Mr H Aberdeen v Scotch Whiskey Auctions Ltd: 8001912/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001912/2024Venue GlasgowHearing 19 – 23 January 2026 Deliberations on 26 and 27 January 2026
Between
Mr H AberdeenClaimantScotch Whiskey Auctions LtdRespondent
Before
Employment Judge D HoeyMr M Briggs for respondentCounsel [Instructed for respondentby Hourwich for respondentFarrelly] for respondentJUDGENT OF THE EMPLOYMENT TRIBUNAL for respondentDate 29 January 2026
REASONS
[1]The claimant raised a complaint for unfair dismissal and a number of complaints in connection with disability discrimination. Two case management preliminary hearings had been heard and Notes had been issued following both, with the latter hearing being conducted by me at which matters were focussed and it was agreed a full hearing would be convened with the issues arising in relation to the complaints the claimant was advancing having been agreed and set out in detail.[2]The Hearing began by a reminder of the overriding objective and the need for both parties to work together to assist the Tribunal in ensuring that everything that was done was fair and just with due regard to cost and proportionality.[3]The claimant had a mental impairment and it was agreed that the claimant be given considerable leeway during his answering of questions (and be allowed to deal with any issue he considered relevant in relation to the question before moving on). I had also given the claimant the first full day of the Hearing after a discussion about the issues to carefully consider each of the issues arising in respect of the complaints being advanced, to finalise a statement of agreed and disputed facts and to prepare a written witness statement that would be taken as his evidence in chief. I also directed the claimant to the Equality and Human Rights Commission Code of Practice that set out guidance in relation to the legal complaints and losses to ensure the claimant understood his case and what he required to do by way of evidence. Case management[4]The parties had worked together to focus the issues in this case which were refined as the case progressed. The parties were able to agree timing for witnesses and the parties worked together to assist the Tribunal in achieving the overriding objective, in dealing with matters justly and fairly taking account of the issues, cost and proportionality. The case was able to conclude within the allocated time with the parties using one of the days to focus the issues and facts agreed and in dispute.
Issues
[5]The claimant wished to refine the specific complaints that he was bringing such that the issues to be determined are now as follows: Unfair dismissal 1. Has the respondent shown the reason or principal reason for dismissal, namely misconduct (which is a potentially fair reason under section 98 Employment Rights Act 1996)? 2. If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether:(1) The respondent genuinely believed the claimant had committed misconduct;(2) there were reasonable grounds for that belief;(3) at the time the belief was formed the respondent had carried out a reasonable investigation;(4) the respondent followed a reasonably fair procedure;(5) dismissal was within the band of reasonable responses. Remedy for unfair dismissal 3. A number of issues were set out, including amount of a basic and compensatory award, losses sustained, the changes of a fair dismissal in any event and contribution. Time limits relating to the discrimination complaints The complaints arise from acts that took place prior to August 2024 are out of time pursuant to section 123 of the Equality Act 2010. The Tribunal will decide: 1. Was the complaint made to the Tribunal within three months (allowing for any early conciliation extension) of the act to which the complaint relates? 2. If not, was there conduct extending over a period? 3. If so, was the claim made to the Tribunal within three months (allowing for any early conciliation extension) of the end of that period? 4. If not, were the claims made within such further period as the Tribunal thinks is just and equitable? The Tribunal will decide why were the complaints not made to the Tribunal in time and in any event, is it just and equitable in all the circumstances to extend time? Disability status It was conceded by the respondent that the claimant had a disability at the levant time which was known to the respondent. The impairment relied upon was “Asperger’s syndrome”. Harassment related to disability (Equality Act 2010 section 26) 1. Did the respondent do the following alleged things: (1) At the end of November 2019 “JayJay” (a colleague of the claimant) went through the claimant’s office desk that was bought by the claimant personally and read out personal information to Mr Bain, George John and others who was in unit D when the claimant was holiday, thereby taking advantage of the claimant because of his disability knowing he would not fight back; (2) On 7 December 2019 following a complaint to Ms Job about what “JayJay” had done at the end of November 2019, Ms Job dismissed the claimant’s concerns about the incident, said that the claimant’s team members could no longer trust him and moved the claimant to another team; (3) On 12 August 2024 adopt an unfair procedure that led to the claimant’s suspension, by not taking into account the way in which the claimant processes information as a result of his disability; (4) On 21 August 2024 by conducting an unfair disciplinary hearing, by on multiple occasions talking over the claimant when he was putting his case forward, refusing the claimant time to think and ask questions and refusing to answer direct questions the claimant asked; (5) On 21 August 2024 and the subsequent 3 days, the respondent refused to provide a copy of the notes of the disciplinary meeting; and(6) The hand delivering of an invitation to an appeal meeting that was to take place on the same day it was hand delivered namely 9 September 2024. 2. Was each established act unwanted conduct? 3. Did it relate to disability? 4. Did each act have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? If not, did it have that effect? The Tribunal will take into account the claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. Direct disability discrimination (Equality Act 2010 section 13) 1. Did the following occur: (1) On 7 December 2019 following a complaint to Ms Job about what “JayJay” had done at the end of November 2019, Ms Job dismissed the claimant’s concerns about the incident, said that the claimant’s team members could no longer trust him and moved the claimant to another team; (2) On 12 August 2024 adopt an unfair procedure that led to the claimant’s suspension, by not taking into account the way in which the claimant processes information as a result of his disability; (3) On 21 August 2024 by conducting an unfair disciplinary hearing, by on multiple occasions talking over the claimant when he was putting his case forward, refusing the claimant time to think and ask questions and refusing to answer direct questions the claimant asked; 2. Is each act an act of less favourable treatment. In other words, has the claimant proven facts from which the Tribunal could conclude that in any of those respects the claimant was treated less favourably than someone in the same material circumstances who was not disabled was or would have been treated? The claimant relies on a hypothetical comparison. 3. If so, has the claimant also proven facts from which the Tribunal could conclude that the less favourable treatment was because of disability? Duty to make reasonable adjustments (Equality Act 2010 sections 20 & 21) 1. For the period January 2022 until August 2024 did a physical feature, namely the absence of diffusers on a light in the photography department where the claimant worked, put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the lights were brighter and affected the claimant in an adverse way? This had previously been said to be from January 2024 but the claimant confirmed that in fact he had raised the issue from January 2022. Remedy 1. What compensation, if any, should the claimant be awarded in respect of unlawful discrimination? Evidence[6]The parties had produced a joint bundle of 335 pages. The Tribunal heard evidence from Ms Job (Director, who investigated the issue), Mr T Gardiner (Director, who chaired the disciplinary hearing), Mr C Gardiner (Head of operations, with whom the claimant spoke about the issue in question), Mr J Armour (Packing Operative who was a colleague of the claimant’s), Mr J Stevenson (Senior Packer, colleague), Mr McCubbin (Photographer and content team leader and colleague), Mr D Bain (photographer and colleague) and the claimant. The claimant, of consent, provided his evidence in chief by way of written witness statement, with the other witnesses providing oral evidence. Each witness was asked relevant questions with the parties putting their respective cases to the witnesses.
Facts
[7]The Tribunal is able to make the following findings of fact which it has done from the evidence submitted to it, both orally and in writing. The Tribunal only makes findings that are strictly necessary to determine the issues before it (and not in relation to all disputes that arose nor in relation to all the evidence led before the Tribunal).[8]Where there was a conflict in evidence, and that includes conflicts within the evidence from the same witness, as happened in this case, the conflict was resolved by considering the entire evidence and making a decision as to what was more likely than not to be the case with regard to what was written and said at the time (when viewed in context). The Tribunal is grateful to the parties for focussing the issues and agreeing key facts and making it clear what the disputed position was in relation to such facts.
Background
[9]The respondent operates a Scotch whisky auction website. The respondent has around 24 staff. It has two directors, Mr T Gardiner and Ms Job and a head of operations. Staff were organised into teams each with a team leader who reported to the operations manager.[10]The claimant was employed from 22 January 2018 until his dismissal on 22 August 2024. He was employed as Packer.[11]The claimant had a mental impairment namely which had a number of effects in relation to his ability to work. These included the claimant required to be given clarity following instructions and he would often write down matters within a note book and approach Ms Job to discuss.[12]The claimant was engaged on a written contact of employment which was subject to a number of policy documents. The (non contractual) disciplinary and grievance policy sets out the process to be followed in either event. No action would be taken until matters were fully investigated. The policy noted that ordinarily there would be 4 stages – an oral warning, a written warning, a final written warning and dismissal but the company reserved the right to impose sanctions depending upon the circumstances of the alleged misconduct. In cases of gross misconduct, dismissal may follow. Claimant’s personal information discovered in a desk in 2019[13]At the end of November 2019 a colleague of the claimant had been instructed to work from the claimant’s desk. Upon looking for paper he discovered a notebook. The claimant had written personal information in the notebook about colleagues. The claimant’s colleague was concerned that the claimant was making such comments about colleagues and raised the matter with his line manager and told colleagues that the claimant had been “keeping tabs” on them and they should watch their backs.[14]On or around 7 December 2019 the claimant complaint to Ms Job about what had happened, Ms Job noted that the notebook had been left in the desk (and not in any locked space, such as lockers). Ms Job referred the claimant to the grievance policy and advised that he could raise a complaint if he wished. She noted that the notebook had been left in the desk and that the claimant’s colleagues were unhappy with the claimant. With a view to avoiding conflict for the claimant, he was moved to another team.[15]The claimant chose not to raise a grievance about the issue nor raise a Tribunal complaint. He understood that he could have done so but considered there to be no point at that juncture and feared he could lose his job. 2022 issue with lights[16]In January 2022 the claimant was concerned about the brightness of lights in the workplace. Other staff found the lights bright too. The claimant chose not to raise this formally nor a Tribunal complaint. The claimant was able to deal with the brightness as did other staff. At some point diffusers had been fitted which may have been prior to the claimant raising the brightness issue. Holiday and staff away day[17]The respondent uses an HR software system called Youmanage which is cloud based and can be accessed by employees, including the claimant remotely at any time and on any device. Employees can request holidays via this system and requests are automatically sent to managers.[18]On or around 2 July 2024 the claimant requested 5 days leave from 5 to 9 August 2024 inclusive. That request was approved the same day. The claimant had planned a trip outside Scotland for the Monday to Friday and would not be in the country that week. That was known by colleagues.[19]On occasion the respondent would organise staff bonding/training days whereby staff would be taken away from the office. Such an event was planned for 9 August 2024. The social committee advised staff including the claimant in mid July 2024 about this. The claimant asked if he required to take a holiday on that day and he was advised that those not present on the boat trip required to work or take the day as a holiday.[20]Despite having been told the position by the social committee, the claimant raised the issue with Mr C Gardiner on 2 August 2024. Mr C Gardiner had just returned to the office following a period of leave. The claimant did not disclose to Mr C Gardiner what he had been told by the social committee but asked if he could avoid taking the away day as a holiday given staff were on the staff outing. Mr C Gardiner told the claimant that he did not think that would be possible. Mr C Gardiner’s view was that staff required to take the day as a holiday if there not attending the trip. Ultimately he said it was a matter for the directors, Ms Job or Mr T Gardiner (who was no relation to Mr C Gardiner).[21]Later that day the claimant changed his leave and reduced his leave that week to 4 days, leaving the away day as a working day.[22]On 8 August 2024 Ms Job noted that there was no ticket for the claimant for the staff away day. If he was planning on attending the event a ticket required to be purchased for him. She attempted to telephone the claimant to ascertain the position to ensure he was not left out. The claimant and Ms Job spoke on 8 August 2024. Ms Job asked the claimant if he was attending the event as a ticket would need to be obtained. He said he was not attending the event. Ms Job noted the claimant had cancelled his holiday. Ms Job told the claimant he required to work on that day if he was not attending the event and she would allow him to work from home if he wished. The claimant said he would not be able to work on the day as he was away. Ms Job instructed the claimant to ensure leave was taken on that day (which he could do remotely by using the HR cloud based system to which he had access).[23]The claimant did not take the day as a holiday but did not work that day. Investigation commenced into why no leave was taken on staff away day[24]The claimant returned to work on 12 August 2024. Ms Job noted that the claimant had not taken the 9 August 2024 as a holiday as she had instructed him to do. As a consequence, the claimant was suspended on full pay. A letter was issued on 13 August stating that the company was investigating a potentially unauthorised absence on 9 August 2024. The letter noted the matter was being investigated and no decisions had been taken. Ms Job was investigating matters and it may be necessary to meet with the claimant as part of the investigation. A copy of the disciplinary policy was sent to the claimant. Ms Job did not wish to pre-empt matters by discussing matters immediately with the claimant and instead decided to suspend the claimant to allow her to ascertain what had occurred and then get the claimant’s position.[25]Ms Job obtained information from a number of employees as part of the investigation and a written note as to their position was obtained, including of Ms Job’s interactions with the claimant.[26]Mr C Gardiner sent Ms Job an email on 13 August 2024 noting that the claimant spoke to him prior to the day in question asking if he could get the day holiday back due to being on annual leave when the day out was scheduled. Mr C Gardiner was not aware of the specifics, having recently returned to work, but he told the claimant it was normally not possible to avoid taking a holiday if you do not attend. The claimant asked if he should cancel the day’s leave until Ms Job confirmed but Mr Gardiner told the claimant that he should not do so. Mr Gardiner said while cancelling leave was an option open to the claimant, he believed the claimant would await hearing from Ms Job before doing anything.[27]On 13 August Ms Job spoke with the social committee team members who had been involved. The claimant knew about the event mid July and had said that he was on holiday. He said “surely I should get the day back” The claimant was told that staff had to either go on the trip or take leave as the office would be closed. The claimant understood that was the company’s position.[28]On 15 August 2024 Ms Job asked that the claimant’s leave position be checked to ensure no leave had in fact been taken. Mr C Gardiner confirmed no leave had been sought for the day in question by the claimant. Managers checked the system and confirmed this was accurate.[29]On 15 August 2024 the claimant sent an email to Ms Job. He did not refer to what he had been told by the social committee. He stated that on 2 August 2024 he spoke with Mr C Gardiner and asked if it was possible to remove the day of the trip from his holidays. He said he wanted to speak with Ms Job but she had been out the office. The claimant said that “after a few minutes of back and forth Mr Gardiner said that he wasn’t sure and that it would he up to Ms Job”. The claimant said that he asked if he took the day off and if there were any issues he’d sort it out by booking the holiday back after the event when he returned. He said Ms C Gardiner said “that should be fine”. The claimant said he was not trying to deceive or fraudulent reclaim rime. He was “purely looking for clarification” and he had “even proposed a remedy to the situation if the understanding [he] had was not correct or acceptable”.[30]On 15 August 2024 the claimant was invited to a disciplinary hearing in writing. The letter stated that “matter to be discussed are with regard to the following circumstances: It is alleged that has been a serious contravention of company rules and policies relating to unauthorised absence on Friday 8 August 2024 and dishonesty”. The investigation paperwork that had been obtained (including statements from those affected and an audit from the claimant’s Youmanage account) was sent to the claimant. He was told about the right to be accompanied and that if he was found guilty of gross misconduct a possible outcome could be dismissal. 31. 31. The claimant was permitted to take his brother as his companion to the hearing which would be chaired by Mr H Gardiner. Early resolution not possible[32]Mr H Gardiner had been of the view that the matter may have been capable of an early resolution as it appeared to him there had been an oversight by the claimant and had he simply accepted he had failed to sort things out, it may have been possible to deal with matters summarily. An earlier meeting had been attempted but the claimant had not been available.[33]The claimant had sent an email on 16 August 2024 with a number of questions about what had happened. He said he believed there to have been a “massive escalation of events”. He said he had tried to mitigate things before it had happened and had put a contingency in place. He said “it not only fees excessive but very personal. The claimant maintained Mr C Gardiner has said “that should be fine” by changing his holiday and awaiting to see if there was an issue. He said that “I do not recall or remember being told to book a holiday for the Friday” in relation to his discussion with Ms Job. He said: “I’m not saying it wasn’t said what I will say is that the whole event left me in a stupefied and anxious state utterly bewildered at what had just happened. The interactions seem very hurried and fractious”. The claimant was told the issues he had raised would be discussed at the hearing. Disciplinary hearing[34]The hearing took place on 21 August 2024 with Mr T Gardiner being the chair. The claimant attended with his brother and Ms Job set out what she had uncovered during the investigation. The meeting lasted over an hour. Ms Job spent time setting out the response from each of the persons involved in the investigation. She noted the claimant had been told by the social committee that he could not take a holiday. She noted the claimant had asked Mr C Gardiner who had told the claimant that he should not cancel his holiday until he had heard from Ms Job and that the claimant would wait until hearing from Ms Job before doing anything. She noted she had told the claimant on 8 August to ensure he had booked a holiday for 9 August. The claimant had taken no steps to do so.[35]Ms Job noted that during her discussion with the claimant had claimed to have booked a holiday on Youmanage but there had been no record of the claimant having done so or having raised any issue,[36]Mr Gardiner noted that the position seemed straightforward in that the claimant appeared to have knowingly cancelled annual leave for 9 August fully aware he was unable to work that day and was being told directly to take a holiday. The claimant had made no attempt to do so.[37]The claimant and his brother set out the claimant’s position. There were a number of occasions where the claimant’s brother spoke over what the claimant was saying and where the discussion was heated with Mr T Gardiner interjecting to clarify matters. The claimant was, however, able to set out his position, which was that he believed Mr C Gardiner told time him it should be fine to change his holiday and await Ms Job raising any issue. The claimant was given time to consider his position and fully set out his defence and response and to answer any questions. No issues were raised at the time as to the time given for the claimant to set out his position.[38]The claimant said that he did not remember Ms Job saying to him to book the holiday off. The claimant was unhappy further discussions had not taken place with Mr C Gardiner. Mr T Gardiner said he had a discussion with him following his statement but could not recall what had been said, other than maintaining the position he had told Ms Job which was that the claimant should not change the position until Ms Job had authorised it.[39]The claimant’s brother said that the claimant had perhaps been naïve or arrogant in cancelling the holiday but he had not been dishonest and had not defrauded the company. He had told Mr C Gardiner that if there was a problem he would reapply the holiday upon his return.[40]Mr T Gardiner noted that if matters were looked at in a negative way it could be said the claimant was hoping nobody would think about the fact he had cancelled the day as a holiday and hoped nobody would raise it and thereby increase his holiday entitlement by a day. The claimant had not raised matters with Ms Job when he had returned to work on the Monday. The claimant had said that he could not remember being told by Ms Job to book the day as a holiday which Ms Job said she disputed in the strongest of terms since that had been the purpose of her calling the claimant if he did not wish to attend the staff event.[41]The claimant’s brother again said the claimant had not tried to defraud the company. He had 6 year’s service and probably had not realised the importance of the situation when he discussed it with Ms Job the day before the day in question. The claimant’s brother suggested the claimant had been “silly” and “naïve” but not dishonest or “at least not intentionally dishonest. Certainly not a way to defraud the organisation”. He concluded saying “I don’t think there is anything else to say”. Claimant seeks notes[42]The claimant sought a copy of the notes of the disciplinary hearing. Ms Job was awaiting the notes being returned from the transcriber as she had paid for the enhanced service whereby the notes were transcribed by a person (and not electronically). She wanted to check the notes before sending the claimant the notes. The delay in sending the notes was due to Ms Job wishing to check the notes were accurate. A decision is taken from the information available[43]My T Gardiner considered carefully what the claimant had said. The claimant’s position was clear: He believed Mr C Gardiner and Ms Job had not been truthful. The claimant maintained Mr C Gardiner had suggested it would be “fine” to cancel the holiday and await any issue being raised by Ms Job. He did not recall being told by Ms Job to take the day as leave.[44]Mr T Gardiner balanced what the claimant had said with the evidence before him. He chose to accept what Mr C Gardiner had said and critically what Ms Job had said. Even if the claimant had been correct in his recollection as to what Mr C Gardiner had said, the claimant had been told by Ms Job to ensure he took the day as leave. That had accorded with what the claimant had been told by the social committee. The whole point of Ms Job calling the claimant prior to the event was to ensure the claimant either had a ticket to attend the event or to take a holiday (if he did not wish to work). Mr T Gardiner chose to accept Ms Job’s position, there being no reason for him to disbelieve what she had set out, her position aligning with the company’s position (which was that anyone not on the staff day required to take a day’s holiday, absent authorisation). He concluded the claimant had not done so.[45]A letter was issued to the claimant dated 22 August with the outcome of Mr T Gardiner’s deliberations. The letter noted that the allegations facing the claimant had been put to him at the hearing, that he had “deliberately attempted to conceal not taking annual leave when he should have sought approval from a line manager or director. In the absence of such approval you failed to attend work and this unauthorised absence had an impact on the business”. In other words, the claimant had been instructed to take a day’s holiday to cover his absence and he had not done so, thereby increasing his leave by one day and had thereby been dishonest in his approach.[46]Mr T Gardiner considered the options open to him taking account of the claimant’s service and clean disciplinary record. Mr Gardiner concluded that he could no longer trust the claimant. He believed that he claimant had been told by the social committee and Ms Job that he required to take a day’s holiday to be on leave. The claimant had not done so and it appeared to Mr Gardiner that the claimant was hoping it would go unnoticed that unauthorised absence had occurred due to the team event.[47]Mr T Gardiner concluded this amounted to a deliberate and serious breach of confidence. The claimant was considered to have been dishonest in not raising the matter. The claimant’s approach at the hearing was to say Ms Job and Mr C Gardiner had not been accurate but gave no basis to dispute their statements. The claimant was advised of the right to appeal. Claimant raises number of issues on appeal[48]On 27 April 2024 the claimant sent the general email address of the respondent an email headed “Appeal”. The email stated that he wished to exercise his right to appeal his dismissal. He strenuously disagreed that he had been dishonest and attempted to defraud the company. He said that he did not believe at any point this had been shown. He also said “I am appealing this decision under the Equality Act 2010”. In a 4 page email the claimant set out concerns he had in relation to his employment in general. He argued “the workplace and management had prior knowledge and were fully aware of his Asperger’s diagnosis form the very start. At no point was he given occupational health assessment”. He argued requests had not been met.[49]The appeal letter stated he had sought a standing desk and complained about the lights and had to wear a hear or hoody to keep out the bright light. He said the keyboard was too small and not supported when his mental health declined. He complained about colleagues and after a colleague had gone through his desk, removed notepads and papers and shared with staff what had been written down. He said he brought the matter up and was informed that it had upset co workers and he would be placed on gardening leave. He felt staff should have been punished.[50]The claimant said he may not have handled the staff day out issue perfectly but believed he had tried to mitigate the issue in his discussion with Mr C Gardiner. He said he was hoping to speak with Ms Job on the Monday morning. The claimant complained about being suspended. The claimant said if he had been told to take the holiday by Ms Job “I would certainly say that would be grounds for some sort of action but not to this extent”. He said “It feels as if there has been a narrative built up around the actions I have taken as if I am some nefarious criminal mastermind out to pull off some massive heist and not someone who has made a simple mistake and was not in any way aware of the consequences.” He said “logic showed he was not told to take the day off”. Appeal considered[51]On 4 September 2024 the clamant was advised by letter that the decision to dismiss him had been difficult and that Mr T Gardiner would reconsider the decision at an appeal hearing. As he was the only director and the business had no one else, he would reconsider the matter. The respondent noted that no issues as to Equality Act had been raised and the claimant had always been treated fairly in the workplace, and no grievance had been raised. The claimant was advised that the appeal hearing would consider whether the decision was excessive and whether or not the claimant’s conduct amounted to gross misconduct and whether Ms Job had made the claimant aware that he required to take a day’s holiday for the day in question.[52]An email was sent to the claimant on 4 September 2024 confirming the position in relation to the appeal hearing which was to take place on 9 September.[53]The claimant had been encountering personal difficulties and had not been dealing with personal correspondence. He did not read the email that had been sent to him that contained details of the appeal hearing when it was received by him. He did not attend the hearing. Outcome of appeal[54]On 18 September 2025 Mr T Gardiner sent the claimant a letter noting that he had reconsidered the decision that had been taken and considered the points the claimant had made in his appeal letter. He had concluded that Ms Job had instructed the claimant to book leave for the day in question and that he had been guilty of gross misconduct. He did not consider the decision to have been excessive. As trust and confidence had been destroyed, dismissal was an appropriate outcome.[55]The claimant secured comparable employment shortly following his dismissal. Observations on the
Evidence
[56]The Tribunal found each of the witnesses did their best to recollect the position and set out the position as they saw it often in challenging circumstances.[57]Ms A Job was one of the 2 directors of the business. She had a good working relationship with the claimant and had done her best to accommodate the claimant and other staff. The respondent was a small business and the staff knew each other and broadly speaking had a good relationship with management and Ms Job in particular. She knew the claimant had a mental impairment that required him to take notes and seek clarification and she ensured that the claimant was able to do so and spent time with the claimant when he required discussions. Ms Job was not aware of any issues as to photosensitivity and was unaware of issues in connection with the lights, which was principally due to the time that had passed from the claimant first raising the issue (in 2022).[58]Ms Job was clear and consistent in relation to the events in connection with the annual leave. She discovered the claimant did not have a ticket for the staff trip and a ticket required to be purchased to allow attendance (since the trip was on a boat). The whole purpose of Ms Job speaking with the claimant prior to the trip was to arrange a ticket for him if he was attending (since she knew no ticket had been bought) which failing the claimant required to take a day’s holiday. Ms Job offered alternatives if the claimant did not wish to attend the trip, such as working from home, but the claimant was unable to do so. Ms Job instructed the claimant to take leave for the day he was not working.[59]A further issue arose during the disciplinary hearing which Ms Job had noted during her investigation. She had noted that the claimant had referred to trying to arrange a holiday but Youmanage had not worked. It was this comment which had led Ms Job to undertake enquiries with the system to check it was working. This was not an allegation the claimant faced at the disciplinary hearing but it was in Ms Job’s note. It showed Ms Job did wish to properly and fully investigate all issues and ensure the facts were set out. Mr T Gardiner asked Ms Job questions about this at the hearing as he wished to understand what had happened. He did not simply accept whatever Ms Job had said but sought to satisfy himself as to the facts, with input from the claimant and Ms Job. Ms Job did her best to ensure she had all the facts and that the position was set out to allow Mr Gardiner to make his own decision, which he did.[60]Mr T Gardiner was the founder and Director of the respondent. He was clear and consistent in his evidence. He was candid in his responses, making it clear for example that he did not anticipate dismissal being the outcome, expecting the claimant to have accepted an error occurred, apologise and move on. Mr T Gardiner took the hearing and allegation seriously and wished to satisfy himself as to the position. This was not a case of Mr T Gardiner simply accepting Ms Job’s position; rather he carefully and at length questioned Ms Job as to what she had found in the investigation and similarly questioned the claimant as to the relevant facts to confirm the position.[61]It was clear that from the material put before him, Mr T Gardiner had to choose whether to accept the claimant’s position or that set out by Ms Job and Mr C Gardiner. The 2 positions were irreconcilable. He did not simply accept one position over the other but took time to assess the position and look at the facts. He ultimately decided that Ms Job and Mr C Gardiner had been clear, consistent and truthful. He decided that he could not trust the claimant. He considered that the claimant had not taken accountability for his actions. The claimant had focused on what he believed Mr C Gardiner had said. The notes of the disciplinary hearing show that, contrary to the claimant’s evidence before the Tribunal, the claimant could not say with certainty that Ms Job had not instructed him to take the holiday. Mr T Gardiner believed Ms Job had told the claimant to take leave on the day in question at the time. That was a reasonable position to adopt, particularly given Mr T Gardiner was not aware of any employee being able not to attend the event and not work. It was also what the claimant had been told when he asked the social committee.[62]Mr C Gardiner was the operations manager (and not related to Mr T Gardiner). He had been absent from work just before the claimant contacted him. He was not therefore in possession of the same information the claimant had (such as the social committee discussions, where the claimant had been told a holiday required to be taken, a matter the claimant did not disclose to Mr C Gardiner during the discussion). Mr C Gardiner was clear in that he had told the claimant it was a “bad idea” to cancel the day as a holiday. While it was an “option”, he believed the discussion ended such that the claimant would not change the holiday position until the position had been clarified with Ms Job. The claimant focused on Ms Gardiner’s confirmation that he had agreed cancelling the holiday was an “option” a matter not referred to in the statement Mr Gardiner had provided, but Mr Gardiner’s position was clear and consistent, that he believed Ms Job would not permit the claimant to take the day without taking a holiday. He considered the claimant’s position to be a “non starter”. He denied having said it would be fine for the claimant to do so.[63]Mr C Gardiner agreed that the lights were bright but he believed the lights already had diffusers and nothing else could be done. He had not seen the report referring to this issue.[64]Mr D Bain was a colleague of the claimant and had been friends with him for some time. Mr Bain gave evidence in relation to the notebook but the position was unclear given the time that had passed.[65]Mr J Armour was a packing operative and had worked with the claimant. He was not aware of any impairment and was clear that the only reason he had for telling colleagues the claimant had written notes about them was to ensure they knew he was “keeping tabs on them” and they were aware of that. There was no other reason why he disclosed that information.[66]Mr J Stevenson was a senior packer and had some recollection as to what had been said about the notebook. I considered that the time that had passed affected perception and as with Mr Bain’s evidence I did not find recollections to be clear due to the time that had passed. I was not satisfied the evidence that was being provided in relation to the book issue was reliable because of the time that had passed.[67]Mr M McCubbin was a team leader and believed that the lights in question had diffusers. The challenge in relation to this issue was the time that had passed from the claimant raising the issue (which was in 2022) and the claim being made. It was not possible to discern from the evidence what the precise position was in relation to the lights. The evidence suggested that diffusers were already present and as such no adjustment could be made, to a suggestion diffusers had not been fitted. Given the passage of time I was not at all confident the position in relation to the lights could be set out correctly.[68]The claimant was absolutely clear as to his belief as to what had happened. He genuinely and fervently believed that he had been badly treated and that the treatment was unlawful. While he had believed his disability was known to all staff, it was clear that a limited amount of information had in fact been disclosed. This was likely to have been due to the fact that if an employee raised an issue with the respondent, the matter was usually dealt with. Thus the key issue raised by the claimant arising from his disability, from the evidence before the Tribunal, was in relation to noting matters in a notebook and asking questions. While the claimant had made reference to a large number of other consequences in his evidence, the focus of the questions of the respondent’s witnesses was in relation to this consequence.[69]The claimant’s evidence as to what had happened in relation to the holiday was clear and focussed. However, his position before the Tribunal differed from that at the disciplinary hearing. In his evidence the claimant was clear Ms Job had not instructed him to take the day as a holiday prior to the day in question. However, on a number of occasions in the disciplinary hearing the claimant said he could not be certain she had done so. In other words, it was possible she had instructed him to do so. And in the claimant’s appeal he noted that even if she had instructed him to do so, he believed dismissal was not a fair outcome. I considered that by the time the claimant was giving evidence he genuinely believed that no instruction had been given but he was mistaken on this point. I also found that Mr C Gardiner had not told the claimant it would be “fine” to change his holiday position. While the claimant believed that to be so, he had already been told he required to take leave if he was not attending and Mr C Gardiner was clear in his view that the claimant would do nothing until Ms Job had confirmed the position.[70]The claimant maintained that “logic” showed that what he had done was acceptable and to have changed his holiday would have been “exceptionally reckless” if Mr C Gardiner was to be believed. However, the claimant accepts he failed to follow the advice from the social committee and that Mr C Gardiner told him the option of changing his holidays was not a good one. Finally Ms Job told the claimant to take a holiday. Despite all of this, the claimant did not take the holiday. Rather than this showing that the claimant had done nothing wrong, the facts support Mr T Gardiner’s view the claimant had not been honest with the respondent.[71]The claimant focused upon Mr C Gardiner’s admission during his evidence that he had agreed that the claimant’s proposal to change his holidays from 5 days to 4 and see if Ms Job raised an issue was “an option”. The claimant believed that admission showed that the process was unfair. However, Mr Gardiner had been clear that he said it was not a good option and believed that the claimant would not change his holidays until Ms Job had confirmed the position. The claimant chose to change his holiday entitlement, despite accepting he had been told by the social committee he was not permitted to do so. Despite denying he had been told by Ms Job he required to take a holiday, it was clear that the claimant had in fact been told to do so.[72]The disciplinary hearing had been lengthy, lasting around 70 minutes. While the claimant argued the process was unfair, his brother was permitted to accompany him and to ask questions and be involved in the process. While there was some talking over at the hearing, there was no evidence that claimant was curtailed at the hearing in any way. He was fully able to participate, think about his position, answer questions and set out his defence. There was no specific information that he had that he had not conveyed to Mr T Gardiner during the hearing. Mr T Gardiner was in possession of the full facts and understood the claimant’s position. There was no lack of transparency or prejudice. A fair process had been undertaken.[73]The claimant confirmed that the issue in relation to lights had in fact been raised in January 2022. His position was that it was a continued failure – and continued in 2024. He was clear that he raised the issue in 2022. He believed the lights were low and too bright. Regrettably there was an absence of any written material on this point which made determining the facts around the lights issue very difficult. There was an entire lack of clarity from witnesses as to whether or not diffusers had been fitted and when and the impact of the lighting, which rendered it not just and equitable to extend time limit in relation to that issue. This was particularly so given the claimant had the opportunity to raise a Tribunal complaint but chose not do so at the time.[74]The key factual dispute in this case was in relation to whether Ms Job had told the claimant to take a holiday. From the evidence I found it more likely than not that Ms Job had in fact instructed the claimant to take the day as a holiday. It made no commercial sense to permit the claimant to take the day off, not work or attend the staff event and yet benefit from not using the day as a holiday (when others had no such benefit). Ms Job had been absolutely clear on this point, in contrast to the claimant who could not precisely recall the position at the disciplinary hearing.[75]I was also satisfied that the disciplinary hearing had been heated but fair. While initially the claimant wished to play the recording of the hearing, a full verbatim transcript existed and I considered this carefully. The recording was not played but the verbatim note sets out what was said fully. There were points when the discussion was heated and parties did speak over each other but there was no evidence of the claimant or his brother raising any concerns at the time nor of the claimant or his brother not being able to fully set out their position. The claimant had set out his position which starkly contrasted with Mr C Gardiner and Ms Job, whose position was clear. Law – Unfair dismissal[76]The Tribunal has to decide whether the employer had a reason for the dismissal which was one of the potentially fair reasons for dismissal within section 98(1) and (2) of the Employment Rights Act 1996 and whether it had a genuine belief in that reason. One of the potentially fair reasons is for matters relating to “conduct”. The burden of proof here rests on the respondent who must persuade the Tribunal that it had a genuine belief that the employee committed the relevant misconduct and that belief was the reason for dismissal.[77]Once an employer has shown a potentially fair reason for dismissal within the meaning of section 98(2), the Tribunal must go on to decide whether the dismissal for that reason was fair or unfair which involves deciding whether the employer acted reasonably or unreasonably dismissing for the reason given in accordance with section 98(4).[78]Section 98(4) provides that the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): “Depends on whether in the circumstances (including the size and administrative rescores of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.”[79]What a Tribunal must decide is not what it would have done but whether the employer acted reasonably; Grundy (Teddington) Ltd v Willis HSBC Bank Plc (formerly Midland Bank plc) v Madden 2000 ICR 1283. It should be recognised that different employers may reasonably react in different ways and it is unfair where the conduct or decision making fell outside the range of reasonable responses. The question is not whether a reasonable employer would dismiss but whether the decision fell within the range of responses open to a reasonable employer taking account of the fact different employers can equally reasonably reach different decisions. This applies both to the decision to dismiss and the procedure adopted.[80]Mr Justice Browne-Wilkinson in his judgement in Iceland Frozen Foods Ltd v Jones, in the Employment Appeal Tribunal, summarised the law. The approach the Tribunal must adopt is as follows: “The starting out should always be the words of section 98(4) themselves. In applying the section, a Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Tribunal) consider the dismissal to be fair. In judging the reasonableness of the employer’s conduct, a Tribunal must not substitute its decision as to what was the right course to adopt. In many (though not all) cases there is a band of reasonable responses to the employee’s conduct in which the employer acting reasonably may take one view, another quite reasonably take another. The function of the Tribunal, as an industrial jury, is to determine whether in the circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which the reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair, it is falls outside the band it is unfair.”[81]In terms of procedural fairness, the (then) House of Lords in Polkey v AE Dayton Services Ltd 1988 ICR 142 firmly establishes that procedural fairness is highly relevant to the reasonableness test under section 98(4). Where an employer fails to take appropriate procedural steps, the Tribunal is not permitted to ask in applying the reasonableness test whether it would have made any difference if the right procedure had been followed. If there is a failure to carry out a fair procedure, the dismissal will not be rendered fair because it did not affect the ultimate outcome; however, any compensation may be reduced. Lord Bridge set out in this case the procedural steps which an employer in the great majority of cases will be necessary for an employer to take to be considered to have acted reasonably in dismissing: ”in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation.”[82]Where the employer relies on conduct as the fair reason for dismissal, it is for the employer to show that misconduct was the reason for dismissal. According to the Employment Appeal Tribunal in British Home Stores v Burchell 1980 ICR 303 the employer must show: It believed the employee guilty of misconduct; It had in mind reasonable grounds upon which to sustain that belief; and At the stage at which that belief was formed on those grounds it had carried out as much investigation into the matter as was reasonable in the circumstances. The employer need not have conclusive evidence of misconduct but a genuine and reasonable belief, reasonably tested. The burden of proof is on the employer to show a fair reason but the second stage of reasonableness is a neutral burden. The Tribunal must be satisfied that the employer acted fairly and reasonably in all the circumstances in dismissing for that reason, taking account of the size and resources of the employer, equity and the substantial merits of the case.[83]In Ilea v Gravett 1988 IRLR 487 the Employment Appeal Tribunal considered the Burchill principles and held that those principles require an employer to prove, on the balance of probabilities that he believed, again on the balance of probabilities, that the employee was guilty of misconduct and that in all the circumstances based upon the knowledge of and after consideration of sufficient relevant facts and factors he could reasonably do so. In relation to whether the employer could reasonably believe in the guilt, there are an infinite variety of facts that can arise. At one extreme there will be cases where the employee is virtually caught in the act and at the other extreme the issue is one of pure inference. As the scale moves more towards the latter, the matter arising from inference, the amount of investigation and inquiry will increase. It may be that after hearing the employee further investigation ought reasonably to be made. The question is whether a reasonable employer could have reached the conclusion on the available relevant evidence.[84]In that case the Employment Appeal Tribunal upheld the Tribunal which found that the employer had not investigated the matter sufficiently and therefore did not have before them all the relevant facts and factors upon which they could reasonably have reached the genuine belief they held. The sufficiency of the relevant evidence and the reasonableness of the conclusion are inextricably entwined.[85]The amount of investigation needed will vary from case to case. In Gray Dunn v Edwards EAT/324/79 Lord McDonald stated that “it is now well settled that common sense places limits upon the degree of investigation required of an employer who is seized of information which points strongly towards the commission of a disciplinary offence which merits dismissal.” In that case the Court found that further evidence would not have altered the outcome as the employer had shown that they would have taken the same course even if they had heard further evidence. That was a case which relied upon the now superseded British Labour Pump v Byrne 1979 IRLR 94 principle but emphasises that the amount of investigation needed will vary in each case. Thus in RSPB v Croucher 1984 IRLR 425 the Employment Appeal Tribunal held that where dishonest conduct is admitted there is very little by way of investigation needed since there is little doubt as to whether or not the misconduct occurred.[86]A Tribunal in assessing the fairness of a dismissal should avoid substituting what it considers necessary and instead consider what a reasonable employer would do, applying the statutory test, to ensure the employer had reasonable grounds to sustain the belief in the employee’s guilt after as much investigation as was reasonable was carried out. In Ulsterbus v Henderson 1989 IRLR 251 the Northern Irish Court of Appeal found that a Tribunal was wrong to find that in certain circumstances a reasonable employer would carry out a quasi-judicial investigation with confrontation of witnesses and crossexamination of witnesses. The court emphasised that the employer need only satisfy the Tribunal that they had reasonable grounds for their beliefs.[87]In considering the procedure, a Tribunal should apply the range of reasonable responses test and not what it would have done (see Sainsburys v Hitt 2003 IRLR 23).[88]The Court in Babapulle v Ealing 2013 IRLR 854 emphasised that a finding of gross misconduct does not automatically justify dismissal as a matter of law since mitigating factors should be taken into account and the employer must act reasonably. Length of service can be taken into account (Strouthous v London Underground 2004 IRLR 636).[89]In considering a claim for unfair dismissal by reason of conduct, the Tribunal is required to consider the terms of the ACAS Code of Practice on Disciplinary and Grievance matters. This sets out what a reasonable employer would normally do when considering dismissal by reason of conduct. This includes conducting the necessary investigations, inviting the employee to a meeting, conducting a fair meeting, issuing an outcome letter and allowing an appeal.[90]The reasonableness of the decision to dismiss is scrutinised at the time of the final decision to dismiss – at the conclusion of the appeal process (West Midland v Tipton 1986 ICR 192). This was confirmed in Taylor v OCS 2006 IRLR 613 where the Court of Appeal emphasised that there is no rule of law that only a rehearing upon appeal is capable of curing earlier defects (and that a mere review never is). The Tribunal should consider the disciplinary process as a whole and apply the statutory test and consider the fairness of the whole disciplinary process. If there was a defect in the process, subsequent proceedings should be carefully considered. The statutory test should be considered in the round.[91]Section 98(4)(b) requires tribunals to determine the reasonableness of a dismissal ‘in accordance with equity and the substantial merits of the case’. Equity, in this context, is equivalent to ‘fair play’. As Lord Simon stated in W Devis and Sons Ltd v Atkins 1977 ICR 662 ‘the reference to “equity and the substantial merits of the case” merely shows that the word “reasonably” is to be widely construed’. Harassment[92]In terms of section 26 of the Equality Act 2010: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of - i. violating B's dignity, or ii. creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”[93]It is important to consider the conduct with regard to each element of the statutory test. Whether or not the conduct relied upon is related to the characteristic in question is a matter for the Tribunal to find, making a finding of fact drawing on all the evidence before it (see Tees Esk and Wear Valleys NHS Foundation Trust v Aslam EAT 0039/19). The fact that the claimant considers the conduct related to a particular characteristic is not necessarily determinative, nor is a finding about the motivation of the alleged harasser. There must be some basis from the facts found which properly leads it to the conclusion that the conduct in question is related to the particular characteristic in the manner alleged in the claim. In that case the Employment Appeal Tribunal held it is a matter for the Tribunal to determine making a finding of fact drawing on all the evidence before it. There must be some feature of the factual matrix identified by the Tribunal which leads it to the conclusion conduct is related to the protected characteristic and the Tribunal should articulate clearly what feature of the evidence leads it to that conclusion. The Tribunal should consider the matter objectively.[94]For example in Hartley v Foreign and Commonwealth Office Services 2016 ICR D17 the Employment Appeal Tribunal held that an Employment Tribunal had failed to carry out the necessary analysis to see whether comments made by the claimant’s managers during a performance improvement meeting — accusing her of rudeness and apparently questioning her intelligence when she failed to understand a spreadsheet of comments concerning her performance — were related to her Asperger’s syndrome. The Employment Appeal Tribunal emphasised that an Employment Tribunal considering the question posed by section 26(1)(a) must evaluate the evidence in the round, recognising that witnesses “will not readily volunteer” that a remark was related to a protected characteristic. The alleged harasser’s knowledge or perception of the victim’s protected characteristic is relevant but should not be viewed as in any way conclusive. Likewise, the alleged harasser’s perception of whether his or her conduct relates to the protected characteristic “cannot be conclusive of that question”.[95]Warby v Wunda Group Plc EAT 0434/11 is authority for the proposition that the conduct should be viewed in context in assessing whether the conduct is related to the protected characteristic. The then President of the Employment Appeal Tribunal, Mr Justice Langstaff, upheld a Tribunal’s decision that an employee accused by her superior of having lied about a miscarriage was not subjected to conduct “related to” her sex within the meaning of the sex discrimination provisions then in force. Langstaff P held that context was important and that the tribunal had been entitled to find that the accusation was made in the context of a dispute over a work matter, about which the employer believed that the employee was lying. Thus the conduct complained of was an emphatic complaint about alleged lying; it was not made because of the employee’s sex, because she was pregnant or because she had had a miscarriage. While that case considered the predecessor legislation, the issue was whether the conduct was “related to” the protected characteristic.[96]In Kelly v Covance Laboratories Ltd [2016] IRLR 338 an instruction not to speak Russian at work, so that any conversations could be understood by English speaking managers was not related to race or national origins, even though it potentially could have been. The conduct was because the employer was suspicious about what was being said and could not understand. Viewed in the context of the company’s business and risks the employer’s explanation for the conduct was accepted and the conduct was not related to race or national origins.[97]In UNITE the Union v Nailard [2018] IRLR 730 the Tribunal had held that a failure to address a sexual harassment complaint made against elected officials of the union could amount to harassment related to sex “because of the background of harassment related to sex”. The Court of Appeal considered that went too far. There had been no findings as to the mental processes of the (employed) officials of the union dealing with the complaint and whether they had been motivated by sex discrimination. The Court of Appeal noted that the previous potential liability for third party harassment under the Equality Act 2010, section 40 had been repealed and there was no automatic liability on the part of the union for harassment by third parties (if that was how the elected officials were to be characterised). The union could be (vicariously) liable for acts of discrimination by its employees but there would need to be a finding that the employees in question were themselves guilty of discrimination. An important point of this case was the reminder that Tribunals should focus on the conduct of the person who carried out the act and determine whether that conduct is related to the protected characteristic (not whether the conduct of someone else or some other conduct is related to the protected characteristic). If the action (or inaction) is because of illness or incompetence it may not relate to the protected characteristic.[98]At paragraph 7.10 of the Code the breadth of the words “related to” is noted and some examples are provided. It gives the example of a female worker who has a relationship with her male manager. On seeing her with another male colleague, the manager suspects she is having an affair. As a result, the manager makes her working life difficult by criticising her work in an offensive manner. The behaviour is not because of the sex of the female worker but because of the suspected affair, which is related to her sex. This could amount to harassment related to sex.[99]At paragraph 7.11 the Code states that in the examples there was “a connection with the protected characteristic”.[100]The question of whether the conduct in question “relates to” the protected characteristic requires a consideration of the mental processes of the putative harasser (GMB v Henderson 2017 IRLR 340) bearing in mind that there should be an intense focus on the context in which the words or behaviour took place (see Bakkali v Greater Manchester 2018 IRLR 906). In Bakkali the question was whether a comment as to whether an individual was said to be still promoting ISIS/Daesh was related to race. The Tribunal found it was not as it related to a previous conversation. The Employment Appeal Tribunal emphasised that context is important and the words used must be seen in context. In considering whether the conduct is related to the protected characteristic there should be an intense focus on the context of the offending words or behaviour. The mental processes of the perpetrator are relevant in assessing the issue.[101]In Raj v Capita 2019 UKEAT 0074/2019 the Employment Appeal Tribunal upheld a Tribunal which had found that the massage at his desk by a manager was not conduct related to sex. The conduct was misguided encouragement by a manager. It was an isolated incident and the context was key: a standing manager over a sitting team member in a gender neutral part within an open plan office. In that case the Tribunal did not expressly consider the burden of proof provisions but had found that the conduct was in no sense whatsoever related to sex.[102]Recent guidance on “related to” can be found in Carozzi v University of Hertfordshire 2024 EAT 169 where it is stated that “the term “related to” is designed to have a relatively broad meaning. The harassment provisions are designed to be pragmatic, balancing the interests of employees against those of their employer and colleagues who may be accused of harassment. That balance is not achieved by applying a limited meaning to the words “conduct related to a protected characteristic”. The limitations are that the conduct must be unwanted and it must have the purpose or effect of violating dignity. Where the conduct has that effect, but not that purpose, the Employment Tribunal will go on to consider the perception of B, the other circumstances and whether it is reasonable for the conduct to have that effect. Employers and employees can be expected to take greater care in how they speak and behave at work than they might in their social life. While it is in no-one’s interest that colleagues should constantly be walking on egg-shells, it is also important that proper protection is provided against violation of dignity at work”.[103]Limitations to the test are noted in Windsor Clive v Forsbrook 2024 EAT 183 where at paragraph 29 the Employment Appeal Tribunal noted that “It is clear that “related to” is a broad concept. However, the concept cannot be so broad as to be meaningless. I am of the view that the conduct must relate to the protected characteristic, here disability, in some clear way. It is for the ET to spell out that relationship between the conduct and the disability. It will be necessary to identify with some clarity the precise conduct which creates the prohibited environment. This will also be true in deciding whether that conduct is unwanted in the sense that the statute applies to it.”[104]Section 26(4) of the Act provides that: “(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.”[105]The terms of the statute are reasonably clear, but guidance was given by the Court of Appeal in Pemberton v Inwood 2018 IRLR 542 in which the following was stated by Lord Justice Underhill: “In order to decide whether any conduct falling within sub-paragraph 10 (1)(a) of section 26 Equality Act 2010 has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b)).”[106]The Code states (at paragraph 7.18) that in deciding whether or not conduct has the relevant effects account must be taken of the claimant’s perception and personal circumstances (which includes their mental health and the environment) and whether it is reasonable for conduct to have that effect. In assessing reasonableness an objective test must be applied. Thus, something is not likely to be considered to be reasonable if a claimant is hypersensitive or other people are unlikely to be offended.[107]In relation to the effect of the conduct, intention is not a prerequisite and the effect is to be considered from the perception of the claimant. The Code (at paragraph 8.20) gives the example of a club manager at a meeting making derogatory comments and jokes about women to a mixed sex audience. It is not that person’s intention to offend or humiliate anyone, however the contact may amount to harassment if the effect of it is to create a humiliating or offensive environment for a man or woman in the audience.[108]Relevant circumstances include the claimant’s personal circumstances, cultural norms and previous experience of harassment. The perpetrator being in a position of trust or seniority over the recipient is also a relevant factor.[109]Further as Underhill LJ stated above when deciding whether the conduct has the relevant effects (of violating the claimant’s dignity or creating the relevant environment) the claimant’s perception and all the circumstances must be taken into account and whether it is reasonable for the conduct to have the effect (Lindsay v LSE 2014 IRLR 218). Elias LJ in Land Registry v Grant 2011 IRLR 748 focused on the words “intimidating, hostile, degrading, humiliating and offensive” and said “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upset being caught”.[110]Chapter 7 of the Code contains useful guidance in applying the law in this area and I have had regard to that guidance. Direct discrimination[111]Discrimination is defined in section 13(1): “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[112]The concept of treatment being less favourable inherently suggests some form of comparison and in such cases section 23(1) applies: “On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.” In other words, the relevant circumstances must not be materially different between the claimant and the comparators, so the comparator must be in the same position as the claimant save in relation to the protected characteristic.[113]The effect of section 23 as a whole is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical person.[114]Further, as the Employment Appeal Tribunal and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed 2009 IRLR 884, in most cases where the conduct in question is not overtly related to [the protected characteristic], the real question is the “reason why” the decision maker acted as he or she did. Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator.[115]The basic question in a direct discrimination case is: what are the grounds or reasons for treatment complained of? In Amnesty International v Ahmed 2009 IRLR 884 the Employment Appeal Tribunal recognised two different approaches from two (then) House of Lords authorities -(i) in James v Eastleigh Borough Council 1990 IRLR 288 and(ii) in Nagaragan v London Regional Transport 1999 IRLR 572. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another 2009 UKSC 15. The burden of establishing less favourable treatment is on the claimant.[116]The Tribunal should draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance, where necessary, of the burden of proof provisions) – as explained in the Court of Appeal case of Anya v University of Oxford 2001 IRLR 377.[117]In Glasgow City Council v Zafar 1998 IRLR 36, also a (then) House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour. She must show less favourable treatment, one of whose effective causes was the protected characteristic relied on. See London Ambulance v Sodola 2026 EAT 6. In Shamoon v Chief Constable of the RUC 2003 IRLR 285, Lord Nichols said that a Tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was, and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another.[118]The Equality and Human Rights Commission Code notes at paragraph 3.4 that it is more likely an employer’s treatment will be less favourable where the treatment puts the worker’s at a “clear disadvantage”, which could involve being deprived of a choice or excluded from an opportunity. At paragraph 3.5 the Code notes that the worker does not need to experience actual disadvantage (economic or otherwise) as it is enough the worker can reasonably say they would prefer not to be treated differently from the way they were treated. The example given is of a worker who loses their appraisal duties which could be less favourable treatment.[119]Treatment would be “because of the protected characteristic” if it was “a substantial or effective though not necessarily the sole or intended reason for the treatment” (R v Commission for Racial Equality 1984 IRLR 230). Chapter 3 of the Code contains useful guidance in applying the law in this area and I have had regard to that guidance. Duty to make reasonable adjustments[120]Section 39(5) of the Equality Act 2010 provides that a duty to make reasonable adjustments applies to an employer. Further provisions about that duty appear in section 20, section 21 and schedule 8. This is considered in chapter 6 of the Code.[121]The duty does not apply if the employer did not know, and could not reasonably be expected to know that the employee had a disability and was likely to be placed at the disadvantage in question by the PCP (Schedule 8 paragraph 20) (for which see Wilcox v Birmingham CAB 2011 EqLR 810).[122]The importance of a Tribunal going through each of the constituent parts of section 20 was emphasised by the Employment Appeal Tribunal in Environment Agency v Rowan 2008 ICR 218 and reinforced in Royal Bank of Scotland v Ashton 2011 ICR 632.[123]As to whether a “provision, criterion or practice” (“PCP”) can be identified, the Commission Code of practice paragraph 6.10 says the phrase is not defined by the Act but “should be construed widely so as to include for example any formal or informal policy, rules, practices, arrangements or qualifications including one off decisions and actions”. The question of what will amount to a PCP was considered by the Employment Appeal Tribunal in Nottingham City Transport Limited v Harvey UKEAT/0032/12 in which the then President Mr Justice Langstaff (dealing with a case under the Disability Discrimination Act 1995 and the Disability Rights Commission’s Code of Practice from 2004, both now superseded by the provisions summarised above) said of the phrase “provision, criterion or practice” in paragraph 18: “Although those words are to be construed liberally, bearing in mind that the purpose of the statute is to eliminate discrimination against those who suffer from a disability, absent provision or criterion there still has to be something that can qualify as a practice. "Practice" has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply. These points are to be emphasised by the wording of the 1995 Act itself in its original form, where certain steps had been identified as falling within the scope to make reasonable adjustment, all of which, so far as practice might be concerned, would relate to matters of more general application than simply to the individual person concerned.”[124]This was applied in Ishola v Transport for London [2020] EWCA Civ 11, LJ Simler. It is possible for a PCP to be a “one off” provided it has the character of a PCP, in other words it could be something the employer might well adopt as a PCP. Just because it has not been applied before does not, by itself, mean it is not a PCP.[125]For the duty to arise, the employee must be subjected to “substantial disadvantage in comparison to a person who is not disabled” and with reference to whether a disadvantage resulting from a provision, criterion or practice is substantial, section 212(1) defines “substantial” as being “more than minor or trivial”. The question is whether the PCP has the effect of disadvantaging the disabled person more than trivially in comparison to those who do not have the disability (Sheikholeslami v University of Edinburgh, 2018 IRLR 1090).[126]The obligation to take such steps as it is reasonable to have to take to avoid the disadvantage is one in respect of which the Code provides considerable assistance, not least the passages beginning at paragraph 6.23 onwards. A list of factors which might be taken into account appears at paragraph 6.28 and includes the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer’s financial or other resources and the type and size of the employer. Paragraph 6.29 makes clear that ultimately the test of the reasonableness of any step is an objective one depending on the circumstances of the case. Examples of reasonable adjustments in practice appear from paragraph 6.32 onwards. Time limits in discrimination cases[127]The time limit for Equality Act claims appears in section 123 as follows: “(1) Proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three 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 … (3) For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it”.[128]A continuing course of conduct might amount to conduct extending over a period, in which case time runs from the last act in question. The case law on time limits to which I had regard included Hendricks –v- Commissioner of Police of the Metropolis 2003 IRLR 96 which deals with circumstances in which there will be an act extending over a period. In dealing with a case of alleged race and sex discrimination over a period, Mummery LJ said this at paragraph 52: “The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of “an act extending over a period.” I agree with the observation made by Sedley LJ, in his decision on the paper application for permission to appeal, that the Appeal Tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaints that the Commissioner was responsible for an ongoing situation or a continuing state of affairs in which female ethnic minority officers in the Service were treated less favourably. The question is whether that is "an act extending over a period" as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”[129]The focus in this area is on the substance of the complaints in question — as opposed to the existence of a policy or regime — to determine whether they can be said to be part of one continuing act by the employer.[130]Robinson v Surrey 2015 UKEAT 311 is authority for the proposition that separate types of discrimination claims can potentially be considered together as constituting conduct extending over a time.[131]The Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust 2006 EWCA Civ 1548 confirmed that the correct test in determining whether there is a continuing act of discrimination is that set out in Hendricks. Thus tribunals should look at the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer.[132]In South Western Ambulance Service NHS Foundation Trust v King EAT 0056/19, the Employment Appeal Tribunal observed that when a claimant wishes to show that there has been ‘conduct extending over a period’ if any of the acts relied upon are not established on the facts or are found not to be discriminatory, they cannot form part of the continuing act. Extending the time limit[133]Section 123 of the Equality Act 2010 requires that any complaint of discrimination within the Act must be brought within three months of the date of the act to which the complaint relates, or such other period as the Tribunal thinks just and equitable. When considering whether it is just and equitable to hear a claim notwithstanding that it has not been brought within the requisite three month time period, the Employment Appeal Tribunal has said in the case of Chohan v Derby Law Centre 2004 IRLR 685 that a Tribunal should “have regard to” the Limitation Act 1980 checklist as modified in the case of British Coal Corporation v Keeble 1997 IRLR 336 which is as follows:a. The Tribunal should have regard to the prejudice to each party.b. The Tribunal should have regard to all the circumstances of the case which would include: i. Length and reason for any delay; ii. The extent to which cogency of evidence is likely to be affected; iii. The cooperation of the respondent in the provision of information requested; iv. The promptness with which the claimant acted once he knew of facts giving rise to the cause of action; and v. Steps taken by the claimant to obtain advice once he knew of the possibility of taking action.[134]In Abertawe v Morgan 2018 IRLR 1050 the Court of Appeal clarified that there was no requirement to apply this or any other check list under the wide discretion afforded to Tribunals by section 123(1). The only requirement is not to leave a significant factor out of account. Further, there is no requirement that the Tribunal must be satisfied that there was a good reason for any delay; the absence of a reason or the nature of the reason are factors to take into account. A key issue is whether a fair hearing can take place. See also Dada v Scottish Ministers 2026 13.[135]The Court of Appeal in Chief Constable of Lincolnshire v Caston 2010 IRLR 327 observed that although time limits are to be enforced strictly, Tribunals have wide discretion.[136]In Rathakrishnan v Pizza Express (Restaurants) Ltd 2016 ICR 283 the Employment Appeal Tribunal held that in that case the balance of prejudice and potential merits of the reasonable adjustments claim were both relevant considerations and it was wrong of the Tribunal not to weigh those factors in the balance before reaching its conclusion on whether to extend time.[137]I considered and applied the judgment of Underhill LJ in Lowri Beck Services v Brophy 2019 EWCA Civ 2490 and in particular at paragraph 14. Ultimately the Tribunal requires to make a judicial assessment from all the facts to determine whether to allow the claims to proceed and in particular assess the respective prejudice. I also applied the principles set out by the Court of Appeal in Adedeji v University Hospitals Birmingham NHS Foundation Trust 2021 ICR D5. The Court emphasised that it would be wrong to rigidly apply the “Keeble factors” since that would lead to a mechanistic approach to what is meant to be a very broad general discretion. The correct approach in considering the exercise of the discretion is to assess all the factors in the particular case that it considers relevant, including in particular the length of, and the reasons for, the delay. Submissions[138]The respondent’s agent had provided the claimant with a detailed written submission which the claimant was given time to consider. Detailed discussion in relation to both parties’ case took place on the final day of the Hearing with both parties being asked relevant questions as to the position. Discussion and decision[139]The Tribunal approached each of the issues in turn, considering the facts and applying the law. Unfair dismissal: Principal or sole reason for dismissal[140]The first issue was whether or not the claimant had been dismissed for matters relating to conduct. I was satisfied the sole reason for dismissal related to the claimant’s conduct. The claimant was dismissed because of how the claimant had dealt with annual leave on the staff day out. That related to “conduct”. Genuine belief reasonably held[141]Having carefully considered the evidence, I was satisfied the respondent genuinely believed the claimant was guilty of misconduct. Mr T Gardiner considered the claimant’s position and that set out by Ms Job. He was satisfied the claimant had not acted appropriately He genuinely believed the claimant had been dishonest and destroyed trust and confidence.[142]I was satisfied there were reasonable grounds for Mr T Gardiner believing the claimant had been guilty of misconduct. The claimant did not deny that he neither attended work nor booked a day’s annual leave for that date. As noted in the respondent’s submissions, Mr T Gardiner had three statements before him confirming that the claimant had been told directly and unambiguously in mid-July that he was not entitled to claim his day’s annual leave back if he did not attend the trip. Mr T Gardiner required to decide whether or not to accept the claimant’s position is that set out by Mr C Gardiner and Ms Job.[143]It was reasonable on the facts for Mr T Gardiner to choose to accept that Ms Job (and Mr C Gardiner) had been accurate in their position. There was no reason advanced by the claimant nor shown in evidence as to why Ms Job or Mr C Gardiner had not told the truth (other than he disagreed). They genuinely set out their position which was their belief that the claimant required to take a day’s leave if he was not working on the day in question.[144]It was reasonable to conclude the claimant was guilty of misconduct. Was a reasonable investigation carried out to lead to the belief?[145]The claimant made two criticisms of the investigation. The first was that he believed Mr C Gardiner’s email to have been an incomplete account. He argued that he had not made it clear that he had agreed with the claimant in saying that it was “an option” to cancel his leave for the day and await and see if Ms Job raised any issue. However, the information provided was clear in that he believed the claimant would not take any action until Ms Job had confirmed the position (even if the backstop arrangement proposed by the claimant was an option; it was a bad option).[146]In any event, as the respondent’s agent notes: “regardless of what Mr Gardiner said to the claimant, the claimant’s discussion with Ms Job on 8 August superseded this. One thing the claimant and Mr Gardiner agreed upon was the need for Ms Job to have the final say as to whether or not the claimant’s holiday should be approved. That final word was had on 8 August. The claimant made no attempt to book a holiday at that stage.” That is a correct summary of the position.[147]The respondent’s agent was also correct to note that even if Mr C Gardiner had said “that should be fine”, which was disputed, the fact Ms Job subsequently instructed the claimant to book a holiday resolved any doubt.[148]While a different, and equally reasonable employer, might well have secured more information from Mr C Gardiner at the investigation stage, from the information before the respondent, an equally reasonable employer would have followed the procedure that occurred in this case. The fact the claimant believed Mr C Gardiner had said it was fine to change his holidays made no difference to the outcome given Ms Job instructed him to take the day as a holiday. Obtaining more information as to what Mr C Gardiner had told the claimant would have made no difference given Ms Job’s later clarification.[149]The second criticism of the investigation was that the investigating officer, Ms Job, was a key witness in the matter being considered and it was unfair she do that role. The respondent’s agent submitted that account must be taken of the size and resources of the employer. It had around 24 staff with two directors and a head of operations. One of the directors and the head of operations were both implicated. It would have been impractical to have delegated the investigation downwards: it would have been even more prejudicial to have had the investigation carried out by someone subordinate to Ms Job and Mr Gardiner.[150]On the facts of this case I have concluded that having Ms Job investigate the matter was not unfair. It fell within the range of options open to a reasonable employer on the facts. Ms Job’s role was to set out what she had found, which included her position and what the claimant had said. The factual inquiry was in short compass. Mr T Gardiner was able to question both Ms Job and the claimant and choose whom to believe. Given the size and resources of the respondent and the nature of the inquiry, having Ms Job investigate the matter did not render the procedure unfair. She was able to ascertain what had been said and by whom and relate to Mr T Gardiner who then had to decide whom to believe. The nature of the investigation in this case was such that little was needed. The claimant had not taken a holiday in circumstances when he had been told on a number of occasions a holiday required to be taken by him. The investigator required to highlight the facts and factual disputes. Resolving those disputes were a matter for Mr T Gardiner. In this case, the fact that Ms Job was a key witness did not render the procedure unfair.
The procedure
[151]I took a step back to consider the procedure that was followed. I have found that the procedure followed in this case fell within the range of responses open to a reasonable employer. While other reasonable employers might well have handled matters differently (and in ways suggested by the claimant or by engaging third parties to deal with matters) an equally reasonable employer in light of the size and resources of the respondent would have dealt with matters as the respondent did. A director of the business was tasked with obtaining information as to what had happened. That included securing from the claimant’s his position, even if it contradicted what the director herself had seen. That investigator obtained key information from the relevant individuals. There was no suggestion the approach to the investigation was unfair per se. The issue was the involvement of the director. She obtained relevant information and provided this in full to the only other director who was not involved. The claimant had been given full details of the allegations against him and the evidence uncovered by the investigating officer in advance of the disciplinary hearing. He was given a full opportunity to explain his position at the hearing. He was also given an appeal. A hearing was convened. The claimant declined to attend but the matter was reconsidered.[152]The respondent’s agent correctly noted that no new evidence was provided nor anything new in mitigation set out. The claimant’s appeal was that either he was not guilty of gross misconduct or the penalty was excessive. There was no new evidence provided. Mr Gardiner did reconsider the decision in this regard. There was no other individual within the business who was capable of hearing the appeal. All senior staff were involved.[153]I have concluded that the procedure undertaken in this case was fair, falling within the range of responses open to a reasonable employer in the same circumstances as to the respondent. Dismissal and band of reasonable responses[154]I have concluded that the claimant’s dismissal by reason of misconduct fell within the range of responses open to a reasonable employer. It was reasonable for Mr T Gardiner to prefer the position set out by Ms Job and Mr C Gardiner. He concluded the claimant was guilty of misconduct and had not told the truth. As the respondent’s agent submits, Mr T Gardiner felt he was being put in a position of the claimant “attempting to engineer” a favourable outcome to him.[155]Mr T Gardiner believed all trust and confidence had been destroyed as a result of what he concluded had occurred as the claimant had been dishonest. The claimant accepted in his appeal letter that if he had been instructed to take a holiday he had failed to do so, the issue was the severity of the penalty.[156]Looking at matters objectively, however, Mr Gardiner was reasonably entitled to conclude that the way in which the claimant had approached matters led to destruction of the trust and confidence needed for the employment relationship to continue. He had reasonably found that the claimant had not been truthful. The claimant had been given a direct instruction to take a day’s holiday and he had not done so. He had maintained that he had been told by Mr C Gardiner that he could cancel his holiday and await any issue. While the claimant refers in his updated witness statement to his needing clarity in relation to the instruction, he was given a very clear instruction by Ms Job which confirmed what the claimant had been told by the social committee. He had been expressly told by Ms Job he required to take leave on the day in question. Any confusion the claimant had following his discussion with Mr C Gardiner ought to have disappeared following the instruction from Ms Job. The claimant did not take leave when he was on holiday during the away day.[157]While some employers might well not regard what the claimant had done as justifying dismissal, an equally reasonable employer could conclude that trust and confidence had been destroyed facing the same facts. Mr T Gardiner believed that the claimant had not been truthful and had breached the company’s policies. The claimant had not taken a holiday on a day when he was not working, despite having been told that a holiday was required. Trust had been destroyed.[158]Looking at matters objectively, the claimant’s conduct amounted to misconduct that justified dismissal when viewed in context. The decision to dismiss the claimant fell within the range of responses open to a reasonable employer. It was a fair dismissal. Polkey and contribution[159]Even if the dismissal had been unfair, I would have upheld the respondent’s agent’s submission that dismissal would have been 100% likely had a fair process been followed. There is no material that Mr C Gardiner is said now to have provided that would have in any way altered the outcome. The key issue in this case was that the claimant had been told to take a day’s holiday. Even if the claimant believed Mr C Gardiner suggested not taking a holiday and dealing with the matter later was permissible (a matter denied by Mr C Gardiner), the claimant was thereafter expressly told by Ms Job not to do so in a discussion prior to the day in question.[160]Similarly, there is no evidence that having an independent third party investigate matters would have led to a different outcome. The only fact the claimant said was not placed before the disciplinary hearing was that Mr C Gardiner said having the backstop arrangement was “an option”. However, Mr Gardiner was absolutely clear that he believed the claimant understood he ought not change the holiday position until Ms Job had confirmed matters. He denied saying it was “fine” for the claimant to cancel the holiday (which contradicted the clear position he had set out). Ms Job did subsequently put the matter beyond doubt for the claimant. There was no basis upon which any change in the procedure would have altered the outcome. There was no new information upon appeal to suggest anyone hearing the appeal would have reached a different decision.[161]Finally, had it been necessary to do so, I would have concluded that contributory conduct had been established. On the facts I would have concluded that the claimant had been expressly told by Ms Job to take the holiday. He admitted during the disciplinary process that he could not recall whether or not she had told him to take the holiday. I would have found on the balance of probabilities the claimant had been told to take the holiday. His not doing so was culpable. He was 100% to blame for his dismissal in not taking a holiday when he was not working.[162]In all the circumstances the claimant was not unfairly dismissed. Disability discrimination: Time limits[163]The claimant has raised a number of complaints that are out of time. These comprise the complaints that relate to matters raised before 2024. The acts were individual acts based on different circumstances with no link. There was no basis to find any act extending over a period.[164]In relation to harassment and direct discrimination the complaints brought out of time comprise the first 2 complaints (relating to incidents in November and December 2019). In relation to the complaint about failure to make reasonable adjustments, the complaint relates to a failure that was in January 2022. Direct discrimination and harassment – 2019 incidents[165]In relation to the 2019 incidents, it was clear that witnesses’ memories had been adversely affected by the effluxion of time. While the claimant had a good memory about what happened, it was clear that the other witnesses were unable to remember key details properly. The respondent was unable to properly set out its position in relation to the 2019 incidents given the time that had passed and the effect upon memory. These were not issues that were governed by correspondence but required evidence from those present as to what happened and why. The respondent’s witnesses were, unsurprisingly, unable to recall the relevant details clearly or at all. The prejudice to the respondent would be significant if these complaints were allowed to proceed given the serious nature of the complaints.[166]The length of delay was significant – over 5 years. The reason for the delay was that the claimant believed at the time there would be some repercussions. The cogency of evidence is substantially affected with the Tribunal having little substantive detail on key aspects of the issues. The claimant knew of a remedy at Tribunal but chose not to pursue the matter formally.[167]Balancing each of the factors, I have concluded that it is not in the interests of justice to allow these complaints to proceed. The passage of time has had such an effect upon the evidence that it would not be just and equitable to allow the complaints to proceed. Reasonable adjustment complaint[168]In relation to the reasonable adjustment complaint, this was first raised by the claimant in January 2022. The memory of the respondent’s witnesses in relation to the issue was poor due to the time involved. Ms Job was unable to recall any issue as to the light situation and again there was no correspondence referred to. A determination of the issue required evidence from those involved at the time there being no relevant correspondence dealing with the issue. While a report about diffusers was produced, it was not clear to which period this related and it may have superseded the issue having been raised by some years. There was a lack of knowledge on the part of the respondent’s witnesses as to the issue. The respondent would be placed at considerable prejudice if the complaint were to proceed given the time that had passed since the issue was raised.[169]The delay is not minor and is over 2 years. The cogency of evidence has been materially affected given it requires oral evidence from Ms Job who cannot recall the issues due to the time that has passed. The claimant again chose not to raise a complaint at the time, knowing of a Tribunal. For personal reasons he chose not to proceed with a Tribunal claim and instead wait until his dismissal to raise the issues.[170]Balancing all the relevant factors I have concluded that it is not just and equitable to allow the reasonable adjustment complaint to proceed. The considerable delay in bringing the complaint severely affected the quality of the evidence. There is a lack of detail on the key issues that results in unfairness. The prejudice to the respondent was very significant given the passage of time. That outweighs the prejudice to the claimant in the complaint not being able to be heard.[171]Had the complaint as to failure to make a reasonable adjustment proceeded, from the evidence before the Tribunal there may have been merit in the respondent’s agent’s submission that no substantial disadvantage had been shown in evidence. The claimant appeared to have raised the issue many years ago with no further mention of it. It was not clear if that was due to there being no disadvantage or that the disadvantage had been remedied by steps the claimant took. The time that had passed rendered it not just and equitable to determine that issue. Harassment[172]The first 2 acts relied upon occurred in 2019 and they were time barred such that it was not fair to allow those acts to proceed as part of the complaint. Had the complaints proceeded, from the evidence available neither act related to disability. The first act related to staff being told the claimant had written about them and they were to “watch their backs”. This was not an act related to disability but an act of a colleague who was alerting colleagues to what had been done. Ms Job’s dismissal of the concerns was also not related to disability. She believed the material had been left in a public place in the sense the book was not in a locker and was in a drawer where staff were working. She did not consider there to have been any misconduct. Those acts were not unlawful harassment.[173]The first act which is to be determined is whether “on 12 August 2024 the respondent adopted an unfair dismissal procedure that led to the claimant’s suspension, by not taking into account the way in which the claimant processes information as a result of his disability”.[174]The first issue is whether this conduct occurred. Having carefully considered the evidence I have concluded the conduct had not been established in evidence. The process that was adopted was not unfair as allowed and the claimant’s disability was not ignored as suggested. Ms Job had been careful in her dealings with the claimant to ensure he was permitted to raise any issue he had, to write down material and approach her for clarification There was no suggestion this had not been done on this occasion. The suspension letter makes clear the process to be adopted which is fair. While the claimant may have preferred matters to have been dealt with as soon as possible, it was equally fair for Ms Job to suspend the claimant and investigate matters fully and fairly. The allegation had not been established.[175]I also accept the respondent’s agent’s submission that there is no basis upon which the respondent’s conduct can be said to relate to the claimant’s disability. The conduct was solely related to understanding what had happened in relation to the holiday and the claimant’s conduct. It was not related to disability in any way.[176]The second act to be determined was whether “on 21 August 2024 the respondent conducted an unfair disciplinary hearing, by on multiple occasions talking over the claimant when he was putting his case forward, refusing the claimant time to think and ask questions, and refusing to answer direct questions the claimant asked”.[177]Having carefully considered the verbatim notes of the disciplinary hearing I am satisfied that the respondent did not conduct an unfair hearing. The discussion was heated in places and parties did on occasion speak over each other but that is not in itself unusual. The claimant’s brother spoke over the claimant and Mr T Gardiner on occasion spoke over the claimant too. That was to bring focus and clarity to proceedings. The claimant and his brother were given the full and fair opportunity to say all they wished in relation to the matter at hand. At no stage was there any suggestion by the claimant or his brother that he had been prevented from thinking about matters, responding to the issue or asking questions or having questions answered. The conduct relied upon had not been established in evidence.[178]I would have found, had it been necessary to do so, that the way in which the hearing was conducted was in no sense related to disability. There was no link between how the hearing was conducted and disability.[179]The third act to be determined is that “on 21 August 2024 and the subsequent 3 days, the respondent refused to provide a copy of the notes of the disciplinary meeting”. The claimant had asked for the notes of the hearing and it took over 3 days to provide them. The time taken was unwanted but the reason for the delay was because Ms Job wished to check their accuracy. The delay was in no sense related to disability; It was solely due to Ms Job wishing to check the position.[180]The claimant latterly suggested the issue was not the provision of the verbatim notes but the handwritten notes. This was not something the claimant set out in his statement nor something that was put to Ms Job. In any event, there is no basis to find the respondent’s actions in relation to any of the notes had any link to disability. The conduct did not relate to disability.[181]The final act to be determined is “the hand delivering of an invitation to an appeal meeting that was to take place on the same day it was hand delivered namely 9 September 2024”. This had not been established in evidence. The appeal invite had been emailed to the claimant to the same email address used by the claimant. It was not unwanted conduct for the respondent to reply to the claimant’s note of appeal by the same way in which he had sent his appeal. It was not unwanted conduct to let the claimant know as to when the appeal was occurring. The act was in no sense related to disability as it was sole to confirm the hearing details. There was no basis to find that the delay in providing the claimant with any notes was related to disability.[182]Taking a step back there is no basis to find that any of the conduct relied upon amounted to unlawful harassment. That complaint is ill founded. Direct discrimination[183]The first 2 acts relied upon relate to events that occurred in 2019 and it is not just and equitable to allow those complaints to proceed. They are time barred. Even if the complaints had proceeded, from the material before the Tribunal there would have been no basis to find that the treatment was because of disability. The evidence was that the detail from the notebook was communicated to colleagues to give them “heads up” that information was being written about them. That would have happened irrespective of any protected characteristic the writer had. Similarly Ms Job would have treated anyone who had raised concerns, who was not disabled, in precisely the same way as the claimant was treated.[184]The first issue that requires to be determined is whether “on 12 August 2024 the respondent adopted an unfair dismissal procedure that led to the claimant’s suspension, by not taking into account he way in which the claimant processes information as a result of his disability”.[185]As set out above, I did not find that to be a fair characterisation as to what had occurred. The claimant’s main issue was that he was suspended without being given the opportunity to deal with the issue at that point. Ms Job was clear that she wanted to take time to investigate matters first. The claimant was expressly told in the suspension letter as to the rationale for the process adopted. That was a fair process. The claimant’s ability to process and deal with matters was properly taken into account during the process, seen by the respondent permitting the claimant to bring his brother to the hearing and fully participate as did the claimant. This allegation had not been established.[186]In any event the treatment was not less favourable and the treatment was not because of disability. An employee in the same position as the claimant who was not impaired would have been treated in precisely the same way.[187]The second issue to be determined is that “on 21 August 2024 the respondent conducted an unfair disciplinary hearing, by on multiple occasions talking over the claimant when he was putting his case forward, refusing the claimant time to think and ask questions, and refusing to answer direct questions the claimant asked”.[188]I carefully considered the verbatim minutes of the disciplinary hearing to assess how the hearing was conducted. While on occasion Mr T Gardiner does talk over the claimant, that was generally to bring focus and clarity. The claimant’s brother similarly talks over the claimant. The discussion was heated at times but it is clear that the claimant was given time to think and ask questions. Mr T Gardiner did his best to address the material points arising. This allegation had not been established from the evidence.[189]From the evidence, the treatment was not less favourable and not in any sense because of disability. Any person in the same position as the claimant who did not possess the characteristic would have been treated in precisely the same way.[190]From the evidence before this Tribunal there was no basis to find that there had been any act of less favourable treatment because of disability and the direct disability discrimination complaint is unfounded.