS, patients can remain in the unit for days (and sometimes over a week).

[18]The claimant worked in a team with men and women. There are up to 50 staff who work within the unit. On each day shift there are 6 nurses and 3 health care support workers and 5 nurses and 2 health care support workers on a night shift.

[19]One of the claimant’s colleagues was Ms Lewis who was a charge nurse (having qualified over 16 years ago). She has worked within the Emergency Care Unit for that period. Mr Watson was Chief Nurse which meant he was clinical and professional lead for nurses and health care support workers. Ms Coyle was senior nurse and responsible for the unit (and other areas) from a nursing perspective. She reports to the chief of nursing. Ms Smith was the senior charge nurse for the unit and the ward manager. Ms Dougan was a colleague of the claimant, a fellow clinical support worker

[20]The claimant was subject to a contract of employment which was supplemented by policy documents.

[21]One such policy was the “Dress Code and Appearance at Work Policy” (the “Dress Code”, “Uniform Policy” or “the policy”). The policy stated that it applied to “all clinical staff (whether they wear national uniform or not) who are engaged in direct patient care activity” and stated that “hair must be clean, neat and tidy and worn off the collar and if long should be worn up”. The policy incorporated the National Uniform Policy which states that “when providing patient care, hair should be tied back off the collar”.

[22]The respondent wished to minimise risk given the nature of the environment in which staff worked. While it sought to respect diversity, health and safety was critical. If risk could be managed (it not extinguished), the relevant steps should be taken do to so. Hair that was not worn up created a health and safety risk (since it presented an anchor point for patients to pull and cause harm) and an infection risk (since bacteria and other substances could move between surfaces which connected and so keeping hair away from such surfaces managed the risk).

[23]Part of the claimant’s job role as a Healthcare Support Worker entailed delivering direct patient care. He would be involved in intimate, close contact with patients. He assisted with tasks such as personal hygiene. There are surfaces near patients that those patients might touch, such as tables or bedrails. If a health care support worker had long hair, as the claimant had, during their work, their hair would fall to the side and potentially come into contact with patients or items and be something a patient could grasp.

[24]In the unit, members of staff can be dealing with patients who have an altered mental state. They might be delirious. They might be aggressive. Patients do sometimes assault members of staff in the unit. The respondent has a duty to try and prevent its employees being assaulted while they are at work. If a patient used the claimant’s hair to grab hold of him and assault him further, he could be off work. Such an assault could be fatal. If a member of staff is off work, there can be consequences for the respondent. The respondent will have to obtain cover for that member of staff. That can entail engaging agency staff, at concomitant cost. Further, the injured member of staff could pursue litigation against the respondent.

[25]The clinical lead for national policies in the NHS advised the respondent in March 2024 that while there was no evidence held supporting hair being tied up off the collar there was “a common sense benefit for patients and staff”.

[26]Issues arising in connection with dress arise on a daily basis and staff are reminded regularly about the requirement to comply with the policy. Senior charge nurses and charge nurses monitor compliance with the policy on a daily basis. It is part of standard infection control procedures to check compliance. The policy is audited twice a year. If compliance is poor, monthly audits take place. Compliance with the policy is necessary for infection control and health and safety reasons. Many patients in the unit are confused and pull or tug at clothes and hair of those caring for them. Given how close clinical staff work with patients, hair requires to be tied up to avoid hair coming into contact with patients. Strict adherence to the policy is a control measure intended to reduce the risk of violence and aggression.

[27]The unit in which the claimant worked had been assessed as a “medium risk environment” (which meant that risks had to be carefully assessed and minimised where possible). There had been 6 recorded incidents of violence over a 12 month period. Often incidents are not reported.

[28]The respondent has a Prevention and management of violence and aggression policy which applies to all employees working for it. Some staff are trained in de-escalation of violence and aggression. The policy sets out training modules about managing violent situations and the de-escalation of such situations. The claimant was fully trained in relation to this policy.

[29]The respondent also had a disciplinary and grievance policy which set out the process to manage disciplinary issues and grievances at work. That policy permits the dealing with disciplinary and grievance matters concurrently or pausing one process to deal with the other issue. The claimant’s belief and manifestation

[30]The claimant is intelligent and articulate. He is a white Scottish male Rastafarian (which the claimant says gives him a “unique identity”) who chooses to manifest his beliefs by growing and maintaining dreadlocks. The claimant had not disclosed his religion until 12 May 2022.

[31]The nature of the claimant’s hair (and its texture) is such that it could not easily be tied up. Not all Rastafarians have dreadlocks and those who do could have hair that is capable of being tied up. It is not a feature of the claimant’s belief that dreadlocks must not be tied up. Tying hair up (or wearing a hair covering) is not inconsistent with Rastafarianism.

[32]Some Rastafarians believe their hair should not be cut. Not all Rastafarians have dreadlocks. Other Rastafarians who have dreadlocks may have different thicknesses of hair to the claimant. Other Rastafarians who have dreadlocks may not have dreadlocks that were as long as those of the claimant. Other Rastafarians who have dreadlocks may not have the same hair texture as the claimant. Other Rastafarians who have dreadlocks may not have the same issues putting their hair up as the claimant did. If other Rastafarians did so, they may not need to adjust their dreadlocks frequently. Other Rastafarians may tie their hair up. Other Rastafarians do sometimes wear hair coverings. Other people who have dreadlocks wear their hair up.

[33]The claimant had previously worn hair coverings (and had done so for up to 2 hours). The respondent employed other staff with dreadlocks, some of whom were Rastafarian and some of whom were not, who had tied their hair up or otherwise covered their hair.

[34]The Equal Treatment bench book states that Rastafarianism is a religious movement whose beliefs are based on the Bible. They accept some of the laws of the country where they live, but not all. Beliefs include that hair should not be cut and is often worn in dreadlocks. It should be covered by a cap, except during prayer and spiritual gatherings. Disability status

[35]The claimant had a number of mental health issues that required him to engage with his GP and seek the input of private clinicians. The claimant had received diagnoses of major depressive disorder and post-traumatic stress disorder from his private clinician. The claimant said he experienced delusions and hallucinations and experienced depressive and anxiety symptoms. The claimant’s health had not been good. The impact of his depressive disorder and post-traumatic stress disorder impacted upon his functions as a professional, husband and father but on balance the impact had not lasted for 12 months at the material time and the impact had not been shown to be more than minor or trivial, in terms of the impact of each individual impairment.

[36]The claimant’s consulting psychiatrist reported in July 2024 that the claimant’s medical position is “atypical” and his “self reported symptom profile does not conform to any typical pattern of mental disorder”. The claimant had explicitly sought endorsement of specific diagnoses which was not something the physician was prepared to do. The physician also said that he was “less clear as to the viability of previously proposed diagnoses” (which included diagnoses of major depressive disorder and post-traumatic stress disorder). He concluded that “I do not consider I can add further value in this case.”

[37]The physician had previously dialogised the claimant as having experienced an acute psychotic episode and recommended the claimant engage with the NHS.

[38]The claimant had not disclosed to the respondent that he had the impairments and there was no reasonable basis for the respondent to have known about the diagnoses he had received. Claimant commences employment

[39]On 6 April 2022 the claimant started working in the unit. The claimant started on a day shift and undertook induction into the role. The day shift had responsibility for the claimant.

[40]On 7 April 2022 Ms McKeever was not at work and accordingly had no physical contact with the claimant.

[41]On 13 April 2022 Ms Dougan met the claimant for the first time and had a general introductory chat. The conversation was friendly in nature (and no issues arose). There was no discussion about hair. Ms Dougan did not know that the claimant was a Rastafarian as the issue did not arise. She has family members who wear dreadlocks as a style choice and did not know about the claimant’s beliefs. Staff breaks

[42]The unit is a busy ward with over 35 beds. A day is broken into shifts and staff get 3 breaks per shift. A diary is used to allocate staff to a base and the diary notes the break staff get. Any errors are identified and rectified. Breaks work on a tagging basis with those on the first break alerting those on the second break that their break is finished, thereby ensuring seamless care provision.

[43]On no occasion did Ms Lewis exclude the claimant from staff breaks. On 14 April 2022 Ms Lewis and the claimant worked different shifts to one another and she did not influence the ability of the claimant to take a break. On 18 April 2022 Ms Lewis and the claimant were on night duty together and that Ms Lewis was the Nurse in charge of the shift and allocation of staff tea breaks was her responsibility. She did not prevent the claimant from having a break and no issue was raised with her as to the claimant taking a break (or not doing so). On 22 April 2022 Ms Lewis was on annual leave and had no influence on what breaks the claimant took. Ms Lewis did not exclude the claimant from staff breaks. At no stage was the claimant refused a break. Discussion about hair – April 2022

[44]Ms Lewis, as a charge nurse, had responsibility for the claimant when she worked with him. On 18 April 2022 Ms Lewis had a discussion with the claimant about his hair. She was concerned for his health and safety and that of patients and of risk that could arise because the claimant did not have his hair above his collar, tied up. She asked the claimant if anyone had spoken to him about tying his hair up. He said there had not been a discussion and he said his hair would not go up. Ms Lewis told the claimant hair should be tied up so it is above the collar, such as in a bun or otherwise. The claimant had made it clear that he would not do so and Ms Lewis told the claimant a more senior member of staff would speak with him. Ms Lewis was professional in her discussion with the claimant. The claimant was unhappy as he was being asked to do something he did not wish to do.

[45]The claimant had a short discussion with Ms Smith on 18 April 2022 during the shift change. Ms Smith saw that the claimant was wearing his dreadlocks down his back and advised him that his hair needed to be off his collar. The discussion was professional. WhatsApp group – claimant not excluded

[46]There is a WhatsApp group for the ward which most staff are a member of. It is voluntary and used to communicate information about the ward. The information communicated within the WhatsApp group is information that is located on the ward.

[47]On 20 April 2022 Ms Lewis and Ms Smith did not exclude the claimant from the WhatsApp rota. Ms Smith became the admin for the WhatsApp group on 12 May 2022. Prior to that Ms Johnston was the admin. Only the admin of a WhatsApp group can add people to the group. Ms Lewis had no responsibility for the WhatsApp group. Neither Ms Lewis not Ms Smith were aware of there being any issue of the claimant not being a member of the WhatsApp group and the issue was not raised as a concern. Claimant told again about policy

[48]Ms Smith had been advised by Ms Lewis that the claimant had been asked to tie his hair up but had not done so. She had also been told that a night manager had spoken to him and he had not changed his approach. Ms Smith spoke with the claimant on or around 26 April 2022 when he was wearing his dreadlocks down his back. He was again told this did not comply with the policy. He said that he could not tie them up. He was told that a resolution needed to be found. If not, Ms Coyle would need to resolve matters. The claimant said he could not do so and walked away. Ms Smith would have treated any other person whose hair was as the claimant’s was in the same way, as the approach taken was the same to achieve uniformity and consistency. Ms Smith did not know the claimant was a Rastafarian and only learned about that in 2024. At no stage had the claimant’s religion or belief been raised with Ms Smith. Claimant discusses matters with Ms Lewis

[49]On 28 April 2022 at a morning huddle, Ms Lewis led a discussion about the dress code policy. This arose because a member of staff had forgotten to remove earrings, which required to be covered or taken off. It was common for staff to forget about the requirements of the policy and there was a regular need to remind staff of the need to comply with it. The claimant did not have his hair tied up and he was asked to tie it up and he said it did not get tied up. The discussion was friendly (and not derogatory) in nature. The claimant was again unhappy with being asked to wear his hair up. Ms Lewis meets the claimant on or around 28 and 29 April 2022

[50]Ms Lewis spoke with Ms Coyle as Ms Lewis was concerned that the claimant was not complying with the policy. She told Ms Lewis to ensure the claimant had read and understood the policy to allow him to comply with it. The claimant was given a copy of the policy by Ms Lewis. The claimant threw the policy down, saying he had read it and walked away from the discussion. Ms Lewis was surprised by the claimant’s response. The claimant returned after around 5 minutes and was angry. He said “that’s three times you’ve told me about my hair is that all you do”. Others present were within earshot and Ms Lewis asked the claimant to discuss matters in the duty room where he was told that the policy required long hair to be tied up. He was told the policy applied to all staff. Ms Lewis felt intimidated by the claimant’s approach to the meeting. She approached the matter professionally and fairly, and would have approached the matter with any member of staff who had not tied their hair up. There had been no discussion about the Equality Act or the claimant’s belief that he was protected in terms of that Act. The claimant did not allege that his dreadlocks were a protected characteristic under the Equality Act or make allegations of discrimination.

[51]On 29 April 2022 Ms Lewis told the claimant that Ms Coyle wanted to speak with him about the policy and that he may not be able to work in the clinical area (such as the unit) if he did not tie his hair up. He was asked to consider this over the weekend. There was no suggestion that the claimant was upset by the discussion which was pleasant and professional. Ms Lewis did not know of the claimant’s religion or belief. The claimant was unhappy with the discussion. Ms Lewis had been professional in her discussion. Ms Coyle meets the claimant

[52]On 2 May 2022 Ms Smith told Ms Coyle that the claimant was not complying with the policy. Ms Lewis had spoken to the claimant and raised the matter with Ms Smith. Ms Smith having tried to explain the position to the claimant wanted Ms Coyle to speak with the claimant to try and resolve the issue. Ms Coyle met with the claimant and Ms Smith on 2 May 2022. Ms Coyle’s and Ms Smith’s approach to the meeting was friendly and professional. The claimant approached the meeting in a defensive way. He was angry at being asked again to talk about the issue (and his behaviour could be regarded as aggressive). He said it was not possible to put his hair up as his hair was long and heavy. There was no discussion about religion or belief and the claimant said he could not put his hair up as it was too heavy. Ms Coyle wanted to find a way the claimant could work and comply with the policy.

[53]The claimant said he had experienced discrimination in the past and he believed the policy was discriminatory and racist. Ms Coyle said she would need to speak to her chief nurse and seek HR advice. The claimant said they were “treading a very fine line with discrimination and I’m protected by the Equality Act so I’d like people to know exactly what they’re talking about, not to get themselves into trouble either so that we’re all protected”.

[54]Ms Coyle did not learn of the claimant’s beliefs until 12 May 2022. The claimant had written that he had no religion on the staff engagement form. The claimant was told that he would be unable to work in a clinical area with his hair down carrying out patient care, which would have been said to anyone in the same situation. Ms Coyle noted that there are other staff with heavy hair who manage to tie it up and others with dreadlocks had been able to do so. The claimant refused to tie his hair up and Ms Coyle said she would speak with her manager to see if a resolution could be found. Ms Coyle found the meeting intimidating as a result of the tone used by the claimant. Ms Lewis and Ms Smith have an informal discussion

[55]On 2 May 2022 Ms Lewis was having an informal discussion with Ms Smith in the staff room. There was no meeting between the claimant and Ms Lewis that day. At no stage had the claimant told Ms Lewis that he was a Rastafarian and she did not know of that. The claimant had not told her that he believed he was protected under the Equality Act 2010. Ms Coyle and Ms Smith meet the claimant

[56]On 2 May 2022 Ms Smith updated Ms Coyle about her discussion with the claimant. Ms Coyle came to meet the claimant and Ms Smith and a discussion took place which lasted between 10 and 15 minutes. During the meeting the claimant was told that the policy requires hair tied up. The claimant said his hair could not go up as it was long and heavy and if it went up it needed constant readjustment. The claimant said he was being singled out and was unhappy. The discussion was professional and not derogatory. The meeting ended when it was clear the claimant would not alter his position. Ms Smith felt intimidated by the claimant as a result of the way in which he conducted himself at the meeting (and told Ms Clark this when telling her what had happened at the meeting). During the meeting the claimant did not allege that he had been unlawfully discriminated against under the Equality Act (or that he was protected in terms of the Act).

[57]The claimant had been told by Ms Coyle on or around 2 May 2022 that if he was unable to tie his hair up in compliance with the Policy he would be unable to work within the unit for health and safety reasons. Claimant has discussion with Ms Coyle and Mr Watson early May 2022

[58]Mr Watson was on call manager and in early May 2022 noticed the claimant, from a distance, was in the ward with his hair hanging down his back, not tied up. As a member of the senior nursing team, Mr Watson was responsible for enforcing the dress code policy and ensuring it was consistently implemented. Ms Watson understood that while individual staff may be prepared to take risks, such as their hair being grabbed, Mr Watson understood that staff required to comply with the policy to protect themselves, colleagues and patients. Mr Watson had tried to locate the claimant when he was able to do so to discuss the matter but he was away. He asked Ms Coyle who noted that several members of staff had asked the claimant to tie his hair up but he had refused to do so. Ms Coyle told Mr Watson that she would ask the claimant formally to tie his hair up.

[59]Ms Coyle then told Mr Watson that she had spoken with the claimant but he had not responded well to the conversation. Mr Watson offered to meet the claimant with Ms Coyle to resolve matters. Prior to the meeting Mr Watson checked with HR what the options were if the claimant continued to refuse to comply with the policy and was told that one option would be to work in a non patient facing role, such as medical records.

[60]A short meeting took place on or around 6 May 2022 with the claimant, Ms Coyle and Mr Watson. The meeting lasted about 10 minutes. Mr Watson advised the claimant that it appeared that the way he wears his hair was not compliant with the uniform policy which gave rise to risks, including health and safety. He noted that he had sought advice and that early resolution would be sought. Mr Watson told the claimant he was concerned about health and safety. The claimant said he would not put his hair up. Although he said it was off the collar, his hair was free flowing down his back. In the absence of a resolution the claimant was told he could work in a non patient facing role in medical records. Mr Watson said the claimant would be safe as the role is behind a screen and a locked door (thereby preventing the public from accessing). He would be offered training.

[61]The claimant was asked if he had any questions and he asked why this issue had not been raised during the interview process and Mr Watson replied “that’s a question I’ve got as well” and said that question would be addressed as part of the formal process. Mr Watson said he would have expected the dress code policy to have been explained. Mr Watson did not say or suggest that the claimant should not have been employed but that any concerns about dress code issues could have been dealt with at that stage given the nature of the role, which he would have said to anyone who had an issue complying with the dress code. Mr Watson was unaware that the claimant was a Rastafarian as the claimant did not inform the respondent that he was a Rastafarian until 12 May 2022. The claimant was told the role he would be offered would be temporary pending a resolution and at the same grade.

[62]Mr Watson told the claimant if he would not comply with the policy, for health and safety reasons he would require to work in a non patient facing role, such as medical records, until matters were considered. He was told he could work in medical records until the health and safety issues were resolved. After the meeting he was taken to that department by Ms Coyle. He was told that in terms of policy, an early resolution meeting would be arranged to seek to identify a solution.

[63]On 5 May 2022 the claimant was sent a letter from Ms Coyle saying “following your recent breach of the uniform policy I would like to meet with you under the early resolution process … to provide a supportive environment to discuss this further to determine any underlying issues and identify potential solutions”. Claimant taken to medical records

[64]Ms Coyle accompanied the claimant to the medical records department, introduced him to the manager and left. Ms Coyle did not introduce the claimant as someone looing for work experience. She left once the claimant met the manager. Internal advice sought as to position

[65]On 12 May 2022 Mr Kimber, Equality and Diversity Advisor, sent an email to his manager in which he sought advice in relation to the claimant’s case. He wrote: “[the claimant has] been asked to tie them back as it’s a Health and Safety and infection prevention and control risk but they are refusing to”. He later wrote: “They have been asked to tie them back so they don’t “fall” which I would have thought is a reasonable adjustment as they have not been asked to cut, cover or comb them out”. He later refers to the fact that headwear worn for religious reasons is permitted and gives the Hijab as an example.

[66]On 13 May 2022 Ms Craw, HR Manager, sent an email to Mr Watson in which she relayed some advice provided by the Equality and Diversity team in relation to hair discrimination. Within that email Ms Craw wrote: “They did ask if covering the hair is a possibility, along the lines of a female wearing a hijab. I’m not sure if this is something which could be looked at, and/or cause offence by suggesting”. Early resolution meeting – 12 May 2022

[67]On 12 May 2022 Ms Coyle met the claimant and explained the purpose of the meeting. At the meeting the claimant presented Ms Coyle with a number of ring binders which included print outs of the Equality Act and articles on hair discrimination and World Afro day. There was no grievance document within the folders. The claimant said he wanted to give a speech uninterrupted. His speech ran to 7 sides of paper (and was included in the pack he produced). He said he was white, Scottish Rastafarian and raised equality and diversity and the care his hair needed. He said he could not tie his hair up and he believed he was complying with the policy as it was tied back and off the collar. The claimant refused to tie his hair up because he said it would be a breach of the Equality Act. He said he wanted to go back to work in the unit. He said he had been discriminated against by those who had asked him to put his hair up and he had been in discussion with his solicitor, ACAS and the Equality Advisory Service and is awaiting the outcome of that process should they need to take action.

[68]Ms Coyle told the claimant that she was sorry if he felt he had been discriminated against and said if no resolution could be achieved, a formal investigation would be required. The claimant refused to work in medical records or any other non clinical area. The claimant did not say he was raising a formal grievance. Ms Coyle said she would speak to Mr Watson.

[69]Ms Coyle reported to Mr Watson that the meeting had not progressed as an early resolution meeting ordinarily progressed. The claimant had read out a document, handed over the folders and said he would not work in medical records and wanted to return to the unit. He had said that he felt he was being discriminated against because he was a white Rastafarian and was being subjected to “hair discrimination”. He was told it would not be possible to return to a patient facing role until the issue had been resolved. Decision taken to suspend claimant for health and safety reasons

[70]Mr Watson took advice from HR and was told that health and safety required to take priority and that absent any way to protect health and safety by making some form of adjustment, the policy required to be followed. Mr Watson wanted to protect the claimant, his colleagues and patients and was concerned that the claimant’s refusal to follow the policy presented a risk in terms of infection and health and safety to the claimant and others. To protect against the risk he decided to suspend the claimant to allow matters to be considered. The claimant was told he was being suspended on 13 May 2022 by Ms Dobbins.

[71]The claimant was given a letter that day which said that the claimant had been told he was to work in a non patient facing role until the issue was resolved. He had refused to do so and given the health and safety position he had been suspended (to keep the claimant and patients safe). A designated contact person was assigned and he was not to attend site, unless he sought consent or it was an emergency. The letter said that annual leave could still be taken. Investigation process initiated

[72]A formal investigation process was commenced into the claimant’s refusal to follow the dress code policy. Ms Clark was appointed investigator. On 24 May 2022 Ms Clark wrote to the claimant by letter headed “Investigatory meeting” inviting the claimant to a meeting to discuss the allegation that he had not been adhering to the uniform policy from 4 April 2022. He was told that the purpose was to ascertain the facts around the allegation and decide if further action is required. This was a standard letter issued by the respondent in advance of an investigatory meeting.

[73]As the claimant had alleged that Mr Watson had discriminated against him, he took a step back and Ms Clark progressed matters. There were delays due to sickness absence but the report was completed on 1 June 2023 which was sent to the claimant on 16 June 2023 inviting him to a conduct hearing on 10 July 2023. Ms Lewis, Ms Coyle and Ms Smith’s views given during investigation

[74]On 6 June 2022 Ms Lewis was interviewed as part of the investigation being undertaken by Ms Clark and Ms Beck. At the end of the interview she was asked if she had any further comment and she explained that the claimant had minimal interaction with staff and there had been one interaction with a patient that Ms Lewis witnessed where the claimant had not reassured a patient which she felt strange. Ms Lewis also said that she believed the claimant was argumentative and caused frustration amongst staff. That was said because it was her view and she had been asked about other matters and was not raised for any other reason. Ms Lewis was not aware the claimant believed he had been discriminated against.

[75]On the same day Ms Coyle was interviewed as part of the investigation process. Ms Coyle described the claimant as “aggressive, militant even” during the meeting on 2 May 2022 as she believed anyone behaving in the way claimant did (irrespective of gender or beliefs) was behaving in that way. The claimant’s behaviour could fairly have been regarded as aggressive at the meeting on 2 May 2022. Ms Coyle was also of the view that the claimant conducted himself in a different way when Mr Watson had been present.

[76]Ms Smith advised Ms Clark during the investigation that she felt the claimant had become hostile during the meeting she had with the claimant on 2 May 2022. Ms Coyle’s discussion with claimant

[77]In May 2022 Ms Clark had written to the claimant letting him know that she was investigating an allegation that he had not complied with the dress code policy. He was told this was an allegation.

[78]On or around 6 June 2022 Ms Coyle had a discussion with the claimant. As part of the discussion Ms Coyle told the claimant that it would not be possible to work in a clinical environment with hair that was not compliant with the policy. Ms Coyle believed the claimant was argumentative and that other staff felt frustrated that they were expected to adhere to the policy and the claimant had not done so. Holiday entitlement and using accrued leave

[79]Ms Coyle had been told by HR that staff required to take their annual leave. It had been noted that the claimant was carrying forward 390 hours from annual leave years 2022/23 and 2023/24. The annual leave year would start again on 1 April 2024 when further leave would accrue. Ms Coyle was given a proposed schedule of leave for the claimant to take his leave to allow the claimant to reduce the outstanding annual leave which he was due.

[80]On 8 March 2024 Ms Coyle sent the claimant a letter outlining his leave entitlement and the proposed schedule. Reference was made to the suspension letter which had said that carry over would only be permitted in limited circumstances. The claimant replied saying taking leave would be impossible as it would not involve a meaningful break from work given the prevailing circumstances.

[81]Ms Coyle sought advice from HR and understood that an employer is entitled under the law to insist workers take their leave and the proposal was reasonable with fair notice. The claimant was told that as he had not suggested alternative dates, the leave would be processed as planned. The claimant said he did not agree and believed Ms Coyle was discriminating against him. Ms Coyle wanted to ensure the claimant was given a break from the process and his accrued leave was reduced. There was no other reason given as to why the claimant could not take the leave. Ms Coyle had no knowledge of any impairment the claimant had.

[82]Ms Coyle did not know about any complaint the claimant had made to Ms Lewis about his belief that he had been discriminated against or that the claimant had lodged a grievance about discrimination. Ms Coyle had not been involved in discussions as to the claimant’s suspension or grievance.

[83]The claimant had, in August 2023 and December 2023, chosen to take periods of time as annual leave. He informed the respondent of this informally. There was no impediment to the claimant taking leave. The same position applied in 2024. In March/April 2024 the claimant did not propose any alternative dates during which he suggested he would take his accrued annual leave. He could have done so.

[84]On 2 April 2024 Ms Coyle wrote to the claimant to confirm that she was processing his full holiday entitlement as outlined in the schedule of leave, thereby allowing the claimant a break from work and the ongoing processes.

[85]On 4 April 2024 Ms Connor emailed the claimant to advise that she was processing the claimant’s full holiday entitlement as outlined.

[86]The reason why the claimant was required to use his accrued holiday entitlement was because of the respondent’s desire to ensure employees have meaningful time away from the workplace, which includes ongoing processes and to ensure employees utilise their annual leave entitlement within a reasonable period and do not carry forward significant amounts of annual leave which could be detrimental to the service by having staff absent from work for lengthy periods of time. Ms Clark has discussion with claimant on 28 June 2022

[87]At a meeting on 28 June 2022 Ms Clark explored ways in which the claimant could comply with the dress code policy. As part of the discussion it was noted that a possible adaptation to the policy could be to wear a hair covering such as a hijab style hair covering or other form of hair covering that protected the claimant’s hair. Claimant unable to provide copy of formal grievance he said he submitted

[88]On 1 August 2023 Ms Connor, HR manager, wrote to the claimant with details of the rearranged hearing. The claimant replied noting his holiday dates and said “Can you also provide an update on the grievance raised 16 months ago. To date I have received no paperwork”. Ms Connor asked the claimant to send what it was he said he had submitted as the respondent had no record of the claimant having submitted any grievance. The claimant did not send a reply to Ms Connor and no formal grievance document was provided. September 2023 complaint to Mr Simpson

[89]On 28 September 2023 the claimant provided a statement to Mr Simpson in which he made allegations of discrimination. Outcome of conduct hearing

[90]On 3 October 2023 Mr Simpson issued a 4 page outcome letter following the conduct hearing. The allegation had been that the claimant had not been adhering to the Dress Code policy from 4 April 2022. Mr Simpson had chaired the hearing with Ms Clerk having conducted the investigation. The claimant had not attended, despite that being the fourth attempt to find a date. The claimant had seen the investigation report. An apology was issued to the claimant for the time that had taken to progress matters.

[91]Mr Simpson noted that all clinical staff who are engaged in direct patient care activity should have their hair clean, neat and tidy worn off the collar and if long, worn up. The claimant had not done so and refused to work in other areas where the requirement did not apply. The allegation was upheld. The claimant had failed to comply with the policy and the claimant would not be able to work in his substantive role unless a solution was found that was compliant with the policy.

[92]The outcome was that the claimant was to work with the senior charge nurse and management team to find a suitable covering which failing find an alternative role (which allowed the claimant to wear his hair as he chose), which failing there was a risk his employment would end. Claimant lodges another grievance

[93]On 9 October 2023 the claimant submitted a formal grievance in which he alleged discrimination. Mr Gray meets Ms Coyle 7 February 2024

[94]On 7 February 2024 Ms Coyle met Mr Gray (Head of health and safety) and Ms Jardine (Senior health and safety adviser) to review the risk assessments within the control book for the unit an to ascertain if the risks and mitigations in place were fair and accurate. Ms Coyle explained the position as it stood and Mr Gray and Ms Jardine exercise their professional judgment. Ms Coyle did not seek to influence the outcome of the meeting and provided the facts pertaining to the unit. She would have answered the questions in the same way irrespective of religion or belief. The respondent’s position was that there was medium risk and the policy required to be followed in the unit given the risks arising, which included health and safety and infection control. Adjustment offered to claimant

[95]On 3 May 2024 Ms Brown sent a letter to the claimant headed “Trial of hair coverings” which followed Mr Gray’s letter of 12 March 2024 which had said that hair required to be tied up, off the collar in the unit given the risks. He would accept a hair covering as a possible adjustment and a possible adjustment had been found and would be sent to the claimant. The claimant was asked to confirm by 23 May 2024 if he would be willing to try the hair covering and steps could be taken to progress matters. If he was not willing to consider alternatives, he would be unable to return to work in the unit. The claimant had previously said he had worn hair coverings in the past and could do so for a couple of hours. The only reason Ms Brown made the request was to facilitate the claimant’s return to work. The respondent offered the claimant a hair covering specifically marketed to Rastafarians. Appeal against conduct hearing to proceed

[96]On 3 May 2024 the claimant asked the respondent to delay the resolution of his grievance until the other processes had concluded. The respondent agreed to this by email on 10 May 2024 and on 20 May 2024 Ms Ritchie advised the claimant that at his request the investigation of his grievance has been placed on hold and the appeal against the conduct hearing would progress. Ms Ritchie was acting upon the claimant’s request. Claimant meets Ms Clark

[97]Ms Clark had been tasked by Mr Watson to investigate the issues around the claimant’s failure to comply with the dress code policy. Ms Clark considered the policy document and met with relevant individuals and compiled a detailed report. In a letter dated 24 May 2022 Ms Clark advised the claimant that she was investigating the allegation that he had not complied with the dress code policy. That was the focus of the investigation and the claimant had been invited to a meeting to discuss that allegation.

[98]On 28 June 2022 Ms Clark interviewed the claimant. The tone of the interview was professional. The claimant explained that he was aware of the policy and believed he complied with it. He accepted his hair was not “up”. The claimant’s hair fell to his mid back in dreadlocks and was voluminous and hung down his back. The claimant said he was not able to tie his hair up as that would damage his hair. The claimant said he felt he had been discriminated against and he was advised that he should raise a grievance about such matters, if he wished, which would then be investigated.

[99]The claimant had been spoken to by Ms Smith, Mr Watson, Ms Lewis and Ms Coyle. Ms Clark considered those individuals to have tried to protect the claimant’s and his colleagues’ health and safety whilst being mindful of infection control. Ms Clark found no evidence that the claimant had been singled out or discriminated against. The aim was to ensure everyone was treated in the same way and risks were managed. There were both infection control issues (to ensure hair did not come into contact with patients or surfaces) and health and safety risks (of hair which was “down” being an anchor point for patients to pull).

[100]Delay had arisen because of illness. The investigation concluded on 10 July 2022 but the report was not submitted until 1 June 2023 due to absence. The report noted that the claimant was a white male Rastafarian and his dreadlocks were a sacred part of his religion and his hair was too heavy to tie up which could damage his hair. Ms Clark found that the claimant had breached the policy by not ensuring his hair was up. The claimant had indicated that he could not wear hair covering, such as a hijab style covering. That was referred to by Ms Clark as a way in which hair could be covered. Such discussion and finding would have taken place irrespective of the claimant’s religion or belief if hair was unable to be tied up. There was no suggestion during Ms Clark’s meeting with the claimant that he felt upset about what had been discussed. Outcome of conduct hearing

[101]On 3 October 2023 Mr Simpson wrote to the claimant as follows: “I therefore find that there is evidence to support the allegation that you are not adhering to NHS Lanarkshire Dress Code and Appearance at Work Policy Including the National Uniform Policy from the 4th April 2022. Having taken into account the evidence and mitigation outlined above I would advise that I considered that you are unable to work in your substantive role unless we are able to find a solution that is compliant with the NHSL Dress Code and Appearance at Work Policy. Having reviewed the representations in your case and the mitigation put forward I wish to propose the following options: That you work with your Senior Charge Nurse and Management Team to identify an appropriate hair covering that allows you to fulfil your patient facing duties. During this time, we will provide you with work in a non-patient facing role. Should an alternative solution not be found you will be given 12 weeks’ access to redeployment to try and secure you suitable alternative employment in a non-patient facing role.” Itemised pay statements

[102]The respondent failed to give the claimant a written itemised pay statement on or before the date of payment as required by law for April 2022 to December 2023. Observations on the evidence

[103]The Tribunal considered the evidence carefully and in context of all the evidence before this Tribunal, whether in writing or oral.

[104]The claimant had provided a very detailed written witness statement (which ran to over 550 paragraphs) which was generic in nature. The Tribunal considered the claimant’s evidence in detail and carefully given the nature of the claim. The claimant was cross examined at length. The Tribunal recognised the impact the issues had upon the claimant and took into account the huge challenges the claimant faced and continues to face. A large part of the claimant’s evidence focussed upon the adverse impact the issues had upon the claimant. The Tribunal accepted counsel for the respondent’s assertion that while the claimant tried to tell the truth as he saw it, his evidence was unreliable in places. The claimant had accepted in cross examination that, in his statement, he had misrepresented what other individuals had said to him. He accepted that he might have misrepresented other statements.

[105]The claimant indicates for example in his statement that there was no “scientific basis” for the requirement that hair be above the collar and refers to the clinical lead for NHS Policies but in her communication she says no such evidence is held but that there is a common sense benefit to avoid cross contamination. In other words, there are sound reasons for having the policy.

[106]As another example, he took out of context a statement by Ms Coyle in the investigation interview that “It was said that recruitment should have said at his interview re his hair”. That accords with what happened at the meeting of 6 May 2022. This is not a statement by Ms Coyle that recruitment should have told the claimant about his hair at interview, as the claimant initially attempted to insist in evidence.

[107]The claimant also alleged that he was “frequently singled out” in relation to uniform compliance despite the clear evidence from the charge nurses that this was a common issue and staff were regularly reminded about complying which included those with long hair and of different sexes. Once the failure was identified, staff would comply. Far from treating the claimant differently, the respondent wanted to ensure consistency and fairness of approach (and seek appropriate adjustment where possible). The claimant was unable to view matters objectively. The claimant’s perception of events did not at times accord with objective reality. He was insistent, when pressed in cross examination, that in 2024 he did not ask for the investigation into his grievance to be paused (as suggested by Ms Ritchie). The claimant sent an email at that time saying: “I have considered the situation and would suggest that the investigation of my concerns be delayed until other processes are now complete”. He asked the investigation into his grievance be paused. The claimant’s evidence was not always reliable.

[108]The Tribunal found that the claimant’s perception of events lacked insight into how he might be perceived or the impact of his actions on others. While he alleged Ms Coyle at the meeting of 2 May 2022 was aggressive and intimidating, the claimant had threatened to sue her during the meeting and he eventually accepted that his conduct could be perceived as being intimidating. The Tribunal considered there to be some merit in counsel for the respondent’s suggestion that the claimant’s penchant for making allegations that were untrue reflected poorly on his reliability. For example the claimant has chosen to make allegations against several witnesses which are contradicted by those witnesses, and then not challenged their evidence (such as Ms Dougan).

[109]Counsel for the respondent concluded that “most damning of all, the claimant’s own treating psychiatrist considered that what the claimant was saying to him was so unreliable that he was “less clear as to the viability of previously proposed diagnoses.” That is, the claimant was so obviously unreliable that the psychiatrist doubted the diagnoses he had previously made. The claimant is not in any sense reliable.” The Tribunal found there to be some merit in that submission. The Tribunal took all the evidence in account in assessing disability status, including the claimant’s submission that the diagnosis of depressive disorder and post traumatic stress disorder was not affected by those comments. The issue for the Tribunal was the lack of objective clarity as to the impact of the impairments relied upon in relation to the claimant. On balance, the Tribunal did not find what the claimant had said to be reliable or credible which had in turn affected the diagnosis the claimant had presented. The Tribunal shared the concern the physician had expressed following assessment of the claimant’s evidence, when taken in context. Having carefully assessed the claimant’s evidence in light of the legal test, the Tribunal did not find the claimant to be a disabled person.

[110]The Tribunal found Ms Lewis clear and consistent and accepted her evidence, particularly where it conflicted with the claimant’s evidence. The Tribunal found Ms Lewis to be measured and cogent. Even although the passage of time had affected memory, Ms Lewis had been clear and cogent in her evidence. Ms Lewis had experience of colleagues with dreadlocks who had chosen that as a style option. There was no basis to associate the claimant’s choice with regard to his hair and Rastafarianism without the claimant having told Ms Lewis about his beliefs. He did not do so. Ms Lewis explained that she regularly had to speak to male and female staff (of differing religions and beliefs) about compliance with the uniform policy. She made no assumptions about the claimant and avoided stereotyping. The claimant was treated the same as others had been treated.

[111]The Tribunal found Ms Smith to be clear and considered in her evidence. Ms Smith had experience of hair being pulled and of aggression from patients which underlined the importance of hair being worn up. While there some uncertainty as to the tea room door as between Ms Smith and Ms Lewis’s evidence, the Tribunal did not consider that material. Both witnesses were clear in their recollection that there had been no adverse comment made about the claimant (which the Tribunal accepted). Ms Lewis and Ms Smith had a general discussion about matters that both required to know to carry out their duties on the day in question. The discussion was professional and reasonable. The claimant had not told Ms Smith about his religion and belief and there was no reasonable basis for her to know about that as the claimant had not told her his beliefs.

[112]Mr Watson was clear in his evidence. He had taken advice and wanted to find a way to help the claimant continue in his role while minimising risk. Mr Watson had been in nursing since 1996 and the claimant had been the first person he had encountered who had refused to comply with the policy. He was unaware of the claimant’s beliefs and wanted to ensure health and safety of the claimant, colleagues and patients was protected. His experience was that there was underreporting of incidents. Mr Watson was of the view that the policy applied in the clinical area which was widely construed as an area where clinical care could be given. There was no basis to find any comment that Mr Watson made to or about the claimant to be anything other than professional (whether in writing or orally) having carefully considered the points made by the claimant and the evidence before the Tribunal.

[113]The Tribunal found Ms Coyle clear and considered in her evidence. Ms Coyle had regular discussion with staff to remind them of the need to comply with the policy which was followed with the exception of the claimant. Ms Coyle had experience of a colleague having been assaulted by a patient which underlined the importance of minimising risk. Ms Coyle’s principal concern was to find a way to work with the claimant to facilitate his return to work. While the claimant had said he felt he was being discriminated against, Ms Coyle wanted to seek a resolution. The claimant’s approach to the early resolution meeting was unusual since she considered that the claimant was not prepared to seek a resolution other than on his terms. She perceived the claimant as being unresponsive to finding an alternative as his position was clear that he wanted to continue as he had been with his hair down. As her focus was on resolving the issue, she was not considering the claimant’s belief that he had been unfairly treated (or that he felt he had raised a grievance). When it was clear that a resolution was not possible, matters were escalated.

[114]The Tribunal found Ms Clark to be compelling in her evidence. Ms Clark did not recall seeing any formal grievance which the claimant assessed had been provided which the claimant had not produced. The Tribunal preferred Ms Clark’s evidence in this regard. She was clear that the claimant did not refer to a grievance and did not suggest any grievance was outstanding. He was clearly unhappy with the treatment he had received but no grievance had been mentioned. The Tribunal did not accept that the claimant had been told to wear a hijab (at any stage) as he suggests. Hair coverings, such as hijabs, were referred to but Ms Clark did not tell the claimant to wear a hijab. She was looking for ways to facilitate the claimant’s return to work and his wearing some form of hair covering, such as a hijab, would have resolved matters. It was not insensitive to make that suggestion as the claimant alleges.

[115]Mr Simpson’s evidence was clear and considered and he fully considered the issues before him and issued his decision independently of any other person.

[116]The Tribunal found Mr Gray to be an impressive witness. He gave his evidence in a careful considered and professional way. He was unequivocal in stating the risks that arose having considered the matter and in his professional opinion given the nature of the working environment in which the claimant worked, it was necessary to put hair up. He gave clear evidence as to why there were risks and how these could be managed, which was the purpose of the uniform policy. He gave evidence of assaults that had taken place and why the policy was needed. He considered the approach the respondent to have taken to be proportionate and reasonable particularly in light of the risk status of the unit which is an important point.

[117]Ms Brown was clear and sympathetic towards the claimant. She understood his position and that of the respondent. Her position was that the policy was clear and the claimant had not complied with it.

[118]Ms Ritchie was clear and consistent. She decided to progress the claimant’s appeal against the conduct hearing before addressing outstanding grievances because at the time she considered that to be what the claimant wanted.

[119]Ms Dodd explained that in crafting policies it was important to be clear. Her position was that the policy was clear in its terms. She believed there was a clear rationale for the requirement within the policy. Common sense dictated that contact as between hair and a patient or other items should be minimised.

[120]With regard to factual matters in dispute, the Tribunal considered all the evidence before it in deciding what was more likely than not to be the case.

[121]The first dispute was in relation to the Dress Code Policy. This was at the nub of the case around which the issues resolved. The Tribunal considered that thew Policy was clear. The Policy applied to “all clinical staff (whether they wear national uniform or not) who are engaged in direct patient activity. In other words, the policy applies to all staff who may be called upon to provide direct patient care. The claimant’s literal interpretation that the policy somehow “switched on or off” depending on where the member if staff was present was not in keeping with the spirit of the policy – which is to protect staff from risk. Given the nature of work the claimant did, he could be called upon at very short notice to provide direct patient care. To find that the policy only applied when direct patient care was being administered would be unworkable and give rise to risk (since time would be lost either taking steps to comply with the policy or risks would be created in administering care without compliance). It was sense that, and staff were told, it applied to staff who provided patient care and were on shift. Hair required to be clean, neat and tidy and worn off the collar and if long worn up. Hair could not be worn down, as the claimant sought to argue. It required to be worn up – ie in a bun or under a covering. Hair that swung below the collar line presented an obvious risk. That interpretation was the obvious and most natural interpretation of the policy in context.

[122]The claimant argued that there was a misapplication of the policy and spent a large amount of time seeking to distinguish when he was providing patient care and not. Even if it were possible (and reasonable) to interpret the policy as the claimant argued, he still did not comply since he refused to wear his hair up. In other words, when engaged in direct patient care (when the claimant accepted the policy was engaged) he was still not complying with it. It is not reasonable to interpret the policy as permitting hair to be tied back but still hanging down given the obvious risk that creates. The Tribunal did not accept the claimant’s submission that there was a misapplication of the policy. Even if there were the submission that such a misapplication invalidates the justification for enforcement is not correct. The claimant did not comply with the policy when he was providing direct patient care. The respondent was under a duty to protect the claimant and others affected by his noncompliance. The respondent’s witnesses were clear that the policy was to be applied in a general sense, such as when the individual was in a clinical area (the whole ward) rather than adopting a narrow view which was consistent with the aim of the policy and the context in which it applies. It was not possible to find a “middle ground” – if the claimant wished to continue in his role and provide direct patient care, it was incumbent on him to comply with the policy.

[123]The claimant asserted that there was either no risk or minimal risk or in reality that risk had not been evidenced. The fact there were few reported incidents did not support the claimant’s position since it could equally support the fact that the steps taken by the respondent had in fact managed the risk or that there was underreporting. It was clear that having hair down (ie below the collar line) presented an anchor point that gave rise to an obvious risk, and one that had materialised given incidents that occurred with patients using the swinging hair to grasp and cause harm. That was self evident. It was also self evident that having hair that touched other surfaces, whether that be a patient or materials near a patient could give rise to transfer of bacteria. It made sense to require hair to be kept up and away from direct contact given the environment in which the claimant worked.

[124]With regard to the incident with Ms McKeever on 7 April 2022, the claimant argued there had been contact between her and his hair but he did not challenge Ms Smith’s evidence who said she had not been at work on the day in question. The Tribunal preferred Ms Smith’s evidence as it was more likely than not that the claimant had been mistaken.

[125]With regard to staff breaks, the Tribunal preferred Ms Lewis’s evidence to that of the claimant. Her evidence was clear and consistent and the Tribunal found that her position was more likely than not to be the case and the claimant had not been refused breaks at the time. It was notable that there were occasions the claimant asserted Ms Lewis had refused the claimant breaks and yet she was not at work. The claimant argued that her senor status meant that she had influence upon the position. The Tribunal did not accept the assertion that Ms Lewis had refused any breaks.

[126]With regard to the WhatsApp group allegation, the Tribunal preferred the evidence of Ms Lewis and Ms Smith. It was more likely than not that the claimant had simply not asked to be a member of the group. Given Ms Lewis and Ms Smith were not administrators at the material time they could not control membership and there was no evidence to support the claimant’s belief (and it was only a belief) that he had been excluded from the WhatsApp group Had he asked to be a member, his request would have been granted.

[127]The Tribunal did not accept the claimant’s repeated assertion that his colleagues were angry or derogatory towards him. The claimant accepted in cross examination that on occasion his behaviour could have been perceived as aggressive. His colleagues were professional and tried to reason with the claimant and find a way that would permit him to comply with the policy but the claimant was singularly focused on not complying with the policy as he believed he was doing nothing wrong. It was also notable that the claimant did not mention his religion and belief until late May 2022. There was no basis prior to that date (and prior to the date the relevant individuals learned of the claimant’s belief) to assert any of his colleagues knew of his religion and belief, given the claimant’s style of hair was used by others who did not share the claimant’s belief. The Tribunal found no basis to find the respondent’s witnesses’ approach to their discussions with the claimant were anything other than professional, fair and reasonable.

[128]Each of the witnesses noted that failure to comply with the policy was not uncommon as staff would often forget about the requirement to remove jewellery or put hair up. However, when such staff were reminded of the policy (and senior staff had a duty to enforce compliance) the issue would dealt with. It was only in relation to the claimant that an issue arose since he refused to comply once the failure was identified. Other staff took steps to comply upon being advised of the issue on the day in question.

[129]The claimant’s repeated refusal to comply with the policy created a challenging situation for the claimant’s colleagues. The claimant had strongly set out his position and had become frustrated about his colleagues’ repeated referral to the policy. Given the nature of the working environment and the risks arising, it was the duty of his colleagues to raise the matter. Regrettably the claimant was unable to see the impact his conduct and approach had upon some staff, some of whom had felt the claimant to be intimidatory towards them and who felt uncomfortable because of the way the claimant had defended his position.

[130]The Tribunal considered the staff room discussion of 2 May 2022 in detail. The Tribunal took into account the claimant’s submissions about the inconsistency in the evidence which the Tribunal considered to be related to the passage of time. The Tribunal had no hesitation in accepting the evidence of Ms Lewis and Ms Smith that there was no derogatory treatment of the claimant and no laughing about the position. Both individuals treated the matter with the appropriate level of seriousness and they were concerned as to the impact upon the claimant and others given the risks arising.

[131]The Tribunal noted the issue regarding Mr Watson and an assertion he had said that the claimant was not in the character or persona of the NHS. Regrettably the claimant had not put that to Mr Watson. The Tribunal found no evidence to support the assertion that Mr Watson had in any way acted unprofessionally or unlawfully (in any of his comments to or about the claimant). He wanted to work with the claimant to find a solution that resulted in a return to work. The claimant was not prepared to alter his position.

[132]The Tribunal accepted Ms Coyle’s evidence that she had not treated the claimant in an adverse way and said that he was attending medical records for “work experience”. Mr Coyle acted appropriately and professionally. Her position was more likely than not to be correct in comparison to the claimant’s position. The claimant’s recollection was clearly filtered from his perspective and belief that he must have been treated in a negative way. The claimant displayed a lack of self awareness and had been unable to see how his conduct and behaviour could impact upon others and why his colleagues were trying to work with him to find a solution.

[133]With regard to the emails of 12 and 13 May 2022, the claimant argued that the context of the emails supported his assertion of unlawful conduct. The Tribunal considered the context in detail and did not find merit in the claimant’s assertion. It was not correct to assert, as the claimant did, that there was a “lack of cultural sensitivity and understanding”. The respondent was respectful of the claimant’s position but regrettably that was not reciprocated. Similarly, it was wrong to assert as the claimant did that “rather than engaging in a meaningful and respectful dialogue to identify appropriate adjustments, the respondent’s approach was based on assumptions and suggestions that lacked consideration for the unique aspects of my identity and beliefs. This reinforces the systemic failures in addressing equality and diversity appropriately in this case”. The Tribunal found no evidence of a lack of consideration. The claimant’s position was taken into account but the respondent had important duties to the claimant, colleagues and patients, which the claimant had failed to appreciate. Consequently, the claimant’s perspective was solely focussed on his position without due regard to the requirement to find a balanced resolution.

[134]The claimant’s intransigence was clear at the early resolution meeting when attempts were made informally to find a solution. The claimant refused to alter his position and adopted a strict stance that led to Ms Coyle feeling intimidated.

[135]The Tribunal heard no evidence as to what the claimant was alleged to have said on 13 May 2022 when he was suspended by Ms Dobbins. The claimant had said (in the list of issues) that at a meeting on 13 May 2022 he “asserted his rights” but no evidence was led about what the claimant said and this was not put to any of the respondent’s witnesses. There is no basis to find the claimant had carried out a protected act on this date. Notwithstanding that, there was no evidence to find that his having done so was linked to any of the detriments relied upon (as alleged by the claimant).

[136]The next dispute concerned the discussion on or around 6 June between the claimant and Ms Coyle. The Tribunal took account of the impact of the passage of time upon recollection and assessed the evidence in its entirety. The Tribunal did not accept the claimant’s assertion that inconsistencies (or the lack of precise consistency) undermined the respondent’s position. The Tribunal found Ms Coyle to be clear and consistent and accepted her evidence that she had been professional in her approach to the claimant. It was clear she found it difficult given the claimant’s intransigence and inability to see matters from any perspective other than his own. There was nothing said by Ms Coyle about the interview process or otherwise that was unlawful. She was entitled to her view, as much as the claimant was entitled to his. It was not correct to assert, as the claimant did, that the inconsistencies “highlights the broader systemic issues and failures within recruitment and management to address equality considerations appropriately, leading to the discrimination and disadvantage I experienced”. The claimant felt that he had been discriminated against but the treatment was not unlawful and the issues arose because the claimant was not prepared to alter his position to find a way forward that complied with the policy.

[137]The Tribunal found nothing unlawful with regard to the position around annual leave. The claimant had previously taken leave and was clearly capable of doing so again. As a matter of law, an employer is entitled to require staff to take leave. There was no connection whatsoever between the leave situation and the claimant’s religion and belief or any protected acts.

[138]The claimant regrettably viewed many interactions with colleagues in a negative way and sought to characterise such interactions as unlawful. In reality the respondent was seeking to find a fair way forward given the context. The claimant was unable to see the impact his position had upon the respondent. Ms Clark’s comments to the meeting at the meeting on 28 June 2022 were evidence of the respondent trying to find a solution but the claimant perceived such actions (wrongly) as unlawful.

[139]The claimant asserted that he had lodged a formal grievance but could provide no copy. The Tribunal found that surprising given the amount of material the claimant had and his attention to detail. The Tribunal concluded that he had not provided the document to the respondent since it was more likely than not that he would have had a copy (or a clear recollection as to what it said) had he done so. None of those who saw the material the claimant provided had any recollection of such a document and given the nature of the work involved, had a formal grievance been submitted, that would have been progressed in the usual way.

[140]The Tribunal did not accept the claimant’s assertion that Ms Coyle had acted unprofessionally or unlawfully towards him from the evidence led. She had acted professionally at all times. He argued that “given her influence and authority, it is reasonable to conclude that her conversations played a role in shaping the stance of these staff members. This contradicts the respondent’s outright denial and further supports my account of events”. The Tribunal rejected that interpretation and found that Ms Coyle had acted professionally and fairly towards the claimant. The Tribunal found her evidence to be preferable to that of the claimant given the claimant’s tendency to see matters from his perspective only and his inability to be objective. Law Burden of proof in discrimination cases

Law

[141]The Equality Act 2010 provides for a shifting burden of proof. Section 136 so far as material provides as follows: “(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.”

[142]The section goes on to make it clear that a reference to the Court includes an Employment Tribunal.

[143]It is for a claimant to establish facts from which the Tribunal can reasonably conclude that there has been a contravention of the Act. If the claimant establishes those facts, the burden shifts to the respondent to show that there has been no contravention by, for example, identifying a different reason for the treatment.

[144]In Hewage v Grampian Health Board

2012 IRLR 870

the Supreme Court approved guidance previously given by the Court of Appeal on how the burden of proof provision should apply. That guidance appears in Igen Limited v Wong

2005 ICR 931

and was supplemented in Madarassy v Nomura International Plc

2007 ICR 867

. Although the concept of the shifting burden of proof involves a two stage process, that analysis should only be conducted once the Tribunal has heard all the evidence, including any explanation offered by the employer for the treatment in question.

[145]If in practice the Tribunal is able to make a firm finding as to the reason why a decision or action was taken, the burden of proof provision is unlikely to be material. It was confirmed by Lord Justice Mummery in the Court of Appeal that it is not always necessary to address the two-stage test sequentially (see Brown v London Borough of Croydon

2007 ICR 909

). Although it would normally be good practice to apply the two-stage test, it is not an error of law for a Tribunal to proceed straight to the second stage in cases where this does not prejudice the claimant. In that case, far from prejudicing the claimant, the approach had relieved him of the obligation to establish a prima facie case.

[146]The Tribunal took into account Field v Steve Pye & Co EAT2021-000357 and Klonowska v Falck EAT-2020-000901. The Tribunal was able to make findings in light of the facts found in light of the absence of any reference by the parties to burden of proof. The Tribunal found clear evidence as to the reason why the respondent acted in this case. Religion and belief as a protected characteristic

[147]Section 10 of the Equality Act 2010 provides: “(1) Religion means any religion and a reference to religion includes a reference to a lack of religion. (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.” Manifestation of religion or belief

[148]In Eweida and others v United Kingdom

[2013] ECHR 37

the European Court of Human Rights stated that to count as a manifestation within

Article 9 ECHR

, there must be a sufficiently close and direct nexus between the act and the underlying belief. In a direct discrimination case, an employer will not be found to have discriminated if the reason for its actions was not the belief but the inappropriate manner in which it was manifested by the employee.

[149]In Page v NHS Trust Development Authority

[2021] EWCA Civ 255

, Underhill LJ approved the distinction from earlier case law, between those cases where the reason for less favourable treatment is the fact that the claimant holds or manifests a protected belief. This would amount to direct discrimination because of belief and those cases where the reason for less favourable treatment is that the claimant has manifested that belief in some particular way to which objection could justifiably be taken. In these cases, it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the treatment complained of. However, if the consequences of the objectionable manifestation are not such as to justify the action taken against the employee, this cannot sensibly be treated as separate from an objection to the belief itself. Whether an individual's manifestation of their belief is inappropriate should be tested by reference to Article 9(2). This was described in Page as a proportionality test, balancing the claimant's freedom against the legitimate interests set out in Article 9(2). Proportionality assessment

[150]The broad approach to proportionality in cases involving ECHR rights is set out in Bank Mellat v HM Treasury (No 2)

[2014] AC 700

, where four questions were identified by the Supreme Court:a. Is the objective of the measure sufficiently important to justify the limitation of a protected right?

b. Is the measure rationally connected to the objective?

c. Could a less intrusive measure have been used without unacceptably compromising the achievement of the objective?

d. Whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.

[151]In Higgs v Farmor’s School

[2023] ICR 1072

the Employment Appeal Tribunal laid down five basic principles that should “underpin the approach” taken when assessing the proportionality of any interference with Article 9 and Article 10 rights:(i) The freedom to manifest belief (religious or otherwise) and to express views relating to that belief are “foundational” and “essential rights in any democracy”, whether or not the belief is popular or mainstream or might cause offence.

(ii) These rights are qualified. The manifestation can be restricted to the extent necessary for the protection of the rights and freedoms of others.

(iii) Whether a limitation is justified “will always be context specific”, which means that the nature of the employment will be relevant.

(iv) It will always be necessary to ask: (i) whether the employer’s objective is sufficiently important to justify the limitation, (ii) whether the limitation is rationally connected to that objective, (iii) whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question, and (iv) whether, balancing the severity of the limitation on the rights of the employee concerned against the importance of the objective, the former outweighs the latter.

(v) In answering those questions, regard should be had to: the content, tone and extent of the manifestation; who the employee thought their likely audience would be; the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s business; whether the views were expressed as personal or could be seen as representing the views of the employer, and any related reputational risk; any potential power imbalance given the employee’s role and the roles of those whose rights are intruded upon; the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users, and whether the limitation is the least intrusive option for the employer. Direct discrimination

[152]Discrimination is defined in section 13(1) of the Equality Act 2010 as follows: “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.”

[153]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) applies: “On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.” In other words, the relevant circumstances must not be materially different between the claimant and the comparators, so the comparator must be in the same position as the claimant save in relation to the protected characteristic.

[154]The effect of section 23 as a whole is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person.

[155]Further, as the Employment Appeal Tribunal and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed

2009 IRLR 884

, in most cases where the conduct in question is not overtly related to [the protected characteristic], the real question is the “reason why” the decision maker acted as he or she did. Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator.

[156]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed

2009 IRLR 884

the Employment Appeal Tribunal recognised two different approaches from two (then) House of Lords authorities -(i) in James v Eastleigh Borough Council

1990 IRLR 288

and

(ii) in Nagaragan v London Regional Transport

1999 IRLR 572

. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another

2009 UKSC 15

. The burden of establishing less favourable treatment is on the claimant.

[157]The Tribunal should draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance, where necessary, of the burden of proof provisions) – as explained in the Court of Appeal case of Anya v University of Oxford

2001 IRLR 377

[158]In Glasgow City Council v Zafar

1998 IRLR 36

, also a (then) House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour. She must show less favourable treatment, one of whose effective causes was the protected characteristic relied on.

[159]In Shamoon v Chief Constable of the RUC

2003 IRLR 285

, a (then) House of Lords authority, Lord Nichols said that a Tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was, and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another.

[160]The Equality and Human Rights Commission Code notes at paragraph 3.4 that it is more likely an employer’s treatment will be less favourable where the treatment puts the worker’s at a “clear disadvantage”, which could involve being deprived of a choice or excluded from an opportunity. At paragraph 3.5 the Code notes that the worker does not need to experience actual disadvantage (economic or otherwise) as it is enough the worker can reasonably say they would prefer not to be treated differently from the way they were treated. The example given is of a worker who loses their appraisal duties which could be less favourable treatment.

[161]It is also important to note that the treatment would be “because of the protected characteristic” if it was “a substantial or effective though not necessarily the sole or intended reason for the treatment” (R v Commission for Racial Equality

1984 IRLR 230

[162]Even if the conduct is not because of the belief or non-belief per se, the Tribunal should also consider whether the conduct was because of a relevant manifestation of the protected belief (or non-belief) pursuant to the position set out above (with particular reference to the approach set out in Higgs). The Tribunal did that in this case.

[163]Chapter 3 of the Code contains useful guidance in applying the law in this area and the Tribunal had regard to that guidance.

[164]Section 212(1) of the Equality Act 2010 states that “detriment does not, subject to subsection (5) include conduct which amounts to harassment.” Section 212(5) states: “Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic.” This means that an action that is complained of must be either direct discrimination or harassment, but it cannot be both. Equally such an action cannot be both harassment and victimisation. It must be one or the other. This is because the definition of detriment excludes conduct which amounts to harassment. Indirect discrimination

[165]The provisions on discrimination are within the Equality Act 2010, and are construed purposively against the background of the EU Framework Directive. Section 4 of the Equality Act 2010 provides that disability is a protected characteristic. Section 19 states: 1) A person(a) (A) discriminates against another

(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. 2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if: (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[166]Section 212 defines “substantial” as meaning “not minor or trivial”.

[167]Lady Hale in the Supreme Court gave the following general guidance in R (On the application of E) v Governing Body of JFS

[2010] IRLR 136

: “Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.” The same principle applies for other protected characteristics. Provision, criterion or practice

[168]The provision, criterion or practice (PCP) applied by the employer requires to be specified. It is not defined in the Act. In case law in relation to the predecessor provisions of the 2010 Act the courts made clear that it should be widely construed. In Hampson v Department of Education and Science

[1989] ICR 179

it was held that any test or yardstick applied by the employer was included in the definition. Guidance on what was a PCP was given in Essop v Home Office

[2017] IRLR 558

[169]In Ishola v Transport for London

[2020] IRLR 368

Lady Justice Simler considered the context of the words PCP and concluded: “In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that ‘practice’ here connotes some form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or ‘practice’ to have been applied to anyone else in fact. Something may be a practice or done ‘in practice’ if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises. Like Kerr J, I consider that although a one-off decision or act can be a practice, it is not necessarily one.”

[170]The Equality and Human Rights Commission Code on Employment at paragraph 4. 5 states: “The first stage in establishing indirect discrimination is to identify the relevant provision, criterion or practice. The phrase ‘provision, criterion or practice’ is not defined by the Act but it should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements, criteria, conditions, prerequisites, qualifications or provisions. A provision, criterion or practice may also include decisions to do something in the future – such as a policy or criterion that has not yet been applied – as well as a ‘one-off’ or discretionary decision.” Disproportionate impact

[171]There must be evidence that shows the PCP creates a disproportionate impact upon those who do not share the protected characteristic. That is a matter referred to in the Equality and Human Rights Commission Code of Practice: Employment (“the Code”) at paragraph 4.15 onwards. Particular disadvantage

[172]The wording of section 19 does not require statistical proof. As Baroness Hale put it in Homer v Chief Constable of West Yorkshire Police

[2012] IRLR 601

the change in the Act over the predecessor provisions: “was intended to do away with the need for statistical comparison where no statistics might exist… Now all that is needed is a particular disadvantage when compared with other people who do not share the characteristic in question”.

[173]In Essop v Home Office

[2017] IRLR 558

the Supreme Court made the following comments: “A third salient feature is that the reasons why one group may find it harder to comply with the PCP than others are many and various … They could be social, such as the expectation that women will bear the greater responsibility for caring for the home and family than will men …”

[174]In Cumming v British Airways plc

UKEAT/0337/19

that quotation was referred to in relation to sufficiency of evidence as follows: “there may be an argument that Lady Hale’s general proposition was sufficient to establish the case along with the statistics relating to the whole of the crew or that in any event there was no reason to think that the proportion of men in the crew with childcare responsibilities differed materially from the proportion of females with such responsibilities”.

[175]Assumptions should be avoided and decisions made on the basis of evidence. Objective justification

[176]It is for the employer to establish the defence on the balance of probabilities. It has the elements of the means to achieve the aim must correspond to a real need for the organisation; they must be appropriate with a view to achieving the objective; and they must be reasonably necessary to achieve that end.

[177]In Chief Constable v Homer

2012 ICR 704

Baroness Hale emphasised that to be proportionate a measure has to be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so.

[178]The Employment Appeal Tribunal held in Land Registry v Houghton and others

UKEAT/0149/14

that the Tribunal requires to balance the reasonable needs of the respondent against the discriminatory effect on the claimant. That was explained further in City of Oxford Bus Services Ltd v Harvey

UKEAT/0171/18

as follows: “proportionality requires a balancing exercise with the importance of the legitimate aim being weighed against the discriminatory effect of the treatment……an employer is not required to prove there was no other way of achieving its objectives (Hardys & Hansons place v Lax

[2005] IRLR 726

). On the other hand, the test is something more than the range of reasonable responses (again see Hardys).”

[179]The Tribunal also had regard to and applied the guidance in relation to justification in indirect discrimination recently issued by the Employment Appeal Tribunal at paragraphs 76 to 85 of NSL v Zaluski

2024 EAT 86

which emphasises the importance of carrying out a critical analysis and that the need for a critical and thorough evaluation is not merely a reflection of the fact that what is being considered is whether a form of discriminatory treatment is shown to be justified. It is, because the outcome of an indirect discrimination complaint is liable to have wider implications and the Tribunal must form its own view of the working practices and business considerations involved. The Tribunal must demonstrate it has understood and engaged with the evidence before it. Guidance on that issue is also given at paragraphs 4.25 in the Code. Harassment

[180]In terms of section 26 of the Equality Act 2010: (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.”

[181]It is important to consider the conduct with regard to each element of the statutory test. Whether or not the conduct relied upon is related to the characteristic in question is a matter for the Tribunal to find, making a finding of fact drawing on all the evidence before it (see Tees Esk and Wear Valleys NHS Foundation Trust v Aslam EAT 0039/19). The fact that the claimant considers the conduct related to a particular characteristic is not necessarily determinative, nor is a finding about the motivation of the alleged harasser. There must be some basis from the facts found which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in the manner alleged in the claim. In that case the Employment Appeal Tribunal held it is a matter for the Tribunal to determine making a finding of fact drawing on all the evidence before it. There must be some feature of the factual matrix identified by the Tribunal which leads it to the conclusion conduct is related to the protected characteristic and the Tribunal should articulate clearly what feature of the evidence leads it to that conclusion. The Tribunal should consider the matter objectively.

[182]For example in Hartley v Foreign and Commonwealth Office Services 2016 ICR D17 the Employment Appeal Tribunal held that an Employment Tribunal had failed to carry out the necessary analysis to see whether comments made by the claimant’s managers during a performance improvement meeting — accusing her of rudeness and apparently questioning her intelligence when she failed to understand a spreadsheet of comments concerning her performance — were related to her Asperger’s syndrome. The Employment Appeal Tribunal emphasised that an Employment Tribunal considering the question posed by section 26(1)(a) must evaluate the evidence in the round, recognising that witnesses “will not readily volunteer” that a remark was related to a protected characteristic. The alleged harasser’s knowledge or perception of the victim’s protected characteristic is relevant but should not be viewed as in any way conclusive. Likewise, the alleged harasser’s perception of whether his or her conduct relates to the protected characteristic “cannot be conclusive of that question”.

[183]Warby v Wunda Group Plc EAT 0434/11 is authority for the proposition that the conduct should be viewed in context in assessing whether the conduct is related to the protected characteristic. The then President of the Employment Appeal Tribunal, Mr Justice Langstaff, upheld a Tribunal’s decision that an employee accused by her superior of having lied about a miscarriage was not subjected to conduct “related to” her sex within the meaning of the sex discrimination provisions then in force. Langstaff P held that context was important and that the tribunal had been entitled to find that the accusation was made in the context of a dispute over a work matter, about which the employer believed that the employee was lying. Thus the conduct complained of was an emphatic complaint about alleged lying; it was not made because of the employee’s sex, because she was pregnant or because she had had a miscarriage. While that case considered the predecessor legislation, the issue was whether the conduct was “related to” the protected characteristic.

[184]In Kelly v Covance Laboratories Ltd

[2016] IRLR 338

an instruction not to speak Russian at work, so that any conversations could be understood by English speaking managers was not related to race or national origins, even though it potentially could have been. The conduct was because the employer was suspicious about what was being said and could not understand. Viewed in the context of the company’s business and risks the employer’s explanation for the conduct was accepted and the conduct was not related to race or national origins.

[185]In UNITE the Union v Nailard

[2018] IRLR 730

the Tribunal had held that a failure to address a sexual harassment complaint made against elected officials of the union could amount to harassment related to sex “because of the background of harassment related to sex”. The Court of Appeal considered that went too far. There had been no findings as to the mental processes of the (employed) officials of the union dealing with the complaint and whether they had been motivated by sex discrimination. The Court of Appeal noted that the previous potential liability for third party harassment under the Equality Act 2010, section 40 had been repealed and there was no automatic liability on the part of the union for harassment by third parties (if that was how the elected officials were to be characterised). The union could be (vicariously) liable for acts of discrimination by its employees but there would need to be a finding that the employees in question were themselves guilty of discrimination. An important point of this case was the reminder that Tribunals should focus on the conduct of the person who carried out the act and determine whether that conduct is related to the protected characteristic (not whether the conduct of someone else or some other conduct is related to the protected characteristic). If the action (or inaction) is because of illness or incompetence it may not relate to the protected characteristic.

[186]Even if the conduct is not related to belief per se, the Tribunal should also consider whether the conduct was related to a relevant manifestation of the protected belief pursuant to the position in Higgs set out above which the Tribunal has done.

[187]At paragraph 7.10 of the Code the breadth of the words “related to” is noted and some examples are provided. It gives the example of a female worker who has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker but because of the suspected affair, which is related to her sex. This could amount to harassment related to sex.

[188]At paragraph 7.11 the Code states that in the examples there was “a connection with the protected characteristic”.

[189]The question of whether the conduct in question “relates to” the protected characteristic requires a consideration of the mental processes of the putative harasser (GMB v Henderson

2017 IRLR 340

) bearing in mind that there should be an intense focus on the context in which the words or behaviour took place (see Bakkali v Greater Manchester

2018 IRLR 906

). In Bakkali the question was whether a comment as to whether an individual was said to be still promoting ISIS/Daesh was related to race. The Tribunal found it was not as it related to a previous conversation. The Employment Appeal Tribunal emphasised that context is important and the words used must be seen in context. In considering whether the conduct is related to the protected characteristic there should be an intense focus on the context of the offending words or behaviour. The mental processes of the perpetrator are relevant in assessing the issue.

[190]In Raj v Capita

2019 UKEAT 0074/2019

the Employment Appeal Tribunal upheld a Tribunal which had found that the massage at his desk by a manager was not conduct related to sex. The conduct was misguided encouragement by a manager. It was an isolated incident and the context was key: a standing manager over a sitting team member in a gender neutral part within an open plan office. In that case the Tribunal did not expressly consider the burden of proof provisions but had found that the conduct was in no sense whatsoever related to sex.

[191]Recent guidance in relation to “related” to can be found in Carozzi v University of Herfortshire

2024 EAT 169

in which it is stated that “the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”. The limitations are that the conduct must be unwanted and it must have the purpose or effect of violating dignity. Where the conduct has that effect, but not that purpose, the Employment Tribunal will go on to consider the perception of B, the other circumstances and whether it is reasonable for the conduct to have that effect. Employers and employees can be expected to take greater care in how they speak and behave at work than they might in their social life. While it is in noone’s interest that colleagues should constantly be walking on egg-shells, it is also important that proper protection is provided against violation of dignity at work”.

[192]Limitations to the test are noted in Windsor Clive v Forsbrook

2024 EAT 183

where at paragraph 29 the Employment Appeal Tribunal noted that “It is clear that “related to” is a broad concept, as set out in Haringey v O’Brien. However, the concept cannot be so broad as to be meaningless. I am of the view that, as Ms Roddick argues, the conduct must relate to the protected characteristic, here disability, in some clear way. It is for the ET to spell out that relationship between the conduct and the disability. It will be necessary, therefore, for an ET to identify with some clarity the precise conduct which creates the prohibited environment. This will also be true in deciding whether that conduct is unwanted in the sense that the statute applies to it.”

[193]Section 26(4) of the Act provides that: “(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;

[194]The terms of the statute are reasonably clear, but guidance was given by the Court of Appeal in Pemberton v Inwood

2018 IRLR 542

in which the following was stated by Lord Justice Underhill: “In order to decide whether any conduct falling within sub-paragraph 10 (1)(a) of section 26 Equality Act 2010 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 take into account all the other circumstances (subsection 4(b)).”

[195]The Code states (at paragraph 7.18) that in deciding whether or not conduct has the relevant effects account must be taken of the claimant’s perception and personal circumstances (which includes their mental health and the environment) and whether it is reasonable for conduct to have that effect. In assessing reasonableness an objective test must be applied. Thus, something is not likely to be considered to be reasonable if a claimant is hypersensitive or other people are unlikely to be offended.

[196]In relation to the effect of the conduct, intention is not a prerequisite and the effect is to be considered from the perception of the claimant. The Code (at paragraph 8.20) gives the example of a club manager at a meeting making derogatory comments and jokes about women to a mixed sex audience. It is not that person’s intention to offend or humiliate anyone, however the contact may amount to harassment if the effect of it is to create a humiliating or offensive environment for a man or woman in the audience.

[197]Relevant circumstances include the claimant’s personal circumstances, cultural norms and previous experience of harassment. The perpetrator being in a position of trust or seniority over the recipient is also a relevant factor.

[198]Further as Underhill LJ stated above when deciding whether the conduct has the relevant effects (of violating the claimant’s dignity or creating the relevant environment) the claimant’s perception and all the circumstances must be taken into account and whether it is reasonable for the conduct to have the effect (Lindsay v LSE

2014 IRLR 218

). Elias LJ in Land Registry v Grant

2011 IRLR 748

focused on the words “intimidating, hostile, degrading, humiliating and offensive” and said “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upset being caught”.

[199]Chapter 7 of the Code contains useful guidance in applying the law in this area and we have had regard to that guidance. Victimisation

[200]Victimisation in this context has a specific legal meaning defined by section 27:(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.

(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.”

[201]That was a decision made in relation to the predecessor legislation to the Equality Act 2010 but there is no authority that suggests the position is otherwise to that set out by the Court of Appeal.

[202]In Page v Lord Chancellor

UKEAT/0304/18/LA

, the claimant, a lay magistrate sitting on family cases involving adoption decisions, gave an interview to the BBC in which he expressed his Christian faith based view that it was “not normal” for a child to be adopted by a single-parent or a same-sex couple. The BBC report explained that the claimant had been suspended and disciplined. The Employment Appeal Tribunal held that it could not be inferred that there had been any specific allegation made by the claimant against the respondent so as to have amounted to a protected act. In the relevant interview, the claimant had done no more than explain his position and why he had done what he had done that had led to his reprimand. In doing so, he had made no reference to his Christian beliefs or that they had formed part of the reason for him being suspended and disciplined. Accordingly, the Employment Appeal Tribunal held that the Tribunal had not erred in finding that the comments made by the claimant in the interview had not constituted a protected act given that he had made no allegation of discrimination.

[203]Something amounts to a detriment if the treatment is of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to her detriment – see paragraphs 31-37 of the speech of Lord Hope in Shamoon v Chief Constable of the RUC

2013 ICR 337

. It is an objective test focussed on the perception of the reasonable worker in all the circumstances of the case. Detriment is, accordingly, treatment which a reasonable worker would or might regard as being to their disadvantage. It is not necessary for the claimant to demonstrate some physical or economic consequence.

[204]The (then) House of Lords confirmed the position in Derbyshire v St Helens Metropolitan Borough Council

2007 ICR 841

. Lord Neuberger opined that the test is not satisfied merely by the claimant showing that he or she has suffered mental distress: it would have to be objectively reasonable in all the circumstances. In assessing whether there is a detriment therefore consideration needs to be given to both subjective and objective elements, looking at matters from the claimant’s point of view but his or her perception must be ‘reasonable’ in the circumstances.

[205]This provision does not require any form of comparison. If it is shown that a protected act has taken place and the claimant has been subjected to a detriment, it is essentially a question of the “reason why”. In other words, the protected act must be an effective and substantial cause of the treatment, it does not need to be the principal cause. The Tribunal is concerned with establishing what the real reason (conscious or subconscious motivation) or reasons for the treatment is.

[206]In determining whether a detriment was because of a protected act, it is important that the protected act is identified with precision and that the relationship between the detriment and that act specifically is examined. In JJ Food Service Ltd v Mohamud EAT 0310/15 the claimant went to work in jeans in breach of his employer’s dress code. When challenged about this he alleged that the dress code was discriminatory as it was applied differently in relation to women. He was dismissed, ostensibly for breaching the dress code and disobeying management instructions, but he brought proceedings alleging that he had been victimised. A Tribunal upheld his claim on the basis that the fact that he had questioned the application of the dress code policy was a significant contributory factor in the decision to dismiss him. However, the Employment Appeal Tribunal allowed the employer’s appeal on the basis that the Tribunal should have asked itself whether the allegations of sex discrimination amounted to such a factor. While in some cases the Tribunal’s language might have been acceptable short-hand, in this case it was significant that the Tribunal did not ask itself the right question because there were other grounds on which the claimant was challenging the application of the dress code. In addition, this was a case where it might have been open to the Tribunal to conclude that it was, for example, the manner or persistence of his complaints rather than the content of them which had led to his dismissal.

[207]The Tribunal has to consider not just whether or not the protected acts themselves were the reason but whether or not there are any other factors relating to the protected acts which were in the respondents’ mind when taking decisions. For example, employees may lose the protection of the antivictimisation provisions because the detriment is inflicted not because they have carried out a protected act but because of the manner in which they have carried it out. An approach that distinguishes between a protected act and the manner of doing that act was endorsed by Mr Justice Underhill, in Martin v Devonshires Solicitors

2011 ICR 352

. In his view, there were cases where the reason for the dismissal (or any other detriment) was not the protected act as such but some feature of it which could properly be treated as separable — such as the manner in which the protected act was carried out. Disability status

[208]Section 6(1)of the Equality Act 2010 provides: ‘A person (P) has a disability if —(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal dayto-day activities.’

[209]Schedule 1 contains supplementary provisions in relation to the determination of disability. Paragraph 2 states: ‘The effect of an impairment is long-term if-(a) it has lasted at least 12 months,

(b) it is likely to last for at least 12 months, or

[210]Paragraph 5 of the schedule states: ‘5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if –(a) measures are being taken to treat or correct it; and

(b) but for that, it would be likely to have that effect’.

[211]The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (the Guidance) does not itself impose legal obligations, but the Tribunal must take it into account where relevant (Schedule one, Part two, paragraph 12).

[212]The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and states ‘The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.’

[213]Paragraphs B4 and B5 state that: ‘An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effect on more than one activity, when taken together, could result in an overall substantial adverse effect. For example, a person whose impairment causes breathing difficulties may, as a result, experience minor effects on the ability to carry out a number of day-to-day activities such as getting washed and dressed, going for a walk or travelling on public transport. But taken together, the cumulative result would amount to a substantial adverse effect on his or her ability to carry out these normal day-to-day activities.’

[214]Paragraph B1 should be read in conjunction with Section D of the Guidance, which considers what is meant by ‘normal day-to-day activities’.

[215]Paragraph D2 states that it is not possible to provide an exhaustive list of dayto-day activities.

[216]Paragraph D3 provides that: ‘In general, day-to-day activities are things that people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.’

[217]D16 provides that normal day-to-day activities include activities that are required to maintain personal well-being. It provides that account should be taken of whether the effects of an impairment have an impact on whether the person is inclined to carry out or neglect basic functions such as eating, drinking, sleeping, or personal hygiene.

[218]The Equality and Human Rights Commission: Code of Practice on Employment (2011), at Appendix 1, sets out further guidance on the meaning of disability. It states at paragraph 7 that ‘There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause.’

[219]At paragraph 16 it states ‘Someone with impairment may be receiving medical or other treatment which alleviates or removes the effects (although not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if the substantial adverse effects are not likely to occur even if the treatment stops (that is, the impairment has been cured).’

[220]In Goodwin v Patent Office

[1999] IRLR 4

, the EAT held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are: does the person have a physical or mental impairment, does that impairment have an adverse effect on their ability to carry out normal day-today activities, is that effect substantial and is that effect long-term?

[221]The burden of proof is on a claimant to show that he or she satisfies the statutory definition of disability. Discrimination arising from disability

[222]Section 39(2)(c) of the Equality Act 2010 prohibits discrimination against an employee by dismissing him. Section 15 of the Act reads as follows: “(1) a person(a) (A) discriminates against a disabled person

(b) (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”.

[223]Paragraph 5.6 of the Equality and Human Rights Commission Code of Practice (“the Code”) provides that when considering discrimination arising from disability there is no need to compare a disabled person’s treatment with than of another person. It is only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability.

[224]In order for the claimant to succeed in his claims under section 15, the following must be made out:a. there must be unfavourable treatment (which the Code interprets widely saying it means that the disabled person ‘must have been put at a disadvantage’ (see para 5.7)).

b. there must be something that arises in consequence of the claimant’s disability;

c. the unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability; and

d. the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

[225]Useful guidance on the proper approach was provided by Mrs Justice Simler in the well-known case of Pnaiser v NHS England

2016 IRLR 170

: “A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.” Unfavourable treatment

[226]The Supreme Court considered this issue in Williams v Trustees of Swansea

2018 IRLR 306

and confirmed that this claim raises two simple questions of fact: ‘what was the relevant treatment and was it unfavourable to the claimant?’ ‘Unfavourably’ must be given its normal meaning; it does not require comparison, it is not the same as ‘detriment’. A claimant cannot succeed by arguing that treatment that is in fact favourable might have been even more favourable. The court confirmed that demonstrating unfavourable treatment is a relatively low hurdle.

[227]It is necessary firstly to identify the relevant treatment that is said to be unfavourable and a broad view is to be taken when determining what is ‘unfavourable’, measuring the treatment against an objective sense of that which is adverse as compared with that which is beneficial. Treatment which is advantageous cannot be said to be 'unfavourable' merely because it is thought it could have been more advantageous, or, because it is insufficiently advantageous.

[228]In order to achieve the stated purpose, the concept of ‘unfavourable treatment’ will need to be construed widely, similar to how the concept of ‘detriment’ has been construed for the purposes of other anti-discrimination provisions. The Code (at paragraph 5.7) indicates that unfavourable treatment should be construed synonymously with ‘disadvantage’: ‘Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably’.

[229]It is also clear from the examples given in the Code that unfavourable treatment need not be directed specifically at the disabled person and it may arise in consequence of a policy that applies to everyone. It therefore covers treatment that, although not directed specifically at a disabled person, nonetheless has specific adverse effects on the disabled person. Justification

[230]As to justification, in paragraph 4.27 the Code considers the phrase “a proportionate means of achieving a legitimate aim” (albeit in the context of justification of indirect discrimination) and suggested that the question should be approached in two stages:- is the aim legal and non-discriminatory, and one that represents a real, objective consideration and if so, is the means of achieving it proportionate – that is, appropriate and necessary in all the circumstances?

[231]As to that second question, the Code goes on in paragraphs 4.30 – 4.32 to explain that this involves a balancing exercise between the discriminatory effect of the decision as against the reasons for applying it, taking into account all relevant facts. It goes on to say the following at paragraph 4.31: “although not defined by the Act, the term “proportionate” is taken from EU directives and its meaning has been clarified by decisions of the CJEU (formerly the ECJ). European law views treatment as proportionate if it is an “appropriate and necessary” means of achieving a legitimate aim. But “necessary” does not mean that the [unfavourable treatment] is the only possible way of achieving a legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.”

[232]The Code at paragraph 4.26 states that “it is for the employer to justify the provision, criterion or practice. So it is up to the employer to produce evidence to support their assertion that it is justified. Generalisations will not be sufficient to provide justification. It is not necessary for that justification to have been fully set out at the time the provision criterion or practice was applied. If challenged, the employer can set out the justification to the Employment Tribunal.”

[233]In Chief Constable v Homer

2012 ICR 704

Baroness Hale stated that to be proportionate a measure has to be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so. She approved earlier authorities which emphasised the objective must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. It is necessary to weigh the need against the seriousness of the detriment.

[234]The question is whether the action is, objectively assessed, a proportionate means to achieve a legitimate end. The employer has to show (and the onus is on the employer to show) that the treatment is a proportionate means of achieving a legitimate aim. The Tribunal can take account of the reasonable needs of the respondent’s business but the Tribunal must make its own judgment as to whether the measure is reasonably necessary. There is no room for the range of reasonable response test.

[235]The Tribunal is required to critically evaluate, in other words intensely analyse, the justification set out by the employer. The assessment is at the time the measure is applied and on the basis of information known at the time (even if the employer did not specifically advert to the justification position at that point). Flaws in the employer’s decision-making process are irrelevant since what matters is the outcome and now how the decision is made.

[236]There must firstly be a legitimate aim being pursued (which corresponds to a real need of the respondent), the measure must be capable of achieving that aim (ie it needs to be appropriate and reasonably necessary to achieve the aim and actually contribute to pursuit of the aim) and finally it must be proportionate. The discriminatory effect needs to be balanced against the legitimate aim considering the qualitative and quantitative effect and whether any lesser form of action could achieve the legitimate aim.

[237]Chapter 5 of the Code contains useful guidance in applying the law in this area and the Tribunal has had regard to that guidance. Reasonable adjustments

[238]Section 39(5) of the Equality Act 2010 provides that a duty to make reasonable adjustments applies to an employer. Further provisions about that duty appear in Section 20, Section 21 and Schedule 8. This is considered in chapter 6 of the Equality and Human Rights Commission Code of Practice. That paragraph states: “A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know, … that an interested disabled person has a disability and is likely to be placed at the disadvantage”.

[239]Therefore the duty does not apply if the employer did not know, and could not reasonably be expected to know that the employee had a disability and was likely to be placed at the disadvantage in question by the PCP (Schedule 8 paragraph 20) (for which see Wilcox v Birmingham CAB 2011 EqLR 810).

[240]An employer will be taken to know of the disability if it is aware of the impairment and the consequences. There is no need to be aware of the specific diagnosis. If an employer has no actual knowledge of the disability, the Tribunal must consider whether there was constructive knowledge, namely, whether the employer ought to have known of the disability from the facts before the employer at the time (McCubbin v Perth

UKEATS/25/13

[241]If the employer did not know of the disability (or ought not reasonably to have known) the duty to make reasonable adjustments it not engaged. The same applies if the employer did not know, or could not reasonably have known, of the alleged substantial disadvantage.

[242]The Court of Appeal in Gallop v Newport City Council

2014 IRLR 211

said that it is essential for a reasonable employer to consider whether an employee is disabled, and form their own judgment. In that case the employer relied on advice from Occupational Health that the claimant was not 'covered' by the Equality Act 2010, and had then unquestioningly adopted that unreasoned opinion. Whilst ordinarily an employer will be able to rely on suitable expert advice, this cannot displace their own duty to consider whether their employee is disabled, and it is impermissible simply to rubber stamp a proffered opinion.

[243]In Donelien v Liberata UK Ltd

2018 IRLR 535

, Underhill LJ emphasised that an unquestioning reliance on an unreasoned report will not prevent a finding of constructive knowledge.

[244]The Employment Appeal Tribunal considered this issue in Kelly v Royal Mail Group Ltd

UKEAT/0262/18

which emphasised that it is not sufficient for an employer merely to rubber-stamp in that case the medical advisors’ report and that it must make his own factual judgment as to whether the employee is disabled. The respondent in that case gave independent consideration to the matter rather than unquestioningly following Occupational Health reports. It was relevant to note that from the information available to the employer from the claimant, there had been no suggestion from the claimant that there was any adverse effect on his day-to-day activities and there was nothing to alert the claimant’s managers to the need to look behind the conclusions of the information they had obtained. In light of all the information available to the employer, this is not a case where it could be said that they had knowledge that the claimant has a disability. Particular consideration was given to the lack of any evidence that the claimant’s condition was likely to be long-term and/or that it had an adverse effect on his day-to-day activities.

[245]When Gallop was remitted to the Tribunal it was unsuccessful because the decision maker did not in fact have knowledge of disability and that was upheld by the Employment Appeal Tribunal in Gallop v Newport City Council (No 2)

2016 IRLR 395

[246]The question of whether an employer could reasonably be expected to know of a person's disability is a question of fact for the Tribunal (Jennings v Barts and The London NHS Trust

UKEAT/0056/12

). In that case the Employment Appeal Tribunal suggested that an employer should concentrate on the impact of the impairment, not on any particular diagnosis.

[247]Langstaff P in Donelien v Liberata UK Ltd

UKEAT/0297/14

(affirmed by the Court of Appeal

2018 IRLR 535

) warned that when considering whether a respondent to a claim ‘could reasonably be expected to know’ of a disability, it is best practice to use the statutory words rather than a shorthand such as ‘constructive knowledge’ as this might imply an erroneous test. The burden is on the employer to show it was unreasonable to have the required knowledge.

[248]The importance of a Tribunal going through each of the constituent parts of section 20 was emphasised by the Employment Appeal Tribunal in Environment Agency v Rowan

2008 ICR 218

and reinforced in Royal Bank of Scotland v Ashton

2011 ICR 632

[249]As to whether a “provision, criterion or practice” (“PCP”) can be identified, the Commission Code of practice paragraph 6.10 says the phrase is not defined by the Act but “should be construed widely so as to include for example any formal or informal policy, rules, practices, arrangements or qualifications including one off decisions and actions”. The question of what will amount to a PCP was considered by the Employment Appeal Tribunal in Nottingham City Transport Limited v Harvey

UKEAT/0032/12

in which the then President Mr Justice Langstaff (dealing with a case under the Disability Discrimination Act 1995 and the Disability Rights Commission’s Code of Practice from 2004, both now superseded by the provisions summarised above) said of the phrase “provision, criterion or practice” in paragraph 18: “Although those words are to be construed liberally, bearing in mind that the purpose of the statute is to eliminate discrimination against those who suffer from a disability, absent provision or criterion there still has to be something that can qualify as a practice. "Practice" has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply. These points are to be emphasised by the wording of the 1995 Act itself in its original form, where certain steps had been identified as falling within the scope to make reasonable adjustment, all of which, so far as practice might be concerned, would relate to matters of more general application than simply to the individual person concerned.”

[250]This was applied in Ishola v Transport for London

[2020] EWCA Civ 11

, LJ Simler, whose reasoning we have applied. It is possible for a PCP to be a “one off” provided it has the character of a PCP, in other words it could be something the employer might well adopt as a PCP. Just because it has not been applied before does not, by itself, mean it is not a PCP.

[251]For the duty to arise, the employee must be subjected to “substantial disadvantage in comparison to a person who is not disabled” and with reference to whether a disadvantage resulting from a provision, criterion or practice is substantial, section 212(1) defines “substantial” as being “more than minor or trivial”. The question is whether the PCP has the effect of disadvantaging the disabled person more than trivially in comparison to those who do not have the disability (Sheikholeslami v University of Edinburgh,

2018 IRLR 1090

[252]The obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is one in respect of which the Code provides considerable assistance, not least the passages beginning at paragraph 6.23 onwards. A list of factors which might be taken into account appears at paragraph 6.28 and includes the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer’s financial or other resources and the type and size of the employer.

[253]Paragraph 6.29 makes clear that ultimately the test of the reasonableness of any step is an objective one depending on the circumstances of the case. Examples of reasonable adjustments in practice appear from paragraph 6.32 onwards. Submissions

[254]The parties had both provided detailed and lengthy written submissions which the parties were able to supplement orally, deal with issues arising from each other’s submissions and answer questions. Time had been given to the parties to work on their respective submissions. The submissions have been fully taken into account. The decision arrived at was reached following consideration of each of the submissions having carefully analysed the facts applying the law. The Tribunal does not refer to every single point raised by both parties but focuses on the key issues that led to its unanimous decision. Discussion and decision

[255]The Tribunal approached each of the issues in turn, considering the facts, the law and the parties’ submissions and reached a unanimous decision. Direct race discrimination

[256]The first incident was that it was alleged on 2 May 2022 Ms Lewis said to the claimant “I know all that but I don’t know how you can believe what you believe, because you are wrong”? The Tribunal did not find that Ms Lewis said what was alleged by the claimant under this issue. Further, Ms Lewis did not know the claimant was Rastafarian when the comment was alleged to have been made which further supported the fact that the comment had not been made (and could not have been because of race).

[257]The second incident was that it was alleged that on 20 May 2024 Ms Ritchie advised the claimant of her decision to hear the claimant’s appeal against the conduct hearing prior to determination of the outstanding grievances. This was accepted to have been said and the issue was whether the claimant was treated less favourably than a relevant comparator. The respondent’s agent noted that the claimant said “I have considered the situation and would suggest that the investigation of my concerns be delayed until other processes are now complete”. Ms Ritchie’s suggestion that “the investigation that was commissioned into your grievance has been put on hold at your request” was correct. The statement would have been made by anyone in the same circumstances as the claimant and is not less favourable treatment. In any event the statement was not made because of race but because the claimant had made the request. The respondent had shown that race was in no sense whatsoever a reason for the comment. There was no less favourable treatment and the treatment was entirely unrelated to race. Direct sex discrimination

[258]The first incident was that on 14 April, 18 April and 22 April 2022 Ms Lewis allegedly excluded the claimant from staff breaks. The Tribunal found that Ms Lewis had not excluded the claimant from any breaks from the evidence.

[259]The second incident was that on 20 April 2022 Ms Lewis and Ms Smith allegedly excluded the claimant from the WhatsApp rota. The Tribunal found that Ms Lewis had not excluded the claimant from the WhatsApp rota or group. This had not been established.

[260]The third incident was that Ms Ritchie advised the claimant of her decision to proceed to hear the claimant’s appeal against the conduct hearing prior to determination of the outstanding grievances. This was said by Ms Ritchie in response to the claimant’s request to do so. Ms Ritchie would have said the same thing to any person in the same circumstances. It was not less favourable treatment and sex was entirely unrelated to the treatment. Direct religious discrimination

[261]The first incident was that on 5 or 6 May 2022 Mr Watson treated the claimant less favourably than a comparator because of being a Rastafarian with dreadlocks insofar as he said to the claimant, in response to being asked “Why was this not made aware at interview process” (Referring to not being able to work in clinical facing roles if you have dreadlocks tied back off the collar), “So, so that’s a question I’ve got as well. That’s a question I’ve got as well.” The Tribunal found that there was a discussion on or around 5 and 6 May 2022 about the interview process. This was part of a discussion that the claimant had raised. The discussion would have taken place had anyone raised the issue. It was not less favourable treatment. In any event the treatment was not because of religion or belief. The comment was made because the claimant prompted Mr Watson to say it and Mr Watson gave his opinion. The comment was in no sense whatsoever related to religion.

[262]The second incident was that on 7 February 2024 Ms Coyle treated the claimant less favourably than a comparator because of being a Rastafarian insofar as she persuaded Mr Gray and Ms Jardine to support and justify the enforcement of the dress code policy. The Tribunal did not find that what the claimant alleges was said was in fact said. The claimant was not present for any conversation between Ms Coyle and Mr Gray. Ms Coyle did not influence Mr Gray as she set out what she believed the position to be and Mr Gray came to his own view. The facts supporting this incident had not been established in evidence. Religion was in no sense connected to the comment.

[263]The third incident was that Ms Brown treated the claimant less favourably than a comparator because of being a Rastafarian insofar as she sent the claimant a letter dated 3 May 2024 in terms which he found to be offensive. This was a letter Ms Brown sent asking the claimant to consider trying a hair covering. The claimant had said that he had worn hair coverings in the past and accepted in cross examination that he could do so for a couple of hours. The Tribunal found that Ms Brown did not make the request because of the claimant’s religion or belief but because she was wanted to find a way to facilitate the claimant’s return to work”. The claimant’s religion and beliefs were not in any sense whatsoever a reason for the treatment.

[264]The fourth incident was that on 20 May 2024 Ms Ritchie advised the claimant of her decision to proceed to hear the claimant’s appeal against the conduct hearing prior to determination of the outstanding grievances. Was the claimant treated less favourably than a comparator would have been in the same circumstances? As set out above, Ms Ritchie decided to hear the conduct appeal first at the claimant’s request. This was not in any sense whatsoever because of religion or belief. No breach of the claimant’s rights

[265]For completeness, the Tribunal considered the principles set out in Higgs and applied them to the direct discrimination complaint given the claimant’s manifestation of his beliefs (even although on the evidence it was not contrary to his religion to wear his hair up and so technically the policy did not affect the claimant’s belief or manifestation of his belief). The Tribunal considered whether the limitation placed upon the claimant by the respondent applying its policy (and approach regarding the claimant’s hair) was proportionate.

[266]The employer’s objective in applying the policy (which underpinned each of the direct discrimination complaints in this case) was sufficiently important to justify the limitation upon the claimant which was rationally connected to the objective. The policy was necessary to protect staff and patients and it was necessary, reasonable and fair to apply the policy as the respondent did. No less intrusive limitation would be effective from the evidence given the risks to both health and safety and infection control. In balancing the severity of the limitation on the rights of the claimant against the importance of the objective, taking account of the relevant factors, the respondent’s position outweighs the impact upon the claimant. The interference with the claimant’s rights was proportionate. The respondent required to create a environment where risks were reduced, if not eliminated and this was done in a proportionate way. The respondent’s actions were a proportionate means of achieving the aims of protecting health and safety and infection control. It would not have been reasonable to have considered the effect of the respondent’s actions to amount to direct discrimination. Taking a step back regarding direct discrimination

[267]The claimant submitted that “the compelling and substantial evidence I have provided clearly demonstrates the respondent’s actions were directly linked to my having dreadlocks, a stark comparison to the minimal and statistically insignificant evidence the respondent has offered to refute the claim”. That submission is without merit. From the evidence, the respondent’s actions were not linked to the claimant having dreadlocks but his decision not to comply with the policy and his insistence that his interpretation of the policy was correct. The Tribunal found no evidence that the respondent treated the claimant less favourably. He was treated in precisely the same way as anyone else whose circumstances were not materially different, aside from his religion and belief. The respondent treated everyone in the same way – irrespective of their religion and belief (whilst trying to find accommodations for those who were unable to comply, where possible). The respondent was able to show that the claimant’s religion and belief was in no sense whatsoever a reason for the treatment.

[268]Having taken a step back, the Tribunal considered each of the acts relied upon to assess whether the protected characteristics relied upon were in any sense a reason for the treatment. The Tribunal found no evidence whatsoever to support the claimant’s assertion that any of the treatment he received had in any way been because of the fact he was a man or because he was Rastafarian or Scottish. The claimant’s gender, race and religion was entirely irrelevant to the treatment. A person of a different sex, religion and race would have been treated in precisely the same way as the claimant was treated, whose circumstances were not materially different to the claimant’s circumstances. The respondent had applied the policy in precisely the same way to those who had failed to comply with it. The respondent had shown sex, religion and race was in no sense whatsoever a reason for the treatment. The direct discrimination complaint is ill founded. Indirect religious discrimination

[269]The first complaint relates to the Dress Code policy. It was accepted that the respondent had a Dress Code and Appearance at Work Policy, which incorporated within it the National Uniform Policy (together “the Policy”). It was also accepted that the Policy states for all Clinical Staff engaged in direct patient care activity, “Hair must be clean, neat and tidy and worn off the collar and, if long, should be worn up.” It was accepted that this was a PCP and that this was applied to the claimant. Individual disadvantage

[270]The first issue is whether the PCP placed the claimant at a disadvantage. The Tribunal found that the claimant was at a disadvantage since his hair was thick and he struggled to put his hair up (albeit he had done so before). He was at a disadvantage because he had difficulty complying with the policy. Group disadvantage

[271]The claimant identifies the group disadvantage as follows. He says that dreadlocks are often bulky and heavy (because the hair is not cut and shed hair is retained). It therefore can be difficult to wear them “off the collar” and/or for them to be “worn up”. He said that tying back is common practice for Rastafarians, and dreadlocks tend to go outwards rather than upwards. Failure to comply with a request that hair be “worn up” is likely to result in the application of the disciplinary procedure. Accordingly insensitive approaches to equality considerations and strict interpretations of harsh interpretations of the dress code policy is more likely to put Rastafarians to the disadvantage of being subjected to disciplinary procedure.

[272]The respondent disputed the PCP put anyone other than the claimant at a disadvantage. The issue here is whether the PCP put persons with whom the claimant shares the characteristic, at a particular disadvantage when compared with persons with whom the claimant does not share the characteristic, in that persons with the claimant’s religion and belief would find it more difficult to manage. Counsel for the respondent noted that the claimant’s case on group disadvantage was not that Rastafarians are unable to tie their hair up because of their religion. There was no suggestion that this is a feature of the Rastafarian religion. The pled assertion of disadvantage was linked to the reason why the claimant said he could not put his hair up; that the hair itself is too thick and heavy. The claimant did not say to the respondent at any time that he could not wear his hair up because doing so would contravene his religion. His position was that he could not put his dreadlocks up because they were too long and heavy.

[273]Counsel for the respondent submitted that there was no evidence to demonstrate that Rastafarians are unable to put their dreadlocks up because they are too long and heavy and he had not done so. The evidence showed the contrary since other members of staff within the respondent who have dreadlocks were able to tie them up. Other people who have dreadlocks can wear their hair up. Counsel for the respondent noted that in cross examination, the claimant accepted several propositions which undermined his case, namely not all Rastafarians have dreadlocks, other Rastafarians who have dreadlocks may have different thicknesses of hair to the claimant, other Rastafarians who have dreadlocks may not have dreadlocks that were as long as those of the claimant, other Rastafarians who have dreadlocks may not have the same hair texture as the claimant, other Rastafarians who have dreadlocks may not have the same issues putting their hair up as the claimant did, if other Rastafarians did put their hair up, they may not need to adjust their dreadlocks frequently as the claimant says he did and other Rastafarians may at times tie their hair up. Other Rastafarians do sometimes wear hair coverings. The claimant said in cross examination on this point that he could only speak for himself.

[274]The claimant argued that this misrepresents group disadvantage since indirect discrimination occurs when a policy disproportionately impacts a specific group even if not all members are affected. The claimant submits that the policy places Rastafarians who wear dreadlocks as an expression of their belief at a clear disadvantage irrespective of the effect on other Rastafarians.

[275]The Tribunal considered the evidence and found that there had been no group disadvantage in relation to the PCP relied upon. The claimant is correct to say that group disadvantage does not require everyone with the protected characteristic to be adversely affected. But it is necessary to show that some persons with the characteristic, other than the claimant, are adversely affected. There was no evidence that any other Rastafarians would have difficulty complying with the policy. From the evidence before this Tribunal the claimant’s issue was that his hair was too thick and heavy. It was not suggested the claimant’s belief prevented him from complying with the policy or that Rastafarians have thick hair that cannot be put up. There was no evidence any other Rastafarians would have difficulty complying with the policy. The claimant chose to wear his dreadlocks as he did (as anyone could do). He could have used a hair covering (as anyone could do and often did). Wearing hear up was not contrary to his beliefs. The evidence disclosed no adverse impact upon Rastafarians other than the claimant.

[276]The claimant correctly submitted that variations in belief do not negate group disadvantage where a practice holds significant meaning for a subset of the group. In this case there was no evidence that showed a subset of Rastafarians (or any Rastafarians other than the claimant) would have any difficulty with the policy. The issue related solely to the claimant’s individual circumstances. Had the claimant chosen simply to grow his hair long (rather than wear dreadlocks) the same issue would have arisen. The fact the claimant believes hair is sacred was entirely unaffected by the policy given his beliefs did not prevent him from covering his hair and given no other Rastafarians would have any difficulty with the policy being applied to them. Objective justification

[277]Had there been group disadvantage, the Tribunal would have found that the treatment was justified as a proportionate means of achieving a legitimate aim. The aims relied upon were protecting health and safety of staff and patients and infection prevention control. There was no suggestion these were not legitimate aims and the Tribunal found them to be legitimate aims.

[278]The issue was whether the approach taken was a proportionate means of achieving those aims. Counsel for the respondent noted that the unit is a medium risk environment. Witnesses had spoken of the violence and aggression that can arise on the ward. The Tribunal found there was a real risk of violence due to the type of ward the unit is. The claimant accepted patients do sometimes assault members of staff in the unit. Measures had been taken to reduce risk and there was under reporting but there was a clear risk to health and safety in the unit which the Policy required to address. Long hair is an obvious risk factor in terms of violence and aggression. Hair could be an anchor point to assault staff and long hair can increase the risk of assault because it can be grabbed. The Tribunal agreed with counsel for the respondent that Mr Gray’s evidence in this regard, as a highly experienced employee working in the Health and Safety field, ought to be afforded weight. His evidence was clear and cogent and the Tribunal accepted it.

[279]The claimant accepted in cross examination that the respondent had a duty to try and prevent employees being assaulted at work and the consequences of a patient assault can be serious (both to the individual and in terms of liability for the respondent had it not taken steps to reduce the risk).

[280]The claimant argued there was “minimal” evidence relying upon the fact there were only 6 recorded incidents over a 12 month period. That argument fails to appreciate that the limited number could be evidence of the fact the policy has worked. The evidence before the Tribunal showed that the policy was regularly and rigorously enforced and that when a breach was identified the staff member took steps to comply. The fact compliance is taken seriously could well be a reason why there were low reported incidents. It was also clear that there was under reporting. In any event, the evidence showed the risk was. It is self evident that hair that is capable of being grasped gives rise to more risk of harm than hair that is kept up.

[281]The claimant argued that his particular circumstances showed the risk to be “statistically negligible”. The Tribunal took into account the limited hours the claimant works, his skills and training, the nature of his shifts and the data. However, the respondent was clear that where risks can be managed and mitigated, steps need to be taken. One incident is one too many given the nature of the environment. The respondent has a duty to protect the claimant – even against himself - and if steps can be taken to reduce risk, the step should be taken which is what the policy seeks to do.

[282]Had it been necessary to do so, the Tribunal would have found the application legitimate aim, protecting health and safety of staff and patients, having balanced the discriminatory effect with the needs of the respondent. Invoking the policy was reasonably necessary to achieve the aim. The impact of the process upon the claimant was significant (given the nature of his hair and his desire) but it was necessary to minimise the risk of health and safety. The impact upon the respondent of assault and harm was very substantial. There was a clear risk in having hair that was not tied up and it was reasonable, necessary and proportionate to reduce that risk by covering hair as the policy required. The Tribunal balanced the impact of the treatment upon the claimant and the effect upon the respondent. The respondent tried to accommodate the claimant and find alternatives but he was not prepared to do so. The Tribunal considered the impact of invoking the process upon the claimant to be outweighed by the impact upon the respondent of not doing so. The Tribunal was satisfied that the legitimate aim was proportionately applied from the evidence having balanced the discriminatory effect of the measure with the legitimate aim.

[283]The treatment was justified to ensure health and safety of staff and patients. The treatment was clearly capable of achieving this aim and having balanced the effect of the treatment on the claimant with the impact upon the respondent, the Tribunal found the treatment to be justified pursuant to those aims. The respondent had discharged the burden of showing that the treatment was a proportionate means of achieving its aim. In reaching this decision the Tribunal examined the evidence and intensely analysed the impact upon the claimant as against the respondent from the evidence presented to the Tribunal. Having intensely analysed the measure the Tribunal is satisfied that the treatment was objectively justified from the evidence presented to the Tribunal.

[284]The Tribunal would also have found the policy to have been justified by reference to the second legitimate aim. Infection prevention and control was important given the claimant was delivering direct patient care which involved intimate, close contact with patients. There are surfaces that patients will touch near where patients are, such as tables or bedrails. There is medical equipment next to some patients. The claimant accepted that on occasion his dreadlocks would fall to one side. If he leant forward, his dreadlocks would also fall forward. They were gathered, but hanging loose down his back. His dreadlocks could touch surfaces and equipment. They could pick up germs. They could deposit those germs on other surfaces. The Tribunal accepted the respondent’s counsel’s submission that the claimant’s dreadlocks were, logically, a potential vector of infection transmission. The claimant’s hair might have brushed against surfaces without his knowing about it. The claimant’s hair was a potential infection prevention control risk.

[285]The claimant accepted in cross examination that patients should not get sick in hospital and that patients have compromised immune systems. If a patient contracts an infection in hospital, it can be fatal. The claimant’s hair, as a potential vector of infection transmission, could increase the risk of harm.

[286]The claimant’s position was that there was no evidence in support of this proposition. The Tribunal accepted the evidence of Ms Dodd that the issue was one of “common sense”. It was clear that where surfaces touch other surfaces, the potential for cross contamination arises. As counsel submitted, at a very basic level, the claimant’s hair could potentially touch surfaces and equipment if it hung down his back. That could lead to germs being picked up and deposited elsewhere and lead to germs being transferred between patients. The basic proposition that surfaces touching other surfaces can lead to cross contamination is self evident. Hair is simply another extension of the body which can touch surfaces.

[287]The PCP aims to reduce the possibility of patients falling seriously, and perhaps fatally, unwell. That potential outcome weighs heavy in the balancing exercise. Counsel for the respondent submitted that the respondent attempted to minimise the impact of the PCP. The respondent offered the claimant a hair covering specifically marketed to Rastafarians. The respondent attempted to explore alternative work locations which would not require the claimant to do anything with his hair. The claimant was not willing to explore any options. The Scottish Government required hair to be tied up.

[288]The Tribunal accepted the respondent’s argument that the claimant was wrong to assert he had been complying with the Policy. Hair needed to be tied up. There would be no benefit in an interpretation of “off the collar” that did not include tying hair up if hair could hang loose given the anchor point that would permit, which was a key thing the policy was designed to avoid.

[289]The Tribunal found the PCP was an appropriate and reasonably necessary means of achieving the legitimate aims. The PCP decreased the likelihood of the claimant, or other members of staff, suffering injuries due to violence and aggression; and reduced the risk of patients contracting potentially fatal hospital acquired infections. The respondent made attempts to minimise the impact of the PCP, and strike a fair balance.

[290]Had it been necessary to do so, the Tribunal would have found the application legitimate aim of infection prevention and control, having balanced the discriminatory effect with the needs of the respondent. Invoking the policy was reasonably necessary to achieve the aim. The impact of the process upon the claimant was significant but it was necessary to minimise the risk of infection. The impact upon the respondent of infection of patients (or staff) was very substantial. The Tribunal balanced the impact of the treatment upon the claimant and the effect upon the respondent. The respondent tried to accommodate the claimant and find alternatives but he was not prepared to do so. The Tribunal considered the impact of invoking the process upon the claimant to be outweighed by the impact upon the respondent of not doing so. The Tribunal was satisfied that the legitimate aim was proportionately applied from the evidence having balanced the discriminatory effect of the measure with the legitimate aim.

[291]The treatment was justified to minimise infection. The treatment was clearly capable of achieving this aim and having balanced the effect of the treatment on the claimant with the impact upon the respondent, the Tribunal found the treatment to be justified pursuant to those aims. The respondent had discharged the burden of showing that the treatment was a proportionate means of achieving its aim. In reaching this decision the Tribunal examined the evidence and intensely analysed the impact upon the claimant as against the respondent from the evidence presented to the Tribunal. Having intensely analysed the measure the Tribunal is satisfied that the treatment was objectively justified from the evidence presented to the Tribunal.

[292]The second complaint under this head relates to the PAMOVA Policy. The second way in which the claimant said he was indirectly discriminated against was because of the application of the PAMOVA Policy,

[293]The first issue is whether the respondent applied the PCP to the claimant. The respondent denied this and argued that the PCP did not put the claimant at any disadvantage. The policy itself does not cause any disadvantage. The claimant is not complaining about the policy. Counsel for the respondent noted it was the request to consider wearing a hair covering that the claimant says caused disadvantage which is not the PCP relied upon, and was in any event a one-off act. Having assessed the position, the Tribunal considered that submission to have merit.

[294]There was no individual disadvantage arising as a result of the policy. As set out by the claimant in his claim, the issue was not the application of this policy given the claimant was fully trained in relation it. The issue for the claimant was the requirement to wear a hair covering and have his hair up (and the absence, he says, of any evidence justifying the requirement), which was not part of this policy but the foregoing complaint. This complaint is ill founded, there being no PCP applied and no individual or group disadvantage.

[295]The third complaint relates to proceeding with disciplinary appeals before resolving outstanding grievances. The PCP relied upon is the practice or policy or proceeding with disciplinary appeals before resolving outstanding grievances. This was what happened in the claimant’s case, in response to his suggestion that the investigation into his grievance be delayed. It was a one-off act. Applying the authorities above, there was no PCP. There was no suggestion this was something that would be repeated or that it somehow amounted to a policy. It was a genuine one off act. If it had been a PCP, it was accepted that the respondent did apply it to the claimant.

[296]The next issue would have been group disadvantage. The substantial disadvantages relied upon are lack of consideration for grievances, increased risk of unfair treatment and emotional and psychological impact. Counsel for the respondent submitted that there was no basis upon which there can be said to be any group disadvantage. The claimant adduced no evidence to make out the contentions that Rastafarians, white people, or men are any more likely to suffer the consequences relied upon than any other people whose disciplinary appeals are proceeded with before outstanding grievances are resolved. That submission was accepted by the Tribunal. There was no group disadvantage on the evidence presented to the Tribunal. Justification

[297]Counsel for the respondent noted that the claimant accepted in cross examination that, when a member of staff is not at work, an employer is entitled to try and resolve the situation. That is a legitimate aim. That was not disputed by the claimant.

[298]The claimant requested his grievance investigation be paused. That seems to have been because he wanted nothing to happen internally until the conclusion of the Tribunal process. Counsel for the respondent argued that was not reasonable. An employer is not obliged to do nothing and let a situation drift when an employee has lodged a Tribunal claim and if the employer did so, it might be criticised. An employer is not obliged to do everything an employee wants. It was said to be proportionate for the employer to continue trying to take steps to manage an employee’s absence rather than simply do nothing for an indeterminate and lengthy period of time.

[299]Had it been necessary to do so, the Tribunal would have found the application legitimate aim, having balanced the discriminatory effect with the needs of the respondent. Proceeding to deal with the matter without addressing grievances was now shown to have had any particular impact upon the claimant. The respondent was not saying it would not deal with the grievances but that it would deal with the appeal first (pursuant to the claimant’s request). It was necessary to progress matters. The impact upon the respondent of delayed resolution was not inconsequential. The Tribunal balanced the impact of the treatment upon the claimant and the effect upon the respondent. The respondent accommodated the claimant. The Tribunal considered the impact of progressing as it did upon the claimant to be outweighed by the impact upon the respondent of not doing so. The Tribunal was satisfied that the legitimate aim was proportionately applied from the evidence having balanced the discriminatory effect of the measure with the legitimate aim.

[300]The treatment was justified to progress matters. The treatment was clearly capable of achieving this aim and having balanced the effect of the treatment on the claimant with the impact upon the respondent, the Tribunal found the treatment to be justified pursuant to those aims. The respondent had discharged the burden of showing that the treatment was a proportionate means of achieving its aim. In reaching this decision the Tribunal examined the evidence and intensely analysed the impact upon the claimant as against the respondent from the evidence presented to the Tribunal. Having intensely analysed the measure the Tribunal is satisfied that the treatment was objectively justified from the evidence presented to the Tribunal. Harassment related to religion

[301]The first incident was that on 7 April 2022 Ms McKeever unreservedly touched the claimant’s hair without his express or implicit permission. The Tribunal did not accept the claimant’s assertion that this had occurred. Ms McKeever had not been at work on the day the incident was said to have occurred. It had not been established as a fact.

[302]The second incident is said to be that on 13 April 2022 Ms Dougan approached the claimant and questioned him about his dreadlocks – “You don’t clean them don’t you not?”, “Can you not put them up in a bun?”, “Do they not go up?” and then, “You should be made to do the same as the rest of the girls”. Ms Dougan denied she said this in her statement, which the claimant accepted. The Tribunal did not find this incident to have occurred.

[303]The third incident is that on 18 April 2022 Ms Lewis said to the claimant, “you really need to do something about that hair”, “Has no one said anything about your hair yet?” ,“Did they not mention it at interview?” I replied ‘No’ and she continued to ridicule asking “Did Staff Bank not say?” I replied ‘No’ and she continued “Not even Glasgow?” I replied ‘No’. She asked if I had any suggestions and I replied ‘No, it can’t go up’. She continued to suggest “Buns?” I replied ‘No’. She said “Off the collar, It’s supposed to be the same for all women.’ I replied “It is tied back up and off the collar. I am not a woman. You will need to speak to someone about this because this can’t go on. Please let me know.”

[304]The Tribunal did not find that this had been said by Ms Lewis. The discussion Ms Lewis had with the claimant about his hair was professional, fair and reasonable and solely about complying with the policy. It was clear the comments made by Ms Lewis were unwanted as the claimant did not want to comply with the policy. The conduct did not “relate to religion or belief” as the discussion was about dress code not religion or belief (which had not been disclosed at this point).

[305]Even if the conduct was related to religion or belief, the purpose of the discussion was in no sense to violate the claimant’s dignity or create an The purpose of the discussion was to seek compliance with the policy. The Tribunal then considered the effect of the discussion and did not find the effect of the response was to violate the claimant’s dignity or create an intimidating, was unhappy about being asked to comply.

[306]In light of the context, it was not reasonable for the claimant to find the effect of the discussion to violate the claimant’s dignity or create an intimidating, knew what the policy was and that he was being asked to comply. The claimant is an intelligent and articulate person and fully understood his position and that of the respondent. Looking at the context, the Tribunal did not consider it reasonable for the effects of the claimant’s manager’s views being repeated to have violated the claimant’s dignity or created an

[307]The fourth incident was that on 28 April 2022 when Ms Lewis asked the claimant whether he had read the Dress Code Policy and handed him a copy of it this was said in a derogatory tone. The Tribunal did not accept the claimant’s assertion that it was said in a derogatory or negative way. The exchange was professional and friendly (and the claimant had not disclosed his religion and belief). While the conduct was unwanted as the claimant did not wish to be reminded of the policy with which he did not wish to comply, the conduct did not relate to religion or belief. It was about ensuring consistency of approach to dress. For the same reasons as the third act, the conduct did not amount to harassment.

[308]The Tribunal considered what the purpose of Ms Lewis’s discussion was. The offensive. environment for him. The purpose was to give advice. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant. Next the Tribunal considered the effect of what Ms Lewi was said to have said. The claimant was unhappy but the or offensive environment for him. The claimant was being asked to comply with the respondent’s policy (which he understood). While he disagreed, he knew the respondent’s position and the conflict with his own.

[309]The fifth incident was that on 28 April 2022 Ms Smith, in open corridor, said to the claimant that she did not have a problem with the claimant’s hair but because Ms Lewis had brought it up she must say something to the claimant and that the claimant needed to do something with his hair or management would come down. This had not been established in evidence. Ms Lewis handed the claimant a copy of the dress code after having asked him several times to comply with it. This was not related to religion or belief. The claimant had not told the respondent he was a Rastafarian. For the same reasons as the third act, the conduct did not relate to religion or belief. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Smith’s discussion was. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to give advice. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant.

[310]Next the Tribunal considered the effect. The claimant was unhappy but the or offensive environment for him. The claimant was being asked to comply with the respondent’s policy (which he understood). While he disagreed, he knew the respondent’s position and the conflict with his own.

[311]The sixth incident was that on 29 April 2022 Ms Lewis, before the end of the shift advised the claimant that Ms Smith and Ms Coyle would be in on Monday and would speak to him about his refusal to comply with the Policy. Ms Lewis advised the claimant that if he continued to refuse to adhere to the Policy he may not be able to work in the unit. This was unwanted conduct because the claimant did not want to comply with the policy but it was not related to region or belief. He had not disclosed his religion at this stage. The comment was made because the respondent wished to apply the policy uniformly.

[312]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Lewis’s discussion was. The purpose was not to violate the The purpose was to give advice. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant. Next the Tribunal considered the effect. The claimant was unhappy but the conduct did not violate his dignity or create an intimidating, hostile, or offensive environment for him. The claimant was being asked to comply with the respondent’s policy (which he understood). While he disagreed, he knew the respondent’s position and the conflict with his own views.

[313]The seventh incident was that on 2 May 2022 Ms Smith told the claimant derogatorily “you need to do something with this your hair”, “can you not put it up in buns”, “can you not put your hair up?” The Tribunal found nothing derogatory about what was said. There was a professional discussion during which the claimant was reminded of the dress code. While the claimant did not wish to be reminded about the policy, it was not conduct related to religion. The respondent did not know of the claimant’s religion or belief.

[314]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Smith’s discussion was. The purpose was not to violate the The purpose was to keep the claimant safe and ensure compliance with the policy. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant. Next the Tribunal considered the effect of want Ms Smith said. The Tribunal found that the claimant was unhappy but the conduct did not violate the claimant’s dignity or environment for him. Even if the conduct did have such effects, it would not have been reasonable for the claimant to find the effect of the discussion to humiliating or offensive environment for him. The claimant was being asked to comply with the respondent’s policy (which he understood). While he disagreed, he knew the respondent’s position and the conflict with his own.

[315]The eighth incident was that on 2 May 2022 Mr Watson stated verbally in a meeting that the claimant was not in the character of what the NHS is or what is expected of the NHS and patients as well as not adhering to the Policy. This had not been established in evidence. The discussion with Mr Watson was entirely professional. Even if the conduct was unwanted (and was said in another context as the claimant submits), it was not conduct related to religion or belief. Mr Watson did not know of the claimant’s religion and was trying to explain his view about the policy and keeping everyone safe. Mr Watson’s priority was the safety of the claimant and others.

[316]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Mr Watson’s comments was. The purpose was not to violate the The purpose was to explain Mr Watson’s view. In no sense was the purpose to treat the claimant in any way adversely. Next the Tribunal considered the effect of what he was said to have said. There was no evidence before the Tribunal that the claimant was unhappy with this particular discussion. Even if he had said that he was unhappy, the conduct did not violate the claimant’s environment for him. Even if he had established those effects the Tribunal would have concluded that it would not have been reasonable for the claimant to find the effect of what Mr Watson said to him to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. Mr Watson was entitled to his view and to express it to the claimant as he did.

[317]The ninth incident was that on 2 May 2022 Mr Watson said to the claimant, in response to being asked “Why was this not made aware at interview process” (referring to not being able to work in clinical facing roles if you have dreadlocks tied back off the collar), “So, so that’s a question I’ve got as well. That’s a question I’ve got as well.” Mr Watson mentioned the interview but the claimant prompted the answer. He asked Mr Watson a leading question, with which Mr Watson then agreed. The discussion was not related to religion or belief. It was not unwanted conduct, given that the claimant in effect asked Mr Watson to say what he did.

[318]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Mr Watson’s discussion was. The purpose was not to violate the The purpose was to set out Mr Watson’s view as to what should have been covered at interview. In no sense was the purpose to treat the claimant in any way adversely.

[319]Next the Tribunal considered the effect. There was no evidence before the Tribunal that the claimant was unhappy with the discussion. In any event it did not violate the claimant’s dignity or create an intimidating, hostile, or offensive environment for him. The discussion was general, professional and appropriate.

[320]The tenth incident was that on 2 May 2022 Ms Coyle advised the claimant that if he was unable to tie his hair up in compliance with the Policy he would be unable to work within the unit. That was unwanted conduct as the claimant did not wish to hear it, but the conduct was not related to religion or belief. It was a reasonable discussion. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Coyle’s discussion was. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to explain the respondent’s policy. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to keep the claimant and others safe.

[321]Next the Tribunal considered the effect of Ms Coyle’s discussion. From the evidence before the Tribunal, while the claimant was unhappy, the conduct did not violate the claimant’s dignity or create an intimidating, hostile, or offensive environment for him. The claimant was being told again what the policy was and respondent’s position (which he knew and understood). While he disagreed, he knew the respondent’s position and the conflict with his own views. It was a reasonable discussion.

[322]The eleventh incident was that on 2 May 2022 Mr Watson told the claimant he would be moving to a reception desk, behind a screen with a locked door where he would be safe. The Tribunal found the discussion with Mr Watson occurred on or around 6 May. Mr Watson wished to keep the claimant safe given his view that his hair hanging down put him at risk of serious injury from patient assault. At this time, the claimant had not told the respondent he was a Rastafarian. It was not related to his religion or beliefs.

[323]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Mr Watson’s discussion was. The purpose was not to violate the The purpose was to support the claimant. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to work with the claimant to find a solution.

[324]Next the Tribunal considered the effect. There was no evidence the claimant was unhappy about what he was being told. Further, the conduct did not humiliating or offensive environment for him. It would not have been reasonable for the claimant to find the effect of the discussion to violate the offensive environment for him. The claimant was being given an alternative role while steps were taken to resolve matters. That was an entirely reasonable and fair approach to take.

[325]The twelfth incident was that on 2 May 2022 Ms Coyle introduced the claimant to Medical Records as someone looking for “work experience” and to find out “what it is they do” whilst wearing clinical uniform. This had not been established from the evidence.

[326]The thirteenth incident was that on 2 May 2022 Ms Lewis and Ms Smith locked the Staff Room and laughed about the claimant’s meeting and how he said he was protected by the Equality Act. This had not been established.

[327]The fourteenth incident was that on 12 May 2022 Mr Kimber, Equality and Diversity Advisor sent an email to his manager in which he sought advice in relation to the claimant’s case. He wrote, “[the claimant has] been asked to tie them back as it’s a Health and Safety and infection prevention and control risk but they are refusing to”. He later wrote, “They have been asked to tie them back so they don’t “fall” which I would have thought is a reasonable adjustment as they have not been asked to cut, cover or comb them out”. He later refers to the fact that headwear worn for religious reasons is permitted and gives the Hijab as an example.

[328]Counsel for the respondent submitted that the emails were unproblematic as they reflect professionals trying their best to deal with a complex situation. They are not objectively harassment. The Tribunal found the emails were not unwanted conduct. It was necessary for the respondent to understand the legal position and that was what the emails were. The communication was not to the claimant. The conduct was in no sense related to religion or belief. It was about the policy and its general application.

[329]If the Tribunal was wrong in that conclusion, it then considered what the purpose of the email was. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to give advice. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant.

[330]Next the Tribunal considered the effect. The claimant was unhappy but the been reasonable for the claimant to find the effect of the email to violate the offensive environment for him. The claimant discovered what the advice the respondent had been given which was reasonable and measured.

[331]The fifteenth incident was that on 13 May 2022 Ms Craw, HR Manager, sent an email to Mr Watson in which she relayed some advice provided by the Equality and Diversity team in relation to hair discrimination. Within that email Ms Craw wrote: “They did ask if covering the hair is a possibility, along the lines of a female wearing a hijab. I’m not sure if this is something which could be looked at, and/or cause offence by suggesting”. The position relating to this email is the same as the email sent the preceding day. It was not unwanted conduct and was not related to religion or belief. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Craw’s email was. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to give advice. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant.

[332]Next the Tribunal considered the effect. From the evidence before the Tribunal, the Tribunal was satisfied that the conduct did not violate the offensive environment for him. Even if the conduct had done so, it would not have been reasonable for him to find the effect of the email to violate his environment for him. This was the advice the respondent had been given.

[333]The sixteenth incident was that on 6 June 2022 Ms Coyle said to the claimant that recruitment should have told him about not being able to work in clinical areas with dreadlocks. This had not been established in evidence. Even if Ms Coyle had told the claimant this, the conduct was not related to religion or belief but rather the fact that Ms Coyle believed the policy should have been covered at interview. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Coyle’s discussion was. The offensive. environment for him. The purpose was to give advice. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant to ensure he understood the position.

[334]Next the Tribunal considered the effect. The claimant was unhappy by having the discussion but the conduct did not violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him and it would not have been reasonable for the claimant to find the effect of the discussion to violate the claimant’s dignity or create an intimidating, was being told what Mr Coyle’s view was.

[335]The seventeenth incident was that on 28 June 2022 it was said Ms Clark suggested the claimant cover his hair with a hijab as a solution. This was not established from the evidence. Ms Clark was discussing options and did not suggest the claimant would wear a hijab. The discussion was unrelated to religion and belief. It was an attempt to ensure the policy was applied in a consistent and fair way. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Clark’s discussion was. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to work with the claimant to seek his return to work in a safe way. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant.

[336]Next the Tribunal considered the effect. From the evidence, the Tribunal found no evidence that the claimant was unhappy at the time. The conduct did not humiliating or offensive environment for him. Even if it had done so, it would not have been reasonable for the claimant to find the effect of the discussion to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. The claimant was part of a general discussion about alternative ways to ensure compliance with the policy which was professional and reasonable.

[337]The eighteenth incident was that on 3 October 2023 Mr Simpson wrote a letter which stated that the claimant needed to find a suitable hair covering or risk unemployment. Counsel for the respondent submitted that the outcome letter written by Mr Simpson after the conduct hearing was unproblematic. It proposes a way forward, for the claimant to work with his manager to find a solution. It does not impose a disciplinary sanction. Dismissal was said to be a last resort. The Tribunal found the letter was unwanted as the claimant did not want to hear it but it was in no sense related to religion or belief.

[338]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Mr Simpson’s letter was. The purpose was not to violate the The purpose was to explain the outcome. In no sense was the purpose to treat the claimant in any way adversely. Next the Tribunal considered the effect. While the claimant was unhappy with the outcome, from the evidence, the conduct did not violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. Even if it did so, it would not have been reasonable for the claimant to find the effect of the letter discussion to violate the claimant’s dignity or create an intimidating, was being told the outcome in a fair and measured way. While he disagreed, the outcome was a fair and reasonable position to adopt.

[339]The nineteenth incident was that on 8 March 2024 Ms Coyle sent the claimant a Schedule of Leave outlining when his accrued holiday entitlement would be taken, without request or arrangement, whilst he remained suspended with an outstanding grievance which included her previous victimisation which he said removed any possibility of meaningful holiday the claimant had accrued. The conduct was in no sense related to religion or belief. The conduct was solely about using accrued leave to ensure the claimant is given a break and to avoid operational issues arising.

[340]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Coyle’s email was. The purpose was not to violate the The purpose was to explain how he would use his leave and have a break. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant enjoy a break from work.

[341]Next the Tribunal considered the effect. From the evidence before the Tribunal, while the claimant was unhappy at having to use his leave, the degrading, humiliating or offensive environment for him. Even if it had done so, it would not have been reasonable for the claimant to find the effect of the discussion to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. The claimant was being told to use his accrued holidays which he did not like but which was a reasonable and fair instruction.

[342]The twentieth incident was that on 2 April 2024 Ms Coyle wrote to the claimant to confirm that she was processing his full holiday entitlement as outlined in the schedule of leave, which removes any possibility of the claimant using meaningful holiday he had accrued. For the same reasons as the foregoing incident, the conduct did not relate to religion and belief but the giving the claimant a break and avoiding operational issues in the future. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Coyle’s email was. The purpose was not to violate the The purpose was to explain how his accrued holiday entitlement would be dealt with. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant take the leave to which he was entitled.

[343]Next the Tribunal considered the effect. The claimant was unhappy but the or offensive environment for him. The claimant was being asked to take holiday which was a matter the respondent was fully entitled to do.

[344]The twenty first incident was that on 4 April 2024 Ms Connor emailed the claimant to advise that she is processing the claimant’s full holiday entitlement as outlined in Ms Coyle’s schedule of leave which removes any possibility of the claimant taking meaningful holiday he had accrued. The requiring the claimant to take his annual leave had no connection at all with his religion. The respondent wished to protect health and safety and ensure operational issues were avoided.

[345]For the same reasons as the foregoing incident, the conduct did not relate to religion and belief but the giving the claimant a break and avoiding operational issues in the future. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Connor’s email was. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to explain what was to happen. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant. Next the Tribunal considered the effect. The claimant was unhappy but the conduct did not violate the offensive environment for him and it would not have been reasonable for the claimant to find the effect of the discussion to violate the claimant’s dignity or environment for him. The claimant was being asked to take holiday which was a matter the respondent was fully entitled to do.

[346]The final incident was the letter Ms Brown sent to the Claimant dated 3 May 2024 in terms which he found to be offensive. There was nothing wrong with the letter which confirmed the position. The letter was not related to religion or belief but the process that had concluded. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Brown’s letter was. The offensive. environment for him. The purpose was to set out the position. In no sense was the purpose to treat the claimant in any way adversely.

[347]Next the Tribunal considered the effect. Again the claimant was unhappy with what the letter said but the conduct did not violate his dignity or create an Even if it had done so, it would not have been reasonable for the claimant to find the effect of the letter to violate the claimant’s dignity or create an The claimant was told what the outcome was, which was fair and reasonable. Harassment related to race

[348]The first incident was that on 2 May 2022 Ms Lewis said to the claimant “I know all that but I don’t know how you can believe what you believe, because you are wrong”? The Tribunal did not find this had been said..

[349]The second incident was that on 2 May 2022 Ms Lewis and Ms Smith locked the Staff Room and laughed about the claimant’s meeting and how he said he was protected by the Equality Act. The Tribunal did not find this to have been said from the evidence. The discussion was entirely unrelated to race. Harassment related to sex

[350]The first incident was that on 13 April 2022 Ms Dougan said to the claimant, “You should be made to do the same as the rest of the girls”. This had not been established from the evidence.

[351]The second incident was that on 20 April 2022 Ms Lewis and Ms Smith excluded the claimant from the WhatsApp rota. This had not been found to have occurred.

[352]The third incident was that on 28 April 2022 Ms Lewis questioned the claimant derogatorily about whether he had ever read a Uniform Policy and whether he needed to print it out and read it again. This had not been established on the evidence. The discussion that took place was professional and was not related to sex in any way. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Lewis’s discussion was. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to explain the policy. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant with a view to his ability to work in a safe way for him and others.

[353]Next the Tribunal considered the effect. While the claimant was unhappy with the discussion as the respondent’s position was being set out for him, a position with which he did not agree, the conduct did not violate the claimant’s environment for him from the evidence before the Tribunal. Even if the conduct did have that effect, the Tribunal would have found that it would not have been reasonable for the claimant to find the effect of the discussion to violate his dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. The claimant was being told what the policy was and that he should read it. That was entirely reasonable.

[354]The fourth incident was that on 29 April 2022 Ms Smith said to the claimant in front of other staff to put his hair up and be like other women. This had not been established from the evidence before this Tribunal.

[355]The fifth incident was that on 2 May 2022 Ms Lewis and Ms Smith locked the Staff Room door and laughed about the claimant’s meeting and how he said he was protected by the Equality Act. This had not been established as a fact. It had not occurred.

[356]The sixth incident was that on 2 May and 6 June 2022 Ms Coyle and Ms Smith said the claimant had been aggressive and hostile – militant; that his tone changed when he spoke to Mr Watson. The comments were made as they represented what Ms Coyle and Ms Smith genuinely believed. These were not comments to the claimant but comments about their view of the claimant. Even if the comments were unwanted, they were entirely unrelated to sex. The gender of the claimant was entirely irrelevant to their view as to what had occurred. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Coyle’s and Ms Smith’s comments were. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to give their considered opinion. In no sense was the purpose to treat the claimant in any way adversely. Next the Tribunal considered the effect. The claimant was unhappy about his approach being described in such a way but the conduct did not humiliating or offensive environment for him. The Tribunal would not have found it reasonable for the claimant to find the effect of these comments to humiliating or offensive environment for him. The claimant learnt of what Ms Coyle and Ms Smith thought of the claimant, which was their view and a reasonable position to adopt.

[357]The seventh incident was the email sent on 13 May 2022 by Ms Craw which referred to females wearing a hijab. Again this was not an email to the claimant. It was part of the respondent’s advice. The email was in no sense related to sex. The email related to attempts to ensure a solution could be found that would allow the claimant to return to work.

[358]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Craw’s email was. The purpose was not to violate the The purpose was to give advice. In no sense was the purpose to treat the claimant in any way adversely. On the contrary, the aim was to assist the claimant.

[359]Next the Tribunal considered the effect. The claimant was unhappy with the discussion but the conduct did not violate the claimant’s dignity or create an Even if the conduct had done so, it would not have been reasonable for the claimant to find the effect of the discussion to violate his dignity or create an The claimant was party to a reasonable and professional discussion.

[360]The eighth incident was that on 6 June 2022 Ms Coyle accused the claimant of being argumentative and causing frustration among staff. That was what Ms Coyle believed and she answered the question put to her truthfully. It was not conduct towards the claimant and to that extent it was not unwanted. Even if it were unwanted conduct, it was in no sense related to sex. It was Ms Coyle’s view of the claimant’s behaviour. If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Coyle’s comments were. The purpose was not to violate the claimant’s dignity or create an intimidating or offensive. environment for him. The purpose was to explain her view. In no sense was the purpose to treat the claimant in any way adversely.

[361]Next the Tribunal considered the effect. The claimant was unhappy in learning as to what was said but the conduct did not violate the claimant’s dignity or environment for him and it would not have been reasonable for the claimant to find her accusation to violate his dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for him. The claimant learned of Ms Coyle’s view which was her view arrived at on a reasonable basis from an informed position.

[362]Finally it was said that on 28 June 2022 Ms Clark suggested the claimant cover his hair with a hijab as a solution. Ms Clark did not suggest the claimant wear a hijab per se but that some form of similar hair covering could be used. The conduct was unwanted as the claimant was not prepared to do so. The conduct was in no sense related to sex. Ms Clark was looking for a way in which the claimant could return to work.

[363]If the Tribunal was wrong in that conclusion, it then considered what the purpose of Ms Clark’s discussion was. The purpose was not to violate the The purpose was to discuss how the claimant could return to work. In no sense was the purpose to treat the claimant in any way adversely.

[364]Next the Tribunal considered the effect. From the evidence before this Tribunal the conduct did not violate the claimant’s dignity or create an The discussion was professional and reasonable. Even if the Tribunal was wrong in its assessment of the evidence, the Tribunal would not have found it reasonable for the claimant to find the effect of the discussion to violate the offensive environment for him. Taking a step back

[365]The Tribunal assessed the relevant acts relied upon in respect of the harassment complaint and considered their purpose and the effect, including the actual effect upon the claimant and whether it was reasonable for those effects to have been found. Having assessed the evidence before it and applied the law, the Tribunal concluded that none of the unwanted acts relied upon by the claimant related to a protected characteristic and that even if they did, the proscribed effects had not resulted from the conduct (and it would not have been reasonable for that to have been the effect from the evidence). No breach of the claimant’s rights

[366]For completeness, the Tribunal also considered the principles set out in Higgs and applied them to the harassment complaint given the claimant’s hair and manifestation of his beliefs. The employer’s objective in applying the policy and its approach to the claimant’s hair (which underpinned each of the complaints in this case) was sufficiently important to justify the limitation upon the claimant which was rationally connected to the objective. The policy was necessary to protect staff and patients and it was necessary, reasonable and fair to apply the policy as the respondent did. No less intrusive limitation would be effective from the evidence given the risks to both health and safety and infection. In balancing the severity of the limitation on the rights of the claimant against the importance of the objective, taking account of the relevant factors, the respondent’s position outweighs the impact upon the claimant. The interference with the claimant’s rights was proportionate. The respondent required to create a environment where risks were reduced, if not eliminated and this was done in a proportionate way. The respondent’s actions were a proportionate means of achieving the aims of protecting health and safety and infection control. It would not have been reasonable to have considered the effect of the respondent’s actions to amount to unlawful harassment. The harassment complaint is dismissed. Victimisation Protected acts

[367]The first issue to determine is whether the acts relied upon by the claimant are protected acts. The Tribunal took them in turn applying the law to the facts.

[368]The first act was that on 28 April 2022 the claimant said he raised an “informal grievance” with Ms Lewis stating that his dreadlocks are protected characteristics under the Equality Act and alleging discrimination. The claimant said in evidence he did not tell the respondent he was a Rastafarian until 12 May 2022. The Tribunal accepted Ms Lewis’s evidence that the claimant had not complained as he alleged on 28 April 2022. The claimant had not therefore alleged a breach of the Act that would amount to a protected act on this occasion.

[369]The second protected act was that on 2 May 2022 the claimant provided information to Ms Coyle about his grievance alleging discrimination. The claimant had not mentioned that he was Rastafarian and that was not known by Ms Coyle. However, the claimant said he had experienced discrimination in the past and he believed the policy was discriminatory and racist. The claimant said they were “treading a very fine line with discrimination and I’m protected by the Equality Act so I’d like people to know exactly what they’re talking about, not to get themselves into trouble either so that we’re all protected”.

[370]This was a finely balanced issue given the lack of detail the claimant had provided. The Tribunal concluded that what he told Ms Coyle at the meeting on 2 May 2022 did amount to a protected act. The claimant was saying that he believed the dress code policy was discriminatory. He considered it racist and he believed that forcing him to comply with it was unlawful discrimination and that he was protected under the Equality Act. While he did not say why he was protected (and no discussion took place about the specifics) the claimant did make an allegation that the Act had been breached (by enforcing the policy) which is a protected act. That was in contrast to the vague and general discussion that took place on 28 April 2022. The discussion that took place on 2 May 2022 was a protected act.

[371]The third protected act was said to be on 12 May 2022 at the early resolution meeting with Ms Coyle when the claimant said he provided information on Equality Act, discrimination and formal grievance alleging discrimination. While the claimant provided information about his rights, there was no formal grievance within the 3 binders he left with Ms Coyle. The claimant made it clear that he believed it was unlawful discrimination to enforce the uniform policy. While there was little detail about the specifics, the claimant made an allegation that the Act had been breached by enforcing the Policy which was a protected act.

[372]The fourth protected act was said to be at a meeting on 13 May 2022 with Ms Dobbin who confirmed the claimant’s suspension when he said he asserted his rights. This had not been established in evidence.

[373]The fifth protected act, which the respondent accepted was a protected act, was on 28 June 2022 when the claimant provided information to Ms Clark regarding the Equality Act and unlawful discrimination.

[374]The sixth protected act, which was accepted to be a protected act, was on 28 September 2023 when the claimant gave Mr Simpson information on his claims of discrimination.

[375]The seventh protected act, which was conceded to be a protected act, was that on 9 October 2023 the claimant raised a formal grievance alleging discrimination. Detriments and reason for the detriments

[376]The Tribunal considered each of the acts said to be a detriment, considered whether they did amount to a detriment, and then whether or not any of the acts said to be protected acts were in any sense a cause of the treatment. Even although not all of the acts relied upon as protected acts had been established as such, the Tribunal considered whether the treatment relied upon was because of those act and/or the acts which were found to be protected acts.

[377]The first act relied upon was that on 28 April 2022 Ms Smith approached the claimant in the corridor and said to him that ‘I don’t have a problem with your hair but since Sonja has raised it to me I need to speak to you and if you don’t do something management will come to speak to you.’ The claimant reiterates that ‘my hair cannot go up.’ Rachel appears frustrated and says ‘can’t you just put it up like the other women’ and adds that if I ‘don’t do anything about it’, I need to ‘be aware that management will get involved’.

[378]This treatment was on the same date as the first alleged protected act. This had not been established in evidence. The discussion that took place was entirely professional and fair. There was no detrimental treatment by asking the claimant to comply with the policy. Had the treatment been established as alleged it would have amounted to a detriment. The treatment that did occur was a fair and reasonable and not reasonably detrimental. If the treatment had been established, there was no basis to find that the first (or any) protected act (or act said to be a protected act) had any connection at all with the discussion that took place. The discussion was solely about complying with the policy given the need to do so for all staff. The treatment was not because of a protected act which had no influence at all on the treatment.

[379]The second act was that on 29 April 2022 before the end of the claimant’s shift, Ms Lewis addressed the claimant in the corridor of the busy unit that ‘Management will be speaking with you on Monday’ and ‘if you don’t fix your hair you won’t be able to work here anymore’ and ‘you should have a think about that.’

[380]Counsel for the respondent submitted that given that the claimant had not done any protected acts at this stage, this conversation cannot have been victimisation. In any event, it was clearly because of the claimant not having complied with the dress code on several occasions, rather than because of any protected act. The Tribunal found that a discussion did take place whereby the claimant was again told of the need to comply with the policy, which failing he would not be able to work in the unit. Telling the claimant to comply with the policy on the facts was not reasonably considered to be a detriment given the context of the policy and facts. Had the conduct been established, the Tribunal would not have found it detrimental. The claimant was being told that he required to comply with the policy and that if he did not do so, he would be unable to work in the unit. That was unobjectionable.

[381]Had it been necessary to consider the reason for the treatment, the Tribunal would have found that then protected act relied upon by the claimant did not influence the treatment at all and the treatment was not because of the protected act.

[382]The third act was that on 2 May 2022 the claimant passed Ms Smith in the unit and said to him derogatorily that “you need to do something with your hair” “can you not put it up in buns?”. The passages relied upon by the claimant as detrimental treatment had not been established in evidence. Even if the treatment had been established, the discussion would not have been detrimental. It was reasonable to ask the claimant to put his hair up in accordance with the policy. The discussion that did take place was professional and did not amount to a detriment. There was no evidence in any showing what the claimant said happened was influenced in any way by any

[383]The fourth act was that on 2 May 2022 Ms Lewis ridiculed the claimant saying “I just don’t know how you can believe what you believe. Because you are wrong.” This had not been established in evidence. Ms Lewis’s discussion with the claimant was not because of any protected act and solely about complying with the policy. The acts said to be protected acts had no influence upon the discussion.

[384]The fifth act was that on 2 May 2022 Ms Coyle was aggressive towards him. This had not been established in evidence. The discussion Ms Coyle had with the claimant was reasonable and professional and did not amount to a detriment. The discussion was not influenced in any way by any protected act but a desire to facilitate the claimant’s return to work. The discussion (and act relied upon) was in no sense because of a protected act (or act said to be a protected act).

[385]The sixth act was that upon Ms Coyle on 2 May 2022 advised the claimant that if he was unable to tie his hair up in compliance with the Policy he would be unable to work within the unit. That discussion took place. The discussion was professional and accurate. It could not reasonably be said that the discussion was objectionable. Ms Coyle was fairly setting out the position. There was no detriment. Even if there was a detriment, there was no basis to find that Ms Coyle was influenced in any way by any protected act. She was setting out the position as she understood it. Ms Coyle’s discussion was not because of a protected act (or act said to be a protected act).

[386]The seventh act was that on 2 May 2022 Mr Watson said to the claimant, in response to being asked “Why was this not made aware at interview process” (referring to not being able to work in clinical facing roles if you have dreadlocks tied back off the collar), “So, so that’s a question I’ve got as well. That’s a question I’ve got as well.” This was Mr Watson’s response to the question the claimant asked. It could not reasonably be considered a detriment for Mr Watson to agree with the claimant. Mr Watson agreed that he thought the issue should have been raised at the interview stage. Agreeing with the claimant was not detrimental when viewed in context. Even if it were a detriment, the comment Mr Watson made was in no sense influenced by any protected act. Mr Watson gave his opinion (without consideration or influence of any protected act). Mr Watson’s discussion with the claimant was in no sense because of a protected act (or act said to be a protected act).

[387]The eighth act was that on 2 May 2022 Mr Watson stated verbally in a meeting that the claimant was not in the character of what the NHS is or what is expected of the NHS and patients as well as not adhering to the Policy. This had not been established in evidence. From the evidence before the Tribunal, Mr Watson was explaining his view as to what was required in terms of the policy. Mr Watson is entitled to his view (as much as the claimant is entitled to his view). Having carefully the evidence, the Tribunal found no evidence to support the assertion that any of the protected acts had any influence whatsoever on Mr Watson’s comments. Mr Watson’s comments were not because of any protected act (or act said to be a protected act).

[388]The ninth act was that on 2 May 2022 Mr Watson said to the claimant, says ‘We can redeploy you to medical records, where you will not be patient facing at all, so you may be placed at a reception area and they will give you additional training if you need that, and you will be behind a screen and a locked door. So you will be safe. Likewise, there will be other areas we will deploy you within that role. But again, you won’t be patient facing so you will be safe.’ Mr Watson was showing that he wished to protect the claimant, colleagues and patients. There was nothing Mr Watson said to the claimant that could reasonably be regarded as a detriment. He wished to ensure the claimant was safe and was offering an alternative if the claimant did not wish to comply with the policy in his patient facing role. There was no detriment. Even if the treatment could reasonably be considered a detriment, there was no basis to find that any of the protected acts were in any sense linked to or had any influence on the treatment. Mr Watson’s comments to the claimant were not because of any protected act (or act said to be a protected act).

[389]The tenth act was that on 2 May 2022 Ms Coyle introduced the claimant to Medical Records as someone looking for “work experience” and to find out “what it is they do” whilst wearing clinical uniform. This had not been established in evidence.

[390]The eleventh act was that on 2 May 2022 both Ms Smith and Ms Lewis were inside the staff room talking about the meeting the claimant had and were laughing saying “and then he says he is protected by the equality act.” This had not been established from the evidence..

[391]The twelfth act was that on 2 May and 6 June 2022 Ms Coyle and Ms Smith said the claimant had been aggressive and hostile – militant; that his tone changed when he spoke to Mr Watson. Both Ms Coyle and Ms Smith gave their views to Mr Watson as was requested of them. Their truthful answers could not reasonably be regarded as a detriment. Even if they could be considered detrimental, the Tribunal was satisfied none of the protected acts influenced their answers in any way. They provided their honest response and views. Ms Coyle and Ms Smith did not act because of any protected act (or act said to be a protected act).

[392]The thirteenth act was that on 12 May 2022 Mr Kimber, Equality and Diversity Advisor sent an email to his manager in which he sought advice in relation to the claimant’s case. He wrote: “[the claimant has] been asked to tie them back as it’s a Health and Safety and infection prevention and control risk but they are refusing to”. He later wrote: “They have been asked to tie them back so they don’t “fall” which I would have thought is a reasonable adjustment as they have not been asked to cut, cover or comb them out”. He later refers to the fact that headwear worn for religious reasons is permitted and gives the Hijab as an example. This was advice the respondent had received. The advice could not reasonably be considered as detrimental when viewed in context. Even if the treatment was a detriment, there was no evidence to support the assertion that the advice was give on the basis of any protected act. The protected acts did not influence the treatment in any way. Mr Kimber’s actions were not because of any protected act (or act said to be a protected act).

[393]The fourteenth act was the act of 13 May 2022 Ms Craw sent an email which referred to using a hijab, advised it might be offensive but its suggested anyway. The same reasoning applies to this act as the previous act. This was internal advice that was given and was not a detriment. There was no basis to find that any protected act influenced the advice in any way. Ms Craw’s email was not because of any protected act (or act said to be a protected act).

[394]The fifteenth act was that on 24 May 2022 Ms Clark alleged that the claimant had breached the Dress Code from 4 April 2022.This was a letter advising the claimant of the investigation that had been initiated. It was not reasonably considered a detriment to be told an investigation was being commenced (not least since the purpose of the investigation was to determine what, if anything, the claimant had done). Advising the claimant as to the position was not a detriment. Even if the letter was a detriment, there was no evidence to support the assertion that Ms Clark’s sending the letter was in any way influenced by any of the protected acts. The letter was not because of any protected act (or act said to be a protected act).

[395]The sixteenth act was that on 6 June 2022 Ms Coyle said to the claimant that recruitment should have told him about not being able to work in clinical areas with dreadlocks. This had not been established in evidence. Even if the treatment had been established, telling the claimant in essence that the policy would have applied to him when working in the unit would not have been a detriment. While the claimant may not have liked it, it would have been reasonable to have told him what the position was.

[396]The seventeenth act was that on 6 June 2022 Ms Coyle accused the claimant of being argumentative and causing frustration among staff. That was Ms Coyle’s genuine view and she had been asked to give it. Ms Coyle setting out her view could not reasonably be considered a detriment. Even if it were reasonable to consider her position to be a detriment, the protected acts were in no sense whatsoever related to or an influence of Ms Coyle’s treatment. Ms Coyle’s expression of her views were not because of any

[397]The eighteenth act was that on 28 June 2022 Ms Clark suggested the claimant cover his hair with a Hijab. This had not been established in evidence. Ms Clark was looking at options for the claimant but not suggest the claimant wear a Hijab. The acts said by the claimant to be a protected act were in no sense related to or influence Ms Clark’s comments. She was exploring all alternatives to facilitate the claimant’s return. The comments were not because of a protected act (or act said to be a protected act).

[398]The nineteenth act was Mr Simpson’s letter of 3 October 2023 which stated that the claimant needed to find a suitable hair covering or risk unemployment. This was Mr Simpson’s summary of the position. It was his attempt to resolve matters and facilitate the claimant’s return to work. It could not reasonably be considered a detriment when viewed in context. In any event the letter was not in any way influenced by any protected act (or act said to be a protected act). The treatment was not because of any protected act or act said to be a protected act.

[399]The twentieth act was that on 7 February 2024 Ms Coyle persuaded Mr Gray and Ms Jardine to support and justify the enforcement of the dress code policy. This had not been established in evidence. There was no attempt to persuade as Ms Coyle gave her view as she was asked to do.

[400]The twenty first act was that on 8 March 2024 Ms Coyle sent the claimant a Schedule of Leave outlining when his accrued holiday entitlement would be taken, without request or arrangement, whilst he remained suspended with an outstanding grievance which included her previous victimisation. The claimant said it removed any possibility of meaningful holiday the claimant had accrued. The Tribunal did not consider it reasonably to amount to a detriment for the respondent to require the claimant to take a break from work and the ongoing processes to which he was subject. The only reason the claimant was being asked to take his accrued leave was to protect his health and safety and avoid operational issues arising by accruing further leave. Even if it was a detriment, the protected acts (and acts said to be protected acts) in no sense influenced the treatment. There was no basis to find Ms Coyle’s decision to require the claimant to exhaust his leave was linked to any protected act. Ms Coyle’s treatment of the claimant was not because of any

[401]The same reasoning applied to the twenty second act which was that on 2 April 2024 Ms Coyle wrote to the claimant to confirm that she was processing his full holiday entitlement as outlined in the schedule of leave. This was not reasonably considered a detriment and the Tribunal did not find that any of the protected acts influenced the treatment in any way. The issue around taking accrued annual leave was not because of any protected act or act said to be a protected act.

[402]The same position applied to the twenty third act which was that on 4 April 2024 Ms Connor emailed the claimant to advise that she is processing the claimant’s holiday entitlement as outlined in Ms Coyle’s schedule of leave. For the reasons set out above, it was not reasonably viewed as a detriment. The claimant was being require to take a break from the employment issues and processes to which he was subject and to ensure there was not ongoing accrual of leave (which would require to be taken later). That was not detrimental. The Tribunal did not find any link between any protected act or act said to be a protected act and the treatment.

[403]The same reasoning applied to the twenty fourth act which was that on 5 April 2024 Ms Connor emailed the claimant to advise that she spoke on behalf of the respondent and the position in relation to his annual leave remained unchanged and would be forcibly authorised without request. This was not a detriment. The protected acts were in no sense connected to or had any influence on the treatment. The treatment was not because of any protected act or act said to be protected.

[404]The twenty fifth act was that Ms Brown had sent a letter to the claimant on 3 May 2024 asking the claimant to consider trying a hair covering. Asking the claimant to do so in circumstances where he has worn hair coverings in the past (and could do so) was not reasonably considered detrimental. Further, the only reason why Ms Brown asked the claimant to do so was because she wanted to find a way to facilitate the claimant’s return to work. No protected act or act said to be protected influenced the treatment in any way. Asking the claimant to try a hair covering was not because of any protected act or act said to be a protected act.

[405]The final act relied upon was that on 20 May 2024 Ms Ritchie advised the claimant of her decision to hear the claimant’s appeal against the conduct hearing prior to determination of the outstanding grievances. That was not reasonably considered a detriment when the claimant had asked the respondent do so. Further, the only reason Ms Ritchie decided to do so was because she wished to respect the claimant’s desire to have the process conducted in that way. The protected acts had no influence at all upon the decision. Ms Ritchie’s conduct was not because of any protected act or act said to be protected act. Taking a step back

[406]The Tribunal took a step back. Having carefully assessed each of the acts relied upon, and having assessed the evidence and the context of the acts in question, the Tribunal found that none of the acts said to be detriments were because of any of the acts said to be protected acts in the sense required by the authorities. The victimisation complaint is ill founded. Disability discrimination - Disability status Was the claimant disabled at the material time, being March 2024 – July 2024 by virtue of: major depressive disorder, post traumatic stress disorder, generalised anxiety disorder and obsessive compulsive disorder?

[407]Counsel for the respondent noted that the claimant’s witness statement relies explicitly only on the first two and introduces “acute psychotic episodes” which was not a pled impairment. Counsel for the respondent argued that the only evidence relating to disability stemmed from the claimant whose position was unreliable given the way in which evidence had been led. The claimant’s submission focused upon the fact that he had been accepted as disabled for other purposes and the medical evidence was clear. The Tribunal had to determine this issue from the evidence before it, which was not an easy task given the limited material available.

[408]The Tribunal found that the claimant did have mental impairments, namely major depressive disorder and post traumatic stress disorder. From the evidence before the Tribunal, the Tribunal was not satisfied these impairments had lasted for over 12 months. There was a lack of evidence as to each impairment and its duration and the Tribunal did not find the claimant’s evidence to be clear or consistent. The claimant had led no evidence other than his own views. The Tribunal was also not satisfied from the evidence any of the impairments relied upon had been shown to have had a substantial adverse effect upon the claimant’s ability to carry out day to day activities. This was finely balanced and the Tribunal took into account what the claimant’s physician had said together with the claimant’s position (in response to the criticisms made by counsel for the respondent) but the Tribunal considered that the submission made on behalf of the respondent had merit. The evidence relied upon by the claimant did not satisfy the Tribunal that the legal tests for employment law purposes had bene satisfied.

[409]The difficulty in this case was that the diagnoses the claimant had received by his consulting physician were placed in doubt given the impact of the claimant’s credibility (for the both the consulting physician, laterally, and the Tribunal). The Tribunal was unable to find that any of the impairments relied upon had in fact lasted for over 12 months and/or that any of the impairments relied upon had a substantial and adverse effect upon the claimant’s ability to carry out day to day activities. While the claimant had said that his health had suffered to that extent, the medical evidence was not clear and explicitly based upon what the claimant had said. Having assessed the evidence the Tribunal is not satisfied, on balance, that the claimant was a disabled person in terms of section 6 of the Equality Act 2010 from March to July 2025. Did the respondent have knowledge of disability at the material time, or ought they reasonably to have had such knowledge?

[410]There was no doubt the claimant encountered ill health and the impact of the processes upon him had adverse consequences. The Tribunal found, however, that there was no basis for the respondent to know that the claimant was a disabled person. The claimant had not disclosed his impairments to the respondent in any way. While it was obvious there were issues with the claimant’s health, that impact would have been present in any person facing the same issues the claimant faced and did not place the respondent on notice that the claimant was a disabled person.

[411]The claimant argued that from May 2022 he said there were “clear signs of distress, humiliation, embarrassment, and shame, which are indicative of poor mental health”. These signs are, however, the types of feelings the processes could have on anyone and do not provide evidence of knowledge of constructive knowledge of the impairments the claimant had or his disability per se. While the respondent may have known of the deterioration in in the claimant’s health, there was no evidence to support the assertion that the respondent knew or ought reasonably to have known about his impairments that led to him being a disabled person (or that he was or was likely to be) a disabled person in terms of the Act. The respondent did not have knowledge of disability at the relevant times and could not reasonably have had such knowledge. Notwithstanding that finding, the Tribunal considered the complaint assuming the claimant had been found to be a disabled person. Discrimination arising from disability

[412]This complaint relates to whether Ms Coyle treated the claimant unfavourably on 8 March 2024 and 2 April 2024 by giving him notice of the requirement to take accrued but untaken annual leave in respect of leave years 2022/23 and 2023/24. The conduct did occur and so the first issue is whether the unfavourable treatment was because of something arising in consequence of the claimant’s disability, namely his inability to organise meaningful holidays or provide alternative annual leave dates.

[413]Counsel for the respondent submitted that this had not been established in evidence. The claimant had been able to take holiday notwithstanding his impairments – and had done so in 2023. He could have provided alternative dates if he so wished but chose not to do so. The Tribunal found that the claimant’s disability did not lead to the claimant being unable to take leave. The taking of holidays is an important health and safety measure, to ensure workers are given breaks from work (and the issues arising in connection with work). Requiring workers to take annual leave in circumstances not materially different to the claimant’s circumstances is not unfavourable treatment.

[414]Even if the treatment was unfavourable, the Tribunal considered the causation issues. Counsel for the respondent also submitted that none of the letters was sent because the claimant was unable to take leave. That submission is accurate and it is upheld. There was no basis to say the letters had been sent because of anything arising as a consequence of disability. The letters were sent because the claimant had accrued a large amount of leave and the respondent wanted the claimant to take it, have a break from work and ensure no operational issues arose by accruing yet more annual leave. The claimant’s disability (and anything arising from it) was not connected to the decision to send the letters.

[415]The Tribunal would have found, had it been necessary to do so, that the treatment was pursuant to a legitimate aim, namely ensuring employees have meaningful time away from the workplace and ensuring employees utilise their annual leave entitlement within a reasonable period and do not carry forward significant amounts of annual leave. The claimant accepted there were legitimate reasons to require employees to take leave and the respondent acted in a reasonable and proportionate way to ensure accrued leave was taken. Having intensely balanced the impact of so doing upon the claimant with the respondent’s position, the Tribunal would have found that the treatment was a proportionate means of achieving a legitimate aim. Reasonable adjustments

[416]The first issue under this complaint was to determine the PCP. The PCP relied upon is the respondent’s alleged practice of not engaging in shared care arrangements with private mental health providers, despite the recommendation from the claimant’s treating psychiatrist. The respondent did not accept this was a PCP and that even if it was, the respondent disputed it was a PCP that was applied to the claimant.

[417]From the evidence before the Tribunal, there was no PCP of engaging in shared caring arrangements with private health provides. As counsel for the respondent submitted, the claimant’s treating psychiatrist advised the claimant to engage with the NHS. There was also no evidence that the PCP alleged by the claimant was a PCP in the sense required by law. This was a one off situation unique to the claimant and not capable of repetition such as to render it a PCP. There was no evidence such a PCP applied to him. The claimant had not established a PCP existed or that it was applied to him.

[418]Even if there had been a PCP which had applied to the claimant, the Tribunal would have found that the claimant had failed to establish any group disadvantage. The claimant relied upon lack of access to appropriate and effective treatment, exacerbation of PTSD and mental health conditions and the impact on employment and engagement but these were disadvantages that the claimant said (only) he sustained. There was no evidence of any impact upon others and there is no basis to find that there was any group disadvantage. The issue relied upon by the claimant was something that affected him only.

[419]Further, even if there was group disadvantage, the claimant’s own psychiatrist recommended NHS care. Given none of the claimant’s treating medical professionals recommended shared care (and in fact recommended engaging with the NHS) the step asserted by the claimant would not have been a reasonable step for the respondent to have carried out on the facts.

[420]Finally, had it been necessary to do so, the Tribunal would have found that the respondent did not know (and could not reasonably have known) of the substantial disadvantage relied upon in light of the evidence.

[421]The complaint that the respondent failed to comply with its duty to make reasonable adjustments is ill founded and it is dismissed. Time bar

[422]Given each of the discrimination complaints had not been established, it was not necessary to consider this issue. Section 8, Employment Rights Act 1996 – Itemised pay statements

[423]The respondent conceded that it failed to give the claimant a written itemised pay statement on or before the date of payment in accordance with section 8(1) of the Employment Rights Act 1996 for the period April 2022 to December 2023. This complaint is accordingly upheld and a separate remedy hearing will be fixed if needed.

[424]The remaining complaints are dismissed as they are ill founded.