Mr I Coyle v Sky Subscribers Services Ltd: 8000870/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000870/2024

Between

Mr I CoyleClaimant

Sky Subscribers Services LimitedRespondent

Before

Employment Judge O’Donnell

Ms Winfield (paralegal) for respondent

Date 31 March 2025

JUDGMENT

The judgment of the Employment Tribunal, given orally at the hearing, is that the claimant’s application to amend is allowed.

REASONS

Findings of fact

[1]The claimant has brought complaints of unfair dismissal and public interest disclosure detriments under the Employment Rights Act 1996 as well as various claims of discrimination under the Equality Act 2010 relying on the protected characteristic of disability. ETZ4(WR)

[2]The present hearing was listed to deal with a defence of time bar raised by the respondent in respect of the discrimination claims. This was on the basis that the ET1 claim form was not lodged at the Tribunal within three months of the date of the acts of discrimination relied on by the claimant. In particular, it is said by the respondent that the dates of the acts of alleged discrimination provided in the further particulars lodged by the claimant were in 2022 and 2023 with the claim being lodged in 2024.

[3]The claimant’s primary position is that the earlier allegations of discrimination form an act continuing over a period culminating in his dismissal on 5 February 2024. There is no question that the ET1 was lodged timeously if dismissal was the act giving rise to the claim (for example, no issue of time bar is raised in respect of the unfair dismissal claim). In reply to the claimant’s position, the respondent argued that the claimant had not advanced any claim that his dismissal was an act of discrimination.

[4]At the outset of the hearing, I clarified with the claimant that he was seeking to advance such an argument and was, in effect, applying to amend his case to include a claim that his dismissal amounted to discrimination under the Equality Act. He confirmed that this was correct. The respondent opposed the application.

[5]I considered that the appropriate way forward was to deal with this amendment application at the present hearing. If it was successful then the issue of time bar would require to be addressed at the final hearing; the Tribunal would need to hear all the evidence about the alleged discrimination to be in a position to decide whether the individual incidents were capable of amounting to an act continuing over a period. If the application was refused then this would clarify when the last act occurred and allow the time bar defence to be addressed separately.

[6]Parties had no objection to this approach and I proceeded to hear submissions from both parties on the amendment. For the sake of brevity, I have not set these out in detail but I have taken account of what parties have said.

[7]In order to know what amendment I was being asked to allow, I asked the claimant to clarify the types of discrimination his dismissal was said to be. He set out the following:-a. Discrimination arising from disability under ss15 and 39(2)(c) of the Equality Act. i. The “something” arising from disability was said to be the way in which the respondent has allegedly treated the claimant. ii. The claimant says that this arose from disability because he had previously complained about his disability and how he had been treated in the way he had to work.

b. Direct discrimination under ss13 and 39(2)(c) of the Equality Act on the basis that the person who had harassed him in the past due to his disability was the person who dismissed him.

c. Victimisation under ss27 and 39(2)(c) of the Equality Act. The claimant relies on the same protected acts as set out in his further particulars dated 25 October 2024.

[8]The Tribunal has a general power to make case management orders which includes the power to allow amendments to a claim or response in terms of Rule 30.

[9]The case of Selkent Bus Co Ltd v Moore

[1996] ICR 836

confirms the Tribunal’s power to amend is a matter of judicial discretion taking into account all relevant factors and balancing the injustice and hardship to both parties in either allowing or refusing the amendment. The case identifies three particular factors that the Tribunal should bear in mind when exercising this discretion; the nature of the amendment; the applicability of any time limits; the timing and manner of the amendment.

[10]The Tribunal considers that it is appropriate to address each of the specific factors highlighted in Selkent, consider any other relevant factors and then take all of those into account in balancing the injustice and hardship to all sides.

[11]First, there is the nature of the amendment. The Tribunal agrees with the respondent that neither the ET1 claim form, what was said at the case management hearing held on 11 October 2024 nor the further particulars lodged by the claimant on 25 October 2024 set out, in terms, that the claimant is alleging that his dismissal amounted to discrimination of any kind under the Equality Act.

[12]The Tribunal appreciates that this may well have been what was in the claimant’s mind and that, as a party litigant, some leeway needs to be given to how the Tribunal reads his pleadings but this does not excuse him from the requirement to clearly and expressly set out his case. Even on the most generous interpretation of the previous correspondence and discussion, the claimant has not said anything to the effect that his dismissal amounted to discrimination.

[13]However, the Tribunal does not agree with the submissions on behalf of the respondent that the amendment raises new facts. There is an existing unfair dismissal claim and so any discrimination claim about the claimant’s dismissal arises from the same factual matrix. Similarly, the matters which the claimant alleges about past conduct by the respondent and its officers in the context of his dismissal arise from the factual matrix pled in respect of the existing discrimination claims.

[14]The amendment set out at the present hearing does not plead any new facts and is simply an exercise by the claimant in applying additional labels to his claim that his dismissal was unlawful.

[15]Second, there is the issue of the applicability of time limits. This does arise because the claimant is raising new claims (albeit from the same facts). The respondent is correct that the claims being raised are out of time because, taking the case at its highest, the allegation that the claimant’s dismissal was discrimination was first made on 22 November 2024 which is outside the statutory time limit.

[16]There are, however, a number of caveats or qualifications in relation to the issue of time bar that is relevant to the Tribunal’s consideration.

[17]The first caveat is that there is the question of whether the individual allegations, taken together, form an act continuing over a period for the purposes of s123(3) of the Equality Act.

[18]The Tribunal is not in a position, at this time, to determine whether the individual acts amount to an act continuing over a period as this requires an assessment of the evidence about each act in order to determine whether there is an ongoing and continuing state of affairs (Hendricks v Metropolitan Police Comr

[2003] IRLR 96

). The present hearing is not one at which evidence has been heard and so this is a matter which the Tribunal considers will have to be determined at the final hearing.

[19]The second caveat or qualification is that the Tribunal does have a broad discretion to hear a claim out of time under s123(1)(b) of the Equality Act.

[20]The third caveat and qualification is that, although the case of Transport and General Workers Union v Safeway Stores Ltd

UKEAT/0092/07

confirms that time limits are a relevant factor in the Tribunal’s discretion and can be the determining factor, time bar does not apply, in the context of an application to amend an existing claim, to automatically bar a new cause of action in the same way as it would if the new cause of action was being presented by way of a fresh ET1.

[21]The fourth and final caveat in respect of time limits is that, if the amendment is allowed, the respondent is not deprived of the opportunity to raise the time bar defence and this defence (along with the issues relating to the questions of continuing act and the Tribunal’s discretion to hear any claim out of time) can be determined at the final hearing listed to commence on 24 February 2025 (Galilee v Commissioner of Police of the Metropolis

[2018] ICR 634

and the more recent decision of the Scottish EAT in Douglas v North Lanarkshire Council

[2024] EAT 194

[22]Third, there is the factor as to the timing and manner of the application. The Tribunal does accept that this has come late in the process when a final hearing has been listed and, in particular, after the claimant has had multiple opportunities to set out his case.

[23]However, the Tribunal bears in mind that the claimant is a party litigant who may not appreciate the need for formal amendment to raise new claims. It was clear that, in his mind, dismissal was always part of his discrimination claim even if that was not how an objective observer would have read the pleadings.

[24]Having addressed the specific factors identified in Selkent, the Tribunal considered whether there were any other relevant factors.

[25]The Tribunal was not being asked to assess the prospects of success at this hearing and did not consider that the merits of the case was a factor which should feature heavily in its consideration given that there was a clear dispute of fact between the claimant and the respondent which required to be resolved after the Tribunal sitting in the final hearing had heard all the evidence.

[26]Turning to the balance of injustice and hardship between the parties, the Tribunal considered that there would be an injustice and hardship to the claimant in refusing the application. He would be prevented from pursuing a claim that his dismissal was an act of discrimination and this would also have a consequent effect on his ability to pursue the other claims of discrimination on the basis that he relies on the dismissal as being the end of an act continuing over a period.

[27]However, this prejudice is, to an extent, limited because the claimant would not be precluded from pursuing his other existing claims such as unfair dismissal. Those claims will proceed to a final hearing in any event. The claimant would not, therefore, be wholly deprived of a potential remedy if the application was refused.

[28]In relation to the respondent, it was submitted that the prejudice to them was that they would be facing a longer final hearing if the amendment was allowed. If it was refused then the earlier acts of discrimination could be dismissed as being out of time leading to a hearing that was solely concerned with the claims under the Employment Rights Act.

[29]This submission presupposes that the Tribunal would not exercise its broad discretion to hear the existing discrimination claims out of time and this is not a given. Further, the Tribunal is not persuaded that there would be a significant reduction in the length of the final hearing if the discrimination claims were to fall away; the claimant clearly perceives that his dismissal was not for the reasons given by the respondent and will seek to advance evidence about the matters which he believes led to his dismissal. These overlap almost wholly with the allegations of discrimination and so it is not clear that there would be any reduction in the length of the final hearing.

[30]If the amendment is allowed, the respondent still has the opportunity to defend all of the claims being advanced (including any defence of time bar). There was no suggestion that they are somehow prevented from doing so or that their ability to do so was prejudiced by the fact that the claimant was now adding an allegation that his dismissal amounted to unlawful discrimination.

[31]The fact that the respondent does not suggest that they are prejudiced from defending the additional claims of discrimination is unsurprising given that these arise from the same factual matrix as the existing unfair dismissal claim. The respondent would be leading almost the same evidence from the same witnesses to defend the discrimination claims as it would for the unfair dismissal claim.

[32]The Tribunal considers that, although there may be some injustice and hardship to the respondent in allowing the amendment, this does not outweigh the hardship and injustice to the claimant in refusing it.

[33]In these circumstances, taking account of all the matters set out above, the Tribunal allows the application to amend.

[34]The Tribunal considers that the respondent should be allowed to revise their grounds of resistance to reply to the additional claims of discrimination. The Tribunal, therefore, allows them 14 days to lodge revised grounds of resistance, as so advised.

[35]The Tribunal also directs that the final hearing will deal with any issue of time bar (including whether there was an act of discrimination continuing over a period and whether the Tribunal should exercise its discretion to hear any claim out of time) in addition to the issues of liability and remedies.

[1]The claimant was employed by the respondent between 4 June 2007 and 5 February 2024. On the latter date he was dismissed. He was paid in lieu of his entitlement to 12 weeks of notice.

[2]The claimant worked as a Java Developer and had qualifications in computing. The respondent is a UK-wide provider of television subscription, telephone and broadband services. It has offices in Livingston where the claimant was based.

[3]The claimant’s duties included website development, customer order systems management, maintaining databases and other tasks. It was a skilled position. He worked in a team, some of whom were programmers and others had different specialisms. He was based at the Livingston office. He lived around 10 minutes from the office, travelling by car as he originally did. He worked full time hours, Monday to Friday.

[4]The claimant’s role had been fully office based to begin with, but from around 2009 members of the team, and employees generally, were permitted to work from home when given permission from their Team Leader.

[5]The claimant has suffered from sciatica since 2012. Since then he experiences pain when sitting or standing in the same position for a prolonged period of, typically, forty minutes. He needs to move to alleviate the pain. In late 2017 or very early 2018 he sustained an injury to a disc in his back which required rehabilitation and also affected his sciatica. This caused him to be absent from work for 47 days between January and March 2018. An occupational health (‘OH’) report was ordered and prepared on 28 March 2018 [32-33]. It said that at that time the sciatica was ‘now almost fully resolved with only minor ‘twinges’ at times.’ When the claimant returned to work from the above absence Mr John Bailey had become his Team Leader.

[6]The claimant also suffers from tinnitus in connection with a perforated eardrum. This was diagnosed in 2017. He became prone to infections and experiences a constant ringing in his ears which impairs his ability to hear. The effect is not constant and is affected by factors such as the temperature, time of day and whether environmental conditions are wet or dry. At its worst he can barely hear at all. He wears headphones playing white noise for large parts of the day to reduce the impact of the ringing. When at work he would often have to ask colleagues to send him an email rather than try to speak to him, as they would have to raise their voices significantly and the office layout was open plan. The 2018 OH report described the ringing as ‘mild’ at that time.

[7]As a result of the Covid-19 pandemic the respondent asked employees including the claimant to work from home from late March 2020. This continued until around the end of 2021 or beginning of 2022. From then, the respondent encouraged those working remotely to return to the office one day per week. For the claimant’s team Tuesdays were chosen as the day to attend the office. Most individuals did so although the claimant appeared more reluctant. On at least some Tuesdays he would schedule leave or selfcertify as ill. He did not attend the office in Livingston at any point during 2022. Absences from September 2022 onwards

[8]The claimant was absent on dates between September and November 2022 as follows:a. 5 to 7 September;

b. 10 to 14 October;

c. 15 to 17 November;

d. 21 to 22 November. On each occasion he self-certified as having ‘cold/cough/flu’ symptoms.

[9]Mr Bailey had asked the claimant to come into the office and meet with him on 11 November 2022. The claimant said he was unable to do so due to one or more of his conditions. Mr Bailey told him that in that case he may wish to self-certify as medically unfit to work for the day.

[10]The claimant began a longer period of continuous absence on 29 November 2022 which only ended with his dismissal on 5 February 2024. This was initially described as involving flu and/or covid symptoms, and as time went on was described as post-viral syndrome or suspected long covid. The condition caused him tiredness and lethargy, shortness of breath, concentration and memory difficulties, and other flu symptoms occasionally such as coughing, sneezing and fever. This condition is referred to in this judgment as the ‘long covid condition’ for ease of reference although it is recognised that no formal diagnosis was made. It is discussed further in the section of this judgment ‘Discussion and decision’ below.

[11]The long covid condition interacted with both the claimant’s sciatica and his tinnitus. For example, the lethargy he experienced made it more difficult for him to get up and move around to alleviate his sciatic pain at times. Similarly, when he had flu symptoms those caused ear infections and aggravated the effect of the tinnitus.

[12]The claimant’s long-term absence was managed by Mr Bailey.

[13]The claimant has an ‘Absence Policy’ [96-102] and a ‘Managing Long Term Sickness Absence’ policy [386-406]. Those are closely related and referred to in this judgment together as the ‘absence policies’.

[14]In keeping with the absence policies Mr Bailey telephoned the claimant on 25 January 2023 to arrange an absence review meeting. An invitation letter was sent. The claimant did not attend as he mistakenly thought it was on a different date. The meeting was rescheduled to 6 February 2023 but the claimant was unable to attend due to his illness, i.e. the long covid condition. An OH consultation was arranged, to take place by telephone on 6 March 2023. The claimant received a call from the OH consultant but was unsure whether it was a genuine call and so did not proceed. Mr Bailey sent him a text message on 23 May 2023 asking if the claimant would agree to a further OH appointment. A meeting was scheduled for 29 May 2023 but the claimant did not attend and said he did not receive the invitation. He was asked if he would agree to a further appointment. He gave his consent and a senior OH nurse, Mr Stein, held a call with him. A report was then prepared on 14 June 2023 [132-133], addressed to Mr Bailey. Mr Stein reported that the claimant was due to meet with his GP the following week, and that a report from the GP would assist him. He wrote directly to the GP to request this.

[15]The claimant duly met with his GP on 20 and 27 June 2023. His GP provided a report to Mr Stein dated 29 July 2023 [27-28]. On receipt of the GP report, Mr Stein prepared an updated OH report for Mr Bailey on 16 August 2023 [136-138].

[16]Mr Bailey next sent the claimant an invitation to an absence review meeting to be held on 1 September 2023. He issued a letter to the claimant following the discussion, held by telephone, to summarise what had been covered [141-142]. As with a number of subsequent letters sent by Mr Bailey, the date of this letter was wrong, stating 29 August 2023 which was before the meeting took place. This was because Mr Bailey was using template letters from the respondent’s system, which automatically added the date when the document was downloaded. As Mr Bailey tended to do this shortly before his meetings with the claimant, a number of letters had dates which preceded the meeting date by around three or four days. The claimant submitted that this was evidence of the letters’ contents being falsified, although the tribunal accepted that their content was a reliable summary of what both individuals had discussed in each meeting. Only their stated dates were erroneous. There was no intention to mislead and no disadvantage to the claimant.

[17]There were further discussions on 8 September, 13 October, 10 November and 15 December 2023, and 5 January 2024. At each the claimant gave an update in relation to his symptoms, thoughts in relation to possible recovery, and any further information he had received from his GP. After each meeting Mr Bailey sent the claimant a letter summarising what had been discussed [143-144, 170-170a, 171-172, 194-195, 211-212].

[18]At the meeting on 8 September 2023 Mr Bailey told the claimant that he had referred his case to Employee Relations and that there may be a more formal absence hearing in the future at which his employment would be considered, and may be terminated on grounds of continuing unfitness. Grievance

[19]The claimant submitted a grievance to a Ms Dryburgh within the respondent’s Employee Relations team by email on 18 September 2018 [145-146]. This made allegations against Mr Bailey dating back to 2018. The claimant accused Mr Bailey of treating him unfairly at that time by forcing him to stay seated at his desk and refusing breaks to alleviate his back pain; suggesting he would be docked pay for taking excessive breaks; ignoring the terms of a recommended phased return and physical assault by way of punching or kicking the claimant in the back. The claimant supplemented his grievance by a further email sent on 26 September 2023. This added a complaint that in May 2023 Mr Bailey had declined his request to take 28 days of accrued leave, which would have been at his full rate of pay at a time when his entitlement to sick pay had been exhausted.

[20]While the grievance was investigated it was agreed that the formal absence management process would be paused, although Mr Bailey would continue to have monthly catch-up meetings by telephone.

[21]The claimant’s grievance was investigated by Carolann Speirs, a Senior Realtime Workflow Manager. Although based at the Livingston office, she had no connection with the claimant. She emailed the claimant to introduce herself and propose a meeting in the Livingston office. He said he was not fit enough to come in because of his long covid condition, and proposed a Teams meeting instead, which Ms Speirs accepted. Ms Speirs ultimately had two virtual meetings with the claimant, one on 16 October and one on 17 October 2023. Each lasted an hour. The first was adjourned as the claimant was becoming fatigued.

[22]Having gained an understanding of the claimant’s complaints, Ms Speirs spoke to four named colleagues, two of whom were Mr Bailey and Mr Keegan. Notes of her meetings with each were taken and produced [178- 180, 182-184, 186-188, 190-193]. They are accepted to be an accurate summary of each discussion. The meetings took place on 10, 16 and 22 November 2023. Ms Speirs considered the evidence she had gathered and issued an outcome letter on 13 December 2023 [197-201]. At some point before writing the letter she took around ten days of pre-arranged annual leave. As the subject matter of all but one of the complaints ultimately did not become part of the substantive issues the tribunal had to decide in this claim, her findings and conclusions are not recorded in detail. In short, she found no evidence to support the claimant’s allegations of being subjected to unacceptable behaviour or poor management by Mr Bailey. She did not uphold the grievance. On the matter of the 2023 declined holiday request, which was part of his tribunal claim, Ms Speirs found that Mr Bailey had done so but on the erroneous advice of an Employee Relations colleague. She therefore acknowledged that the claimant had not been correctly treated, but that this was not the fault of Mr Bailey. On 22 December 2024 the claimant received an email to say that he had arranged for the holidays to be paid before the end of the month. The claimant confirmed in evidence that he received the payment.

[23]The claimant appealed against Ms Speirs’ decision by email on 15 December 2023 [203] and Lisa Watson was appointed to respond. She is the respondent’s Head of Retail, is based in the southeast of England and had no previous connection with the claimant. A director whom she reported to was initially asked to take on the appeal in December 2023 but then felt that he did not have capacity and recommended that Ms Watson take it on. She was asked early in January 2024 to do so and agreed. She reviewed the relevant documents from earlier in the process and emailed the claimant on 5 January 2024 to arrange a meeting with him [221]. She proposed 16 February 2024 and to conduct the meeting using Teams. The claimant replied to agree those arrangements. In doing so he raised with Ms Watson that he believed Mr Bailey had discussed his sensitive medical information with him on a video call whilst within earshot of other colleagues, breaching his privacy and ignoring a previous request not to do so. He also said that Mr Bailey had made other unauthorised disclosures of his medical details. Ms Bailey replied to acknowledge his email. She said she had checked with Employee Relations and believed that his additional complaints should be dealt with as an appeal against his dismissal rather than under the grievance procedure.

[24]A formal meeting invitation was sent [224] and the meeting proceeded as scheduled. It was noted [225-228]. Ms Watson emailed a copy of the notes on 19 February 2024, asking the claimant to confirm he was happy with them. She had received no response by 27 February 2024, and on the advice of Employee Relations emailed the claimant again on that day to say she was assuming the notes were accepted by him [408]. She then held a Teams call with Mr Bailey to discuss allegations in relation to his use of an office whiteboard to micromanage the claimant’s working time upon his return from absence in early 2018. Mr Bailey was positive about how the whiteboard had been used, saying that it had been used to show how the claimant could best structure his breaks to alleviate his back pain, and that the conversation with the claimant was cordial and did not suggest any apparent upset on the claimant’s part.

[25]After considering what Mr Bailey had said and reviewing the documents she had, Ms Watson reached a conclusion which she set out in a letter dated 7 March 2024 [230-231]. She upheld Ms Speirs’ original findings. In relation to the additional issue about Mr Bailey’s use of the whiteboard, she concluded that Mr Bailey had acted appropriately given an apparently legitimate and evidence-based concern about the claimant taking excessive breaks. This concluded the grievance process available to the claimant. Dismissal

[26]Upon the issue of Ms Speirs’ first stage grievance outcome, Mr Bailey was permitted to resume the formal absence management process. On 22 December 2023 he emailed the claimant to say that since the last OH report obtained was dated in August of that year, he had arranged another referral. OH told him later that day that no new referral was required, and he let the claimant know. This was because the last report was dated less than six months before, and the claimant had reported no change in his symptoms to Mr Bailey.

[27]On 12 January 2024 Mr Bailey emailed the claimant to raise three matters. Those were:a. That he would schedule another formal absence hearing to review the claimant’s ongoing position. In relation to that, Mr Bailey asked the claimant whether he was comfortable with his OH reports being discussed, and with other people in the process (such as a notetaker at the meeting) to see the reports;

b. To hold a call to see if the claimant’s laptop camera could be made operational, as it had not worked for the previous online meeting; and

c. To remind the claimant that his last fit note expired on 8 January 2024.

[28]The claimant replied on 15 January 2024 to say that he preferred for his personal health information not to be disclosed and that doctor’s and OH reports not be shared with others. He said, ‘I believe we can discuss and address the matter effectively without the need for detailed health information.’ He also preferred to have an audio call rather than use Teams. Mr Bailey issued a formal invitation letter that day.

[29]The meeting of 5 February 2024 proceeded and a record was taken [216- 219]. The claimant reported that his symptoms were the same as before, although he said his GP had recently been positive that things would improve. No timescale was suggested. He said that he could not come into the office, but could use his hands and his computer, and could work from home. He could not use Teams with a camera. He asked about the possibility of working remotely.

[30]Mr Bailey adjourned the meeting for just under 20 minutes and in that time reached a final decision to terminate the claimant’s employment on grounds of ongoing ill health. He deemed it no longer sustainable by the business. He did not believe that the claimant was capable of any work at that time, or would be in the foreseeable future. In evidence he said that he believed the claimant’s suggestion to work from home was a final attempt to save his job and not something that he was genuinely capable of. The tribunal accepted that this was his belief based on the evidence he had. Mr Bailey also considered that the claimant had performed little or no work for fourteen months, in which time the other members of his team had had to absorb his workload.

[31]Mr Bailey reconvened the meeting and conveyed this to the claimant. He completed the record of the meeting to note that it was unsuitable for the claimant to work from home whilst experiencing his ongoing symptoms and whilst his GP had advised that he was not fit to work in any capacity. The meeting ended.

[32]Mr Bailey confirmed the claimant’s dismissal the next day by letter [222- 223]. The claimant’s last day of service was 5 February 2024 and he was paid in lieu of his entitlement to 12 weeks’ notice of termination. Appeal against dismissal

[33]The claimant was given the right of appeal within 7 days, which he exercised by email on 12 February 2024, setting out his grounds [234-235]. John Isgrove, then Agile Delivery Manager, was appointed to deal with the appeal. He wrote to the claimant to acknowledge the appeal and introduce himself on 28 February 2024. He proposed a meeting on 7 March 2024. He set out the points which he would deal with and three that he would not, as those were to be covered in the claimant’s appeal against his grievance outcome.

[34]The meeting took place on 14 March 2024 via Teams. A note was taken [241-246].

[35]Mr Isgrove interviewed Mr Bailey on 16 April 2024. They reconvened on 22 April 2024 as they had exceeded their allotted time. He interviewed the note-taker at the meeting of 5 February 2024, Mr Garden, on 23 April 2024. Notes were taken of each conversation and produced. Mr Isgrove emailed the claimant on 1 May 2024 to reconvene with him, offering three dates in the early part of that month. The claimant initially did not reply. Mr Isgrove wrote again to the claimant on 6 June 2024. In the interim, Employee Relations had tried to telephone the claimant on three different days.

[36]The appeal meeting was eventually reconvened on 14 June 2024 and again was noted [263-265]. Mr Isgrove proposed to discuss the question of adjustments which could be made for the claimant. The claimant said the position was covered in the last OH report (from August 2023). Mr Isgrove referred to the report stating that no adjustments could be recommended, and asked the claimant again to explain any adjustments he believed could be made. The claimant said that he was not expecting to have to answer any questions in the meeting, and that he was going to hang up. The call ended. Mr Isgrove had a number of prepared questions still outstanding. The claimant said in evidence that he did not hang up the call, and that it simply ended by another means which he could not explain. However, the tribunal accepted the meeting note and Mr Isgrove’s recollection were more likely to be correct, and that he had actively ended the call.

[37]As the meeting had ended prematurely, Mr Isgrove wrote to the claimant on 9 July 2024, listing his outstanding questions and inviting the claimant to respond to them in writing. Hearing nothing by 24 July 2024 he wrote again to the claimant that day on the same terms. The letter was sent by email and recorded delivery. Proof of successful delivery via post was obtained. Again the claimant did not reply. On 16 October 2024 Mr Isgrove wrote to the claimant for the last time, summarising the process which had taken place, and responding to his appeal points in sequence [271-279]. None of the grounds were upheld. This brought the respondent’s process to an end.

[38]The claimant continued to be medically unfit to work until the date of the hearing. He did not therefore seek alternative employment. He claimed, and continues to claim, disability-related benefits. Discussion and decision Disability status

[39]The requirements of section 6 EqA are that a disability must be:a. A physical or mental impairment,

b. Having a substantial adverse effect on the ability to carry out normal day-to-day activities, and

c. That effect is long-term – meaning that it has lasted for at least 12 months, or is reasonably expected to last for that long, or will recur if in remission, or that it will last for the rest of the individual’s life.

[40]The claimant relied on three potential disabilities – sciatica, tinnitus and the long covid condition. The tribunal considered each, first in isolation and then in relation to whether and how they combined.

[41]The claimant has been adversely affected by sciatica since 2012. Since then it has caused him pain and discomfort in his back. It has required him to adjust his position regularly if he was seated and he would have to move around approximately every 40 minutes. At its worst he would lie down to ease the pain. He would take painkillers when the pain was at its most intense and at those times would have difficulty walking. In early 2018 the condition was worse as he had damaged a disc in his back which required further specialist treatment. The OH report of 28 March 2018 reported that the claimant’s overall condition was improving. Since then, the evidence showed that the clamant recovered from the disc injury but continued to have the underlying sciatica condition and experience the same effects.

[42]The tribunal accepted the claimant’s evidence in relation to this condition. It concluded that the criteria for a statutory disability were met. The effects of the condition were clearly long-term and they applied to normal day-to-day activities such as walking and sitting at a desk. The tribunal was mindful that the test of what is ‘substantial’ has been judicially clarified to mean ‘more than trivial’. In that sense the long-term effect of the condition on the claimant was substantial.

[43]The next condition the claimant experienced was tinnitus, arising from the perforation of his eardrum in 2017. He hears high-pitched ringing in his ears. This is constant, although louder at some times than others. Colder or wetter weather makes the ringing worse, as does congestion if he has cold or flu symptoms. At its worst he can barely hear at all, and cannot therefore understand what people are saying to him. He currently wears noisecancelling headphones to alleviate the distraction. He does so for most of the day.

[44]The tribunal was satisfied that this condition met the statutory definition of disability also. Again, it was uncontroversial that there had been a long-term adverse effect on his ability to carry out normal day-to day activities, such as holding conversations with colleagues or doing anything which relied on the use of his hearing. The tribunal considered whether the effect was substantial and agreed that it was.

[45]The tribunal considered the long covid condition. The tribunal was mindful of the fact that a formal diagnosis of ‘long covid’ was not necessary for the condition to amount to a disability in relation to the claimant. Long covid would not affect every individual diagnosed with it in the same way in any event. What mattered was whether the claimant had an impairment which was physical and/or mental, and which had a substantial and long-term adverse effect on his ability to perform normal day to day activities.

[46]The tribunal found that the claimant did have such an impairment. His symptoms as described above in the findings of fact had a substantial effect on his ability to carry out activities such as walking, driving, concentrating in a meeting and other daily cognitive tasks including relying on his memory. Whilst those activities were not completely curtailed, or even impaired at all times, the effects of the condition were regular and ongoing, and they were significant when they did arise. They were long-term in that they were present since at least November 2022 and were still occurring at the time of the hearing.

[47]Finally, and for completeness, the tribunal found that the combination of all three conditions would have taken the claimant over the threshold of being disabled, had each of them individually not done so. As discussed in the findings of fact, they combined in different ways to increase the overall negative impact on the claimant’s day to day living. By way of example, he was more prone to cold and flu symptoms including blocked sinuses and ears, which aggravated his tinnitus and impaired his hearing. He was also too tired at times to move around, a step he had found to be helpful in alleviating some of the pain caused by sciatica. This status was long-term, applying from November 2022 when the most recent of the three conditions, the long covid condition, became present.

[48]Therefore the tribunal was satisfied that the claimant was disabled, in different ways and from different times. Time bar

[49]The starting point is section 123(1) of the Equality Act 2010 which states as follows: ‘123 Time limits Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or

(b) such other period as the employment tribunal thinks just and equitable.’

[50]It was clear that a number of the claimant’s complaints had not been presented within the three-month time limit. He began Early Conciliation with ACAS on 2 May 2024, which ended on 13 June 2024. He presented his claim on 18 June 2024. Any events or acts occurring before 3 February 2024 would therefore at least provisionally be out of time. This applied to essentially all of the claimant’s case save the dismissal appeal process handled by Mr Isgrove, unless earlier events could be said to be part of a continuing act which ended with the appeal.

[51]It had been decided at a previous stage in the claim that the question of time bar should be dealt with at the full hearing of the claim. This is often the best approach given the tribunal’s overriding objective, because often only by hearing all of the relevant evidence can questions such as whether there was a continuing act be fairly determined.

[52]Other questions which may arise are often best addressed at a full hearing for the same reason, such as whether it is just and equitable to decide any complaints on their merits which are technically time-barred. This often involves exploring why the complaints were not raised earlier so that they would have been within time, why the complaints were ultimately raised when they were, what the claimant’s degree of knowledge of the relevant law and tribunal process was, what advice and assistance if any they received at various points in time, and what are the actual or provisional merits of the late complaints they wish to have decided.

[53]An employment tribunal has a wide discretion to extend time under section 123(1)(b). However, the starting point should always be that the primary time limit of three months should be applied. Only if it is just and equitable to extend time should that happen.

[54]Neither party is subject to a burden of proof in relation to the issue, although a decision to extend time must be based on some relevant material or facts. That need not necessarily be provided by the claimant in such a case, although often this will happen as they are the party seeking the exercise of the discretion.

[55]A helpful list of factors to consider was provided in the cases of British Coal Corporation v Keeble

[1997] IRLR 336

and DPP v Marshall

[1998] IRLR 494

, namely:a. The length of and reasons for the delay,

b. The extent to which the cogency of the evidence is likely to be affected by the delay,

c. The extent to which the respondent had co-operated with any requests for information,

d. The promptness with which the claimant acted once they knew of the possibility of taking action, and

e. The steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

[56]However, it has been made clear in subsequent cases that this is not a closed or definitive list to be slavishly followed. Some factors will be more relevant in each claim than others.

[57]The tribunal determined that the handing of the dismissal appeal by Mr Isgrove was an act or process discrete from what had gone before, namely the various steps overseen by Mr Bailey to manage the claimant’s attendance at work and latterly his long-term absence, ending with the decision to dismiss him. This was because Mr Bailey had conducted that process, substantially alone and certainly without the input of Mr Isgrove, and reached his own decision to dismiss. That was done and implemented on 5 February 2024. Mr Bailey was not involved further in any decisionmaking capacity, and so if there was a continuing act, it ended on that date. Mr Isgrove had not been involved, did not work in the same part of the business as the claimant and Mr Bailey, and was located elsewhere in the country. In dealing with the claimant’s appeal completely afresh and reviewing Mr Bailey’s actions he was embarking on a separate process rather than continuing something already underway or completing an act which had already begun.

[58]The tribunal reached the conclusion therefore that the earlier complaints were provisionally time-barred and were not brought within time by being part of a continuing act. However, it decided that nevertheless it should hear the claimant’s complaints on their merits because it was just and equitable to extend time in order to do so. The reasons for that were that:a. They were at least potentially valid complaints. They were competently framed and could have succeeded had there been sufficient evidence to support them;

b. The claimant was not represented at the times when the now timebarred issues took place:

c. He was more focussed on gaining a resolution via the appeal and grievance processes, which was at least a partially explicable motive;

d. The claimant did act quickly enough to ensure that at least his final complaint was within time;

e. The process on which the earlier complaints were based was well documented and there was little risk that evidence had been lost or degraded;

f. The respondent’s witnesses were all still available and had good recollection; and

g. The prejudice to the claimant in potentially having valid complaints rejected because of questions of timing was greater than the prejudice caused to the respondent in having to answer them on their merits.

[59]The tribunal therefore, having heard all of the evidence, decided to determine all of the claimant’s complaints on their merits. Direct discrimination complaint – section 13 EqA

[60]The claimant alleged that in various ways he had been treated less favourably because of his disability or disabilities. A claim of direct discrimination requires someone that the claimant compares themselves to. The claimant relied on a hypothetical comparator as no actual colleague was in comparable circumstances. A hypothetical comparator for him would be someone in circumstances not materially different from his own, save the disability or disabilities relied on – section 23 EqA. Therefore that would be an employee in a similar or the same role, based where the claimant was based and absent through illness, injury or similar lack of capacity (but not qualifying as disabled, as that was the protected characteristic being relied on) for the same period of time, similarly limited in ability to work and with the same prognosis for recovery.

[61]The allegations of less favourable treatment were considered by the tribunal as follows:a. He was told to go on sick leave on 11 November 2022 if unable to attend an office meeting [in Livingston on that day] – the tribunal accepted that Mr Bailey gave the claimant an option rather than a direction to do so after the claimant said he was unable to come into his workplace due to the effects of one or more of his conditions. The tribunal accepted that Mr Bailey would have said the same to a hypothetical comparator, or indeed any person within his team who reported as unable to attend a workplace meeting due to illness, and that the claimant was therefore not less favourably treated by reason of his disability.

b. He was asked by text on 21 December 2022 to contact Mr Bailey on 9 January 2023 to confirm if he would be well enough to attend the office the following day – Mr Bailey did so, but this was because 9 January 2023 was the last day covered by a fit note the claimant had submitted. Mr Bailey was therefore merely asking the claimant to update him as to what was going to happen next. He was entitled to ask this question as the claimant’s line manager and did so in a straightforward manner. It was not in any realistic sense unfavourable treatment and the claimant was not less favourably treated than a comparator, because Mr Bailey would have similarly messaged any employee whom he managed to ask for the same information, regardless of whether the cause of the absence was a disability;

c. He was invited on 1 February 2023 to attend a meeting in the office on 6 February 2023 despite ongoing symptoms of long covid – again, this happened and was documented, but was not in any meaningful way an act of unfavourable treatment of the claimant. The meeting proposed to deal with three matters, all of which were supportive in nature – the option of seeking OH advice, the availability of an external counselling service and the prospect of making any adjustments to help him in a return to work. Whilst the location of the meeting was proposed to be the Livingston office, this was subject to change and did change at the claimant’s request. In any event the tribunal believed that Mr Bailey would have taken the same steps for a colleague whom he managed and who had been absent for a similar period, whether or not the cause of absence was a disability;

d. He was dismissed – considering all of the evidence the tribunal did not accept the claimant’s dismissal to be an act of direct discrimination. Whilst it undoubtedly occurred, and was a form of unfavourable treatment, it did not happen because he was disabled but rather because he had been absent for an unsustainably long period of time with no realistic prospect of returning or being able to work in a lesser capacity. Again, considering his comparator, the tribunal did not accept that a non-disabled person with a similarly long absence and poor prognosis for recovery would have been treated any differently by Mr Bailey. Discrimination arising from disability complaint - s15 EqA

[62]The claimant’s complaint under this section of EqA was that because of his inability to attend his office or work in it – the ‘something’ arising from his disabilities – he was adversely treated by Mr Bailey in the following ways. No comparator is required here – there must merely be unfavourable treatment ‘because of’ the thing arising from the disability or disabilities. Another difference as compared to a section 13 claim is that discrimination under section 15 may be ‘justified’ and therefore not unlawful if it can be shown to be a proportionate means of achieving a legitimate aim. Again, the tribunal’s conclusions are stated next to each allegation:a. He was asked by text on 21 December 2022 to contact Mr Bailey on 9 January 2023 to confirm if he would be well enough to attend the office the following day – the tribunal accepted that this happened, and that it did so because of the relevant thing arising from the claimant’s disability, namely his inability to attend his workplace, but did not accept that this amounted to Mr Bailey treating the claimant unfavourably. It was an uncontroversial request that he was entitled to make as a manager given that the claimant’s fit not was scheduled to end. The tribunal also noted that the claimant’s response to the text was to say, ‘Thanks John I will get in touch on the 9th Jan. Regards ian’. There was no hint of him being upset at Mr Bailey’s communication;

b. He was invited on 1 February 2023 to attend a meeting in the office on 6 February 2023 despite ongoing symptoms of long covid – As with (a) above this did occur, and because of the claimant’s inability to attend the office, but it was not an example of the claimant being treated ‘unfavourably’ because Mr Bailey was entitled to propose the meeting – both in the narrow sense of having the power and the wider sense of it being something reasonable for him to ask for in the circumstances of the claimant’s ongoing absence at that time. The tribunal noted in particular that the letter couched the proposed meeting as an ‘offer’ and gave the claimant the option and method to say whether he was unable to attend.

c. He was sent an email by Paul Keegan on 31 May 2023 stating that in order to use his holiday entitlement he would have to return to work – the tribunal accepted that the claimant being denied the option to treat days as holidays at that time was a type of unfavourable treatment because he would have been paid at his full pay rate for each such day had the request been granted. Whether that treatment was ‘because of’ the claimant’s inability to attend work was more difficult to say. When considering that question a tribunal must look at what was in the mind of the decision maker, considering both their conscious and any unconscious thought processes they went through - Pnaiser v NHS England and another

[2016] IRLR 170

. It most then decide whether objectively any reason it can identify for the treatment was the cause, or a cause, of the treatment. The tribunal reached the view that although the claimant would not have been in the position of requesting holidays but for his inability to attend work through his conditions, that was not enough to amount to a cause of the treatment. The real cause of the treatment was that Mr Keegan was misguided about what was the company policy because he had been given erroneous advice by an HR colleague.

d. He was dismissed – the claimant was dismissed because of his inability to work (either at his office or at home), arising in consequence of his disabilities. The dismissal was unfavourable to him. Section 15 of EqA was therefore potentially breached. However, the tribunal found that section 15(1)(b) was engaged because the claimant’s dismissal in the circumstances was a proportionate means of achieving a legitimate aim. The aim in question was the respondent’s need for its employees to be able to carry out the requirements of their roles, and the more specific need for each member of the claimant’s team to perform their share of the overall workload required, or at least a substantial proportion. The claimant had been unable to conform to that aim because of his ongoing inability to work in any capacity from the end of November 2022. Although dismissal was the most extreme action, it was nevertheless proportionate because there were no other realistic options, given that the claimant could not perform any work, as confirmed by his own GP and the OH expert, and because there was no reasonable prospect of him recovering to the extent that he could work after fourteen months of absence. There was therefore no identifiable less impactful way of achieving the legitimate aim. Balancing the needs of the business in having a group of staff capable of performing their duties fully or at least substantially, against the discriminatory impact on the claimant, the act of dismissal was proportionate. As section 15(1)(b) was therefore satisfied, the act of dismissal was not unlawful.

[63]For completeness, the tribunal considered that had actions (a) and (b) crossed the threshold of being unfavourable treatment, then they were excluded from being unlawful through being a proportionate means of achieving a legitimate aim. The aim in question was as for (d) above. The steps taken were appropriate and reasonably necessary for the management of the claimant’s absence. Harassment complaint - s26 EqA

[64]The claimant listed a number of alleged acts of harassment, each based on his protected characteristic of disability. Harassment occurs when an employer (including an employee representing the employer) engages in unwanted conduct towards an individual relating to a protected characteristic, which has one or more purpose or effect, namely to violate their dignity and/or to create an intimidating, hostile, degrading, humiliating or offensive environment for them. Harassment can also occur in other ways which do not apply to this claim.

[65]When deciding whether conduct has a prohibited effect the tribunal must consider the perception of the complainer, the other circumstances of the case, an whether it is reasonable for the conduct to have the effect claimed.

[66]The tribunal considered each complaint of harassment in turn and found as below.a. He was told that he was to go on sick leave on 11 November 2022 if he was not able to attend an office meeting, despite a diagnosis of long covid – as discussed above, the claimant was given this option, rather than a direction, by Mr Bailey because he had said he was too ill to attend the office. Given what was said and its context, the tribunal considered that this related to the claimant’s protected characteristic of disability and was unwanted by him – because he preferred to be considered as working from home rather than medically absent. However, the conduct did not fall within section 26(1)(b) by violating his dignity or creating an environment of the type described there. It did not have that purpose or that degree of effect. Had it had such an effect on the claimant, it would not have been objectively reasonable for him to consider that so under section 26(4);

b. He was asked by text on 21 December 2022 to get in touch with his line manager on 9 January 2023 to confirm if he would be well enough to attend the office the following day – again this was conduct in relation to the claimant’s disability which he regarded as unwanted, but as dealt with as a complaint of direct discrimination above, this was a completely reasonable step for Mr Bailey to take, which the claimant himself appeared to accept by way of his response at the time. There was no suggestion that any part of section 26(1) was satisfied;

c. He was invited on 6 February 2023 to attend a meeting in the office despite ongoing symptoms of long covid - as with (b) and covered in relation to the section 13 complaint, this was a reasonable and ultimately nondescript piece of correspondence which did not put pressure on the claimant to attend the meeting (and which Mr Bailey was content to convert to a remote conversation). Section 26(1) was not engaged; and

d. He was sent an email by Paul Keegan on 31 May 2023 stating that in order to use his holiday entitlement he would have to return to work – again, this was unwanted and connected to disability, but despite being a misstatement of the correct company policy, was not of the magnitude to qualify under limb (i) or (ii) of section 26(1)(b). It had no such purpose and it would not have been objectively reasonable for the claimant to feel that it had that effect. Reasonable adjustment complaint (ss20/21 EqA)

[67]An employer is under a duty to make reasonable adjustments for a disabled worker in certain circumstances. In summary, as relevant to this claim, they are that:a. A provision, criterion or practice ('PCP') put the claimant at a substantial disadvantage in relation to a relevant matter compared with persons who do not share that disability; and

b. The employer knows, or reasonably ought to have known, about both the disability and the substantial disadvantage caused by the PCP. If those circumstances apply, the employer is under a duty to make such steps as are reasonable to avoid the disadvantage.

[68]The alleged PCP in the claimant’s case is a requirement to return to the office after the removal of the restrictions or guidance related to Covid-19 which advocated home-working. For the respondent in relation to its Livingston office at least, staff were encouraged to attend at least one day per week from around the beginning of 2022. This PCP was applied to the claimant from then only in the sense that he was encouraged like the rest of his colleagues to attend the office once per week. It was not fully applied however as his reasons for not coming into the office were tolerated without repercussions for him. The PCP ceased to apply to him whenever he was accepted to be absent because of illness, and in particular from the end of November 2022 until his dismissal because he was continuously medically certified as unfit to work, and so was neither asked not expected to come into the office to work. The tribunal acknowledged that during his absence he was invited to attend absence management discussions at various times at the office, but those were just that – invitations, also described as ‘offers’ – and they were for much shorter periods than a working day and ultimately optional.

[69]The tribunal therefore could not agree that the alleged PCP had been applied to the claimant at any relevant point in time. For the sake of completeness, the tribunal accepted that had such a PCP been enforced it would have placed him at a clear disadvantage, which the respondent would have (or ought to have) recognised. However, allowing the claimant to work from home – the alleged reasonable adjustment not made – would not have been appropriate or fitted the circumstances as the claimant had been certified as unfit to do any work at all, and in additional to medical evidence to this effect his presentation to Mr Bailey when they met virtually or spoke by telephone supported that this was the case. Finally, the respondent did effectively apply the desired adjustment to the absence management process in the sense that the claimant was permitted to take part in those discussions from home. Victimisation complaint (s27 EqA)

[70]The claimant alleges that he was unfavourably treated as a result of carrying out a protected act. The protected act is said to be the submission of his grievance on 18 September 2023.

[71]The detriments he alleges he was subjected to as a result are as follows:a. being denied reasonable adjustments to work from home;

b. having his request for holidays denied by John Bailey;

c. being pressured to attend the office in person; Claimant’s health conditions; and e. being dismissed.

[72]The tribunal accepted that by raising his grievance the claimant was carrying out a ‘protected act’, namely making an allegation that Mr Bailey had contravened the EqA. Such an allegation can be express or otherwise. The wording of the grievance email describes conduct that would reasonable be appreciated to be harassment if it had occurred as suggested. This grievance notably only raised allegations about matters occurring in 2018. The claimant’s second grievance, emailed on 26 September 2023, raised the further matter of Mr Keegan declining the claimant’s request to take holiday leave in May 2023. The tribunal considered both in the interests of fairness to the claimant, particularly as he was unrepresented and given the tribunal’s overriding objective to deal with claims justly.

[73]In relation to the alleged detrimental acts, the tribunal found as follows:a. being denied reasonable adjustments to work from home – as detailed above in relation to the complaints under section 20 and 21 EqA, the claimant was not denied a reasonable adjustment. He was unable to work from home according to his GP and consistent with his own presentation. This was the case from the end of November 2022 onwards. Whether the claimant accepted this or not, he was not denied the option to work from home after 18 September 2023 because he had submitted a grievance. Nothing changed after that date in terms of the respondent’s perception of his capacity to work or how they treated him in relation to it;

b. having his request for holidays denied by John Bailey – this was an error on the part of the HR officer who provided advice as discussed above, and not a conscious departure from proper policy by Mr Bailey (nor Mr Keegan, for completeness). More fundamentally the error occurred in May 2023 and before both grievances were raised;

c. being pressured to attend the office in person – the tribunal did not accept the claimant was ‘pressured’ to attend the office after 18 September 2023. He was invited at various times, but by agreement each meeting was moved online or by telephone. Mr Bailey’s desire to meet in person was accepted by the tribunal to be because he felt the quality of discussion would be better and not to cause difficulty for the claimant, much less because he had raised a grievance; Claimant’s health conditions - this was a less specific allegation, and so took more examination in order to decide it. The tribunal explain above why they did not consider any act of harassment meeting the statutory definition occurred, and could not otherwise identify any example of ‘mismanagement; of the claimant’s absence after the first grievance was raised; and e. being dismissed – the claimant was not dismissed because he raised grievances. The process leading to his dismissal was clearly well underway before that – Mr Bailey commenced the formal absence management process on 8 September 2023. It was paused to allow for the grievances to be reviewed at the initial stage, then reactivated. The tribunal accepted that Mr Bailey viewed the prospect of the claimant being dismissed as strong in early September, and with no change in the claimant’s favour by early February 2023 he reached the decision that the business had waited long enough. Protected disclosure detriment claim – section 43A to K and 47B ERA

[74]For there to be a protected disclosure there must first be a disclosure of information, which is something more specific than a general expression of unhappiness, unfairness or grievance.

[75]The information in question must be provided to a relevant person. A person’s employer will satisfy this requirement – section 43C. Other parties may qualify under sections 43C to H.

[76]The information disclosed must be of a certain nature to gain protection – the types of subject it can be concerned with are listed in section 43B, subsections (1)(a) to (f) of ERA. The category the claimant relied on was as set out in 43(1)(d) – ‘that the health or safety of any individual has been, is being or is likely to be endangered’. The information disclosed therefore had to be of that type, or at least the claimant had to reasonably believe that it did.

[77]If a disclosure involves providing information of the correct nature to a prescribed person, it is also a requirement that the claimant reasonably believes that the disclosure is made ‘in the public interest’. This has been interpreted and clarified in a number of cases, including particularly the Court of Appeal in England in Chesterton Global Ltd (t/a Chestertons) v Nurmohamed

[2017] EWCA Civ 979

, a decision which is binding on Scottish employment tribunals. Of particular note is the requirement that a tribunal must consider whether an individual subjectively believed at the time they made the disclosure that it was in the public interest, and that if they did, whether that belief was objectively reasonable. Belief in the public interest need not be the only or even the main reason for making the disclosure, but it must have been a factor present at the time.

[78]Where a disclosure relates to a matter personal to the individual it will be relevant to consider aspects such as whether anyone else’s interests would have been served by the disclosure, the seriousness or importance of the interest being infringed or affected, the extent to which any wrongdoing is deliberate or reckless as opposed to inadvertent and the power and reach of the alleged wrongdoer.

[79]If a worker is subjected to a detriment ‘on the ground that’ they made one or more protected disclosures they will be entitled to legal protection – section 47B of ERA. The making of disclosures does not have to be the sole or even the main cause of the detriment but must be a sufficiently material factor.

[80]The claimant relied on the following being protected disclosures:a. He spoke by telephone with the respondent’s US parent company Comcast NBC Universal on 8 September 2023 and reported what he said was Mr Bailey’s disregard for his health and an unsafe working environment (referred to below as the ‘first disclosure’);

b. He submitted his grievance against Mr Bailey to the respondent’s employee relations department on 18 September 2023 (the ‘second disclosure’);

c. He submitted his second grievance to the same department on 26 September2023 (the ‘third disclosure’); and

d. He called the US parent company on 21 November 2022 to report developments and further concerns with the respondent caused since raising his grievance(s) (the ‘fourth disclosure’).

[81]Evidence in relation to the first disclosure was in the form of a report generated by the parent company which summarised the call the claimant had had [327]. It recorded that the claimant had told the operator that Mr Bailey had punched him in the back in the past, and that on the day of the report Mr Bailey had threatened him with dismissal.

[82]The terms of the second and third disclosures are the contents of the first and second grievance respectively.

[83]The terms of the fourth disclosure were also recorded in a report by the parent company [327]. Those were that the claimant said he was ‘being retaliated against by management’, The operator asked the claimant for additional information as to who the claimant was accusing, what had happened to make him feel that way and whether the matters were included in his existing grievance, or new allegations.

[84]The tribunal considered first which of the alleged disclosures were qualifying disclosures, i.e. disclosures of information which in the claimant’s reasonable belief were made in the public interest and tending to show that the health or safety of any individual had been, was at the time being, or was likely to be endangered.

[85]Applying those requirements to each alleged disclosure, the tribunal found that:a. The first disclosure was a disclosure of information tending to show that his health or safety was endangered. Taking it at its highest, the allegation was of direct physical intimidation and bullying. However, the tribunal saw no evidence of the claimant believing at the time that his disclosure was in the public interest. For him it was purely about how Mr Bailey had treated him and no one else. There was no suggestion that Mr Bailey was mistreating or would mistreat anyone else. Had the claimant believed at the time that he was making a disclosure in the public interest it would not have been objectively reasonable to do so. Mr Bailey’s team was relatively small and the scope for him to misuse his authority was limited;

b. The second disclosure likewise imparted information tending to show his health and safety were in danger. Again this involved the tribunal viewing the claimant’s allegation at its highest as the accusation was of a less immediately serious form of treatment, in other words a more endemic disregard for his needs arising out of his various medical conditions. Nevertheless there was again a lack of actual belief at the time of the disclosure in it being in the public interest. As with the first disclosure, the claimant was raising only matters affecting himself and there was no suggestion that others could be at risk, which was unsurprising as only the claimant was in the situation of dealing with medical conditions which led to a long-term absence. Again and for similar reasons it would not have been objectively reasonable for the claimant to believe the public interest was being served by his complaints had he in fact believed that at the time;

c. The third disclosure was a disclosure of information but was not related to risk of danger to anyone’s health or safety, whether the claimant’s or anyone else. It was simply a complaint that he could not treat a number of days of medical absence as holidays with the sole purpose of receiving a higher rate of pay. Considering the overriding objective to deal with claims justly and the fact that the claimant was not represented, the tribunal considered whether any of the other circumstances within section 43B(1) applied, and concluded that only example (b) was potentially applicable, namely that a person (the respondent via Mr Keegan) had failed to comply with a legal obligation to allow the claimant to take annual leave. Whilst that was a potentially stateable position, for the same reasons as applied to the first and second disclosures the tribunal could see no basis for finding that a disclosure of that nature was in the public interest. Once more it was about a single matter applying only to him without any suggestion of wider repercussions;

d. The fourth disclosure did not meet the threshold of amounting to ‘information’ in the context of this type of claim. The claimant told the helpline operator that management were retaliating against him but that lacked the detail required. He was asked to provide details which potentially would have counted as ‘information’ but there was no evidence that he did, and he does not rely on a later disclosure where he says this necessary detail was supplied.

[86]As such, and before reaching questions such as whether the first and fourth alleged disclosures were protected (being made to the respondent’s parent company and not the respondent itself), whether the alleged detriment occurred by reason of one or more disclosure. The tribunal noted that the claimant alleged only one detriment, namely that the handling of his grievances was delayed. The tribunal records here that it did not accept on the evidence that there was any delay in the handling of the claimant’s grievances for any reason. The process followed a reasonable course and timescale, and any short periods of inaction were explained by Ms Speirs being on annal leave. Unfair dismissal complaint – s94 ERA

[87]As it was clear and uncontested that the respondent dismissed the claimant, the onus fell on it to show that the reason for doing so was one which was potentially fair under section 98(1) or (2) of ERA. The respondent submitted that the reason for dismissal was ‘capability’ within section 98(2)(a). Capability in that sense can include the question of whether the individual has the qualifications, skill or ability to do the job they are engaged to do, or the issue of whether they are able to fulfil their role when illness, injury or similar circumstances affect them.

[88]The tribunal accepted that capability was the reason for the claimant’s dismissal. It accepted the oral evidence of Mr Bailey, supported by extensive documentary evidence produced, that the claimant was dismissed because he was deemed unfit to perform his role, or any relevant work, due to ill health. The claimant suspected that the real reason for his dismissal was that he had a disability, and/or that he had raised a grievance against Mr Bailey. The tribunal did not accept that there was any persuasive case for either of those things. Its rationale for finding that the claimant was not dismissed for simply having a disability is set out in relation to the section 13 and section 15 EqA claims above. Essentially, Mr Bailey tolerated the absence for a generous period, and would not have waited any longer, or otherwise treated the claimant differently, had he been absent for a reason unrelated to a disability. The tribunal was also unable to draw a link between the claimant raising his grievances and his dismissal. As outlined above in relation to the victimisation complaint, Mr Bailey was already thinking seriously about the prospect of the claimant’s employment terminating before the grievance was raised, and he waited until it had been dealt with at the initial stage at least before resuming the formal absence review process. The tribunal considered it more probable that Mr Bailey was already some way towards concluding that the claimant would not be fit to return in a suitable timescale, if ever, in early September 2023 and that the information which was available by February 2024 made his decision even clearer.

[89]The next matter for the tribunal to look at was whether the respondent met the requirements of section 98(4) ERA, namely whether ‘in the circumstances (including the size and administrative resources of the employer’s undertaking) [it] acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the [claimant]’.

[90]Unlike the initial test under section 98(1) and (2), there is no onus on either party to prove or disprove whether section 98(4) was satisfied.

[91]There is little further statutory guidance as to whether this test of reasonableness has been met, but a body of case law suggests that two things an employer should do at the point of considering dismissal after long-term illness-related absence are to obtain up to date information about the relevant medical situation and to meet with the employee to discuss the matter and allow them to make any representations - East Lindsey District Council v Daubney

[1977] ICR 566

. Implicit in this is that the employee is made aware that termination of their employment is being seriously considered so they can fully engage in the discussion. Where the absence is longer-term an employer will usually be expected to obtain more detailed medical information than fit notes.

[92]The respondent satisfied all of these steps, and more generally the tribunal concluded that they had acted reasonably in the way required by section 98(4) of ERA. The absence had lasted for over a year. Mr Bailey had contacted the claimant regularly to discuss his circumstances and occupational health had been enlisted for advice. There was no clear indication of when, or even if, the claimant would become fit to work again in his role, or at all. This was medically supported. He was no longer being paid. Mr Bailey considered the needs of the business and the impact on colleagues against the claimant’s need for more time. He could well have waited longer, but that would have been in hope rather than expectation. The tribunal’s role is not to decide independently whether it would have waited and longer, and if so for how long – that would be to substitute the employer’s decision with its own. Rather, the tribunal’s job is to review what the respondent did in the circumstances and decide whether it was the reasonable course (or one of a potential range of reasonable options). It was reasonable for Mr Bailey to take the decision to dismiss when he did. The claimant’s dismissal was therefore fair.

Conclusions

[93]As each of the claimant’s legal complaints was ultimately unsuccessful, they require to be dismissed. There was no need to consider questions in relation to remedy. 31 March 2025