Mr D Robertson v GXO Logistics UK Ltd: 8000661/2023 and 8000477/2023

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000661/2023, 8000477/2023

Between

Mr David RobertsonClaimant

GXO Logistics UK LimitedRespondent

Before

Employment Judge L Doherty

Mr P Sands (instructed by Solicitor) for respondent

Date 8 October 2024

JUDGMENT

The Judgment of the Employment Tribunal is that the claimant’s application under Rule 128 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (the Rules) for interim relief is refused.

REASONS

Reasons were provided orally. Laura Doherty JUDGMENT OF THE EMPLOYMENT TRIBUNAL The tribunal decided to dismiss the claim. REASONS

Background

[1]The claimant presented a claim to the Employment Tribunal in which he complained of suffering detriment because of having made protected disclosures and disability discrimination. The claim was brought against DHL Services Ltd.

[2]A case management preliminary hearing took place on 14 November 2023, at which the decision was made to join GXO Logistics UK Ltd as a respondent to the proceedings because the business had transferred from DHL Services Ltd to GXO Logistics UK Ltd, in terms of a TUPE transfer, on the 29th July 2023. DHL Services Ltd were subsequently dismissed from these proceedings.

[3]The claimant presented a further claim against GXO Logistics UK Ltd on the 17 December 2023 alleging he had been dismissed because of having made protected disclosures. The claims against GXO Logistics UK Ltd were combined.

[4]The claims have been subject to case management and the claims being made by the claimant are:  detriment because of making protected disclosures (section 47B Employment Rights Act);  dismissal because of making protected disclosures (section 103A Employment Rights Act);  discrimination arising from disability (section 15 Equality Act) and  harassment (section 26 Equality Act).

[5]The claimant asserted he was a disabled person in terms of section 6 of the Equality Act because of the impairments of Irritable Bowel Syndrome (IBS) and Depression. The claimant provided a Disability Impact Statement and his medical records. The respondent disputed the claimant was a disabled person at the relevant time and also asserted they had no knowledge of either disability. This issue is to be determined as part of this hearing.

[6]The claimant provided further particulars of the following:  Whistleblowing – to whom the disclosure was made, when, how and what was disclosed (page 75);  Whistleblowing – the detriments said to have happened, who was involved and when (page 76 – 78 and 134)  Discrimination arising from disability (page 84)  Harassment and how the unwanted conduct related to disability (page 124).

[7]The claimant’s case was that he had made a number of complaints about health and safety related matters and that this had annoyed the respondent and resulted in a “target” being placed on his back. He also argued that he had been discriminated against when he received a warning for absence which included an absence because of IBS, and that he had been harassed. Witnesses

[8]The tribunal heard evidence from:-  the claimant;  Ms Mairi McNeil Caulfield, Regional HR Business Partner;  Mr Christopher Murray, Site Planning Manager who heard the claimant’s grievance regarding disability discrimination;  Mr James Little, Shift Manager, who heard the claimant’s grievance regarding health and safety issues;  Mr Gavin Curran, Operations Director, who heard the appeal against dismissal;  Mr Michael Sheridan, Regional General Manager, who heard the second stage appeal against the outcome of the grievances;  Mr Alan Brown, Senior Manager, who took the decision to dismiss;  Mr Vincent Fitzpatrick, Senior Shift Leader, who chaired an absence management hearing and  Ms Tracy Burns, First Line Manager, who took notes at the absence management hearing. The April 2024 case management order

[9]There was no dispute regarding the fact the claimant had covertly recorded the absence management meeting held on 29 March 2023, in circumstances where he had specifically been told that it was not permitted to record the meeting. The covert recording of the meeting included a private discussion between Mr Fitzpatrick and Ms Burns when the claimant and his trade union representative had left the room. The respondent’s representative made an application to have the transcript of the meeting redacted insofar as it related to the private discussion, and to have any other documented quotes by the claimant to those discussions to also be redacted and the claimant ordered not to make any reference to the contents of those discussions verbally at the final merits hearing.

[10]The Employment Judge received and considered submissions from both parties before deciding to grant the case management order in the terms sought by the respondent. Documents

[11]The respondent produced two files of documents for the hearing, together with a file of the claimant’s documents which they had duly redacted to reflect the case management order.

[12]The claimant took exception to the redaction of his documents and accordingly produced his own file of documents which, with the exception of the redaction to the transcript of 29 March 2023 meeting, were unredacted.

[13]A number of documents were added to the respective files of documents throughout the hearing, including the respondent’s absence management policy and an appeal outcome letter. Amendment

[14]The respondent’s representative made an application to amend paragraph 36 of the Response, to include the sentence “the Respondent at all material times had no actual or constructive knowledge of any disability”.

[15]The claimant objected to the amendment, but equally was happy to deal with the issue during his evidence because he was satisfied there had been “frequent references” to the condition IBS.

[16]The tribunal granted the application to amend the Response. Cross Examination procedure

[17]The respondent’s representative made an application to have the witness Ms Tracy Burns treated as a vulnerable witness and to have the claimant’s questions written out and given to the Employment Judge to put to the witness.

[18]The claimant was initially against this application, but subsequently agreed that his questions for Ms Burns and Mr Fitzpatrick would be written out and given to the Employment Judge to put to each witness.

[19]The claimant was given time to prepare his questions. The questions were provided to the Employment Judge who put them to each witness and noted their response on the relevant piece of paper. The Employment Judge then had this copied and returned to the claimant so he had a note of the questions and the responses given by each witness. Composition of the tribunal

[20]The parties agreed to proceed with a tribunal comprising the Employment Judge and one Member in circumstances where it had not been possible to arrange a tribunal comprising three members to sit for a 10 day hearing. Findings of fact Disability

Findings of fact

[21]The claimant has had recurrent Anxiety and Depression since 2004. He was prescribed medication (Fluoxetine) for this condition, which he has continued to take. The claimant, if he did not take this medication, would suffer from heightened anxiety and obsessive behaviour in terms of handwashing and checking the lights are off and the door is locked. He would be irritable, find it hard to sleep because he would be worrying and be “scatter brained”. He would also find going shopping or travelling on public transport very difficult.

[22]The claimant was asked, when he attended for interview for the position as Warehouse Operative, if he suffered from Depression and responded “No” to this question.

[23]The claimant also has Irritable Bowel Syndrome (IBS). This was diagnosed in 2011. The condition is exacerbated by a Hiatus Hernia and Oesophagitis which were diagnosed in 2018. The claimant has not, since 2019, taken any medication for these conditions, although he uses Colpermin and Immodium when required. The claimant controls the impairment with a strict diet and no alcohol. The claimant has residual anxiety regarding this impairment.

[24]The claimant, if he did not follow the strict diet, would suffer from frequent diarrhoea, stomach cramps, stomach bloating, swelling and bleeding from the back passage and gas. The claimant avoids busy supermarkets, shopping centres, social occasions, social activities, swimming and public transport because of the lack of quick and easy access to clean toilet facilities

[25]The claimant did, at interview, advise he had IBS but that it was under control with diet. Health and safety issues and the grievance

[26]The claimant commenced employment with DHL Services Ltd on 1 August 2022, as a Warehouse Operative. The claimant was based at a distribution centre which was dedicated to the storage and distribution of products for one of the large supermarkets.

[27]A service provision change took place on 29 July 2023 as a result of which the claimant’s employment transferred to the respondent.

[28]The claimant had, prior to the transfer, raised a grievance which was in two parts: the first part of the grievance was sent on the 20th July (page 363) and the second on 22 July (page 377). The first part of the grievance concerned safe systems of work (relating mostly to agency workers) and health and safety concerns relating to provision of sterilised wipes to clean RDT watches (a gauntlet with an infrared eye to scan items); RDT watches being faulty; use of mobile phones on shift and proper movement of people when working on the grids.

[29]The second part of the grievance included the issues raised in the first part of the grievance and added an issue regarding refusal to authorise emergency unpaid leave for DHL employees equally. There was also a section dealing with disability discrimination; and one dealing with a data protection breach and lastly one dealing with bonus and back pay reimbursements.

[30]The claimant had, prior to raising the grievance, raised various issues with various managers verbally. The claimant also emailed the Health and Safety Executive on the 21 July 2023 and the Environmental Health Services Inspector on the 2, 6 and 15 August 2023.

[31]The claimant’s grievance was received by the respondent as part of the paperwork forwarded to them by DHL Services Ltd. Ms McNeil-Caulfield, Regional HR Business Partner took the decision that a Shift Manager could deal with the first part of the grievance regarding health and safety concerns, but the second part of the grievance concerning allegations of discrimination against a Shift Manager, would have to be dealt with by a more senior manager.

[32]Mr James Little, Shift Manager, was asked to conduct the grievance hearing regarding the health and safety concerns. The claimant refused to attend a grievance meeting and confirmed he wished the grievance to be conducted by email. He provided questions to Mr Little which he wished to have put to Mr Graeme Robertson, Warehouse Trainer (page 405) and Mr Jim Burns, First Line Manager (page 411).

[33]Mr Little interviewed Mr Graeme Robertson (page 400) regarding the training of agency workers; and Mr Jim Burns (page 406) regarding the allegations of overcrowded grids and special leave being refused.

[34]Mr Little also viewed CCTV of the grids. Ms Julie Doherty, Environmental Health Services, visited the respondent’s premises following the emails from the claimant. Ms Doherty was shown how the grids worked and was also shown the CCTV. The report subsequently produced by Ms Doherty confirmed there had been no overcrowding of the grids on the day in question.

[35]Mr Little did not interview other witnesses, but he had (in the information pack provided to him in advance of the grievance) been provided with statements from two employees dated 21 July 2023 (Ms Goracy’s statement at page 369 and Mr McAleer’s statement at page 370). Mr Davidson, Health and Safety Manager, had asked the Shift Managers on duty at the time (Mr John Coulter and Mr Vincent Fitzpatrick) to speak to these witnesses because the claimant had referred to them in his grievance. Ms Goracy did not recall anything specific from the day in question. Mr McAleer confirmed that just after the start of the shift there had been a build up of employees in the grid; this had been highlighted to the managers on shift who had sorted it immediately and spread employees over other grids.

[36]Mr Little issued an outcome letter to the claimant dated 8th September (page 414). He set out each of the points raised by the claimant, the response to each point and the reasons why he had reached his decision not to uphold the grievance.

[37]Mr Little was not, at the time of making his decision regarding the grievance, aware of any health issues of the claimant.

[38]Mr Christopher Murray, Site Planning Manager, was appointed to hear the claimant’s grievance regarding alleged disability discrimination. The allegations raised by the claimant focussed on the covert recording made by the claimant of the meeting on 29 March 2023 and, in particular, the portion of the recording when the claimant and his trade union representative had been out of the room. The claimant set out, in the grievance, 13 points to be addressed. He refused to attend the grievance hearing, but he included a list of questions he wished to have put to Mr Fitzpatrick and Ms Burns (page 384). Mr Murray was also provided with a copy of the audio recording the claimant had made, which he listened to on a number of occasions and described as being “not entirely clear”.

[39]Mr Murray decided to interview Mr Fitzpatrick, Ms Burns, Mr Burns and Mr Ian Kennedy, Mr Gary Duffy, Mr Mick Kaczan and Ms Surmina BK.

[40]Mr Murray met with Mr Fitzpatrick on 29 September and a note of the meeting was produced at page 431. Mr Murray considered a number of the questions which the claimant wished to have put to Mr Fitzpatrick were not relevant, but he decided to put all of them to him in any event. One of the questions asked by the claimant related to whether Mr Fitzpatrick had asked the claimant, during the absence investigation meeting where an absence had been for IBS, why he didn’t leave. Mr Murray put this question to Mr Fitzpatrick and he also listened to the audio recording of the meeting. Mr Murray was satisfied that the comment made by Mr Fitzpatrick had been made following the claimant complaining that he had enjoyed better breaks at other places of work. Mr Murray was satisfied the reason for the comment was because of the claimant’s attitude and not because of his IBS.

[41]The claimant also wanted Mr Fitzpatrick to be asked whether he denied the claimant was covered by the Equality Act and that he did not refer him for an occupational health report. Mr Murray was satisfied there had been no evidence placed before Mr Fitzpatrick regarding any medical conditions and that there had not been any discussion regarding occupational health.

[42]Mr Murray noted that one of the grievance points was that the claimant had been accused of being sexist and racist. Mr Murray looked into this and spoke to Mr Kennedy and Surmina BK, whom the claimant had named in his documents, but found no evidence of any complaints having been made.

[43]Mr Murray issued his grievance outcome by letter of 20 October 2023 (page 487). Mr Murray set out each point of the grievance, his investigation into it and the outcome. The grievance was not upheld and the claimant was informed of his right of appeal.

[44]The claimant did appeal against the grievance outcomes (pages 592 – 639). The grievance appeal was heard by Mr McGuinness. Mr McGuinness asked the first line manager on duty at the time (Ms Burns) to speak to a number of people whom he understood had complained about the claimant, to ascertain whether their complaint had been formal and whether any statements had been gathered. Ms Burns duly did this and noted her findings in an email to Mr McGuinness on 22 July (claimant’s page 294). All of those spoken to were either not willing to give a statement or could not remember the date/s of any incident.

[45]Mr McGuinness did not uphold the appeal and issued the outcome of the grievance appeal on 22 December 2023 (page 866).

[46]The claimant appealed against the outcome of the grievance appeal. Mr Michael Sheridan, Regional General Manager, was appointed to hear that appeal. The claimant did not want to attend the appeal hearing but sent Mr Sheridan approximately 30 emails in advance of the hearing. There were 14 points of appeal regarding the health and safety issues and 7 other points. Mr Sheridan went through each point to consider if the previous appeal process had correctly considered everything and reached a reasonable conclusion.

[47]Mr Sheridan identified the points from the grievance appeal which required to be clarified, and one of the issues was in relation to the CCTV, with it being suggested that the CCTV had been destroyed after 30 days. Mr Sheridan learned that in fact the CCTV had been retained and had been viewed by Mr Little as part of the response to the claimant’s health and safety grievance.

[48]Mr Sheridan clarified all of the points he had identified and was satisfied that there was no basis to change the outcome of the grievance appeal. Mr Sheridan provided a written outcome to the claimant dismissing the appeal. Absence

[49]The respondent’s Absence Management Policy was produced at page 1026. The policy set out the action to be taken when triggered by the number of occasions of absence in a rolling twelve month period. The action to be taken included a return to work interview to discuss the reason for absence; a “1st Notification” to remain on file for a period of 13 weeks following the fifth occasion of absence within a rolling twelve month period; a “2nd Notification” to remain on file for a period of 26 weeks following the sixth occasion of absence and disciplinary action after the seventh occasion of absence.

[50]The claimant was invited, by letter of 20 March 2023 (page 284) to attend an absence investigation meeting because he had had six occasions of absence in a rolling twelve month period. The dates of the absences were listed on the letter as being 16 November 2022 (2 days) back pain; 30 November 2022 (5 days) feeling sick; 23 December (4 days) boiler issues; 10 January 2023 (2 days) sore ankle; 12 February 2023 (4 days) upset stomach and 16 March 2023 (1 day) IBS.

[51]The letter informed the claimant the meeting would be chaired by Mr Vincent Fitzpatrick, Senior Shift Manager, with Ms Tracy Burns, First Line Manager, taking notes. The claimant was not happy with Ms Burns being the notetaker because he had previously raised a grievance regarding her. The grievance had been dealt with informally through mediation with Mr Kaczan, First Line Manager (and the claimant’s line manager).

[52]The claimant attended the meeting on 29 March 2023 accompanied by his trade union representative, Mr Anderson. The handwritten notes of the meeting taken by Ms Burns were produced at page 298. An agreed transcript of the meeting was produced in the claimant’s documents at page 121. The meeting notes were taken on a template document which included points to be covered in the introduction. One of the points to be covered was “The company does not permit the recording of meetings by any party either by audio and/or visual devices. Please can all parties confirm that their mobile devices are switched off.” Ms Burns ticked the box on the meeting note form to confirm Mr Fitzpatrick covered this point.

[53]The claimant ignored the instruction which had been given by Mr Fitzpatrick and he covertly recorded the meeting, including the part of the meeting when Mr Fitzpatrick and Ms Burns had a private discussion after the claimant and his trade union representative had left the room.

[54]The purpose of the meeting was for Mr Fitzpatrick to go through each absence. The claimant made reference to having IBS. He also stated that John Coulter, First Line Manager knew he had IBS and had noted an absence as “upset stomach” rather than putting IBS down as the reason. There was considerable discussion about the claimant’s absence for back pain and also the absence related to the boiler, which the claimant believed had been authorised.

[55]The meeting became heated following a discussion where the claimant was critical of the breaks the respondent offered compared to other places he had worked. Mr Fitzpatrick commented that “if that’s the case why don’t you consider getting another job, if you are so bitter about it?”. The meeting was adjourned shortly thereafter for the claimant to calm down.

[56]There was reference to the Equality Act and the claimant’s condition (IBS) being covered by the Act. The claimant accepted that at this point he had not provided the company with any medical evidence, or information from his GP, regarding this condition. Mr Fitzpatrick was of the opinion that the issue of whether IBS was covered by the Equality Act was a matter to be agreed between the claimant’s GP and the company. The claimant’s trade union representative, Mr Anderson, queried whether the company could obtain the claimant’s medical records. The claimant made it clear he would not consent to his medical records being released to the respondent.

[57]There was no discussion at this meeting regarding occupational health.

[58]The meeting was adjourned for Mr Fitzpatrick to make further investigations. He confirmed, as a result of those investigations, that the absence in December 2022 for the boiler, had been authorised and should not have been included on the absence record. Mr Fitzpatrick confirmed that absence had been removed from the claimant’s record. Mr Fitzpatrick concluded the claimant had had 5 occasions of absence since 16 November 2022, which was a breach of the absence management policy. He accordingly decided to forward the case to a disciplinary hearing.

[59]The claimant was invited to attend a disciplinary hearing on 12 April 2023 (page 313). The letter confirmed the absences could constitute misconduct and that disciplinary action could be up to and including a first notification (13 week warning).

[60]The disciplinary hearing was chaired by Mr Gary Duffy, Shift Manager. The claimant did not attend the hearing but instead emailed a written submission to Mr Duffy for consideration (page 316 - 322). The claimant took issue not with the number of occasions of absence but with the number of days of absence recorded. He also explained that the absences on 12 February 2023 and 16 March 2023 had been due to IBS, which he described as a chronic condition he had had since 2011 and which could be verified by the GP. The claimant suggested the respondent obtain an occupational health report in relation to the IBS.

[61]The outcome of the disciplinary hearing was a first notification (13 week warning).

[62]The claimant had no further absences until the end of June when he had to leave early for a “family emergency”. The claimant was invited, by letter of the 3 July 2023 (page 342) to attend an investigation meeting because the level of his absence had reached a trigger under the absence management policy.

[63]The investigation meeting, was chaired by Mr Darren Murray, Shift Manager, and notes were taken by Mr Jim Burns (page 346).

[64]The claimant was advised by letter of 14 July (page 361) that following the investigation meeting, a decision had been taken to progress the matter to a disciplinary hearing. The letter confirmed the date for the disciplinary hearing and that it would be chaired by Mr Fitzpatrick.

[65]The claimant sent an email to Mr Fitzpatrick on 22 July (at 02.38) (page 371) saying “you might want to stick a pin in that Vinny until The Grievance has been investigated. Speak to Lisa”. (The reference to Lisa was to Lisa Mulholland the HR representative at DHL Services Ltd).

[66]Mr Fitzpatrick responded to the claimant on 22 July at 1.59pm (page 372) to say that he was unaware of any grievance and intended to proceed with the disciplinary hearing.

[67]The claimant advised Mr Fitzpatrick to speak to Ms Mulholland. He also sent Ms Mulholland a copy of the covert recording of the meeting on 29 March 2023 which he had made.

[68]The disciplinary hearing did not in fact proceed because Ms Mulholland advised Mr Fitzpatrick a grievance from the claimant had been received.

[69]The claimant sent Mr Fitzpatrick three more emails on 22 July at 3.05pm, 3.11pm and 4.02pm (pages 373, 374 and 375). The emails were inappropriate and intimidating. The emails were sent on a Saturday when Mr Fitzpatrick was at work. He was shocked and taken aback to receive the emails and arranged to be escorted off site at the end of the back shift by security. Mr Fitzpatrick reported the emails to Mr McGuinness, Operations Manager and Ms Mulholland, HR Manager.

[70]The claimant was, by letter of 27 July (page 393) suspended from work to allow a full and detailed investigation to be carried out into allegations which may constitute gross misconduct. The allegations against the claimant were(i) that on Saturday 22 July 2023, you sent multiple emails where the contents were inconsistent with the relationship of trust that was required between DHL Supply services and its colleagues. This was due to the content being disrespectful, intimidating and inappropriate.

(ii) On 29 March 2023 you wilfully refused to follow a reasonable request by a manager through covertly recording a formal absence investigation meeting after being informed that DHL does not allow the recording of meetings and requesting confirmation that all devices were switched off.

[71]The investigation was conducted by Mr Gary Duffy, Shift Manager. The claimant refused to attend the investigation meeting and instead submitted written documents to be considered, which included the covert recording of the 29 March meeting. Mr Duffy sent the claimant a list of questions to answer (page 586) but he received no response.

[72]Mr Duffy notified the claimant by email of the 15 November (page 589) that he had reviewed all of the information available and had decided there was a disciplinary case to answer. Mr Duffy made that decision because it had been explicitly stated, on the 29 March, that he was not permitted to record the meeting, and he proceeded to record it regardless of the instruction. There was also additional evidence (provided by the claimant) that the claimant had recorded other meetings and conversations without permission. Further, the content and tone of the emails which he had sent to Mr Fitzpatrick were contrary to the relationship of trust and confidence between himself and GXO (formerly DHL).

[73]The claimant was invited to attend a disciplinary hearing to be held on the 23 November 2023 (page 590). The disciplinary hearing was chaired by Mr Alan Brown, Senior Manager. Mr Brown included with this letter the list of questions which had been issued by Mr Duffy and which Mr Brown considered the claimant should answer.

[74]The claimant refused to attend the disciplinary hearing and instead provided written documents to be considered (page 640). The points raised by the claimant included that he had not, at the meeting on 29 March, said his phone had been switched off or was on silent and he had not been asked directly if he was recording the meeting. The claimant rejected that the instruction had been reasonable: he took that view because the instruction had not been polite. The claimant also invited Mr Brown to listen to the audio recording. The claimant argued there was nothing in the Site Agreement to say recording of meetings was not allowed; that he had recorded the meeting to protect himself from misrepresentation, nefarious criticism and false allegations and that he had been very angry after listening to the recording.

[75]Mr Brown concluded the claimant did send multiple emails on 22 July 2023, the content of which was disrespectful, intimidating and inappropriate. The behaviour was inconsistent with the relationship of trust required between GXO Logistics and its colleagues, as set out in the Site Agreement. Mr Brown noted the claimant had not answered the questions sent to him regarding this issue.

[76]Mr Brown further concluded the notes of the meeting on 29 March had been signed by all parties, demonstrating the claimant was aware the company did not permit the recording of any meetings. All parties were asked to confirm their mobile devices were switched off which he had wilfully refused to do. Mr Brown also referred to the fact the claimant had, on 24 July and 8 September, submitted further recordings that he had obtained without prior authorisation, and he concluded this was a further breach of trust.

[77]Mr Brown took the decision to summarily dismiss the claimant on the grounds of gross misconduct. The effective date of termination was 11 December 2023. Mr Brown confirmed his decision to the claimant by letter of 11 December (page 862).

[78]The claimant exercised the right to appeal against the decision to dismiss, and the appeal was heard by Mr Gavin Curran, Operations Director. Mr Curran received a copy of all relevant paperwork prior to the appeal, which included the claimant’s grounds of appeal (page 865). The grounds of appeal were that the claimant had recorded the meeting to protect his position from false allegations or threats, and he enclosed a transcript of a you-tube video by Daniel Barnett regarding the recording of meetings. The claimant argued that he had, when sending the emails, been responding to the harassment and threats made during the meeting.

[79]The claimant was invited to attend an appeal hearing to be held on 10 January 2024 (page 889a). The claimant refused to attend and instead wished to submit a written response. Mr Curran agreed to this, and also sent the claimant the list of questions first sent by Mr Duffy, for his response.

[80]Mr Curran reviewed all of the information and documentation and was satisfied there was no evidence of an agenda against the claimant. The circumstances which led to his dismissal were about the claimant’s conduct and the health and safety issues were not part of this. Mr Curran gave consideration to whether there was scope for any alternative to dismissal, but in circumstances where the allegations amounted to gross misconduct, he was satisfied dismissal had been the correct sanction.

[81]Mr Curran notified the claimant by letter that the outcome of the appeal was to uphold the decision to dismiss (page 1036).

[82]The claimant has, since dismissal, been in receipt of Universal Credit. He has applied for a number of roles and had the opportunity to work via an Agency. The claimant described that he either left after a shift because the work or environment was not what he wanted, or the work offered was only for one shift.

[83]The claimant secured alternative employment in mid-August 2024 as a Machine Operator. He is on a 3 month temporary contract and is earning the sum of £23,000/24,000 per annum plus a shift allowance. Credibility and notes on the evidence

[84]The claimant’s case was that he raised health and safety concerns on many occasions (both verbal and by email) with various managers and as a result of doing so, he had a target on his back and management wanted to get rid of him. The claimant accepted he had had occasions of absence, but he took issue with the way in which the number of days absence had been recorded. The claimant believed there were rumours circulating about him being a “sexist, racist and a bully”, which he thought were coming from Tracy Burns and Jim Burns. However, he had no evidence and did not take this further. However, after putting in his grievance on 20 July, he was told that agency staff were being approached by Mr Fitzpatrick and Ms Burns for information regarding his behaviour and conduct. This was when he listened to the audio recording of the absence investigation meeting held on 29 March 2023. He took offence at what he heard and responded by sending Mr Fitzpatrick the emails.

[85]The claimant described the investigation and disciplinary hearings as “kangaroo courts” and he believed Ms McNeil-Caulfield had controlled the whole situation and had created and edited the letters signed and sent by the various managers. The claimant, in support of his position, took issue with Ms McNeil-Caulfield advising Mr Duffy, who carried out the disciplinary investigation, to focus on the fact of the meeting being recorded rather than the content of the meeting notes/audio recording; and, the fact that some managers send their decision and reasons to HR to format and set out in a template style before signature.

[86]The claimant took issue with Ms Burns being the note-taker at meetings because he had previously raised a grievance regarding her. This had been resolved informally by his line manager, Mr Kaczan, through mediation. The claimant still believed Ms Burns had changed notes or deliberately recorded matters inaccurately and he referred in particular to there being no reference in the meeting notes of 29 March to his willingness to attend occupational health. The claimant was, however, referred in cross examination to the transcript of that meeting and had to accept there was no mention of going to occupational health.

[87]The claimant’s case of discrimination was as set out in the further particulars although the claimant did not necessarily deal with these matters in evidence. He was angry the respondent had not referred him to occupational health because, in his opinion, this is what they should have done.

[88]The claimant accepted he had done the alleged misconduct, and that he was dismissed for those reasons.

[89]The Tribunal found the claimant to be a challenging witness who was focussed on proving he had been right regarding various issues including the health and safety issues he had raised, rather than focussing on explaining his case and putting that case to the respondent’s witnesses notwithstanding repeated guidance from the tribunal. The claimant would not accept that his questions had to be framed and put to a witness without his commentary/preamble; nor would he accept that witnesses had to be given time to respond to questions even if they were, in his opinion, giving the “wrong” answer. The claimant would indulge in arguments with the witnesses and badgering witnesses. This led to the claimant being repeatedly told during the hearing that questions were not relevant, that he was to move on and that he was to stop badgering witnesses.

[90]The claimant is skilled at creating a blizzard of information which obscures the points he wishes to make or not answer, and also of putting 2 and 2 together to make 5. The claimant, once fixated on a point, would not countenance any response or explanation that did not fit with his narrative. For example, he put Ms McNeil-Caulfield at the centre of everything that happened to him and he believed she had taken all of the decisions and written all of the letters sent to him. The reason for his belief was due to the fact the properties of some emails disclosed they had been amended by Ms McNeil-Caulfield. This was put to Ms McNeil-Caulfield who explained that some managers send their decision and reasons to HR for checking and formatting onto the template used, which would contain certain information such as the right to appeal and timescale for doing so. The Tribunal accepted this evidence and the evidence of the managers that the decisions made in respect of the grievance and dismissal and associated appeals had been their decision and reasons. The claimant simply discounted all of the responses because they did not fit with what he had decided had happened.

[91]There were certain themes in the claimant’s evidence and his cross examination (and which had been vigorously pursued in correspondence prior to the hearing): for example, CCTV evidence. It was the claimant’s position that everything in the workplace was covered by CCTV and therefore the respondent could easily have checked the CCTV in order to address the concerns he raised. He was very frustrated that the respondent did not do so.

[92]Ms McNeil-Caulfield acknowledged that the respondent had, for some time, told the claimant that CCTV of the grids on the day in question was no longer available. This was her understanding at the time. Ms McNeil-Caulfield subsequently acknowledged that in fact the CCTV had been sent to her by Ms Mulholland in the format of a pen drive, but she had missed this due to the volume of email traffic at the time of the transfer. It was subsequently discovered the respondent had the CCTV and it was viewed as part of the visit by Environmental Health. The claimant was also given the opportunity to attend at the respondent’s site to view the CCTV, but he refused to do so because he wanted the CCTV footage to be released to him, but the respondent refused this request.

[93]The Tribunal explained to the claimant on numerous occasions that the issue of whether the CCTV would support his complaint regarding overcrowding on the grids was not relevant to the issues to be determined by the tribunal. The Tribunal required to determine whether the claimant made a protected disclosure regarding overcrowding on the grids: the Tribunal was not required to determine whether the claimant was correct in what he said regarding this matter.

[94]The claimant produced a transcript of a Daniel Barnett video regarding the recoding of meetings at work. This had been provided to the respondent on several occasions prior to the dismissal. The claimant, based on this document, argued that he had been allowed to make the covert recording because he had been protecting himself from “untrustworthy, nefarious managers and false allegations, threats and harassment”. This matter is dealt with below, but we make two points at this stage: firstly, the claimant did not seek a reconsideration, or appeal, of the decision to grant the respondent’s application for a case management order to redact the section of the transcript of the 29 March meeting which concerned the private discussions and secondly, the Daniel Barnett document clearly provides that a recording device running during a private conversation is inadmissible (although there may be exceptions to this if it is the only evidence of discrimination – which was not the case here).

[95]The claimant’s case was not put to the respondent’s witnesses, with the exception of one question put to Mr Brown, whom the claimant asked whether he had taken the decision to dismiss because the claimant “would not be intimidated in to silence about health and safety”.

[96]The tribunal found the respondent’s witnesses to be both credible and reliable. They behaved in a professional manner and explained what they had done, and why they had done it, in a straightforward manner. The witnesses were calm and endeavoured to answer the claimant’s questions: none of them displayed any animosity or frustration towards the claimant albeit they were quite often mystified at the relevance of his questions. Claimant’s submissions

[97]The claimant chose to present a written submission to the tribunal. The submission was in three parts. The first part dealt with dismissal and the claimant made the following points:  There was nothing in the company policy that states recording meetings is a disciplinary offence (nor does it state if this behaviour comes under the banner of minor or gross misconduct).  It is not illegal to protect your position by recording meetings with untrustworthy nefarious managers (especially to protect mental health). The claimant presented a transcript of the Daniel Barnett presentation. The claimant argued that the recording prevented Mr Fitzpatrick and Ms Burns from fabricating allegations of gross misconduct against the claimant.  The respondent refused the claimant access to CCTV which would have informed his appeal.  Investigations were all a sham and notes recorded what managers want them to say and not what was discussed.  The respondent refused to delay the disciplinary hearing until the outcome of the grievance, which had raised serious allegations against Mr Fitzpatrick and Ms Burns. The disciplinary focussed on how the claimant had exposed these managers.  CCTV had been hidden from the grievance investigation and the tribunal.  Clock in reports had been ignored – these would have provided an accurate note of absence.  Ms McNeil-Caulfield ordered the investigator and disciplinary manager to ignore the content of the audio and just focus on the fact the recording had been made.  Ms McNeil-Caulfield wrote the outcome reports for managers.  Mr Brown was approached and asked to be the disciplinary manager before the investigation was completed.  The evidence of Mr Brown, Ms McNeil-Caulfield and Mr Curran was demolished by the claimant.

[98]The second part of the submission dealt with health and safety disclosures. The claimant referred to the further particulars he had provided regarding disclosures and the list of detriments.

[99]The third part of the submission dealt with disability discrimination. The claimant referred to the covert recording of the meeting on 29 March and submitted it was clear from this that Mr Fitzpatrick and HR had clear issues with employees protected under the Equality Act. The claimant considered that asking candidates at interview if they suffered from Bipolar or Depression was done so that those candidates could be excluded. The claimant also referred to management lying in meeting notes and stating the claimant was not willing to attend an occupational health referral when this was untrue.

[100]The claimant submitted management had issued a disciplinary warning in relation to an absence related to IBS and there had also been warnings on one occasion when the claimant had attended work during a flare up of his illness. The overfilling of grids made it impossible for the claimant to attend work during a flare up because he would not have sufficient time to make up the time lost in repeatedly visiting the toilet.

[101]The claimant, in his submission, also referred to refusing to make reasonable adjustments and management exaggerating dates of absences relating to disability so they could discipline the claimant. The claimant also referred to a refusal by management to correct absence dates in line with clock in/out.

[102]Mr Fitzpatrick had asked the claimant to resign because his medical condition meant he was covered by the Equality Act which stopped him dismissing the claimant. Respondent’s submissions

[103]Mr Merck invited the Tribunal to find the respondent’s witnesses to be credible and reliable, and they had done their best to give accurate responses. The claimant had been fixated on certain points which were collateral to the issues. There was a divorce from reality in some of his arguments and submissions and a lack of factual foundation for what he said. It was submitted that there had been no real focus by the claimant on his claim and on the points that mattered: it was almost as if the claim had been abandoned.

[104]Mr Merck noted the disabilities relied on were Depression and IBS and submitted the case had nothing whatsoever to do with Depression. The claimant had conflated IBS with stomach flu and other conditions and there was a lack of clarity what was actually relied on by the claimant. The claimant argued he had told the respondent of his impairments, but he did not ask any of the respondent’s witnesses about their knowledge of his conditions.

[105]Mr Merck submitted no medical evidence had been produced by the claimant and he had been hostile to the production of his medical records until ordered to produce them by the tribunal. The claimant objected to repeatedly being asked to explain his conditions: he did not want to do so. The claimant asserted he had been willing to go to occupational health, but when the notes of the meeting were checked for this, there was no reference to occupational health. Mr Merck submitted the respondent had not had knowledge of either condition.

[106]Mr Merck referred to the claim brought under section 15 Equality Act and submitted the claimant would have to show the absences were related to the IBS. There were no contemporaneous sick notes: only a mere assertion by the claimant. The claim was focussed on the first notification (13 week warning) and Mr Merck submitted this did not necessarily amount to unfavourable treatment. If however the tribunal was not with him on these points, he submitted the respondent had a legitimate aim in reviewing and monitoring absence, and holding absence investigation meetings and taking action to address absence were a proportionate means of achieving that aim.

[107]Mr Merck submitted the harassment claim must fail because the claimant had failed to show the alleged acts took place; and, even if the tribunal found they did take place, they were not related to the protected characteristic of disability.

[108]The claimant also brought a claim that he had been subjected to detriments and dismissal because of making protected disclosures. Mr Merck acknowledged there had been a disclosure of information by the claimant in his grievance on 20 July 2023, and that it had related to health and safety, but he made no concession regarding it being a protected disclosure. It was submitted the claimant had provided wholly inadequate information for the tribunal to find there had been a protected disclosure and, in any event, the matters raised had not been in the public interest.

[109]Mr Merck submitted that even if the claimant did make a protected disclosure, there was no causal link whatsoever between any of the disclosures and the purported detriments and dismissal. The alleged detriments did not, on the whole, happen: for example, the claimant had not been asked to resign and, although the suspension did happen, the claimant accepted in cross examination that suspension had been necessary to allow the respondent to investigate. Points 5 – 9 on the list of detriments did not happen and were simply examples of conspiratorial thinking by the claimant.

[110]The claimant had made two admissions which rendered his automatically unfair dismissal claim obsolete. The claimant accepted in cross examination that he believed the alleged misconduct was the reason for this dismissal, and he accepted he did what was alleged. Mr Merck submitted that, taken together, this undermined the automatically unfair dismissal claim because it was clear the only reasons for dismissal were the alleged acts of misconduct.

[111]Mr Merck invited the Tribunal to dismiss the claim. Discussion and Decision Did the claimant make a protected disclosure/s?

[112]The tribunal firstly had regard to the relevant statutory provisions set out at section 43 Employment Rights Act, which provides that a protected disclosure means a “qualifying disclosure” as defined in section 43(B), which is made by a worker in accordance with any of sections 43C – 43H.

[113]A qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:a. that a criminal offence has been committed, is being committed or is likely to be committed;

b. that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject;

c. that a miscarriage of justice has occurred, is occurring or is likely to occur;

d. that the health or safety of any individual has been, is being or is likely to be endangered;

e. that the environment has been, is being or is likely to be damaged or

f. that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

[114]A qualifying disclosure is made in accordance with section 43C if the worker makes the disclosure to his employer. A worker may make a disclosure to an external person/body in terms of section 43F and G.

[115]The tribunal also had regard to the cases of Cavendish Munro Professional Risks Management Ltd v Geduld

2010 ICR 325

; Kilraine v London Borough of Wandsworth

2016 IRLR 422

and Chesterton Global Ltd v Nurmohamed

2018 IRLR 731

. The tribunal took from the first two cases that the information disclosed by the worker must have sufficient factual content to be capable of tending to show one of the matters listed in section 43B(1)(a) – (f).

[116]The tribunal next had regard to the further particulars provided by the claimant where he set out details of the persons to whom disclosures were made, when and how (page 74). The claimant listed those to whom he had made verbal complaints:  Mick Kaczan, 29 January 2023 and 4 February 2023;  Jim Burns, 29 January and 30 June 2023;  John Coulter, 14 May 2023;  Vincent Fitzpatrick and Tracy Burns – 29 March 2023;  Gary Duffy and Tracy Burns – 19 April 2023;  Darren Murray and Jim Burns – 9 and 14 July 2023;  Mark Brownlee – 15 May 2023;  Brian Rennie – 14 May and 17 July 2023.

[117]The claimant also emailed the following managers regarding health and safety issues:  Lisa Mulholland – 20 July (grievance)  Graham Dawson – 20 July (grievance)  Billy McGuinness – 20 July (grievance)  Alison Matthew – 20 July (grievance).

[118]The claimant also emailed the following external organisations:  The Health and Safety Executive – 21 July 2023;  Environmental Health Services Inspector at South Lanarkshire Council – 2 August 2023;  Ms Doherty, South Lanarkshire Council Health and Safety and Environmental Health Inspector – 15 August 2023.

[119]The claimant, in the further particulars, stated he had provided information relating to health and safety breaches and failure to follow SSOW. The issues raised by the claimant were regarding(i) no sterilisation wipes to clean shared RDT watches;

(ii) poorly maintained RDT watches;

(iii) ignoring SSOW in the warehouse, with unsupervised and unmanaged agency workers who did not speak English and who could not therefore pass the health and safety exam;

(iv) overcrowding on the grids;

(v) use of mobile phones/head phones for music and

(vi) deleting the CCTV.

[120]The Tribunal also had regard to the claimant’s grievance (page 363) sent on the 20 July 2023 and the second part of the grievance sent on the 22 July (page 377). The claimant, in the first grievance, referred to SSOW and raised the following points:  “every single agency worker receives the exact same training and apparently have to pass the same introduction exams as new DHL employees and drug tested before they are signed off fit and fully trained in the role. I have absolutely no idea how this is possible with a percentage of agency workers who cannot speak in English nor can read and understand written English H&S signs.  “other agency workers can read English perfectly .. but still choose to ignore H&S policy and SSOW policy as they know it is ignored and isn’t enforced by management.  I approached Staff Trainer Graeme Robertson to raise my concerns … and he confirmed that he knows agency workers are ignoring DHL H&S policy, SSOW policy and basic training but is helpless to have anything done about it.”

[121]The claimant then went on to raise the following matters (points (a) – (d) were raised in the first part of the grievance and points (e), (f) and issue 3 regarding a data protection breach were raised in the second part of the grievance).a. Management refusing to provide sterilised wipes for shared RDT watches. There is a big H&S sign saying this should be and is provided. It is not. I can guarantee CCTV covering the RDT watch collection point since 1 August 2022 will show this has never been provided and no member of staff whatsoever can be seen making use of these cleaning wipes on their RDT watches at point of collection.

b. A lot of RDT watches are not fit for purpose. Routinely all staff have experienced having to make several trips from the RDT collection point through heavy Reach Truck/ Fork Lift heavy traffic to their work area only to find that their watch is not fit for purpose.

c. Use of mobile phone, hands free listening devices or any other music device is prohibited within the Grid area. We have agency workers openly talking on the phone using hand free devices. The claimant named some of the most common offenders and gave an example of if someone is distracted and walks out in front of a Truck or Forklift there would be a very nasty accident.

d. Management refusal to ensure proper movement in Grids. The claimant referred to the SSOW regarding the movement of people on/round the Grid and keeping the middle of the grid free. There should also be 6/8 workers on the Grid. The claimant stated that from 2pm – 9pm on any given back shift both of these health and safety rules were completely ignored.

e. The SSOW on the proper use of pallet trucks. The claimant alleged breaches of the SSOW had taken place.

f. Management refusal to authorise emergency unpaid leave for DHL employees equally. This related to the claimant allegedly being denied emergency leave.

g. Issue 3 related to a data protection breach and the claimant’s request for compensation.

[122]The Tribunal next noted that in order for a disclosure to be protected, it must satisfy three conditions:  it must be a disclosure of information;  it must be a qualifying disclosure, that is, one that in the reasonable belief of the worker making it, is made in the public interest and tends to show that one or more of the six relevant failures has occurred or is likely to occur and  it must be made in accordance with one of the six specified methods of disclosure.

[123]The Tribunal next had regard to the verbal disclosures made by the claimant to various managers (as set out above). The tribunal noted that the claimant had not, either in the further particulars or in his evidence to the tribunal, provided any information to explain what he had disclosed to which manager. The claimant did, generally, in the further particulars, refer to “no sterilisation wipes to clean shared RDT watches, poorly maintained RDT watches, SSOW being ignored, unsupervised and unmanaged agency workers who do not speak English and therefore cannot pass the H&S exam”. The claimant alleged those agency workers “blocked passageways, walked around talking on hands free devices and ran backwards with pallets loaded with stock without looking where they were going.” He also stated he had spoken verbally to Mr Kaczan, Mr Coulter and Mr Burns about SSOW being ignored and this causing chaos in the grids. The tribunal concluded there was a lack of clarity regarding what information was disclosed to whom and when. We decided, for this reason, that there had not been a verbal qualifying disclosure/s.

[124]The Tribunal next considered whether the issues raised in the claimant’s first and second part grievance were a protected disclosure/s. The Tribunal was satisfied the claimant did disclose information regarding the lack of sterilised wipes to clean RDT watches and that he did reasonably believe that not only was this in the public interest but that it this tended to show the health and safety of an individual was being endangered by this. The Tribunal was further satisfied the claimant’s belief was a reasonable belief in circumstances where the RDT watches were shared and wipes should have been available to clean the watches prior to them being used by someone else at the start of a shift.

[125]The claimant complained that many of the RDT watches were not fit for purpose and this took up time for workers going back and forth to exchange them. The Tribunal concluded that even if this amounted to a disclosure of information (and we did not consider it did) there was nothing to suggest this was either in the public interest or that the health and safety of an individual was being endangered.

[126]The claimant next complained regarding the use of mobile phones and hands free devices for listening to music which were prohibited on shift, but which he claimed were being used frequently. The Tribunal was satisfied the claimant disclosed information about this; that it was in the public interest and tended to show the health and safety of individuals was being endangered.

[127]The claimant complained about management refusal to ensure proper movement in the grids. The Tribunal considered whether the claimant, based on what was stated in the grievance, disclosed information which had sufficient factual content to be capable of showing the health and safety of individuals was being endangered. The claimant referred to the SSOW and the numbers of workers that should be in a grid and he asserted this had been ignored. The claimant wanted management to review the CCTV for 30 June 2023 between 2pm and 2.35pm and asserted there were 10 people in the grid. The Tribunal concluded from this that, on balance, the claimant had disclosed information with sufficient factual content to be capable of showing the health and safety of individuals was being endangered and that this was in the public interest.

[128]The claimant also complained about the SSOW on the proper use of pallet trucks. The Tribunal was satisfied the claimant did disclose information which had sufficient factual content which was capable of tending to show the health and safety of individuals was being endangered and that this was in the public interest.

[129]The claimant’s complaints regarding refusal to authorise emergency unpaid leave and compensation for a data breach did not relate to a disclosure of information in the public interest. These were matters which were personal to the claimant.

[130]The Tribunal, in conclusion, decided the claimant’s disclosure of information regarding lack of sterilisation wipes, use of mobile phones and hands free devices on shift, overcrowding in grids and use of pallet trucks were qualifying disclosures. They were made in the claimant’s grievance which was sent to various managers, including Ms Mulholland, HR Manager. The disclosures were made in accordance with section 43C Employment Rights Act. The disclosures were protected disclosures.

[131]The Tribunal lastly had regard to the external disclosures made by the claimant. There are special provisions (section 43F – H Employment Rights Act) relating to the disclosure of information to external persons/bodies. The claimant did not provide any evidence regarding why he had thought it necessary to contact those external bodies. The Tribunal accordingly concluded the disclosures to the external bodies were not protected disclosures. Was the claimant subjected to detriment because of having made a protected disclosure/s

[132]The Tribunal had regard to section 47B Employment Rights Act which provides that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.

[133]The Tribunal also had regard to the claimant’s further and better particulars (page 132) setting out the detriments said to have occurred, as follows:  due to raising health and safety concerns he had a target painted on his back;  he was excluded from training or job rotation;  suspension;  dismissal – there was a willingness to canvass staff for ammunition to support dismissal following receipt of the health and safety grievance;  checking the CCTV (as suggested by the claimant) would have resolved matters within minutes);  reduced productivity stats due to over filling grids with incompetent untrained agency workers or employees who are not required to be monitored as they are related to management;  reduced productivity stats due to poor maintenance of RDT watches vital to scan each product the claimant needs to fulfil role;  treated completely differently to other co-workers who have IBS and depression and allowances made for them;  exaggerating absence dates;  falsely amending meeting notes to change the claimant’s answers to the management preferred response to suit their agenda (for example, occupational health) and  emergency unpaid leave refused for family emergency.

[134]The Tribunal firstly considered whether the matters listed above by the claimant occurred, and if so, whether they amounted to a detriment.

[135]The Tribunal did not treat the alleged “target on my back” as a separate detriment because it is, essentially, the reason why the claimant believed he was subjected to detriment and dismissal. We accordingly considered it in this context.

[136]The claimant alleged he had been excluded from training and job rotation. The claimant did not provide any evidence regarding the issue of training other than to say there was Reach Truck training in the Ambient section. He did not explain to the tribunal what training opportunities were available to him, whether he had applied for any training and whether he had been refused training. In the absence of any evidence regarding the issue of training, the Tribunal had no basis to conclude this had been a detriment. It also appeared to the Tribunal that if the claimant had never had/been offered any training, then this pre-dated the making of any protected disclosures, and therefore the making of any protected disclosure could not have been the reason for not being offered any training.

[137]The claimant made two references to job rotation. He stated, when asked about this in cross examination, that Mr Kaczan was responsible for job rotation. The claimant, however, in his evidence in chief made a reference to Ms Burns being responsible for always putting him on the same type of work. The claimant did not, beyond these statements, provide any evidence to the Tribunal to support his assertion that he had been excluded from job rotation. There was no evidence, for example, to inform the Tribunal about job rotation, how it worked, who was responsible for it or whether the claimant had ever asked to be rotated. The Tribunal, in the absence of any evidence regarding this matter, had to conclude there was no detriment in this respect.

[138]The Tribunal accepted that suspension was a detriment. The Tribunal acknowledged the claimant had, in cross examination, accepted that it had been necessary to suspend him to allow for the investigation to take place. The Tribunal concluded, notwithstanding the claimant’s response, that suspension may amount to a detriment.

[139]The dismissal of the claimant is dealt with separately below. The claimant asserted the respondent’s willingness to canvass staff for ammunition to support dismissal was a detriment. This (we assumed) referred to Ms Burns’ email of the 22 July (Cpage 294) where Ms Burns spoke to certain employees whom it was believed had reported concerns regarding the claimant. The email confirmed none of the employees had raised concerns formally in writing. Ms Burns told the tribunal that she had been asked by Mr McGuinness to speak to the individuals listed to ascertain whether they had complained about the claimant and if so, whether this had been done verbally or in writing. Ms Burns explained that the reason for being asked to do this was because there was an awareness that complaints had been made and Mr McGuinness wanted to understand whether any statements had been provided.

[140]The Tribunal concluded, based on the evidence before it, that there was no “canvassing” for support to dismiss the claimant. There was an attempt by the respondent to clarify whether complaints about the claimant had been made and if so, whether any statements had been provided. The Tribunal also noted the list of employees spoken to included people the claimant had referred to in his grievance: for example, Mr McAleer and Ms Goracy whom the claimant had named as workers who would verify over-crowding in the grids. The Tribunal decided this did not, in the circumstances, amount to a detriment and we reached that conclusion because it appeared there was an attempt to clarify the position rather than any “canvassing”.

[141]The claimant complained that CCTV should have been checked because it would have resolved matters within minutes. The Tribunal did not consider this was a detriment in circumstances where the CCTV the claimant wanted to have checked, was subsequently checked. Further, there was no explanation what detriment arose from this.

[142]The claimant complained about reduced “productivity stats” due to overfilling grids with incompetent untrained agency workers and because of poor maintenance of RDT watches. The claimant did not provide any evidence regarding productivity statistics. We did not know, for example, whether the claimant had productivity targets, and if so, whether the targets were missed. We decided, because of the absence of evidence regarding these points, that no detriment occurred.

[143]The claimant complained he was treated differently to others with IBS and Depression. The claimant referred in his evidence to his trade union representative raising that another worker with IBS had had “something put in place”. This argument relates to a complaint of direct discrimination and or reasonable adjustments. The claimant has no such claim/s before the tribunal and accordingly we dismissed this matter.

[144]The claimant complained the respondent exaggerated absence dates. The claimant did take issue with the way in which the length of his absences had been recorded. We accepted that if the claimant was absent for one day, but it was recorded as an absence for four days, this would amount to a detriment (albeit the absence management policy is triggered by occasions of absence and not length of absence; and, there was a lack of evidence from the respondent’s witnesses regarding how the length of an absence was calculated).

[145]The next complaint was of falsely amending meeting notes to change the claimant’s answers to the management preferred response. The claimant maintained that he had, at the meeting on the 29th March, expressed a willingness to attend occupational health. The notes produced by Ms Burns did not reflect this. The tribunal noted the claimant was asked, in cross examination, to refer to the transcript of the covert recording of this meeting, and to refer to where the statement regarding attendance at occupational health was made. The claimant was unable to point to any reference to occupational health other than his statement that he had obtained “an ATOS report way back in 2010 when they were looking into that..” The tribunal concluded, based on this evidence (which was the only example raised by the claimant regarding false amendment of meeting notes) that this alleged matter did not occur.

[146]The final alleged detriment was refusing emergency leave and unpaid leave. The claimant told the tribunal that he was at work when he received a phone call to inform him that a family member had taken ill and that his mother and father, who normally look after his dog, would not be able to do so. The claimant sought emergency leave. The manager who refused the request understood the claimant wanted to leave in order to collect his dog.

[147]The claimant also gave another example of emergency leave being refused when his request for leave to deal with getting a new boiler was refused. The Tribunal noted that this matter was clarified by Mr Fitzpatrick following the meeting on 29 March, when he advised the claimant that after investigation, the claimant’s request had been authorised and the absence should not have been noted as an absence.

[148]The Tribunal concluded, based on the evidence before it, that the request for emergency leave for the family emergency was refused because the manager understood the reason for the request was to collect a dog. The Tribunal did not consider the refusal of the request in these circumstances was a detriment. The request for emergency leave for the boiler was not refused although it was wrongly noted initially as unauthorised.

[149]The Tribunal, in conclusion and for the reasons stated, decided the claimant had been subjected to a detriment in respect of the suspension and exaggerated length of absence.

[150]The Tribunal next had to determine whether the claimant was subjected to these detriments for having made a protected disclosure/s. The tribunal noted the claimant did not identify whether a particular detriment occurred because of having made a particular protected disclosure. The issue was dealt with very generally by the claimant.

[151]The Tribunal had regard to the case of Aspinall v MSI Mech Forge Ltd EAT 891/01 where it was said that for there to be a detriment under section 47B on the ground the worker make a protected disclosure, the protected disclosure has to be causative in the sense of being the real reason/the motive for the treatment complained of. We also had regard to the case of Chief Constable of West Yorkshire Police v Khan

2001 ICR 1065

where it was said that the question for the Tribunal is what consciously or unconsciously was the reason or motive for the treatment.

[152]The Tribunal asked what consciously or unconsciously was the reason or motive for the suspension of the claimant. We noted the decision to suspend the claimant was made by Mr Billy McGuinness, Depot Operations Manager (page 363). Mr McGuinness was sent the claimant’s emails of 20 and 22 July, attaching a copy of his grievance. The Tribunal did not hear evidence from Mr McGuinness, but we did know that Mr McGuinness(i) asked Ms Burns to speak to a number of workers to clarify if they had made complaints against the claimant and if so, whether any statements had been provided;

(ii) received contact from Mr Fitzpatrick regarding the emails sent to him by the claimant on 22 July which were inappropriate and intimidating and

(iii) was advised by Ms Mulholland of the covert recording of the meeting on 29 March 2023. The Tribunal further inferred, given Mr McGuinness’ position, that he would have been aware the grievance was to be progressed, in two parts, to be investigated.

[153]The Tribunal acknowledged there was a coincidence of timing insofar as the grievance was sent in by the claimant on 20 and 22 July and he was suspended on 27 July. However, the inappropriate emails sent by the claimant also occurred on the 22 July, together with the disclosure of the covert recording. The Tribunal had regard to the fact the claimant’s grievance had not yet been dealt with, but it was progressed correctly by the respondent by arranging grievance meetings to investigate the issues raised by the claimant. The Tribunal acknowledged the claimant was critical of the outcomes of the grievance, but the managers appointed to hear the grievance (Mr Little and Mr Murray) carried out a thorough investigation and gave a comprehensive response to each of the points the claimant had raised. The claimant subsequently had an opportunity to appeal twice against the grievance outcomes. The Tribunal considered that against that background, there was nothing – other than coincidental timing – to support the claimant’s position that Mr McGuinness suspended him for having made protected disclosures.

[154]The Tribunal also had regard to the fact the allegations against the claimant were serious: the allegations potentially concerned gross misconduct for which the claimant could be summarily dismissed. The claimant accepted the allegations against him required to be investigated and that it had been necessary to suspend him to allow that investigation to take place. The Tribunal also had regard to the fact that suspension to allow an investigation into alleged misconduct to take place is standard practice and in line with the ACAS Code of Practice.

[155]The Tribunal finally had regard to the fact Mr McGuinness played no role in the disciplinary process other than suspending the claimant.

[156]The Tribunal, having regard to all of the above points, concluded the motive for suspending the claimant was because of the serious allegations of misconduct against the claimant and the need for them to be investigated. The Tribunal was satisfied the claimant was not subjected to the detriment of suspension because he had made a protected disclosure.

[157]The Tribunal next considered whether the length of absences had been exaggerated because the claimant raised protected disclosures. The Tribunal noted the claimant’s grievance was sent to the respondent on 20 and 22 July 2023. The claimant’s absences all occurred prior to these dates (page 282) and the absence management meetings all predated the grievance. The Tribunal accordingly concluded the protected disclosures made in the grievance could not have been the reason for any exaggeration (if indeed there was exaggeration) of the length of absences.

[158]The Tribunal decided to dismiss this aspect of the claim for the reasons set out. Was the claimant dismissed because of having made a protected disclosure/s?

[159]The Tribunal had regard to section 103A Employment Rights Act which provides that an employee who is dismissed shall be regarded as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

[160]The tribunal also reminded itself of the Khan case (above) and that the question the tribunal should ask is what consciously or unconsciously was the reason or motive for the treatment/dismissal.

[161]The Tribunal noted the claimant was, by letter of 17 November, invited to attend a disciplinary hearing on 23 November. This was some four months after the claimant’s grievance where protected disclosures had been made. Mr Brown, who was appointed to hear the disciplinary hearing, commenced employment with the respondent on 18 October 2023. There was no evidence to suggest he was aware of the claimant’s grievance, or the content of it and he was not asked about this in evidence.

[162]Mr Merck invited the Tribunal to find the claimant had undermined his claim of automatically unfair dismissal, and that was a submission we accepted. The claimant accepted, in cross examination, that he had acted as alleged: he had sent emails on Saturday 22 July 2023 which were disrespectful, intimidating and inappropriate; he had wilfully refused to follow a reasonable request by a manager on 29 March 2023, and had covertly recorded a formal absence management meeting and he had covertly recorded other meetings (24 July and 8 September) without obtaining prior authorisation. The claimant also accepted, in cross examination, that those were the reasons for his dismissal.

[163]The Tribunal accepted the claimant, in accepting the above points, fatally undermined his claim that the real reason for dismissal was because of making protected disclosures.

[164]We should state that even if there had been no such admission by the claimant, we would still have dismissed this aspect of the claim. We say that because this was a case where the alleged misconduct was wholly unrelated to the health and safety concerns raised by the claimant in the grievance of the 20 and 22 July. There was also the issue that Mr Brown was a new employee who had not been involved in the grievance or any of the issues raised in the grievance. There was, in fact, no evidence that he was even aware of the grievance or the issues raised therein.

[165]The claimant did argue that by raising health and safety concerns he had a target on his back and the company wanted to get rid of him. The Tribunal could not accept that assertion for two principal reasons: firstly, if the claimant had not acted as alleged in sending the emails and making the covert recording, there was no suggestion that he would have been dismissed. The claimant was being taken through the absence management procedure, but that was still at an early stage and if there were no further absences, the procedure would not have gone any further. Secondly, the respondent processed the claimant’s concerns regarding the health and safety issues and whilst they did not give the claimant the answer he wanted, they did investigate the concerns and did have a site inspection visit from environmental health, where CCTV was viewed regarding overcrowding on the grid on the date the claimant identified, and they received a satisfactory report from Ms Doherty.

[166]The Employment Judge did put to Mr Curran, who heard the appeal against dismissal, that the claimant believed the real reason for his dismissal was because he had made a protected disclosure. Mr Curran’s response to this was simply “that’s illegal”. We were satisfied, based on the evidence of Mr Brown and Mr Curran, that the fact the claimant had made protected disclosures did not consciously or unconsciously motivate them to reach their respective decisions to dismiss and refuse the appeal.

[167]The claimant, in his submissions to the tribunal focussed primarily on the fairness of the dismissal. He argued that there was nothing in the Site Agreement to say that recording of meetings was “illegal”. The claimant was correct in stating the Site Agreement does not deal with the recording of meetings, but this does not trump the specific and reasonable management instruction given to the claimant at the start of the meeting that recording of the meeting was not permitted. The claimant also argued that recording of the meeting was not “illegal” and he based that position on the Daniel Barnett video. The claimant is correct in stating that recording of the meeting was not “illegal” but, again, this does not trump the specific and reasonable management instruction he was given. Further, the issue of whether a tribunal will allow a covert recording depends on the circumstances.

[168]The tribunal noted, in addition to the above points, that at the time the decision to dismiss was taken (and the appeal) the claimant had provided to the respondent a copy of the recording he had made and a copy of the Daniel Barnett video. The claimant had the opportunity to argue points of fairness and mitigation at those hearings.

[169]The Tribunal decided, for all of these reasons, to dismiss this aspect of the claim. The claimant was dismissed for reasons of gross misconduct and not because he had made a protected disclosure. Was the claimant a disabled person in terms of section 6 of the Equality Act

[170]The Tribunal had regard to the terms of section 6 of the Equality Act which provides that a person has a disability if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities.

[171]The claimant relied on two impairments as being disabilities: depression and IBS. The Tribunal noted the claimant had been diagnosed with depression in 2004 and he has, since that time, been prescribed medication for this condition. The claimant did not give much evidence regarding the impact of this impairment on his ability to carry out normal day to day activities. The Tribunal however accepted that if the effect of the medication was put to one side, the impact of the impairment on the claimant would have a substantial and long term adverse effect on his ability to carry out normal day to day activities. We say that because the impact of heightened anxiety would be apparent in obsessive behaviour and exclusion from social interaction.

[172]The claimant also relied on the impairment of IBS. The claimant was diagnosed with this condition in 2012. The claimant was initially prescribed medication, but in 2019 he was taken off all medication and has, since that time, controlled the condition by using a strict, bland diet. The Tribunal accepted the impact of the impairment on the claimant’s ability to carry out normal day to day activities must be considered absent the effects of medication, which includes steps a person takes to control the condition. We accepted that if the claimant did not control the condition with a strict diet, it would have a substantial adverse effect on his ability to carry out normal day to day activities. The claimant would suffer from cramping abdominal pains, relieved by defaecation up to 6 – 8 times a day. This impacts adversely on all aspects of the claimant’s life outwith the home: for example, it impacts on the claimant’s ability to travel by public transport, undertake sporting activities, going out to eat and socialising.

[173]The Tribunal concluded the claimant’s depression and IBS were both disabilities under the Equality Act.

[174]The Tribunal, in conclusion, decided the claimant was a disabled person in terms of section 6 of the Equality Act, at the relevant time of the alleged discrimination, because of the impairments of Depression and IBS. Discrimination arising from disability (section 15 Equality Act)

[175]The Tribunal had regard to the terms of section 15 Equality Act which provides that a person discriminates against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of the disabled person’s disability and they cannot show that the treatment is a proportionate means of achieving a legitimate aim.

[176]The Tribunal also had regard to section 15(2) Equality Act which provides that the above section does not apply if the person shows that s/he did not know, and could not reasonably have been expected to know, that the employee had the disability.

[177]The Tribunal first considered the respondent’s position that it did not have knowledge of the claimant’s disabilities. The claimant’s evidence was that, at interview, he was asked if he had depression, and he replied “No”. The claimant told the tribunal he had been required to take a drug test prior to commencing employment and on a form completed prior to the test, he noted he was taking Fluoxetine, which is the medication prescribed for depression. The claimant did not provide any evidence to the tribunal to inform us when the drugs test was taken, whether it was done internally or externally and what he believed happened to the form he completed. The claimant did not suggest to any of the respondent’s witnesses that they must have known of his depression because of this form. The Tribunal noted there was no discussion about depression during the absence management meetings, and none of the claimant’s absences had been caused by depression. The Tribunal concluded, having had regard to these points, that the respondent did not have knowledge (actual or constructive) of the disability of depression. We say that because the claimant did not disclose the fact he had depression and none of the subsequent meetings and discussions were about depression. We, in addition to this, noted that this case was not about the disability of depression: it may be a disability the claimant has, but this case was not about any alleged discrimination because of that disability.

[178]The claimant did disclose at interview that he had IBS, but that it was controlled through diet. The claimant suggested that he informed certain first line managers of his condition, for example, Mr Kaczan. However, the claimant told the tribunal that he judged which first line managers he considered to be “competent” and that was the basis on which he determined whether he would disclose his IBS. The Tribunal, based on this evidence, concluded one, perhaps two, of the first line managers were aware of the claimant’s IBS.

[179]The issue of IBS was raised during the absence meeting on 29 March 2023 and accordingly Mr Fitzpatrick must have had knowledge the claimant had this condition. Mr Fitzpatrick discussed each of the claimant’s absences and he noted that the absence which had triggered the meeting was 16 March 2023 absence for IBS. Mr Fitzpatrick noted the claimant had said it was an ongoing issue for him but he largely managed it well. The claimant’s trade union representative made reference to IBS being covered by the Equality Act, to which Mr Fitzpatrick responded that for employees to be covered by the Act it had to be agreed between the person’s GP and the company.

[180]The discussion moved on to the absence on 12 February when the claimant had been absent with an upset stomach. The claimant told Mr Fitzpatrick that he had in fact been off with IBS and he did not understand why it said upset stomach.

[181]The trade union representative asked Mr Fitzpatrick whether the respondent would be willing to obtain the claimant’s medical records. The claimant objected to this because he thought only the medical records relevant to IBS should be disclosed. The discussion appeared, to the Tribunal, to be confused, with people talking at cross-purposes about obtaining medical records and obtaining a report from the claimant’s GP. The result of this was that all parties became frustrated and no further action was taken by either the claimant or the respondent to obtain medical records or a GP report at that time.

[182]The claimant considered the “correct” approach was for the respondent to obtain an occupational health report and that is what he wanted them to do. There was no discussion about this at the meeting on 29 March and the claimant did not, at this hearing, ask Mr Fitzpatrick any questions about this or why Mr Fitzpatrick had not taken this action.

[183]The Tribunal concluded from this that the respondent had knowledge of the fact the claimant had IBS. Further, the respondent knew the condition was controlled by the claimant through diet albeit the claimant had had an absence due to that condition. The Tribunal concluded that in circumstances where the respondent knew of the condition and where there had been a discussion that the condition may be covered by the Equality Act, the respondent had knowledge of the condition.

[184]The Tribunal next considered whether the claimant had, in terms of section 15, been treated unfavourably because of something arising in consequence of his disability (that is, IBS). The claimant, in his further particulars (page 84), identified the unfavourable treatment as the giving of the 1st Notification warning lasting 13 weeks. The Tribunal noted the term “unfavourable treatment” is not defined in the Act, but is generally to be regarded as meaning a disadvantage.

[185]The Tribunal noted the claimant had been invited to attend a disciplinary hearing regarding the level of his absence. The respondent’s Absence Management policy (page 1026) provides that a fifth occasion of absence within a rolling twelve month review period, could result in action being taken (such action being a First Notification which would remain on the employee’s file for a period of 13 weeks). The disciplinary hearing was conducted by Mr Gary Duffy on 12 April 2023 and a First Notification (13 week warning) was issued to the claimant.

[186]The absences taken into account at the investigation and disciplinary hearings were 16 November 2022 (back pain); 30 November 2022 (feeling sick); 23 December (boiler issues); 10 January (sore ankle); 12 February (upset stomach) and 16 March (IBS). The claimant argued that two of the absences – 12 February and 16 March – were related to IBS and therefore should have been discounted from consideration.

[187]The claimant was cross examined regarding the explanation for the absence on the 12 February being “upset stomach” rather than IBS, it being suggested that if the absence had been caused by IBS he would have said that. The claimant put forward a variety of explanations for this: firstly, that it depended on the manager to whom he reported the absence, whether he said IBS was the reason for the absence or something else. Secondly, that the absence might have been because of an upset stomach, or symptoms of Covid or gastroenteritis.

[188]The Tribunal considered that the manager to whom the claimant reported his absence would have noted down the reason for absence given by the claimant, and accordingly “upset stomach” must have been the reason given by the claimant for the absence and that was the respondent’s understanding of the reason for that absence. The Tribunal concluded, for these reasons, that it was not open to the claimant, in the absence of any further evidence, to retrospectively argue that the true reason for the absence was because of IBS.

[189]The Tribunal was satisfied that one of the absences arose as a consequence of the claimant’s disability of IBS. The tribunal must consider whether giving the 1st notification warning was unfavourable treatment: was it a disadvantage? The Tribunal acknowledged that on the face of it a warning could well amount to unfavourable treatment, however, we believed all of the circumstances must be considered before arriving at a conclusion. Accordingly, in considering whether there was unfavourable treatment, the Tribunal had regard firstly to the respondent’s Absence Management procedure. The procedure was based on the number of occasions of absence in a rolling twelve month period. The claimant was mid-way through the absence procedure.

[190]We next had regard to the fact the claimant did have a further absence in June 2023 and was due to attend a disciplinary hearing regarding this in July 2023. The disciplinary hearing was, however, cancelled because the claimant’s grievance had been received. The disciplinary hearing for the further absence did not in fact ever proceed because it was overtaken by events (being the grievance hearings and then the misconduct proceedings).

[191]The Tribunal, in considering whether there was unfavourable treatment, had regard on the one hand to the fact a warning was given, and asked whether that alone was sufficient to conclude there was unfavourable treatment. We balanced this with, on the other hand, whether there was unfavourable treatment of the claimant in the particular circumstances of this case (set out above). The Tribunal concluded that given the facts of this case, there was no unfavourable treatment. We say that because the claimant continued to work; there was no financial penalty; he would, due to absences for other reasons, still have been subject to the absence management procedure; the fact of having a 1st notification did not lead the claimant on to the next stage of the procedure, because that disciplinary hearing did not ever take place and the dismissal was for reasons unconnected to absence. The 1st Notification was, in the circumstances of this case, of no consequence: there was no disadvantage to the claimant and no unfavourable treatment.

[192]The Tribunal decided that in the particular circumstances of this case, there was no unfavourable treatment of the claimant and for that reason we dismissed this aspect of the claim. Harassment

[193]The Tribunal had regard to the terms of section 26 Equality Act which provides that a person harasses another if the person engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of violating the [claimant’s] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. In deciding whether conduct has this effect, each of the following must be taken into account: the perception of [the claimant]; the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[194]The Tribunal next had regard to the further particulars provided by the claimant (page 79). The claimant, in that document, had set out 11 points of alleged conduct which he alleged amounted to harassment. The document was redacted in part following the case management order issued in April 2024, because the points referred to the redacted discussion between Mr Fitzpatrick and Ms Burns at the meeting on 29 March 2023. The remaining points to be considered by the tribunal were:  Mr Fitzpatrick and Ms Burns falsely claim in the meeting notes that the employee was against an occupational health referral;  Mr Fitzpatrick asked the claimant why he did not just quit and go to work somewhere else if he needed toilet breaks;  Management, Mr Fitzpatrick and Ms Burns used exaggerated dates of absence to support disciplinary action.

[195]The Tribunal firstly had regard to the conduct alleged by the claimant and we asked whether this conduct had taken place and if so, whether it was unwanted conduct. The issue of an occupational health referral is dealt with above and not repeated here: suffice to say that when the claimant was asked to identify in the transcript of the meeting where there was reference to occupational health and a willingness to go/not go, he was unable to do so. The only oblique reference by the claimant to occupational health was when he referred to getting an “ATOS report way back in 2010..” The tribunal concluded from this that the conduct alleged by the claimant did not occur.

[196]The Tribunal next had regard to the transcript of the meeting and noted the claimant spoke at length about other jobs he had had and the breaks that had been given. The claimant said “Other jobs I had .. I wasn’t getting tracked constantly .. every movement… every minute of my day and getting tracked to the toilet. Half an hour lunch – two 15 minute breaks and your toilet break. In here half an hour and two 5 minute comfort breaks to go to the toilet. That’s the worse breaks I’ve had in a workplace. … Two 15 minutes in other jobs and a half an hour … now its two 5 minute comfort breaks and a half an hour”. Ms Burns asked whether in every other job it was 15 minutes, and the claimant responded “not every other job.. most jobs you get half an hour … Most jobs you get two 15 minutes tea breaks and a half an hour lunch”.

[197]Mr Fitzpatrick said to the claimant “Can I ask you David if that’s the case why don’t you consider going and working somewhere else? If you are so bitter about that? Why do you come here when you know it’s only two 5 minutes and a 30 minutes? Why don’t you consider going somewhere .. why do you work here?”

[198]The Tribunal concluded from this transcript of the discussion that the issue which led Mr Fitzpatrick to make the comment was the issue of having breaks and the length of the breaks. The claimant’s assertion that the comment made was about going to work elsewhere if he needed toilet breaks was a gloss on what was actually said. The Tribunal concluded, for this reason, that the conduct alleged by the claimant did not take place.

[199]The Tribunal next considered the third point of alleged conduct which was that management, Mr Fitzpatrick and Ms Burns used exaggerated dates of absence to support disciplinary action. There was no dispute regarding the fact there was a disagreement between the parties regarding the length of absences noted by the respondent in their correspondence. The absence record (page 282) noted the date the absence started, the reason for it and the length of the absence. The claimant did not take issue with the fact of the absence, but he did challenge the length of the absence. There was no evidence before the tribunal regarding how the length of absence was measured.

[200]The respondent’s position was that length of absence was not, for the purposes of triggering action under the Absence Management procedure, relevant, because the procedure was triggered by the number of occasions of absence. The claimant had had a particular number of occasions of absence and this is what triggered the respondent to take action under the absence management procedure.

[201]The Tribunal accepted there is an onus on an employer to have accurate records which reflect the occasions and length of absences. The difficulty in this case was that there was no evidence to explain why the claimant believed certain absences were of one shift, but had been recorded for a longer period of time. The Tribunal was not prepared to find, or infer, the respondent had exaggerated the length of absences and we say that because the length of absence – whilst important to the claimant – was not relevant to the triggering of action under the absence management procedure. Further, the length of an absence did not “support” disciplinary action: the decision to proceed to a disciplinary hearing was made because of the number of occasions of absence and the reasons for the absences. We accordingly concluded the conduct alleged by the claimant did not occur.

[202]The Tribunal decided, for the reasons set out above, to dismiss this aspect of the claim.

[203]The Tribunal, in conclusion and for all of the reasons set out above, decided to dismiss the claim.