Disability Discrimination Claim Dismissed for Being Out of Time

OUTCOME: Dismissed

EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4107466/2023 Held in Glasgow on 9 – 13 and 16 February 2026 and in Chambers on 17 and 19 February 2026 Employment Judge [NAME_1]

Claimant

In Person The Chief [NAME_3] of the Police Service of Scotland Respondent

Represented by:

[NAME_4] -

Solicitor

JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Tribunal is that: In summary:

1. All of the complaints brought by the claimant (C) are dismissed. In detail:

2. The Tribunal lacks jurisdiction to hear the following complaints of discrimination arising from disability under section 15 of the Equality Act 2010 ([NAME_6]) and harassment related to disability under section 26 of [NAME_6], these not having been brought within the time limit in section 123 of [NAME_6]. These complaints are, therefore, dismissed: i. Failing to protect C from being the victim of social media posts by his colleagues by taking steps to deter such behaviour (July and October 2021); ii. Disclosing confidential information about [NAME_7] health (November 2021) iii. Commenting adversely on [NAME_7] relations with colleagues (November 2021);

4107466/2023 Page 2 iv. Commenting adversely on [NAME_7] report-writing skills (November 2021) ; v. Falsely representing that C was looking for another job (November 2021); vi. Attempting to deter C from attending Alcoholic Anonymous (August 2022); vii. Putting C under pressure to take a breathalyser test (August 2022); viii. Requesting tests for traces of illegal drugs to be carried out on bottles used by C (October 2022); ix. Failing to discuss [NAME_8] advice with C or to investigate this any further (January 2023 - 12 May 2023); x. Arranging a meeting with C to discuss the [NAME_8] advice without giving him the opportunity to obtain representation or advice from his representatives about this (12 May 2023); xi. Recommending termination of [NAME_7] probation due to his capability (14 June 2023).

3. The Tribunal also lacks jurisdiction to hear the following complaints about alleged failures to make reasonable adjustments under section 20 et seq of [NAME_6], these not having been brought within the time limit in section 123 of [NAME_6]. These complaints are, therefore, dismissed: i. that between 10 June 2022 and 30 September 2022, the respondent (R) failed to make reasonable adjustments; and ii. that between 24 December 2022 and 12 July 2023, R failed to make reasonable adjustments (such alleged failure having been decided upon by 12 May 2023 at the latest).

4. The following complaints of discrimination arising from disability under section 15 of [NAME_6] and harassment related to disability under section 26 of [NAME_6] are not well founded and are dismissed: i. R’s Chief [NAME_3]’s agreement to the Divisional Commander’s recommendation to terminate [NAME_7] probation and the ensuing termination on 14 July 2023; ii. The alleged failure to carry out a welfare check on [NAME_7] wellbeing after his employment ended.

4107466/2023 Page 3

REASONS Introduction 5. This final hearing took place as an in-person hearing at the Glasgow Tribunal. C gave evidence on his own behalf and led evidence from [NAME_38]. R led evidence from ES, FM, HM, [NAME_10], [NAME_11], [NAME_12], [NAME_13] and SB. Evidence in chief was taken from the witnesses by way of written witness statements with some supplementary oral evidence from certain witnesses. The witnesses were referred to documents at times in a joint bundle of productions running to 988 pages.

6. The following abbreviations are used in this judgment. The titles/job roles/responsibilities indicated are those which pertained at material times. AM [NAME_14], Police Sergeant, with line management responsibility for C from around May 2020 [NAME_186], (at the time) Temporary Sergeant, Loreburn St Station, [NAME_7] line manager from c. 16 January 2021 [NAME_17] [NAME_18], Vice Chair – West Area, Scottish Police Federation ([NAME_20]), and [NAME_7] [NAME_20] representative from at least Oct 2022 [NAME_180], Chief Superintendent, Divisional Commander V Division, materially between February and July 2023 [NAME_166], Force Medical Advisor, [NAME_26], who assessed C and provided various reports from June 2021 [NAME_175], [NAME_29] in the Professional Standards Department, dealing with complains to the PSD until April 2022 [NAME_182], Operational Sergeant, and [NAME_7] line manager from March 2019 until c. April 2020. [NAME_11] [NAME_32], [NAME_29], Group 3 Response V Division in August 2022 [NAME_179], [NAME_29], Divisional Coordination Unit in Dumfries (materially from Jan 2022 to July 2023) [NAME_37] [NAME_38], Police Officer based at [ADDRESS] Station then Police HQ, Dumfries (materially between 2019 and 2023) [NAME_39] [NAME_40], Police Sergeant, with line management responsibility for C from around 28 April 2020

4107466/2023 Page 4 [NAME_176] (at the time) Police Sergeant, with responsibility for managing Probationer Governance until her retirement [NAME_167], Chartered Psychologist to whom R referred C in Jan 2021 for neurodiversity assessment [NAME_181], Police Sergeant who took over responsibility from [NAME_43] for managing Probationer Governance until 10 Dec 2022 [NAME_185], Operational Training West supervisor from August 2020 and latterly Sergeant responsible for managing Probationer Governance following [NAME_50]’s retirement in December 2022. [NAME_183], Temporary Police Sergeant, based at Loreburn St Station from c. Dec 2021 with line management responsibility for C from Dec ’21 until May ‘23 [NAME_184], Police Services Advisor, (HR advisor) who was involved in advising in [NAME_7] case from June 2021. Issues to be determined 7. Prior to the hearing, C had made an application to amend which had been allowed by EJ Whitcombe to a limited extent per his Case Management Order dated 24 September 2024. R prepared an amended version of the Claim paper apart including the permitted amendments and excluding the refused amendments which document was then corrected by C in a final version dated 16 October 2024. In this judgment, all references to the Claim refers to that amended version of 16 October 2024 and uses the paragraph numbering therein. (This document was not included in the joint bundle). Remedy has been hived off to be determined at a subsequent hearing in the event C succeeds in some or all of his complaints. The parties had prepared a draft List of Issues (LOI) which was not agreed in its entirety at the outset of the hearing. There were further discussions and clarifications during the preliminaries on 9 February 2026, and [NAME_59] then updated the issues list to reflect what was agreed during those discussions. I have incorporated the agreed updated LOI below. For ease of use, I add into that LOI the specific factual allegations with dates as per Claim and other omitted detail. Time bar 8. Are the allegations prior to 10 July 2023 in time pursuant to Section 123(1)(a) of the Equality Act ([NAME_6])? 9. If not, are they part of a ‘continuing act extending over a period’ per Section 123(3)(a) of [NAME_6]?

4107466/2023 Page 5 10. If not, and with regard to the prejudice to C in refusing to extend the time- bar period versus the prejudice to R in extending the time-bar period, is it just and equitable to extent the limitation period per Section 123(1)(b) of [NAME_6]? Disability status 11. It is admitted that C is disabled in respect of his ADHD and dyslexia. R admits it knew or could reasonably have been expected to have known that C was disabled in respect of his Dyslexia from 22 February 2022. R admits it knew or could reasonably have been expected to have known that C was disabled in respect of his ADHD from 27 July 2022. Reasonable adjustments 12. In this judgment I refer to the period from 10 June 2022 to 30 September 2022 together with the period from 24 Dec 2022 to 2 January 2023 collectively as the “2022 RA Period”. I refer to the period from 3 January 2023 to 12 July 2023 as the “2023 RA Period.

13. Did R have the following provisions, criteria or practices (‘PCPs’) between 10 June 2022 until 30 September 2022; and 24 December 2022 until 12 July 2023: a. Officers being able to provide written reports of a suitable standard 14. Did R apply this PCP to C? 15. Did this PCP put C at a substantial disadvantage compared to non-disabled persons, in particular: i. Finding it hard to concentrate on written work; ii. Finding it hard to process information and compile the reports; iii. Taking him longer to write reports; iv. [NAME_7] writing to be criticised; v. Requiring C to redo the work despite being engaged in other tasks.

16. Was R aware of this substantial disadvantage? 17. Would it have been reasonable for R to implement the following adjustments to alleviate this disadvantage? i. Use of a computer with speech to text to help manage with speed of writing, spelling and structure of written work

4107466/2023 Page 6 ii. Be provided with guidance on structuring written information or reports in a specific format iii. Templates or example reports as a guide for presenting written information in an appropriate format iv. Working from a quieter location v. Short but frequent breaks or changes in activity vi. Typing tutor apps to help improve typing skills and fine motor control vii. A range of mind mapping software viii. Making use of a smartphone to make a note of any tasks or information that comes up ix. Encouraging accuracy first with speed increased at a later stage x. Neurodiversity coaching with access to a neurodiverse network and training for managers 18. If so, did R fail to make these reasonable adjustments? Discrimination arising from a disability 19. Did R know at the material time that C had the disabilities relied upon (or either of them)? 20. At the material times, could R reasonably have been expected to know that C had the disabilities relied upon or either of them? In this judgment, for concision, I occasionally adopt the terminology used by the parties in submissions and refer to this as ‘constructive knowledge’.

21. Was C subjected to any of the following treatment by the Respondent i. Failing to protect him from being the victim of social media posts by his colleagues by taking steps to deter such behaviour. Specifically, this complaint refers to posts relating to an incident when C fell asleep on duty on 16 July 2021 per para 17 of the Claim and to an incident when C soiled himself at work in October 2021 per para 18 of the Claim; ii. Disclosing confidential information about [NAME_7] health. It is understood the (implicit) allegation per para 18 of the Claim is that [NAME_12] disclosed [NAME_7] confidential information in relation to the incident of C having soiled himself in October 2021.

4107466/2023 Page 7 iii. Commenting adversely on [NAME_7] relations with colleagues. Specifically, the complaint is that in November 2021, [NAME_12] ‘highlighted to colleagues that he had concerns about [NAME_7] interactions with colleagues as he would isolate himself from them to sit on his own and would not join in conversations’ per para 19 of the Claim. iv. Commenting adversely on [NAME_7] report-writing skills. Specifically, the complaint is that in November 2021, [NAME_12] ‘also highlighted concerns about his reports and paperwork and provided examples where he felt the Claimant had fallen short in obtaining the relevant Information’ per para 19 of the Claim. v. Falsely representing that C was looking for another job. Specifically, the complaint is that In November 2021, [NAME_12] also ‘said that [C] was looking for employment out with the Police Service. C denies this and in fact says it was it was [A]P who had said … that he should consider finding another job’ per para 19 of the Claim. vi. Attempting to deter C from attending Alcoholic Anonymous. Specifically, the complaint is that on 19 August 2022, [NAME_11] told C ‘he had to choose between attending [NAME_60] meetings and continuing to work for [R] as it was “frowned upon” for serving officers’ per para 25 of the Claim. vii. Putting C under pressure to take a breathalyser test. Specifically, the complaint is that on 20 August 2022, [NAME_11] told C ‘a colleague had received an anonymous email that he had been drunk on duty and he had to provide them with a breath test’ per para 26 of the Claim. viii. Requesting tests for traces of illegal drugs to be carried out on bottles used by C. Specifically, the complaint is that on 24 October 2022, R attended [NAME_7] home and took away ‘empty bottles of vodka which they brought to the hospital to be tested for … illegal drugs’ per para 27 of the Claim. ix. Failing to discuss [NAME_8] advice with C or to investigate this any further. Specifically, the complaint is that this omission took place between January 2023 and 12 May 2023 per paragraph 29 of the Claim. x. Arranging a meeting with C to discuss the [NAME_8] advice without giving him the opportunity to obtain representation or advice from his representatives about this. This refers specifically to a

4107466/2023 Page 8 meeting on 12 May 2023 when [NAME_61] met with C per para 33 of the Claim. xi. Recommending termination of [NAME_7] probation due to his capability (specifically, [NAME_21]’s recommendation following a Discharge Hearing on 14 June 2023 – see para 36 of the Claim). xii. Agreeing to the same. Specifically, this refers to Chief [NAME_3] Sir I [NAME_62]’s agreement to the recommendation to terminate, made on 12 July 2023 and communicated to C to 14 July 2023 per para 36 of the Claim. xiii. Failing to carry out a welfare check on [NAME_7] wellbeing for the third time. Specifically, this refers to an alleged failure to conduct any welfare checks after C was discharged on 14 July 2023 as per para 37 of the Claim.

22. If so, was this treatment ‘unfavourable treatment’? 23. It is accepted that C has communication difficulties which arise from his disability.

24. Was C subjected to any of the treatment at para [21(i) to (xiii)] because of communication difficulties? 25. If so, was this treatment by R a proportionate means of achieving a legitimate aim, particularly: a. Attempting to ensure that [NAME_7] reports were of an adequate standard so that they could be relied upon by colleagues b. Attempting to ensure C could carry out his role safely and efficiently, particularly in circumstances where he had a duty to protect the public and provide an adequate policing service c. Ensuring it was aware of [NAME_7] health and any measures which could be put in place to assist C in his role d. Ensuring that their operational police officers were fit for service. Harassment 26. Was C subjected to any of the treatment by R set out at paragraph [21(i) to (xiii)]? 27. If so, was this treatment in relation to the protected characteristic of disability

4107466/2023 Page 9 28. Was this unwanted conduct? 29. If so, was the purpose of this treatment to violate [NAME_7] dignity and/or create a hostile, humiliating, intimidating, degrading or offensive environment for C 30. If not, was the effect of this treatment to violate [NAME_7] dignity and/or create a hostile, humiliating, intimidating, degrading or offensive environment for C 31. Did this conduct has the effects referred to at para [29] taking into account: i. [NAME_7] perception; ii. The other circumstances of the case; iii. Whether it is reasonable for the conduct to have that effect. Findings in fact 32. The following facts, and any further facts set out in the ‘Discussion and Decision’ section, are found to be proved on the balance of probabilities or were agreed by the parties. The facts found are those relevant and necessary to my determination of the issues.  They are not intended to be a full chronology of events.

33. C was a [NAME_3] appointed by R on 17 December 2018 and discharged from service on 14 July 2023. The Police Service of Scotland Regulations 2013 (the PS Regs 2013) provide that, on appointment, a [NAME_3] serves a probationary period.

34. Reg 9(1) of the PS Regs 2013 is in the following terms: 9 (1) Subject to the provisions of this regulation, during a [NAME_3]’s period of probation the services of that [NAME_3] may be dispensed with at any time by written notice given by the chief [NAME_3] if the chief [NAME_3] considers that that [NAME_3] is not fitted, physically or mentally, to perform the duties of the office of [NAME_3], or that that [NAME_3] is not likely to become an efficient or well conducted [NAME_3].

35. In the absence of any extensions, a [NAME_3]’s probationary training normally lasts two years and, all being well, on conclusion of such training, a probationary officer is then confirmed in the role of [NAME_3]. 36. [NAME_7] native language was Polish and he spoke English as a second language.

37. On appointment, C initially successfully completed his 11-week training course at the Scottish Police College, passing all knowledge and fitness tests and presenting no concerns. C then undertook Divisional training.

4107466/2023 Page 10 Following successful completion of Modules 1 and 2, he entered Module 3 (operational phase) which entailed deployment operationally with a tutor [NAME_3]. During this phase, the probationer’s performance is assessed and managed by their tutor and sergeant. C was initially deployed to Annan Policing Group 4 in March 2019.

38. On appointment C and R were unaware that C was disabled in respect of Dyslexia or ADHD. These conditions had not yet been diagnosed and were not diagnosed until 2022.

39. In May 2019, a 20-week report recorded that C was performing to a standard expected of his service and noted that C was performing well and that his report writing was of a good standard.

40. On 21 October 2019, one of [NAME_7] colleagues telephoned him pretending to be from the Police Standards Department and suggested they had received a complaint about C from a vulnerable female minor. The caller told C she was alleging that C wished to engage in sexual activities with her. This was wholly fictitious and was intended to be a ‘prank’. One of [NAME_7] other colleagues filmed C on a mobile phone as C took the call and reacted to it. C was deeply affected by this incident. He informed his sergeant (FM) of the incident on 25 October 2019 and from then went off with stress and anxiety. FM and [NAME_29], HM, visited C on 26 October 2019 to conduct a welfare check. C learned that a video had been circulated of him. The possibility of C making a formal complaint was discussed but C indicated he did not wish to do so. C disclosed to FM around this time issues with childhood trauma and issues concerning his domestic relationship with his then partner. C was off sick for approximately 7 weeks.

41. During his absence, on 24 November 2019, FM and HM carried out a welfare visit with C at his home. They were concerned that he looked dishevelled and smelt of alcohol. He became upset and referred to incidents from his childhood. He was banging his head off the table and required to be restrained. FM and HM called an ambulance which took C to hospital where he was pulling his hair and talking about childhood trauma.

42. In late December 2019, C returned to work and was placed on light duties in the front office at Dumfries Police Station.

43. On 3 March 2020, C was assessed by [NAME_63], [NAME_26]. At that time, C confirmed that he had been discharged from specialist follow up, that he continued on medication and that he currently felt well. [NAME_26] confirmed that C did not wish to make a formal complaint about the workplace incident. C was back at work but was not undertaking full operational duties and was keen to return to doing so. [NAME_26] opined

4107466/2023 Page 11 that C could now reintroduce operational duties but should not be put on overnight shifts. The report indicated the acute stress reaction appeared to relate to difficulties in [NAME_7] personal background and to a workplace incident which referred to the ‘prank’ call in October 2019. The doctor opined that [NAME_7] mental health symptoms had not yet persisted for 12 months. The report gave no mention of symptoms indicative of the conditions ADHD or Dyslexia. At this time, C transferred to a shift in Dumfries.

44. In April 2020, an extension to [NAME_7] probationary period was approved due to an extended period of non-operational duties totalling 81 days. Soon thereafter, FM ceased to be [NAME_7] line manager, replaced by [NAME_39].

45. From 28 April to 18 May 2020, C resumed operational duties under the supervision of [NAME_39]. He was assigned to Group 5 Dumfries Policing. Thereafter, he was under the supervision of AM.

46. On 28 July 2020, a 6-month extension was made to [NAME_7] probation and his new scheduled date for confirmation as a [NAME_3] was 16 June 2021.

47. On 21 August 2020, AM implemented what he termed an ‘informal action plan’. R’s Standard Operating Procedure (SOP) on the Management and Development of Probationary Constables does not make mention of an ‘informal action plan’. It provides instead that if a pattern of unsatisfactory or unacceptable performance continues, a probationary [NAME_3] will be served with a notification under Regulation 9 and that their sergeant will help and support them to achieve the standards expected. It provides the sergeant along with the probationer’s [NAME_29] will meet the probationer and formally record a [NAME_3] which will continue for 12 weeks (a ’formal action plan’).

48. C was absent on sick leave from 7 to 11 September 2020. AM visited him at home. He was dishevelled and had been drinking alcohol. He disagreed with the action plan which he was waving about. This was placed on hold to focus on [NAME_7] health and wellbeing. Events in 2021 49. On 16 January 2021, [NAME_12] started a role as Temporary Sergeant, Group 5 Response Policing at [ADDRESS] in Dumfries. He assumed line management responsibility for C. [NAME_7] former line managers, [NAME_64] and AM, sent [NAME_12] some information about performance concerns they had about C before [NAME_12] started in post.

50. On 17 January 2021, [NAME_12] prepared a formal action plan for C using the template form envisaged by the SOP. It recorded that it would commence on 3 March 2021 and would last for 12 weeks. It identified 5 areas for

4107466/2023 Page 12 improvement (effective communication, team working, personal awareness, job knowledge and personal effectiveness) with more detailed commentary under each heading. Under the heading effective communication, [NAME_12] recorded that [NAME_7] written work failed to meet the standard expected of him. He recorded C had submitted reports with errors which often did not make sense, and which were occasionally late without a valid reason. [NAME_12] also recorded that [NAME_7] interactions with the public and colleagues were at times inappropriate and disjointed. [NAME_12] recorded that C had yet to establish himself as an effective team member and referred to a reluctance to make decisions and to take a lead when attending calls. [NAME_12] recorded that, although C had passed all of his exams, his practical job knowledge required improvement and that C lacked confidence in operational situations. The observations about [NAME_7] performance in the action plan were based on feedback he had received about [NAME_7] performance from [NAME_67] and AM.

51. The action plan recorded 15 individual objectives for C split under the broader banners of demonstrating police procedures and job knowledge, improving the standard of report writing and statement taking and improving teamwork and personal standards. In relation to all objectives, the plan recorded that [NAME_12] would monitor his progress and provide feedback to C. In relation to the objective of improving report writing / statement taking, the objectives included “In relation to [NAME_69] and statements, make use of the dictation equipment and submit his paperwork via the typists’ and ‘Make reference to existing SPRs to use as reference and benchmarking the quality and identify the standards expected’ and ‘proof read reports prior to submitting to his supervisor for checking’.

52. At this stage, the only [NAME_8] advice provided was the report of 3 March 2020. There was no mention of any potential neurodiversity issues and C was not himself aware of any such conditions.

53. The action plan was not served on C on 2 February 2021 by [NAME_70] as recorded in a later document (Summary of Evidence for the Consideration of Discharge dated 17 February 2023).

54. On 2 February 2021, [NAME_73] shared the draft [NAME_3] 9 [NAME_70]. On 18 February, [NAME_75] sent an email to [NAME_43], [NAME_76] and others on the subject of [NAME_7] action plan. He told [NAME_73] to arrange a meeting with C to discuss his performance and to ‘refresh the conversation’ with C around any ‘internal or external welfare factors’. He told [NAME_76] to verify that there were no ‘as yet undisclosed wider medical issues which may be affecting performance “such as dyslexia etc.”.

4107466/2023 Page 13 55. On 28 February 2021, an email was sent to C attaching the action plan. On 4 March 2021, C signed off the action plan, along with [NAME_177] and [NAME_78]. 56. [NAME_12] prepared an action plan monitoring log. In this document, he logged observations about [NAME_7] performance. He began doing so on 2 February 2021, although the formal action plan 12-week review period did not, according to its terms, begin until 4 March 2021. [NAME_12] recorded 5 matters of concern in the period between 2 February 2021 and 4 March 2021. [NAME_12] did not share a copy of the monitoring log with C on a regular basis or at all during the period he kept it (from 2 February 2021 until 13 May 2021). Instead, [NAME_12] provided C the verbal feedback as recorded in the document at the material times and recording having done so in the log. The commentary and feedback in the monitoring log was not uniformly critical of [NAME_7] performance. Where positive feedback was provided, this was coded as a ‘positive record’. Where the feedback was critical of some aspect of [NAME_7] performance, [NAME_12] recorded it as ‘Learning Identified’. In the period from 4 March 2021 to 13 May 2021, 22 separate records were made by [NAME_12]. Of these, 6 were ‘positive records’ and the rest were recorded as ‘Learning Identified’. PS P [NAME_79] were the only colleagues who provided the positive feedback regarding [NAME_7] operational performance.

57. On 16 April 2021, a 6-week review was carried out by [NAME_12] with C. At that time, [NAME_12] recorded that there had been no improvement in [NAME_7] written work. He referred to one report which he said was missing information and included unnecessary witnesses. In relation to another, he said it did not contain sufficient evidence to report the matter to the PF. [NAME_12] recorded at the review that [NAME_7] interactions with the public and colleagues remained a concern. Overall, [NAME_12] recorded his opinion at the 6 week-review stage that ‘it remains evident [NAME_81] lacks the resilience to deal with the pressures of the job...’ 58. In or around April 2021, [NAME_12] arranged for C to spend a few hours with [NAME_163] to help him get a better understanding of the report writing process, to contextualise them in terms of the process towards presentation to the Procurator Fiscal. [NAME_83] provided C with templates and specimen reports as part of this training. The purpose was said by [NAME_12] to help C understand why it was crucial his reports were clear, consistent and contained the required evidence.

59. On 6 May 2021, a further extension of [NAME_7] probation was approved.

60. The 12-week period of the formal action plan expired on 14 May 2021. C was absent due to sickness on 14 to 17 May 2021 with flu or Covid symptoms. In [NAME_12]’s opinion, C had not achieved the goals set out in his action

4107466/2023 Page 14 plan. However, he did not discuss this with C following the conclusion of the 12-week period. [NAME_12] went to meet with C at [NAME_7] address at some in May 2021. On that occasion, C was drunk and told [NAME_12] he had been drinking a bottle of vodka each day for the past two weeks. [NAME_12] was aware that C had only been absent for 7 days or so and asked C if he had been drinking on the days he had been working. C denied doing so. 61. [NAME_12] made written comments on the formal action plan around 15 May 2021. [NAME_12] did not show C a copy of this written feedback at the material time. He concluded that C had failed to meet the objectives of the action plan and that he appeared to have made little to no progress over the preceding 12 weeks. It was, therefore, [NAME_12]’s intention to initiate a second formal action plan for C. In his comments, [NAME_12] said, among other matters, that [NAME_7] paperwork did not yet meet the basic standards expected of him, that C had received additional support from [NAME_12], from case management, and that C had been provided with written guidance from [NAME_69] to help him improve his written work. These written comments were not, however, seen by C until around late September 2021 as narrated below.

62. C went off sick again from 2 to 23 June 2021, the absence being attributed to ‘stress’. During this absence, on 7 June 2021, dayshift supervisor, T/Sgt C [NAME_84] visited C with [NAME_85]. [NAME_87] [NAME_74] took C to Dunscore Medical Centre as they considered C had reached crisis point and required help with mental health and alcohol issues. C was prescribed Diazepam, Sertraline and Tiapine and given a two-week sickline.

63. On 8 June 2021, [NAME_12] visited C. [NAME_12]’s understanding was that C had issues which related to his childhood. [NAME_12] confirmed to [NAME_43] that [NAME_7] second action plan would be delayed pending him returning to work.

64. On 18 June 2021, [NAME_12] was advised on starting nightshift that C was in A&E. [NAME_12] and [NAME_89] attended A&E where they found C on the floor in a side room. C was drunk and emotional. [NAME_12] and TI [NAME_74] spoke to C at length to establish if there was any support they could offer him. C told them he experienced months of being high followed by prolonged mood dips. They offered C the services of [NAME_26] and the EAP. C said these did not work as he had used these before. [NAME_12] explained he would need to make an [NAME_26] referral and C agreed. C was admitted to hospital for a few days as his blood readings were showing issues with his liver. [NAME_12] submitted a referral to [NAME_26] on 18 June 2021.

65. C returned to work on or about 24 June 2021. He remained on restricted duties, as he had been since the conclusion of his action plan in May 2021.

4107466/2023 Page 15 66. On 16 July 2021, C was on shift from 17:00 to 03:00. At about 01:15 on 17 July, C dozed off while on duty. One of [NAME_7] colleagues, [NAME_90], woke C up, holding a mobile phone and laughing at him. When C returned for his next shift in the evening of Saturday 17 July 2021, [NAME_12] and [NAME_91] were both on leave. PS [NAME_64] told C that evening that there was a video circulating of him, capturing C sleeping. He showed C the footage which had been circulated on a V Division WhatsApp group. C disclosed he was taking medication and had taken his last dose at 10 pm the previous night. PS [NAME_66] informed C that he would not be put on shift beyond that hour at night. On 17 July 2021, PS [NAME_66] shared the clip via email with his superiors, [NAME_95] and with [NAME_97]. He said he did not know who had filmed it or when but said he believed it had likely been taken the day before.

67. On 18 July 2021, [NAME_99] sent a memo to [NAME_100] on the subject. He noted the clip was about 10 seconds in length with no time or date stamp. He noted that the author was unknown but that the tag ‘forwarded many times’ was reportedly attached to the clip. The memo noted C was currently on modified duties and supported by action plans to improve performance and that he was also being supported for wider health and lifestyle issues. He recorded that there had been dialogue with C about the matter during his backshift duty on 17 July and that C had confirmed he had fallen asleep. He confirmed that C had stated he was on medication and was trialling different types. He confirmed that C had had no involvement with [NAME_26] as yet and was expecting a telephone conversation. He recorded that C was signposted to R’s Employee Assistance Programme (EAP) but that C declined. He recorded having adjusted [NAME_7] shifts to end at 2200 and having emailed People Direct / [NAME_26] to progress matters. He summarised that supporting C towards health and wellbeing had been the focus. He said: “The purpose of the recording is also unknown, whether taken in good nature or equally both: with malice, or with real concern towards the officer’s fitness and ability to perform his current role, with the consensus of his shift peers unknown. It also can’t be discounted that [[NAME_7]] actions were simply in disregard to the organisational standards and professional conduct.” 68. On 19 July 2021, [NAME_102] forwarded [NAME_103]’s memo and the video clip to [NAME_43], [NAME_7], and SB, Police Services Advisor whose role was to provide HR advice and guidance to managers, officers and staff. [NAME_104] noted in his email that [NAME_105] / [NAME_168] had been unable to determine the source of the video. He observed that C was clearly struggling with his modified duties. He said “Im [sic] reluctant to address this one further meantime other than sharing and recording with both of you for inclusion in the portfolio of evidence that is

4107466/2023 Page 16 being compiled in respect of our concerns regards both his wellbeing and capability”.

69. C returned to shift on 22 July 2021 when [NAME_12] also returned to duty from his annual leave. [NAME_12] took no further action in relation to the matter. So far as he understood it, the matter had already been dealt with by the [NAME_29] in his absence. [NAME_12] did not seek to investigate who was responsible for the filming. C did not raise a complaint to [NAME_12] about the incident or ask [NAME_12] to investigate who was responsible for filming him or for forwarding the video on WhatsApp. C did not tell [NAME_12] that it was [NAME_90] who filmed him. [NAME_12] kept C on backshifts in line with the previous adjustment made to his shift pattern.

70. C was assessed by [NAME_26] on 28 July 2021. C reported to Dr A that he had been in hospital for approximately 5 days for detoxification due to alcohol issues. He said he was receiving weekly counselling with an Alcohol Services Counsellor. He told Dr A that he perceived that he goes through several months of being ‘high’ and then his mood dips. He said he had not been diagnosed with bipolar disorder although he wondered whether he might have it. He said he was in receipt of medication for his mood disorder and alcohol issues. Dr A opined in his report that though C had not yet been diagnosed by a consultant psychiatrist, it appeared that he had some form of mood disorder and that he was using alcohol as an ‘unhealthy coping mechanism’. Dr A was asked if C was fit to carry out normal duties at present and he responded: “The officer was keen to return to operational duties as he feels he is capable of them and … because he intimated it tends to help his mental state. In my opinion from the information available to me he is now medically fit to resume operational duties with some adjustments in place.” He opined that it would seem likely that the disability provisions of the [NAME_6] would be applicable in relation to what he described as a ‘presumed mood disorder’. The report gave no mention of dyslexia or ADHD or of symptoms indicative of these conditions.

71. Dr A went on to confirm that C was not fit for any operational driving duties, “largely … because of the alcohol issue”. He said it would be prudent that C did not go out single-crewed or undertake nightshifts. 72. [NAME_102] took the decision not to return C to full operational duties as suggested by Dr A at that time.

73. On 13 September 2021, [NAME_12] gave C some negative feedback about a task C had been assigned of conducting a phone interview. C said words along the lines that if he was truly inadequate at his job, maybe he should seek alternative employment. He told [NAME_12] that he had made an application for a job with [NAME_106]. [NAME_12] emphasised the importance of taking care of [NAME_7] mental wellbeing and family. [NAME_12] expressed doubt about [NAME_7] ability to pass the

4107466/2023 Page 17 upcoming second (formal) action plan and told C that if C were to resign, R would provide him with a favourable reference whereas if he was discharged, it would be highly unlikely for C to secure another job within the force. He suggested it would be better for C to leave on his own terms. On 20 September 2021, [NAME_12] sent C an email, informing him that if he decided he did wish to resign, he would require to give 28 days’ notice and to complete a resignation form.

74. On 21 September 2021, [NAME_12] asked C if there was any update on the [NAME_106] application and suggested that applying for multiple job opportunities would yield faster results. [NAME_12] asked C again for an update on 24 September 2021. He asked C to keep him updated on his job search in the forthcoming period as he was working on creating a Christmas roster.

75. On the same date, C emailed his [NAME_20] representative, [NAME_107], about his action plan. He noted that Mr [NAME_108] had told him that [NAME_12] had sent him a lengthy email and feedback in relation to [NAME_7] previous action plan. C asked [NAME_107] to forward this to him. C was provided with sight of [NAME_12]’s final written comments on his action plan via his [NAME_20] representative in or around late September 2021, having not seen these since they were documented in May 2021.

76. On 23 September 2021, a meeting took place between [NAME_109] (R’s Disability Coordinator) and PS [NAME_52] (Probationer Governance) at which it was agreed that [NAME_7] health issues would have to be dealt with before any further formal action plan was implemented. Ms [NAME_111] opined that C would likely be disabled by virtue of his (suspected but undiagnosed) Cyclothymia.

77. On 1 October 2021, Dr A prepared a further report for R. He did so following receipt of a report dated 1 Sep 2021 from [NAME_7] GP and enclosed photocopies of relevant hospital correspondence. Dr A recorded in his report that the information from [NAME_7] GP “confirms that in recent times, alcohol has been a significant issue in this case with a number of relapses necessitating hospital admission and/or specialist intervention”. He continued: “The information available suggests that the psychological rubric is likely to be complex in this case. However, clearly, alcohol misuse, possibly as an unhealthy coping mechanism, has been a significant problem over a period of time. In essence, though, if the officer is able to remain abstinent from alcohol, then the outlook would be considerably improved it. … The advice in my report dated 28 July 2021 remains applicable.” The report gave no mention of dyslexia or ADHD or of symptoms indicative of these conditions.

4107466/2023 Page 18 78. On 23 October 2021, C was working a shift from 13:00 to 22:00. Shortly before 21:00, C, who was suffering from diarrhoea, didn’t make it to the toilet in time and soiled himself. Embarrassed, he approached [NAME_12] to ask if he could go home to change. [NAME_12] granted C permission to leave early and did not require C to return to conclude his shift. C asked [NAME_12] to keep the matter strictly confidential. After the incident, [NAME_12] told [NAME_7] line managers on shift (an [NAME_29] and three Sergeants). At least one individual discussed the matter more widely and it became the subject of gossip.

79. On 30 October 2021, [NAME_7] colleague, [NAME_37], spoke to C about the accident C had had on 23 October. [NAME_37] told C that individuals from various shifts were aware of it. [NAME_37] himself had heard about the matter from one of the Community Constables. [NAME_12] was later spoken to by T/[NAME_29] [NAME_92] who confirmed the information ought only to have been shared with him and not with the other sergeants. [NAME_12] expressed remorse and confirmed it would not happen again. [NAME_12] did not refer to C as “star of the month” in any interactions about the subject. It is not established that there were social media posts about the incident by [NAME_12] or otherwise.

80. On 2 November 2021, C was assessed again by Dr A who recorded that he continued to await a report from [NAME_7] consultant psychiatrist. C told him that his psychiatrist had been trying various medications for his mental health issues. He recorded that C said he had ‘minimal symptoms’ and that the main source of stress was around job security. C said neither the hours nor duties of the post nor any aspect of the operational duties represented stressors for him. Dr A said there were no overt signs of intoxication or withdrawal during the assessment. He said the advice in his previous report of 28 July 2021 remained applicable. He noted C had not been allowed to return to operational duties and said, “I do think a return to operational duties now would be good for his mental health”. He opined that C was fit to return from a medical point of view but remained unfit for occupational driving and for nightshift. He suggested a review in three months to see how C was after being back on operational duties. The report gave no mention of dyslexia or ADHD or of symptoms indicative of these conditions.

81. On 9 November 2021, [NAME_12] asked C about his latest [NAME_26] assessment and C told him the doctor had said he could return to active duty on the streets. [NAME_12] said they would have to wait to receive the report. [NAME_12] asked C if he had any updates from other job applications and C said he had not.

82. In the morning of 11 November 2021, C was pulled over by the Road Police Unit when driving his children to school. He was breathalysed. He made a complaint about the incident to Professional Standards. His complaint was upheld.

4107466/2023 Page 19 83. On 12 November 2021, a further probationary extension request was approved for C, extending his scheduled confirmation date to 16 June 2022.

84. On 14 November 2021, [NAME_12] sent an email to [NAME_50] (Probationer Governance) and [NAME_92] about C. He said [NAME_7] interactions with colleagues remained an area of concern and that C had isolated himself from the team and that he continually sat in an office on his own despite [NAME_12] repeatedly asking him to sit in the ‘cops’ room’ and engage. [NAME_12] also said in the email that: “[NAME_7] continues to be a concern and he does not yet meet the basic standards expected of him. He has received additional support from myself, case management and being provided with the [NAME_69] written guidance to help him improve his written work. I attach a recent example whereby he was asked to obtain a statement over the phone in relation to an alleged child assault. I spoke to him before he obtained the statement and explained the importance of same and I would need the statement to be obtained to contain sufficient evidence to progress the enquiry (previous statements have been too short and lack detail). He obtained the statement … which is over 1000 words long, however it lacks any details with regards to the circumstances of the assault. A review of the statement after it had been obtained found less than 100 words covered the child assault and it lacked any details as to the circumstances surrounding same. I had to sit him down again following the first statement and provide him a list of everything he needed to cover in a second statement. On the second attempt, he was able to obtain a suitable statement.” 85. In the email, [NAME_12] went on to say: “[C] has spoken to me about his potential return to operational duties and his future action plan. We have spoken at length about what is required from him in the future and I have made it clear, I do not believe we are currently at the standard expected of him and he will have significant improvements to make. He has accepted it will be an uphill battle, however his commitment to same may be wavering as I'm aware he's looking for employment out with the police service.” 86. When [NAME_12] wrote this, he believed it to be true. [NAME_12] had followed up several times with C about his application to [NAME_106] since C had disclosed this application to him on 13 September 2021. [NAME_7] response to these enquiries fluctuated – sometimes he reaffirmed to [NAME_12] he wanted to leave and other times he told [NAME_12] of his determination to remain in the police and one day to become an [NAME_29]. It is not established that C ever told [NAME_12] he had abandoned his application or that, as of 14 November 2021, [NAME_12] was aware that C was not seeking another job.

4107466/2023 Page 20 87. C went off on sick leave from 9 December 2021 to 22 December 2021. On 14 December 2021 C failed to attend an appointment with a Consultant Psychiatrist due to C drinking alcohol dependently.

88. On 17 December 2021, [NAME_12] moved to Annan Police Office and [NAME_13] (Sgt) took over responsibility for C.

89. On 19 December 2021, C was admitted to hospital for alcohol related medical concerns. He required intravenous fluids and medication for alcohol withdrawal symptoms.

90. Between 29 December 2021 and 4 January 2022, C was placed on operational duties for six shifts, following the [NAME_26] advice. He undertook these shifts under the supervision of T/PS P Murphy. He was observed to appear anxious and hesitant during this spell on operational duties. Events in 2022 91. On 6 January 2022, SB, [NAME_12], [NAME_10], [NAME_13], [NAME_109] (Disability Coordinator), [NAME_112], [NAME_113] and [NAME_114] met to discuss C. They reviewed the latest [NAME_8] report of 2 November 2021. They decided, among other matters: (i) to delay the introduction of a second action plan again due to the absence of confirmed medical information; (ii) to retain C or restricted duties; (iii) to arrange a neurodiversity assessment with [NAME_46]; (iv) to request that C link in directly with his psychiatrist regarding confirmation of his condition.

92. On 8 January 2022, [NAME_7] new line manager, [NAME_13], held an attendance support meeting with C. He told C that he would not be returning to active duty on the streets. He told C about the concerning him on 6 January 2022. [NAME_13] explained the rationale for withdrawing C from active duty and that the unanimous view was that it was not appropriate to expose C to the pressures of frontline policing at that time in the absence of a confirmed diagnosis of a possible mental health condition and medical information. [NAME_13] told C he was being referred to [NAME_26] for further assessment. He noted that C had seen psychiatrists regarding a potential mental health diagnosis and that the results were awaited. He noted that a second action plan had been due to commence on 8 January 2022, but it had been decided that this would be postponed until further medical reports were received and further assessments carried out. C said he was feeling fit and well and was abstinent from alcohol. He talked of his mood going from low to high almost instantaneously. [NAME_13] told C he would be referred through [NAME_26] for a neurodiversity assessment with [NAME_46], Chartered Psychologist. C was encouraged to chase up the awaited report from his psychiatrist. He was provided the email address for LS, Disabilities Coordinator, and told her role

4107466/2023 Page 21 was to provide advice and guidance to officers regarding support and management of disabilities.

93. Around this time, [NAME_13] provided C with details of local [NAME_60] as C said he intended to try out the meetings.

94. C went off sick from 27 January to 5 February 2022, attributing his absence to Covid.

95. During his absence, on 31 January 2022, C was assessed by [NAME_46], who prepared a report.

96. In it, she described Dyslexia as a ‘continuum of difficulties in learning to read, write, and or spell, which persist despite the provision of appropriate learning opportunities, these difficulties often do not reflect and individual’s cognitive abilities and may not be typical of performance in other areas…’ She said the impact as a barrier to learning varies in degree as there are often associated difficulties such as auditory and / or visual processing of language based information, phonological awareness, oral language skills and reading fluency, short term and working memory, sequencing and directionality, number skills and organisational ability.

97. Following tests, she observed that [NAME_7] profile ‘of cognitive functions highlighted well developed verbal comprehension and exceptionally well developed Perceptual Reasoning (non-verbal problem solving) abilities. In contrast … [his] Working Memory and Processing Speed were both significantly reduced.’ She later stated “ [[NAME_7]] scores across a battery of tests used to inform diagnosis, highlights difficulties typically associated with dyslexia. Difficulties with reading comprehension, speed of reading, individual word reading, decoding, spelling and aspects of phonological processing (rapid naming - relates to ability to retrieve phonological information from long term memory, when required when decoding unfamiliar words, affects reading fluency) were evidenced. A detailed assessment of speed of handwriting... was also undertaken to inform results. [[NAME_7]] speed of handwriting, 37 ... words per minute …, sat above an expected rate of around 26 to 27 WPM. Difficulties in terms of legibility were evident and opportunity for development in relation to writing composition when organising own ideas were observed. In terms of impact, [C] reported he has always found it difficult to structure and organise his thoughts in writing and this can have an impact on him in the context of his work.” 98. She concluded that the diagnostic assessment of C had shown significant variations which, coupled with strengths and difficulties reported, was consistent with a diagnosis of dyslexia.

4107466/2023 Page 22 99. She explained that ADHD is a is neurodevelopmental, characterised by hyperactivity, impulsivity and inattention. [NAME_46] said that ADHD symptoms typically appear age 3-7 years but may not be recognised. She said inattentive symptoms usually persist into adulthood, while hyperactive impulsive symptoms tend to recede over time. She observed that approximately 75% of people with ADHD will have one other psychiatric diagnosis and that 60% will have two. She said, ‘Co-occurring psychiatric conditions including anxiety and depression, drug and alcohol abuse, autism …sleep disorders and / or personality disorders are often present.’ 100. [NAME_46] recorded that C reported to her difficulties in relation to attention and sustaining concentration on specific tasks or concentrating on difficult tasks where there are lots of distractions. 101. She concluded that C displayed symptoms consistent with ADHD of the combined type, and, for confirmation and potential medical treatment of ADHD, he was advised to visit his GP and seek a specialist referral. (Assessment by a psychiatrist is required for a diagnosis of ADHD whereas [NAME_46], as a psychologist, was able to diagnose dyslexia herself). 102. [NAME_46] recorded that: “In terms of the impact related to the symptoms of ADHD reported by [NAME_116] he highlighted an impact on five … areas of his life as an adult and five as a child and adolescent. These were in terms of: (1) work / education, as a child /adolescent and adult; (2) relationships & / or family as a child / adolescent and adult; (3) social contacts as a child / adolescent and adult; (4) free time hobbies as a child / adolescent and adult; (5) self-confidence / self-image as a child / adolescent and adult; [NAME_116]’s neurodiverse cognitive profile will have an impact upon him in the workplace, training and educational settings. With appropriate supports and reasonable adjustments, [NAME_116] will be best placed to develop strategies to manage underlying difficulties and maximise his strengths and abilities. “ 103. [NAME_46] also identified a significant number of characteristics associated with Autistic Spectrum Condition (ASC). Again, in this regard, he was advised to seek a specialist referral from his GP since, again, ASC must be diagnosed by a psychiatrist.

4107466/2023 Page 23 104. [NAME_46] related no evidence in her report that C had poor motor control. On the contrary, [NAME_46] recorded that C reported no particular difficulty with coordination, balance and fine motor control. None of the diagnostic tests showed otherwise. The diagnostic tests reported did not include a test of typing speed or accuracy. 105. [NAME_46] opined: “Neurodiverse conditions are covered under the Equality Act 2010. [C] would therefore be entitled to support under the government’s Access to Work provision…” She listed around 50 potential adjustments covering pages organised under headings, Written Work, Reading, Communication/Attention/Processing/Memory, Organisation/Time Management/Wellbeing, Exams/Assessment Conditions and Visual Disturbance. These appeared to be a template list, potentially attached to all reports where the relevant neurodiverse conditions had been indicated as opposed to a tailored list based on [NAME_7] particular work duties and his particular strengths/ challenges. She recommended that C and his line manager consider which interventions are likely to be most beneficial to him. 106. Among the adjustments listed, the following appeared under the heading Written work (my numbering): i. Use of a computer with speech to text can help manage difficulties with speed of writing, spelling, structuring written work; ii. [C] should … When required, [be] provided with guidance on structuring written information or reports in a specific format; iii. Templates or example reports can be very useful as a guide for presenting written information in an appropriate format and are likely to assist see sequence and structure written work in the most efficient way; iv. [C] Is likely to benefit working from a quieter location, when undertaking written tasks within an open plan office it, to help minimise distractions and interruptions. Noise reducing headphones or audio distraction playlists can also aid concentration; v. short but frequent breaks or changes in activity can aid concentration and increase productivity when undertaking written work; vi. Typing tutor apps are available to help improve typing skills and fine motor control. Apps are available allowing users to personalise keyboards with different fonts / colours;

4107466/2023 Page 24 vii. A range of mind mapping software is available, which allow you to easily draw a mind map or flow chart and convert it to a text outline, organise ideas and convert visual mind maps with text content into a Word document. 107. Under the heading Communication/Attention/Processing/Memory, [NAME_46] also listed the following potential adjustments among others (my numbering): i. Making use of a smartphone to make a note of any tasks or information that come up, setting reminders on his phone and online calendar systems; ii. Working memory and processing speed can impact on a wide range of activities including concentration, organisation, planning, time management, completing work tasks in the allocated time, listening, taking notes, comprehension, completing multi step instructions, keeping up with conversations, finding the right words to use when speaking. It is therefore important that accuracy is encouraged first with speed increased at a later stage. 108. Under the heading Organisation/Time Management/ Wellbeing, [NAME_46] mentioned the following potential adjustment among others: i. Neurodiversity coaching with a specialist coach to understand strengths and support [C] in developing a toolkit of strategies is likely to be beneficial 109. Following the absence from 27 January to 5 February 2022, C went on annual leave. Immediately thereafter, on 16 February 2022, he reported sick again, citing stress. He remained off sick until 31 May 2022. 110. During his absence, on 23 February 22, [NAME_13] attempted to call C to check on his wellbeing and to remind him to provide a GP certificate. On 26 February, C replied that he wasn’t ok, that he had work-related stress, and that he wanted some peace and quiet. 111. On 27 February 2022, C sent [NAME_13] a copy of [NAME_46]’s report. On 9 March, [NAME_13] contacted C to offer help and support and to meet but C declined the offer. On 31 March 2022, [NAME_13] contacted C to check how he was. On 1 April, he contacted him again to try to arrange a face-to-face welfare check. [NAME_13] received a message on that date headed Private & Confidential. In it, C spoke of a lack of trust in the police and an unwillingness to meet with [NAME_13] or the [NAME_29] without witnesses. He stated he wanted to record all future conversations. [NAME_13] replied noting his responsibility as [NAME_7] supervisor and duty of care.

4107466/2023 Page 25 112. During this period, C had returned to drinking alcohol. 113. On 7 April, C sent [NAME_13] a further fit note from his GP recording unfitness due to anxiety. The GP wrote, “It seems inconceivable that this patient will be returning to work in the police force. Information was provided to [NAME_161] recent events and assessments.” 114. [NAME_13] contacted C on 9 and 18 April without success. On 12 April 2022, Dr A prepared a report based on hospital correspondence he’d received from [NAME_7] GP. He recorded that the material received confirmed C was admitted to hospital on 18 February 2022 with intoxication and suicidal ideation and that C reported drinking 1 – 1.5 litres of vodka per day for the last two weeks. He noted from the material that C had generalised abdominal tenderness and reported visual and auditory hallucinations. He recorded C was managed for acute alcohol withdrawal. He referred to a report of 25 January 2022 by a Locum Psychiatrist which indicated they would prefer to meet and assess C face-to-face once [NAME_7] alcohol issues had become relatively stable to assess possible ADHD. 115. Dr A also referred to a report from [NAME_7] own psychiatrist of 4 February 2022 which recorded C had failed to attend an appointment with him on 14 December 2021 and that the psychiatrist had found out C was drinking dependently at the time. He referred to an earlier face-to-face with C in September 2021 and a switch in medication at that time for [NAME_7] mood fluctuation. The psychiatrist recorded that C had made repeated requests that he did not mention [NAME_7] excessive drinking in the report requested by R. Dr A quoted the following passage from [NAME_7] psychiatrist: “In regards to mental health diagnosis, I would like to exclude the possibility of underlying ADHD. I had previously arranged for him to be assessed by my colleague... in this respect although he failed to attend this appointment, likely due to drinking at the time. I no longer believe that he has an underlying mood disorder such as cyclothymia or bipolar disorder. I will reschedule the appointment ... and hold off on completing my report until this assessment has been carried out.” 116. Dr A opined that the information provided by [NAME_7] GP “confirms that really this officer's main acute problem remains Alcohol Dependence. He is yet to be assessed by a Consultant Psychiatrist to see whether or not he might have ADHD as well (although as you're aware, he already has been assessed by a clinical psychologist who feels that he does have ADHD). Unless the officer can get his alcohol dependence under control, one would have to say that the outlook is not good... with respect to being able to deliver regular and efficient service at work or with respect to regaining medical fitness for operational duties.”

4107466/2023 Page 26 117. [NAME_13] contacted C again on 1 May and he and [NAME_117] met C on 9 May. C did not appear under the influence. He said he was physically fine but struggling with anxiety. He admitted he had been lying about his alcohol intake but was now seeking help. He said his last drink had been 29 April 2022. He advised he was attending meetings. He said he was keen to get back to work, and it was agreed a referral would be made to [NAME_26] to ascertain what C could do upon his return. [NAME_13] and [NAME_119] encouraged C to continue with the [NAME_60] meetings. 118. [NAME_13] contacted [NAME_26] in advance of [NAME_7] scheduled return to ask about what shift C could work, what tasks he could do and what adjustments could be made. [NAME_13] did not discuss [NAME_46]’s report with C at this stage with a view to identifying whether any of the potential adjustments it identified might be used to support C on his proposed return on 1 June. [NAME_13] did not do so because he believed he had requested advice about adjustments for C which he thought would be forthcoming from [NAME_26]. 119. On 29 May 2022, C met [NAME_13] and T/PI [NAME_119] and told them he had separated from his partner, who also worked at Loreburn St Station. He warned them to exercise caution regarding any accusations against him by his ex-partner who, he warned, had turned hostile against him. 120. On 1 June 2022, C returned to work at Loreburn St Station. 121. On his return, in the period between 1 June and 30 September 2022, before going off on a further long spell of absence, C was sometimes asked to assist other officers working in the V Division at Loreburn St Station. If an officer had a report to prepare, they sometimes asked C for assistance. The officer whose responsibility the report was would then review what C had drafted and make any revisions before passing to their supervisor for review before the report may be ultimately potentially passed to the PF. These reports included crime reports, reports for the Vulnerable Persons Database, Antisocial Behaviour reports or missing persons reports. Those requesting [NAME_7] assistance were not necessarily his supervisors but sometimes officers of junior rank / probationers. None of the supervisors reviewing [NAME_7] work in this period passed on criticism of that work to be included in Summary Discharge Documentation later prepared in 2023. This contained no criticism of [NAME_7] written work referable to the period 1 June to 30 September 2022. 122. [NAME_13] himself also sometimes asked C to prepare Vulnerable Person reports, standard prosecution reports, bail reports, custody reports, intelligence logs and other tasks on his behalf. [NAME_13] was happy with the standard of the work provided by C during this period of restricted non-operational duties and did not criticise [NAME_7] written work.

4107466/2023 Page 27 123. It is not established that [NAME_7] spelling and grammar was subjected to criticism by these officers or their supervisors in connection with [NAME_7] input to the report writing during this period. It is not established that, during the period from 1 June to 30 September 2022, these officers passed on criticism of C to their supervisors. It is not established that C was not given adequate time to check the reports he had written in this period by those seeking his assistance or that his colleagues expressed dissatisfaction with the number of words written. 124. C found it hard to concentrate on his written work in the period between 1 June and 30 September 2022 and in this period, he found it hard to process information to compile written work. C did not raise these difficulties with [NAME_13] or anyone else at the time. 125. It took C longer to compose written work than it may take someone without Dyslexia or ADHD. The length of time it took to complete written tasks was also exacerbated by the fact that he was writing in English which was not his first language. It is not established, however, that C was provided with insufficient time to prepare written work to the standard which was expected of him by [NAME_13] and [NAME_7] other colleagues during the period from 1 June to 30 September 2022. 126. On 28 June 2022, [NAME_26] informed [NAME_13] that they could not offer any return- to-work advice for C based on [NAME_7] psychiatrist’s latest report. [NAME_13] decided, following receipt of this response, to place C on day and backshifts only and on restricted duties with no front facing duties. 127. On 27 July 2022, [NAME_13] spoke to C about unnecessary time he was spending in the CCTV viewing area, particularly when the female CCTV operators were on duty, following concerns having been raised by them that C was spending extended time there for no apparent reason. 128. On the same date, [NAME_7] Consultant Psychiatrist prepared a report confirming a diagnosis of ADHD for C. C told [NAME_13] of this diagnosis shortly thereafter. On 31 July 2022, [NAME_13] contacted [NAME_26] for guidance following this diagnosis. [NAME_13] was told a review would be arranged with the [NAME_120]. [NAME_13] did not thereafter discuss [NAME_46]’s report with C with a view to identifying whether any of the potential adjustments it identified might be used to support C. [NAME_13] believed the process to be that a review would be arranged with the [NAME_120] which would result in specific advice about adjustments for C. [NAME_13] did not chase this up at any stage. 129. On 19 August 2022, [NAME_13] spoke to C about what were suggested to be excessive breaks taken by him including vape breaks and walks to the local bakers, this having been raised with [NAME_13] by colleagues of C.

4107466/2023 Page 28 130. It is not established that, on 19 August 2022, at approximately 23:00, C had a conversation with T/[NAME_29] G [NAME_34] during which [NAME_11] expressed concern about the attendance of police officers at [NAME_60] meetings, or that [NAME_11] suggested this was frowned upon. It is not established that [NAME_11] spoke to C at all at that time on that date. 131. [NAME_11] commenced shift at 21:00 on 19 August 2022 at Loreburn St Station as nightshift duty [NAME_29]. C was on a 5pm to 3 am backshift. During the shift, at 00:13 on Sat 20 August, [NAME_11] received a call from [NAME_121] based in Stranraer to say that a member of staff within Loreburn had called him and had alleged that he believed C was smelling of alcohol while on duty. [NAME_11] asked [NAME_13] to accompany him, and they spoke to C in private. They informed C of the allegation. C denied having consumed alcohol and was upset at the allegation. [NAME_11] nor [NAME_13] could smell any alcohol from C nor did they otherwise consider C seemed under the influence. C suggested the smell could be sanitising hand gel. The offer of taking a voluntary breath test was put to C but he was non-committal and no breath test was carried out. C was not placed under pressure to do so and his lack of agreement to the proposal was respected. 132. On 16 September 2022, C asked to meet with [NAME_13], and they spoke at length about [NAME_7] struggles with his domestic and financial situation. [NAME_13] followed up with an email regarding support available. During the meeting C did not raise any issues concerning any difficulties with the work he was being tasked with or problems with the time allocated for tasks. 133. On 20 September 2022, C did not attend work. He sent an email to [NAME_13], [NAME_119] and [NAME_39]. He said he’d taken a day’s annual leave to clear his head. He referred to problems with his domestic situation with his ex and allegations she had made against him. He was plainly in an emotional state when he wrote the email. He indicated he would return to work on Sunday. He had extensive conversations with [NAME_39] and [NAME_123] about concerns. 134. In the period from 1 June to 30 September 2022: a. C had use of a computer with the standard functionality on Word which includes a speech to text dictation function. He also had access to a Dictaphone. He did not make use of either. He perceived that his colleagues would look at him as though he were mad if he dictated written work using in the open plan. C was not provided with any other specialised dictation software. C did not ask for any support in this respect or suggest to [NAME_13] that the absence of such specialised software was causing him difficulties in the work he was being allocated;

4107466/2023 Page 29 b. C had previously been provided with guidance on structuring written information in reports in a specific format and provided with templates and examples in April 2021 by [NAME_83]. He was not given any further specific guidance or instruction on these matters by [NAME_13] or anyone else in the period. He did not request any such support in the period or suggest to [NAME_13] or anyone else that the absence of such guidance was causing him difficulties with his work; c. C had previously been provided with templates or example reports as a guide for presenting written information in an appropriate format in April 2021 by [NAME_83]. He was not given any further specific templates or examples by [NAME_13] or anyone else in the period. He did not request such templates / examples or suggest that their absence was causing him difficulties with his work; d. C was working in a busy open plan location. There were other parts of the station where quieter rooms were available. R did not offer the use of these to C in the period. C did not request access to a quieter location during this time or suggest the noise levels / distractions in the open plan area were causing him difficulties with his work. e. C took frequent breaks. He was broadly at liberty to decide when he wished to take a break and organise his time around this. However, [NAME_13]’s words with C on 19 August 2022, when [NAME_13] spoke to C about taking excessive breaks, had an inhibiting effect on C when it came to taking breaks. C did not raise that he found he needed to take frequent breaks or have frequent changes in activity. [NAME_13] did not discuss or agree with C a pattern of short frequent breaks or activity changes during the period. f. R did not provide C with any typing tutor apps designed to improve typing skills or any mind mapping software during this period. C did not suggest to [NAME_13] that he considered this could be useful or that he was struggling with his typing speed or accuracy. g. R did not provide [NAME_13] with neurodiversity coaching or access to a neurodiverse network or training during this period. C did not raise with R the question of whether [NAME_13] was provided with such coaching / training / access. h. C had access to a work phone which he could use, if he wished, to make a note of any tasks or information that came up. i. [NAME_13] and others delegating work to C did not specifically encourage him to focus on accuracy in his written work initially with the development of speed at a later stage. C did not raise with [NAME_13] or

4107466/2023 Page 30 others that he was struggling with ensuring the accuracy of his written work in the time allocated for tasks. 135. On 1 October 2022, C went on annual leave. On 10 October 2022, an [NAME_26] assessment was carried out by telephone. Dr A recorded that C continued to outline high level symptoms of anxiety and depression. C indicated to Dr A that he had remained off alcohol since late April 2022. (That was not the case, as C had been drinking during his annual leave in October). He referred to his domestic problems. He said he didn’t feel his insomnia medication was helping and that the benefits from the ADHD medication were not clear. Dr A opined that C was unfit for work and that it wasn’t possible to provide a timescale for recovery. He opined it was impossible to know whether or not C would recover fitness for operational duties and, if so, within what timescale. He said a recovery was likely to be ‘at least ‘many months’ away and contingent on, at a minimum, improvement in [NAME_7] domestic situation. 136. On 24 October 2022 at around 9.50 am, R received a report from a member of the public that a male had collapsed in the street in the carpark at [ADDRESS], near to the station. [NAME_125] attended and, on identifying C, he informed Duty Sergeant, P Murphy who then accompanies [NAME_125] and C in an ambulance to hospital. C was drunk and barely able to speak or stand. He was admitted for treatment. 137. Officers visited [NAME_7] home address, and his landlady allowed them to access his room. They reported to [NAME_11] who was supervising the shift, that the room smelled of urine, vomit and faeces and was littered with empty alcohol bottles, uneaten food and general waste. They removed [NAME_7] police warrant and uniform. 138. It is not established that the attending officers brought empty bottles of vodka to the hospital to ask the hospital to test them for drugs or that the hospital did so. 139. C spent 10 days in hospital. He remained off sick thereafter, returning to work on 24 December 2022. 140. During his absence, around November 2022, C sent a document sent to his [NAME_20] rep, [NAME_17], complaining at length about a number of work matters. He said: “For the past few months when I was sitting behind the desk, I was working with every single group. I have been responsible for creating crime reports, PDF reports, VPDs, missing person reports etc. It is not like I was sitting for so many hours in staring at the computer. Several cops told me, and I quote “[NAME_127] what are we going to do when you go will go back on the

4107466/2023 Page 31 street? Who is going to handle or paperwork?” so, I think I was doing something good.” 141. On 19 December 2022, C was assessed by Dr A who noted C told him that he nearly died in October 2022 from severe withdrawal. Dr A recorded C was on medication for his mental health issues and ADHD. He recorded C was keen to return to work and opined that “in my view rehabilitation into a non-operational administrative role at this point would likely be therapeutic for him. He's not fit to deal with immediately safety critical work and is not fit to engage in telephony or face to face with the public... he's not medically fit for occupational driving.” 142. Dr A also said “I would also refer you back to the report dated 21/01/2022 compiled by [NAME_47]... with respect to the... ADHD. In this regard I would refer you specifically to her recommendations towards the end of her report ... However I am not suggesting that consideration / implementation of any of these recommendations would be a prerequisite to rehabilitation into work. In my view, the officer would be likely to benefit from returning to work now and then the recommendations could be considered by Police Scotland thereafter.” He observed that much would depend on whether C was able to maintain abstinence. 143. C returned to work was on 24 December 2022. He initially returned to Loreburn St Station which remained his base until 3 January 2023. In this brief period, C continued to do the same types of non-operational duties as he had been performing between June and end September 2022. [NAME_13] continued to have supervisory responsibility for him. [NAME_13] did not discuss [NAME_46]’s report or adjustments with C during this period and did not implement any measures beyond the restrictions on public facing work, etc mentioned in Dr A’s report of December 2022. Events in 2023 144. On 3 January 2023, C was transferred to Police HQ, Cornwall Mount, Dumfries. He remained on non-operational duties, though the nature of these changed. [NAME_13] technically remained [NAME_7] line manager until May 2023, however, [NAME_13] remained at Loreburn St Station and his interactions with C in this period were limited. 145. In January 2023 C was tasked with conducting a STORM marker audit for V Division by HM, an [NAME_29] at Dumfries HQ who, as part of the management team there, interacted with C from time to time. HM was not aware of [NAME_7] specific disabilities, though he was aware C was on non- operational duties. C did not raise with HM his disabilities or mention [NAME_46]’s report or any difficulties he was experiencing as a result of his disabilities.

4107466/2023 Page 32 The STORM marker audit task was administrative in nature. A marker may, for example be a marker on an address for previous police contact so that, if the police receive a call from that address, officers would not of any risk or vulnerabilities. C sent officers a document with STORM markers associated with their name and asked them to mark it up with the required action (deletion or retention). On receipt of the responses, C updated the main spreadsheet (or the officers could access it and do so themselves) by deleting the marker or updating the retention period. HM had no concerns with [NAME_7] performance in relation to this task. 146. [NAME_7] time at Police HQ in Dumfries, his responsibilities also included cleaning the car fleet for Divisional Coordination Unit (DCU), working for the Licensing Department and for the Divisional Operational Enquiry Unit (DOEU). [NAME_128] assigned C a task of compiling documents relating to gambling based on entries from the Vulnerable Persons Database which C carried out successfully. C was not required during this period to prepare or input into crime reports as he had been doing at Loreburn St Station. After his transfer to HQ, composing text-based reports was not a material component of [NAME_7] work. During this period, C was not under time pressure in relation to the duties assigned to him. At Dumfries HQ, C was working in a quiet environment and was at liberty to take breaks when he wished. 147. In January or February 2023, senior managers at V Division decided they wished to move to a Regulation 9 Discharge Hearing for C. [NAME_10], the sergeant responsible for Probationer Governance was asked to prepare the necessary paperwork. 148. On 10 February 2023, [NAME_10] prepared a memorandum for the consideration of [NAME_7] to be considered by the Divisional Commander of V Division, Chief [NAME_21]. [NAME_10]’s report ran to 15 pages (the “First Discharge Summary”). It quoted Reg 9 and indicated options for consideration as [NAME_7] discharge, a further extension of his probationary period, or confirmation in the rank of [NAME_3]. The document summarised [NAME_7] training and his experience / performance thereafter including detailing periods of operational deployment, periods of absence and periods of restricted duties. It included health information drawn from [NAME_8] reports as well as input from line managers. It referred to the previous informal action plan in 2020 and formal action plan in 2021. 149. On 17 February 2023, the First Discharge Summary was served on C or his [NAME_20] representative. C did not have an opportunity to input into his own views into [NAME_10]’s report dated 10 February 2023 which was an account from the managerial perspective. C had a welfare check following the service of the summary report with two officers who told him there would be further follow

4107466/2023 Page 33 ups in relation to his wellbeing. A Regulation 9 Discharge hearing was scheduled for 10 March 2023. C had the opportunity to prepare, with his [NAME_20] representative, a mitigation statement in response to the First Discharge Summary for consideration at the Discharge Hearing. In the event, the Discharge Hearing scheduled for March was postponed. 150. In the weeks that followed, [NAME_10] sought further information from [NAME_7] line management and [NAME_61] regarding actions carried out to support C and further evidence of the performance concerns to justify the move to a Regulation 9 Discharge Hearing. He prepared an updated version of the discharge summary document (the “Second Discharge Summary”) which was lengthier, running to 27 pages, plus appendices. The appendices which had not been annexed to the First Discharge Summary included statements [NAME_10] had since obtained from 9 Officers. As before, the Second Discharge Summary identified options for the outcome. The question of which of these options should be recommended was to be decided by [NAME_21] following a Regulation 9 Discharge hearing. The process was that her recommendation would, thereafter, ultimately be reviewed by the Chief [NAME_3] who could either approve and implement her recommendation or take a different decision. 151. On 21 April 2023, C was served with the Second Discharge Summary. R did not carry out a further welfare check on C following service of the Second Discharge Summary. A Regulation 9 Discharge Hearing took place on 4 May 2023. [NAME_10] presented his Second Summary Discharge and invited questions on it. C was accompanied by [NAME_17]. [NAME_21] adjourned the hearing to read the [NAME_8] reports. On reconvening, [NAME_17] spoke on [NAME_7] behalf at [NAME_7] request and circulated a lengthy ‘plea in mitigation’ document which he and C had prepared between them in advance. [NAME_21] then adjourned to review all information. When she reconvened the meeting, she advised she felt she required further information to make a recommendation. She, therefore, adjourned the hearing until 14 June 2023 to obtain an updated [NAME_8] referral. In the meantime, she directed [NAME_61] to complete a new referral to [NAME_26], to review [NAME_46]’s report, and to implement additional support mechanisms as required. 152. Between January 2023 and 12 May 2023 R did not discuss [NAME_46]’s report or recommendations with C. 153. At some stage, in or around May 2023, [NAME_61] advised C that supervisory responsibility for him would pass from [NAME_13] to [NAME_128], who was based at Dumfries HQ where C was working. 154. On or about 12 May 2023, [NAME_61] met with C. The meeting was convened and conducted on an informal basis in that C was not offered an

4107466/2023 Page 34 opportunity to be accompanied by a representative, minutes were not taken, and the meeting was convened at relatively short notice. C did not seek a postponement or ask for his representative to attend. [NAME_61] discussed [NAME_46]’s report with C and discussed [NAME_7] current role. [NAME_61] asked C to comment on whether C felt he had enough support and on the recommendations by [NAME_46]. C agreed that having regard to the duties of his current role, he didn’t require any further adjustments or support. He confirmed he was content with the support, working environment, timescales to complete tasks, templates available and support to complete tasks. He confirmed he was content he could take short breaks as required. 155. Later on 12 May 2023, C emailed [NAME_17] regarding the meeting which had taken place. On the matter of adjustments, he said: “I do not have deadlines … I am often sitting on my own … and it is very quiet …I am aware I can take short breaks when possible and get a smoke. Actually he [[NAME_61]] is right at the moment and I do not know what else I could ask for. I have thought about the reasonable adjustments recently and I really do not know…” 156. On or about 18 May 2023, C emailed [NAME_17] and said his role involved cleaning cars and that he wasn’t allocated to do any tasks where time was crucial. In that email, in relation to possible workplace adjustments, he queried ‘what help we might be talking about’ in the circumstances of the role he went on to describe. 157. On 22 May 2023, Dr A conducted a telephone assessment of C. His report concluded C was not currently fit for operational duties and was fit to be in work ‘only in the context of the current adjustments’. He said that [NAME_7] personal / family stress continued and was having an impact on his mental state. He said C reported he remained abstinent from alcohol. Dr A recorded that C had intimated that, if he returned to operational duties, he did not feel reassured he would be well supported by colleagues or the organisation in general. He said C had intimated that so many individuals had given statements against him that he would feel ‘inordinately apprehensive’ if placed in an operational role. He said C had told him that he would not know whether his words or actions would be used against him. Dr A opined that this apprehension was a barrier to rehabilitation into an operational role and that it was a reasonably foreseeable risk that, if placed in such a role, C would run into ‘difficulties with functioning’. Dr A said, “The most crucial thing in this case relates to whether … the relationship of trust between the officer and colleagues /the organisation can be rebuilt to the extent that he would not feel apprehensive … with respect to the operational setting. There are no medical measures which will fix this.”

4107466/2023 Page 35 158. On 14 June 2023, the discharge hearing reconvened as planned. [NAME_21] had been updated by [NAME_61] regarding his discussion with C about [NAME_46]’s report and had been given sight of Dr A’s report of 22 May 2023. After adjourning the hearing, [NAME_21] reviewed all the information and made a recommendation that C should be discharged on the basis that he was not fitted physically and mentally to perform the duties of the office of [NAME_3] or he was not likely to become an efficient or well conducted [NAME_3]. 159. She prepared a written rationale for this recommendation. In it, she wrote that she took into account that, though currently abstinent, [NAME_7] position with regard to alcohol remained unpredictable. She wrote that she took into account that she said there were no projected timescales within which he would be able to return to operational duties and that his last operational shifts had been some 18 months previously. She recorded that she took into account that she said there were no additional support measures that could be put in place at that time. She also expressly took into account that C already had 4 years and 6 months’ service and that, were they to reach a stage where C could be considered for operational duties, there were still considerable areas of concern in relation to his performance. 160. In the document outlining her rationale, [NAME_21] referred to the 2021 formal action plan and to the various areas identified for improvement including effective communication, team working, personal awareness, job knowledge and personal effectiveness. She commented that, “there were a number of key competencies that would require to be developed before he would reach the standards required.” 161. Her recommendation was then passed to the Chief [NAME_3] (the ‘CC’). A month went by when C was not aware of the outcome. During that time, [NAME_7] [NAME_20] representative and [NAME_61] discussed with C the option of resigning, should he wish to do so. C declined. On 12 July 2023, the CC, having reviewed the documentation associated with the Discharge hearing including [NAME_21]’s recommendation and rationale resolved to discharge C. He prepared a letter to C to that effect dated 12 July and asked [NAME_21] to arrange for it to be issued. He followed [NAME_21]’s recommendation and reasoning. 162. The letter read as follows: “Following the conclusion of the hearing on 14th June 2023 … I hereby give notice in accordance with Regulation 9 … that I have decided to discharge you from your appointment as a [NAME_3] … on the grounds that I consider that you are not fit physically or mentally to perform the duties of Office of [NAME_3] or are unlikely to become an efficient or well conducted [NAME_3].

4107466/2023 Page 36 I am also required by Regulation 9... to inform you that you may tender your resignation before this Notice of Discharge takes effect …” 163. On 13 July 2023, C was called to a meeting with [NAME_130] and [NAME_132]. [NAME_17] joined the meeting by phone. [NAME_61] explained C was to be discharged and gave C a final opportunity to resign which C declined. [NAME_61] then read the letter which discharged C with immediate effect on the provision of payment in lieu of one month’s notice. Arrangements were made to retrieve [NAME_7] warrant, cards and uniform from his home by sending officers home with C to collect this. 164. On Saturday 15 July 2023, [NAME_13] contacted C to enquire after his wellbeing after learning of [NAME_7] discharge. He asked about [NAME_7] condition and also discussed with C whether C still had any police property. He enquired after [NAME_7] domestic situation, about which C had confided in him many times. It was [NAME_7] perception that [NAME_13]’s enquiries in this regard showed a lack of compassion. Findings in Fact related to time bar 165. C was not aware of the option of raising disability related claims in the Employment Tribunal until around March 2023. Before that date, he had representation from the [NAME_20] for some years. He had discussed with successive representatives his employment situation. It is not established that he had told his [NAME_20] rep that he believed he was being discriminated against based on the disabilities of dyslexia or ADHD. It is not established that he asked about his potential rights specifically in regard to potential disability discrimination arising from events before his discharge. There were no discussions between C and his [NAME_20] reps about Tribunal claims or potential time limitation issues before March 2023. C did not make enquiries in relation to potential rights or remedies from any other source such as internet research, consulting a solicitor or the Citizen’s Advice Bureau or otherwise. 166. In March 2023, [NAME_17] mentioned the possibility of making a claim in the Employment Tribunal. [NAME_7] understanding of the advice was that he could not raise a complaint until such time as R discharged him or he resigned from R. It is not established that C discussed with [NAME_17] or sought advice from him about potential claims relating to allegations of disability discrimination based on acts or omissions by R which had already occurred prior to the discharge which was in prospect at the time. 167. After C was discharged on 14 July 2023, he began looking for a solicitor and at some stage instructed [NAME_134]. [NAME_136] explained to C that it was possible to make complaints to the Tribunal about pre-termination alleged

4107466/2023 Page 37 acts of discrimination. It is not established when [NAME_134] was instructed save that it was some time between 14 July 2023 and 9 October 2023. It is not established what advice [NAME_136] gave about time bar or that any incorrect advice was given in this regard. 168. Early Conciliation was initiated on 9 October 2023. On 20 November 2023, the Early Conciliation Certificate was issued and on 20 December 2023, the ET1 was lodged with the Tribunal. Observations on the evidence 169. By the time the hearing took place, over four years had elapsed since the earliest allegations. My strong impression was that this considerable timescale had a deleterious impact on the sharpness of recollections of all witnesses and their grasps of the detail of the chronology. In particular my impression was that the details of day-to-day conversations or events not recorded in contemporaneous documentation were challenging for witnesses to recall. In the following paragraphs I discuss my reasons for deciding as I did in relation to areas of key factual conflict. 170. C alleges R disclosed confidential information about [NAME_7] health which, it is understood, relates to the soiling incident on 23 October 2021. It is undisputed that [NAME_12] passed this information on to two other sergeants as well as to [NAME_92]. It is not established that it was [NAME_12] specifically who leaked the information further to other colleagues, but I accept on balance that one of R’s managers did so. It was not challenged that the information had come to the attention of [NAME_37] and other constables. For the purposes of [NAME_7] claim, whether it was [NAME_12] or someone else in the circle of confidence who disclosed this information, it was one of R’s managers for whose actions R is vicariously liable if they are found to contravene the [NAME_6]. 171. Relatedly, C alleges that the incident of 23 October 2021 (when he soiled himself) was publicised on numerous social media group chats. There were no screenshots or other documentary evidence produced to support this allegation. [NAME_7] statement included a comment that ‘the incident became a topic of amusement on social media platforms, leading to my unexpected rise to fame as the “star of the month”’. He did not assert that he had personally seen such social media posts or explain, when, on what site or who posted these comments. When asked by [NAME_59] about the matter, C referred to [NAME_37]’s statement and other officers asking him about what happened because it was put on social media posts. This evidence was vague. C did not name any specific officer (apart from [NAME_37]) who told him about having seen social media posts about the incident. [NAME_37]’s statement said: “.. he [[NAME_127]] explained that … he had an accident…He had told his Sergeant … but I believe it was his sergeant who had shared the information on the

4107466/2023 Page 38 group chat in the first instance.” However, in cross examination, [NAME_37] confirmed he was not on the group chat. He said he was told he it had been shared on the group chat, but did not say by whom, and based on [NAME_37]’s statement, it appeared he may have meant by C himself. I considered carefully the evidence available that this information was shared on social media and concluded there was insufficient evidence to establish that it had been shared in this manner. 172. C alleges [NAME_12] falsely represented that C was looking for another job. It was not disputed that on 14 November 2021, [NAME_12] had told [NAME_50] and [NAME_137] in an email (reproduced in the Second Discharge Summary) that C was looking for employment outwith the Police Service. This was the only specific evidence of [NAME_12] disclosing [NAME_7] job application(s) to other colleagues. It was also the only evidence of this happening in November 2021 specifically. It is tolerably clear, on reading the email of 14 November 2021, that all of the allegations in paragraph 19 of the Claim emanate from that particular communication despite it not being specifically mentioned. C referred in his statement to [NAME_12] ‘insinuating to others that [he] was contemplating applying for a new job’. However, he led no evidence of how, to whom, or specifically when any such insinuations were made. Other than the disclosure in the email of 14 November 2021, I do not find that [NAME_12] told others that C was seeking employment outside the police service. 173. It was not put to [NAME_12] in cross examination that, when [NAME_12] wrote his email of 14 November 2021, he was falsely representing the position. It was not suggested to [NAME_12] that he in fact knew that C was not looking for employment outwith the Police Service at that time. I accept, on the evidence before me, that when [NAME_12] wrote this email, he believed the information to be true. It is not disputed that C had told [NAME_12] of his application to [NAME_106] on 13 September 2021 or that [NAME_12] had followed up several times with C about this application. [NAME_12] agreed that he found [NAME_7] position varied in response to these enquiries, there was no evidence that C had told [NAME_12] as of 14 November 2021, that he was not seeking any external jobs. I concluded that [NAME_12] did not falsely represent the position about C looking for other employment in November 2021 as averred. 174. C alleges that on 19 August 2022 at around 23:00, [NAME_11] met with him and told him to choose between attending [NAME_60] meetings and continuing to work with R as it was frowned upon for serving officers to do so. [NAME_11]’s account was that he never had such a conversation with C on this date or at this time. He refuted that this was something he would ever have said and said the conversation after midnight about the allegation of an alcohol smell on C was the first occasion he ever spoke to C. C was equally adamant that the [NAME_60] conversation took place. He suggested there was a document which referred

4107466/2023 Page 39 to [NAME_11] having spoken to C a few hours before the later conversation, but he was unable to take us to it or identify the nature of the document. The only document written near the time about the matter was an email the following day (20 August 22) from [NAME_11] to [NAME_61], which relayed the allegation C smelled of alcohol and described the conversation between [NAME_11] and C at which [NAME_13] was present. The correspondence made no mention of [NAME_11] having had any interaction with C earlier in his shift. 175. C alleged that [NAME_11] referred to having spoken to him a few hours earlier during the conversation about the alcohol smell allegation, but he did not put this to either [NAME_13] or [NAME_11] in cross examination. C made no suggestion that he made any complaint to [NAME_13] or to any other senior officers at any stage about [NAME_11]’s discouragement of his use of the [NAME_60]. I found this striking in circumstances where C knew that [NAME_13] himself, as well as [NAME_119], [NAME_26] and his GP had all been vocal in their encouragement of [NAME_7] attendance at [NAME_60] meetings. One might have expected that, in the circumstances, C would have had some confidence that [NAME_11]’s alleged conduct in discouraging [NAME_60] support would be dimly viewed by R. Overall, I preferred [NAME_11]’s account. On balance, I concluded that [NAME_11] did not discourage C from attending [NAME_60] meetings late in the evening of 19 August 2022 (or at all). 176. C alleges that shortly after midnight on 20 August 2022, [NAME_13] and [NAME_11] “insisted on subjecting [him] to a breath test.” [NAME_11] and [NAME_13] said that the offer of a breath was wholly voluntary and that C declined so that none was taken. When C was cross examined on this, he accepted he did not, in fact take a breathalyser test. He referred to [NAME_13] saying to him ‘you can clear your name’. His suggestion seemed to be that this amounted to [NAME_13] pressuring him. When [NAME_59] put to him that the decision was left to him, he said ‘I refused’. When [NAME_59] put to him that the officers accepted his refusal, C agree and said words like, “They weren’t bothered by it”. On balance, I accept that the breath test option was proposed on a voluntary basis and that, although [NAME_13] may have suggested it was an opportunity for C to clear up the allegation, C was not pressured to comply. 177. C alleges that on 24 October 2022 when he was taken to hospital for intoxication, R’s officers attended his home and took away empty vodka bottles which he says they brought to the hospital to be tested for the use of illegal drugs. He alleges the hospital tested them and the tests were negative. In his statement, he says the police officers were openly discussing the matter just outside his hospital room and that he overheard their conversation with hospital staff. He doesn’t say what precisely he overheard or who was speaking. He doesn’t explain how or when he came to hear the results of any tests on bottles. In his statement he also goes on

4107466/2023 Page 40 to say that certain blood tests were carried out to detect drug use at R’s request. 178. C mentioned this allegation in a letter to [NAME_17] on 14 November 2022. He says (p.838), “When I was in hospital they kept me in ICU for two days … Also, they were cheeky enough that they brought empty vodka bottles from my room and asked to be tested for illegal substances. And they had this conversation outside my room so I heard everything.” Later in the letter, C says about this spell in hospital “I was under medication, I was connected to drips and very confused, and they kept asking questions and telling me that I have done something which I have not. Pure gaslighting …” Later in the letter, he says that upon speaking to his landlords, he discovered the disturbing truth about how the Police operate. He said they had asked if C was driving or taking drugs. He also said to [NAME_17], “They entered the room, as they said to the landlords, they wanted to check what prescribed medications I am taking. Which was partially a lie as at the same time they have seized empty bottles vodka to be tested for any illegal substance …” 179. C also referred to a statement he took from his former landlady, [NAME_138]. It was taken 4 months after the event and was a ‘Character reference’ procured to be presented at [NAME_7] hearing. [NAME_140] did not give evidence to the Tribunal so was not available to be cross-examined on its contents. In the document, she asserted that C had never taken drugs except prescription drugs. She said, “That is why it is even harder to believe that his colleagues made statements whereby he had been taking drugs and found some in his room, also having seized some empty bottles for testing.” She didn’t explain whether she knew this because she had personally witnessed it or because C had told her colleagues had made statements of this sort. She later described an occasion in October when two police officers came round after C was admitted to hospital. In her account of her interaction with them, she made no allegation these individuals had taken bottles from the room for testing. She went on to say that two further officers attended and wanted [NAME_7] warrant card and uniform. Again, she didn’t say she witnessed the officers taking vodka bottles. 180. The officers who attended [NAME_7] home on that date ([NAME_125] and PC Murphy) did not give evidence to the Tribunal. However, [NAME_11] was on duty at the time as V [NAME_29] and was liaising with them throughout their involvement. He made no mention of drug testing on vodka bottles in his written statement or in a contemporaneous briefing on the incident he prepared for the Professional Standards Department. In cross examination, he said he wasn’t aware of any bottles being removed to test for drugs and that he didn’t direct that. On re-examination, he confirmed his understanding that if such a thing were to happen because a member of the public was

4107466/2023 Page 41 suspected of drug use, there would require to be a paper trail, without which the bottles wouldn’t be accepted for testing. He also explained that in such a situation, the seized items would be sent to a lab for testing. 181. [NAME_13] was not on duty at the material time and did not attend [NAME_7] home though he attended the hospital the following day to visit C. His evidence in cross was that he believed bottles had been seized but no one specifically told him what for. It was unclear from whom [NAME_13]’s understanding that bottles were seized had come and whether it may have been from C himself. 182. I carefully weighed all the evidence in relation to this allegation. Ultimately, I was not persuaded, on the balance of probabilities, that the bottles were seized as described and given to the hospital to be tested for illegal drugs. The source of any knowledge or understanding [NAME_140] or [NAME_13] had of the allegation was wholly unclear. [NAME_13] certainly had not directly witnessed the seizure of bottles, and it was far from clear that [NAME_140] was saying she had done so. In both cases, one plausible possibility was that they were told this information by [NAME_141], who was updated throughout 24 October by the attending officers had no knowledge of the seizure or testing and didn’t instruct it. 183. I agreed with [NAME_59]’s submission that the allegation was somewhat bizarre. The absence of any paper trail at all to confirm the testing or the results seemed strange. I was unconvinced in the absence of any supporting documentation that the hospital treating C (as opposed to a forensic lab) would have the facility, resources or willingness to speculatively test bottles for traces of drugs on the possessions of one of its patients. This struck me as inherently unlikely, particularly in circumstances where C says they had in any event administered blood tests to detect drugs. I took into account that C was not himself party to a conversation but says this was overheard through a door while he lay in intensive care. By his own account, he was in a serious condition and was medicated and confused. I do not find that C has deliberately sought to mislead the Tribunal with respect to the testing of bottles; I accept this is what he believes he heard. I am not satisfied, however, on balance, that his account is a reliable and accurate one in all the circumstances. 184. C alleges that, in the period from 1 June to 30 September 2022, R had a PCP which was a requirement that officers be able to provide written reports of a suitable standard. He says he was delegated report writing tasks by various officers during this period and that he was put to a disadvantage in that, among other things, his writing was criticised and he was required to redo the work despite being engaged in other tasks. R disputes that C was criticised or required to re-do work during this particular period. [NAME_13] was [NAME_7] line manager throughout this time, and he agreed he asked C to help him

4107466/2023 Page 42 from time to time with written work. [NAME_13] said he had no issues with the standard of [NAME_7] written work in this period. C did not cover this in his written witness statement. I asked him about the disadvantage in relation to the writing tasks in 2022 and he gave generalised evidence of officers criticising his work or of them complaining to their supervisors about its standard instead of to him. I gave C opportunities to give particular examples, but he didn’t do so. He said that he discovered in 2023 that people were saying his reports were awful. However, I could see no record in the Discharge Summaries prepared in 2023 of criticism the written reports C worked on between June and September 2022. In this regard, I note that the Action Monitoring Log prepared by [NAME_12] over the period March – May 2021 indeed included criticism of some of [NAME_7] written work from that time and that C didn’t have sight of the log until around September 2022. It may be that C has confused the chronology and that he had in mind these criticisms. 185. On balance, I preferred the account of R. There was a lack of specificity in relation to [NAME_7] account of matters relating to his work during the period June to September 2022 (in contrast to other periods of his case both earlier and later where a very detailed chronology is offered). C had complained about a number of things during his time at work in 2022 in his written statement to the Tribunal and in a lengthy document provided to his [NAME_20] rep around November 2022. He had not complained about criticism of his written work or of a lack of time to perform the tasks or of being required to re-do tasks. On the contrary, in November 2022, C told [NAME_17] about the written work he was carrying out for colleagues and reported their praise of his work. I was unconvinced of the reliability of the evidence in relation to the asserted criticisms of his written work at the material times. 186. C also says that between 1 June and 30 September 2022, he was put to the disadvantages that he was finding it hard to concentrate on written work, that he was finding it hard to process information, that he was finding it hard to compile reports, and that it was taking him longer to do so. R disputed that C was put to these disadvantages during this period. C gave evidence to the effect that he didn’t have time to check the reports properly; that he struggled to identify the appropriate length of text to write; that his first drafts contained mistakes; and that he struggled with the noisiness at [ADDRESS] when trying to focus on tasks. I accepted [NAME_7] evidence on these matters. Specifically, I accept he found it hard to concentrate on written work, to process information and to compile reports, as averred. His evidence of his experience was consistent with the findings of [NAME_46] following [NAME_7] diagnostic tests and her narration that C also reported difficulties to her in January 2022 in relation to attention and sustaining concentration on specific tasks or concentrating on difficult tasks where there are lots of distractions. [NAME_46]’s report recorded that C reported ‘He had always found it difficult to structure

4107466/2023 Page 43 and organise his thoughts in writing and that this can have an impact on him in the context of his work.”. 187. With respect to the alleged disadvantage that it took C longer to write reports, I accept, on the balance of probabilities, that it did take C longer to compose written work to a suitable standard than it would take someone without Dyslexia or ADHD. I was not persuaded, however, on the particular facts of this case, that the additional length of time C needed put him at a substantial (more than trivial) disadvantage. The evidence before me weighed against a finding that C experienced difficulties on account of being allocated insufficient time to carry out written tasks between June and 30 September 2022. There was evidence, which I accepted, that C was taking multiple breaks during the relevant period and was able to go out for repeated vape breaks or to visit the local baker at least in the period to 19 August. There was evidence that he felt able to spend time in the CCTV viewing room without an apparent purpose there in the period with which I am concerned. There was no evidence that C required to work late beyond the end of shift to finish work or that he missed any particular deadline. Again, I take into consideration, the evidence that C told [NAME_17] in November 2022 of his colleagues’ positive response to his assistance with their written work in the material period. 188. C also complains of a failure to make reasonable adjustments, after transferring to Dumfries HQ (the “2023 RA Period”). He alleges that, following the transfer, he continued to require to compile written reports sometimes. I have no reason to doubt that [NAME_7] work in this period involved undertaking responsible and important tasks. However, on the evidence before this Tribunal, I am not satisfied that he was charged with preparing written (in the sense of heavily text based) reports or contributing to these. I have found that the tasks delegated in this period were administrative in nature and, again, that C was not confronted with tight timescales. 189. I accepted HM’s evidence about the particular task he instructed C to perform more details of which were supported by an email C prepared in connection with the STORM marker audit. Though, at first blush, the reference to an ‘audit’ may conjure the composition of a written report, it was plain on examining the detail that the task was administrative in nature. I also had regard to what C was recorded as having reported to [NAME_61] during their meeting on 12 May 2023 about the nature of his work at the time and to [NAME_7] emails to [NAME_17] on 12 and 18 May 2023. It seemed to me that this material did not sit easily with the description of work he portrayed to the Tribunal in his oral supplementary evidence. I further noted that here were no examples of written reports he had prepared in 2023 within the substantial volume of documentary evidence in the case. On the balance of

4107466/2023 Page 44 probabilities, I concluded that the preparation of text based written reports was not a material component of [NAME_7] work during the 2023 RA period. Relevant Law Time Limits 190. Section 123 of the [NAME_6] deals with time limits for bringing discrimination and harassment claims and provides: “123 (1) subject to section 140A and 140B 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. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when P does an act inconsistent with doing it, or (b) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. 191. The burden of proof in showing that it is just and equitable to allow a complaint to be received under s.123(1)(b) is on the claimant (Robertson v Bexley Community Centre [2003] IRLR 434). [NAME_142] has chosen to give the Tribunal wide discretion in determining whether it is just and equitable to extend time, having regard to the language of the provisions (Adeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23.) 192. In effect, s.140B(3) of [NAME_6] ‘stops the clock’ during the period in which the parties are undertaking early conciliation and extends the time limit by the

4107466/2023 Page 45 number of days between ‘Day A’ and ‘Day B’ as defined in the legislation. Where a limitation period has already expired before the conciliation commences, there is no extension ([NAME_143] v [COMPANY_144] of America Merrill Lynch UKEAT/0067/19). 193. In [NAME_145] v The Ministry of Justice [2016] UKEAT/003/15, the EAT cited points relevant to the test for extending time in discrimination claims, as follows: a. The discretion to extend time is a wide one: [NAME_96] v [COMPANY_170] … b. Time limits are to be observed strictly in ETs. There is no presumption that time will be extended unless it cannot be justified; quite the reverse. The exercise of that discretion is the exception rather than the rule ... c. If an ET directs itself correctly in law, the EAT can only interfere if the decision is, in the technical sense, “perverse … d. What factors are relevant to the exercise of the discretion, and how they should be balanced, are for the ET … e. The ET may find the checklist of factors in s 33 of the Limitation Act 1980 (“the 1980 Act”) helpful (British Coal Corporation v Keeble [1997] IRLR 336 …) … This is not a requirement, however, and an ET will only err in law if it omits something significant. 194. [ADDRESS] of Appeal has made clear that the Tribunal is not required to go through a Keeble checklist. It has also observed that factors which are almost always relevant to consider when exercising any discretion whether to extend time are: (a) the length of, and the reasons for, the delay and (b) whether the delay has prejudiced the respondent (for example, by preventing or prohibiting it from investigating the claim while matters were fresh) (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050). 195. Even if a complaint is found meritorious at a final hearing which has been convened subject to a reserved time bar point, it does not follow that time will always in such a case be extended. That factor may be outweighed by other considerations, including possible considerations of prejudice in favour of the respondent ([NAME_146] v [NAME_147] Trust [2022] EAT 132 at para 58 and 59). 196. The question of whether ignorance on the part of the claimant is reasonable has been identified as relevant in the context of the time limit provisions in unfair dismissal cases (which are different to discrimination cases and

4107466/2023 Page 46 involve a test of reasonable practicability). Thus, in Wall’s Meat v Khan [1979] ICR 52, Brandon LJ said “…where a person is reasonably ignorant of the existence of the right at all, he can hardly have been found to have been acting unreasonably in not making inquiries as to how, and within what period, he should exercise it.” The dicta on the matter of claimant ignorance have been found to be relevant also in the context of the test in discrimination cases, requiring the Tribunal to decide what is just and equitable ([NAME_148] v [NAME_149] in Warwickshire [2008] UKEAT/0065/08, [NAME_150] v Ministry of Justice UKEAT/0018/17/LA). 197. Time generally begins to run from the act of discrimination or harassment complained of. There is an exception to this where there is a ‘conduct extending over a period’ (s.123(3)(a)). The distinction between ‘conduct extending over a period’ and a ‘one-off’ decision to do something or not to do something is, therefore, an important one. 198. Where a series of acts or failures are alleged to amount to prohibited conduct extending over a period for the purposes of s.123(3)(a), a finding that the later ‘in time’ acts were not prohibited conduct will mean that they cannot be considered to be part of the ‘conduct extending over a period’. In South Western Ambulance NHS Foundation Trust v King [2020] IRLR 168, EAT, the claimant alleged her grievance was a protected act and that the investigation of it, its dismissal and the rejection of her appeal were acts extending over a period. The first was found to be prohibited conduct but the later acts were not. As only the final act (dismissal of the appeal) occurred within the limitation period, the complaint was out of time. 199. A failure to do something is to be treated as occurring when the person in question decided on it (section 123(3)(b)). Where an employee complains about a failure to make reasonable adjustments under s.20 of [NAME_6], the failure is not ‘conduct extending over a period’. Time begins to run from the date the person in question decided upon it. In the absence of evidence that a person has deliberately decided on a certain date not to make an adjustment, the provisions of section 123(4) will apply (whether the failure to adjust was a deliberate decided omission or an inadvertent one) (Kingston Upon Hull City Council v Matuszowicz [2009] ICR 1170, decided under the Disability Discrimination Act 1995, but the reasoning remains applicable to the [NAME_6] provisions). [ADDRESS] of Appeal has held that, for the purposes of section 123(4)(b), time would begin to run at the point in time when it had, or ought to have, become clear to the claimant that her employer was not complying with its duty to make reasonable adjustments (Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] IRLR 1050). Disability status and knowledge thereof

4107466/2023 Page 47 200. Section 6 of [NAME_6] defines the protected characteristic of disability as follows: 6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2) A reference to a disabled person is a reference to a person who has a disability. 201. The predecessor Disability Discrimination Act 1995 as enacted, provided that mental impairments resulting from or consisting of a mental illness required to be a 'clinically well-recognised illness'. This requirement was removed in 2005. The Parliamentary Joint Committee said the focus should be on 'what effect the condition is having on the person …, not to find a clinically well-recognised name for the condition'. The Guidance issued under the [NAME_6] (para A8) states that 'it is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. 202. It is relevant in relation to complaints under section 15 and complaints under section 20 of the [NAME_6] to assess whether the employer knew or could reasonably be expected to know the employee had the disability (s.15(2) and Sched 8 Part 3, s.20 of [NAME_6]). The question of whether an employer could reasonably be expected to know of a person's disability is a question of fact for the tribunal (Jennings v Barts and The London NHS Trust [2013] UKEAT/0056/12) . In that case, PTSD had been an erroneous diagnosis of the employee's impairment but it had been beyond doubt that it had been a species of mental impairment. Consequently, the tribunal had not erred in taking an ex post facto diagnosis of a collection of symptoms as being the result of mental impairment and concluding that because the employer had known of the symptoms it had to be taken to have known of the nature of the cause of the symptoms as being mental impairment. The inference is that an employer should concentrate on the impact of the impairment, not on any particular diagnosis. Harassment (s.26, [NAME_6]) 203. Section 26 of [NAME_6] deals with harassment and is in the following terms, so far as material: 26 (1) A person A harasses another (B) if –

4107466/2023 Page 48 (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. … (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. 204. For a complaint of harassment, it is not necessary that the conduct be ‘on the grounds of’ the protected characteristic, but only that it is ‘related to’ that characteristic (in line with the Directive). It is not necessary to construct a comparison with a real or hypothetical comparator. The intention of the actors in question is relevant to but not determinative of the question; the Tribunal must apply an objective test in deciding whether the acts related to the protected characteristic. 205. In Richmond Pharmacology v Dhaliwal [2009] IRLR 336, in the context of harassment related to race, the EAT made the following observations. ‘Not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offense was unintended. Whilst it is very important that employers and Tribunals are sensitive to the hurt that can be caused by racially offensive comments or conduct… it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in every unfortunate phrase.’ While the EAT’s comments about a culture of hypersensitivity were directed to a case of race harassment, the expressed concern regarding the potential fostering of such a culture would extend to other protected characteristics. 206. Section 136 of [NAME_6] deals with the burden of proof in complaints about alleged prohibited conduct under the [NAME_6]. It provides, so far as material, as follows:

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136 (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. (4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule. … (6) A reference to the court includes a reference to— (a) an employment tribunal; 207. In the context of a harassment complaint, the effect of section 136 is that, if the claimant makes out a prima facie case of prohibited conduct related to a protected characteristic, it will be for R to show an explanation which is not harassment. 208. There are two stages: under Stage 1, the claimant must show facts from which the Tribunal could decide there was harassment. This means a ‘reasonable tribunal could properly conclude’ on the balance of probabilities that there was prohibited conduct (Madarassy v Nomura International plc [2007] IRLR 246, CA). The Tribunal should take into account all facts and evidence available to it at Stage 1, not only those which the claimant has adduced or proved. If there are disputed facts, the burden of proof is on the claimant to prove those facts. R’s explanation is to be left out of account in applying Stage 1. 209. However, merely showing a protected characteristic plus unwanted conduct is not generally sufficient to shift the burden. Those bare facts only indicate a possibility of prohibited conduct. They are not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, R had committed a prohibited act. ‘Something more’ is, therefore, required ([NAME_151]). This requirement for ‘something more’ applies equally in harassment cases as in direct discrimination cases (Bailey).

4107466/2023 Page 50 210. If the claimant shows facts from which the Tribunal could decide a prohibited act has occurred, then, under Stage 2, R must prove on the balance of probabilities that the treatment was ‘in no sense whatsoever’ related to the protected characteristic (Igen v Wong [2005] IRLR 258). 211. There are cases where it is unnecessary to apply the burden of proof provisions. These provisions will require careful attention where there is room for doubt as to the facts necessary to prove prohibited conduct. However, they have nothing to offer where the Tribunal is in a position to make positive findings one way or the other (Hewage v Grampian Health Board [2012] IRLR 870). Discrimination arising from disability (s.15 of [NAME_6]) 212. Section 15 is in the following terms: 15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 213. In Pnaiser v NHS England [2016] IRLR 170 the EAT at [31] gave the following guidance as to the correct approach to a claim under [NAME_6] s.15 so far as the test for causation of the unfavourable treatment is concerned: (a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises. (b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the

4107466/2023 Page 51 main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant… 214. It has been confirmed by the EAT that, when applying the burden of proof provisions in the context of s.15 complaints, the 2 stage test and the potential to shift the burden of proof applies both to the question of what the reason was for the unfavourable treatment and the question of whether that thing was something which arises in consequence of the claimant’s disability (B v St Dominic’s Grammar School [2025] UKUT 048 (AAC), South Warwickshire NHS Foundation Trust v Lee & Ors UKEAT/0287/17/DA). Reasonable Adjustments (s.20 et seq, [NAME_6]) 215. There is a duty in certain circumstances on an employer to make reasonable adjustments in relation to a disabled employee. Section 20 of the [NAME_6] includes provisions as follows: 20 (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2) The duty comprises the following three requirements. (3) The first requirement is a requirement where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. ... (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. 21 Failure to comply with duty

4107466/2023 Page 52 (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person 216. Section 212(1) of [NAME_6] states that ‘substantial’ means ‘more than minor or trivial’. 217. Schedule 8 of the [NAME_6] provides at para 20: 20 (1) A is not subject to a duty to make reasonable adjustments if A does not know and could not reasonably be expected to know - … (b) In any case referred to in Part 2 of this Schedule, that an interested disabled person has a disability and is likely to be placed at the disadvantage referred to in the first, second or third requirement. 218. Where A is the employer, Part 2 of Schedule 8 provides that ‘an interested disabled person’ is includes an employee of A. 219. In the context of reasonable adjustment claims, the effect of section 136 (burden of proof) is that the initial burden lies with C to identify the relevant PCP relied upon and show that it placed them at a substantial disadvantage in comparison with non-disabled persons and to suggest what steps it would have been reasonable for the employer to take to avoid that disadvantage (Project Management Institute v Latif [2007] IRLR 579 EAT). Once a claimant has established these matters, the burden of proof shifts to the respondent to show that the duty to make adjustments did not arise, for example, because there was no substantial disadvantage or the employer did not know and could not reasonably have been expected to know of the disability and disadvantage, or that the steps contended for were not reasonable in all the circumstances. 220. The term “PCP” is not given statutory definition within the [NAME_6]. The EHRC code states at paragraph 6.10 that a PCP “is not defined by [the [NAME_6]] but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.” It is a concept which is not to be approached in too restrictive a manner; as HHJ Eady QC stated in Carrera v United First Partners Research UKEAT/0266/15 (7 April 2016, unreported), 'the

4107466/2023 Page 53 protective nature of the legislation meant a liberal, rather than an overly technical approach should be adopted'. 221. In Roberts v North West Ambulance Service UKEAT/0085/11, the EAT confirmed that a claimant might be put at a substantial disadvantage by a PCP even where they are not themselves required to comply with it. [NAME_169], who suffered from a social anxiety disorder, was exempted from hot-desking and given his own reserved desk. Nonetheless, he could claim the practice of hotdesking put him at a substantial disadvantage since sometime, on arrival, he found someone (a ‘hotdesker’) sitting at his desk, which caused him stress. 222. On the question of disadvantage, in [NAME_153] v Secretary of State for Work and Pensions [2016] IRLR 216, CA, the Court of Appeal ruled the nature of the comparison exercise under s.20 is clear: one must simply ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person. In cases concerned with attendance management procedures, the fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the PCP bites harder on the disabled, or a category of them, than it does on the able-bodied. 223. The EHRC Code of Practice on Employment lists factors which might be taken into account when deciding if a step is a reasonable one to take:  whether taking any particular steps would be effective in preventing the substantial disadvantage;  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;  the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and  the type and size of the employer. 224. The ‘reasonableness’ of an adjustment is to be assessed by a Tribunal objectively (Smith v Churchills Stairlifts plc [2006] IRLR 41). It is not necessarily met by an employer showing that they believed that the making of the adjustment would be too disruptive or costly (paragraph 45). The adjustment contended for need not remove entirely the disadvantage (Noor v Foreign and Commonwealth Office UKEAT/0470/10). In [COMPANY_173] v [NAME_154] 2011 ICR 632, EAT, the EAT stressed that in

4107466/2023 Page 54 addressing the issue of reasonableness of any adjustment the focus has to be on the practical result of the measures that can be taken. 225. The EAT has commented that the reasonable adjustments duty is "primarily concerned with enabling the disabled person to remain in or return to work with the employer", or "to enable disabled people to play a full part in the world of work" (e.g, Salford NHS Primary Care Trust v Smith UKEAT/0507/10). It does not extend to matters which would not assist in preserving the employment relationship. Submissions 226. Both C and [NAME_59] handed up written submissions which they supplemented with oral submissions. The entire content of both submissions has been carefully considered and taken into account in making the decisions in this judgment. Failure to mention any part of these submissions in this judgment does not reflect their lack of consideration. The submissions are addressed in the ‘Discussion and Decision’ section below, which sets out where the submissions were accepted and where they were not with the reasons for this. Discussion and Decision Allegations about events in 2021 227. I begin by considering the merits of the complaints since this is relevant to deciding whether there was continuing prohibited conduct which extended over a period for the purposes of s.123(3)9a) of [NAME_6]. I then return to the question of time bar and jurisdiction later in the judgment. I have divided the complaints chronologically. C has made complaints of harassment relating to disability (s.26) and of discrimination arising from disability (s.15) in relation to a number of alleged incidents in 2021. 228. The 2021 factual allegations upon which the section 15 and section 26 complaints are set out at para [21(i) to (v)]. 229. I consider first the section 15 complaint in relation to the 2021 allegations. A complaint under section 15 cannot succeed if R shows that it did not know and could not reasonably have been expected to know that C had the disability in question. I therefore turn first to the timing of R’s knowledge or constructive knowledge (or lack thereof) as this has the scope to be determinative of the 2021 s.15 complaints. 230. [NAME_59] submitted that R could not reasonably have been expected to have known that C had these conditions until, in the case of dyslexia, [NAME_13] received [NAME_155]’s report on 27 Feb 2022 and, in the case of ADHD, [NAME_156] diagnosed C on 27 July 2022. [NAME_59] said that although [NAME_75] said it was

4107466/2023 Page 55 worth investigating [NAME_7] health on 18 Feb 2021, this didn’t mean R had constructive knowledge of the condition on this date. In [NAME_59]’s submission, neither he nor any other officer could be expected to conclude C was dyslexic because his report writing was poor. This was particularly so, he said, where English was not [NAME_7] first language. With respect to ADHD, [NAME_59] said there was no evidence led to suggest R ought reasonably to have known of [NAME_7] before 2022 beyond the aforementioned email by [NAME_75]. 231. C said in his submissions that R had actual knowledge of his disabilities through [NAME_8] reports and that ‘even if [R] attempts to downplay knowledge, constructive knowledge is enough – the reports were in [R’s] systems and ought to have been read and acted upon.’ 232. At the material times in 2021 (between 16 July 2021 and 14 November 2021 when the relevant allegations are said to have taken place), C had not been diagnosed with either dyslexia or ADHD. Neither he nor any manager within R was aware that he had these conditions and nor had he indicated to R any suspicion that he might have either of these conditions or that he believed he had symptoms which may be consistent with these conditions. R did not have ‘actual’ knowledge in this period that C was disabled by virtue of these conditions. 233. Could R reasonably have been expected to know that C had the disability of dyslexia or ADHD in this period? At material times depending on the allegation, R had access to [NAME_26] reports dated 3 March 2020, 28 July 2021, 1 October 2021 and 2 November 2021. None of the four reports gave mention of dyslexia or ADHD or of neurodiversity generally or of observed symptoms consistent with these conditions. They mentioned no suspicion that C might be affected by any such conditions nor any suggestion that a possible neurodiversity diagnosis was worthy of investigation. It was clear from the report dated 1 October 2021 that, as well as having been reviewed by [NAME_26]’s own [NAME_8] professionals, C was under the care of a GP and specialist care teams including a psychiatrist. Dr A had access to a GP report and to correspondence between the GP and the hospital. He gave no hint that any healthcare professional involved in [NAME_7] treatment had identified symptoms or traits potentially consistent with dyslexia or ADHD. 234. I remind myself that the focus should be on what effect the conditions were having and not the formalities of a diagnosis or the attachment of o clinically well recognised name to the effects or symptoms. It is right to acknowledge that the [NAME_26] reports did identify that C was struggling with other health issues including an acute stress reaction (believed to have lasted less than 12 months as at the time of the March 2020 report) and later, in 2021, a possible mood disorder coupled with the unhealthy use of alcohol as a

4107466/2023 Page 56 coping mechanism. However, I am satisfied that nothing in the medical reports available to R in the period to 14 November 2021 could reasonably give R’s (non-medically qualified) managers to know that any symptoms or traits C was exhibiting were consistent with and attributable to dyslexia or ADHD. 235. I considered whether, based on R’s own observations of C, it could reasonably have been expected to know that C was disabled by virtue of these conditions or symptoms consistent therewith. It was known by [NAME_12] by that time and, it seems, by [NAME_158], [NAME_64] and others, that [NAME_7] performance in report-writing was poor. I am not persuaded that, based on this observed weakness, R could be expected to infer a medicalised explanation rooted in neurodiversity. The picture with respect to [NAME_7] report writing performance had not been uniformly poor throughout his probation; in May 2019, at his 20-week review, his report writing was recorded to be of a good standard. It was also reasonable for those involved in managing C in 2021 to suppose (as they did) that the fact that English was his second language may have been a significant factor in the quality of his report writing. I am also satisfied that [NAME_7] line managers relied upon the [NAME_8] advice received and assumed it would draw to their attention any material conditions or suspected material conditions. It was reasonable for them to do so. 236. C referred to an email during the hearing to an email sent by [NAME_75] on 18 February 2021 to [NAME_76], [NAME_43] and others. His questioning of R’s witnesses asserted this email implied a suspicion was held by R as early as February 2021 that he may have dyslexia. In the email [NAME_75] suggested, among other things, that [NAME_76] was to “verify there are no as yet undisclosed wider medical issues which may be affecting performance such as dyslexia etc”. [NAME_12] made a referral to [NAME_8] following the email and (in the period to November ’21) R subsequently obtained three further [NAME_26] reports which, as discussed disclosed no suggestion of the disabilities relied upon in this case. As to [NAME_75]’s mention of dyslexia specifically, I am satisfied that, read in context, this did not imply any particular suspicion on his part that dyslexia was a likely impairment C had. He didn’t say words to that effect. In the overall context of the email and having regard to the rest of its contents and all that had gone before, it is clear enough that [NAME_75]’s point was that welfare factors should be looked at and possible wider medical issues should be explored when embarking on the proposed formal action plan. Mention of ‘dyslexia’, prescient though it turned out to be, was at the time proffered as a mere example of a potential wider medical issue. 237. In all of the circumstances, based on all of the information available to R at the material times in 2021, I am satisfied that R did not know and could not

4107466/2023 Page 57 reasonably be expected to know that C had the disabilities of Dyslexia or ADHD or that he had traits or effects consistent with them. To the extent I have jurisdiction, I would find that none of the alleged acts of discrimination arising from disability in 2021 succeed on the merits. These alleged acts of discrimination are also prima facie time barred. I consider at paragraphs [320 et seq] the question of whether I have jurisdiction to hear these complaints. 238. I turn to the section 26 (harassment) complaint in relation to the 2021 allegations. To succeed in a harassment complaint, among other matters, it must be found that there was unwanted conducted which related to a protected characteristic. In this case, the protected characteristic is disability. Specifically, the conditions which are asserted (and conceded) to be disabilities are dyslexia and ADHD. C has not put forwarded a case that any of the alleged harassment allegation related to any other disability. 239. I consider whether the conduct in 2021, so far as established, “related to” disability. I remind myself that it is not necessary that the conduct be ‘on the grounds of’ the disabilities and no comparator need be constructed. I further remind myself that the test is an objective one and that, though relevant, the intention of the actors is not determinative. 240. C did not specifically address the question of how the alleged instances of harassment ‘related to’ the disabilities of dyslexia and ADHD in his submission. However, he asserted that he had no mental health or substance abuse issues before joining R and that the progression of stress, deterioration, alcohol dependence and suicidality occurred after prolonged workplace stressors and inadequate support. It was, said C, ‘reasonably and factually reasonable to link R’s failings to these harmful outcomes’. [NAME_59] submitted the 2021 allegations occurred before any diagnosis of dyslexia or ADHD and that R had no knowledge of either condition. He made some submissions specific to the respective allegations which are discussed below. 241. The first alleged act of harassment is failing to deter [NAME_7] colleagues from videoing him when he fell asleep at work on 16 July 2021. [NAME_59] said the incident was unrelated to disability and that C had accepted as much in cross examination. At the material time, [NAME_12] was [NAME_7] line manager though he was not on duty during the incident and [NAME_64] dealt with it. As discussed above, I am satisfied neither [NAME_64] nor [NAME_12] knew or could reasonably be expected to know that C was disabled by virtue of dyslexia or ADHD at the time. The manner in which they dealt or, as C would have it, failed to adequately deal with the incident was not influenced by knowledge [NAME_7] neurodiversity or by symptoms consistent therewith. [NAME_59] said in his

4107466/2023 Page 58 submissions C himself accepted in cross examination that the incident was unrelated to his disability. 242. As mentioned, however, the subjective intention of R, though relevant for consideration, is not determinative of the question of whether the conduct related to disability. The question is to be assessed objectively. I leave out of account at this stage in my deliberations R’s explanations for how the incident was dealt with. There was no evidence that [NAME_7] falling asleep had any connection with his conditions. At the time of the incident, C suggested to [NAME_159] that it related to new medication he was trying (not for ADHD but for mood dips he was experiencing). At the Tribunal, however, C dismissed that explanation and asserted instead that it was due to heat and prolonged computer usage. I note the incident took place at just after one on the morning, when C was in the final hours of a shift which had begun the previous evening. It was late. I considered [NAME_7] submission that his mental health deteriorated after joining R due to a number of workplace stressors. I concluded that, even if that assertion were accepted at face value, and even if one of those stressors was R’s failure to protect him from social media posts showing him falling asleep, it would not establish the necessary linkage between the unwanted conduct and disability. 243. Ignoring R’s explanation for the omission to protect C from officers filming him snoozing, there are not facts from which I could reasonably and properly infer that the conduct of [NAME_159] or [NAME_12] or any other officer of R related to disability on an objective assessment. The burden does not shift to R to show the conduct was unrelated to disability. This complaint of harassment cannot succeed. 244. The next allegation is that R harassed C by failing to protect him from social media posts about the incident on 23 October 2021 when he soiled himself at work. It has not been established that there were social media posts about this incident. It follows that this allegation of harassment cannot succeed. 245. The next 2021 harassment allegation is that [NAME_12] disclosed confidential information about [NAME_7] health by disclosing to sergeants on duty and to [NAME_137] that C soiled himself on 23 October 2021. [NAME_59] submitted that C provided no positive evidence that this was related to his disabilities and said that C, once again, accepted in cross examination that it was not so related. The unwanted conduct is the disclosure of the incident by [NAME_12] or other sergeants to colleagues more widely. As discussed above, at this time, none of R’s employees were aware of the disabilities upon which C founds (or any other disability). At this stage I assess the evidence leaving out of account [NAME_12]’s explanation for the disclosures he made about the incident to assess objectively whether there are facts from which I could decide that the disclosures by him or others related to disability.

4107466/2023 Page 59 246. There was no medical evidence before me about the cause of [NAME_7] diarrhoea. In his statement, C attributed it to pressure, stress, anxiety and depression. There was no evidence that C told [NAME_12] or anyone else this at the time. On an objective assessment, facts have not been established from which I could reasonably conclude that either (i) C soiling himself in October 2021; or (ii) the decision of [NAME_12] or any other manager to disclose this confidential information beyond the management circle were ‘related to’ disability. This complaint of harassment cannot succeed. 247. The next allegation of harassment in 2021 is that in November 2021, ‘highlighted to colleagues that he had concerns about [[NAME_7]] interactions with colleagues as he would isolate himself from them to sit alone...’ (para 19 of the Claim). [NAME_59] refers in his submission to evidence that [NAME_12] raised this with C but the allegation in the Claim is not that he raised the matter with C but with ‘colleagues’. The only evidence of this occurring in November 2021 is [NAME_12]’s email of 14 November 2021 to [NAME_50] and [NAME_137]. C was unaware of the contents until they were later pasted by [NAME_10] into the First and Second Discharge Summaries. C, therefore, first saw the comments on 17 February 2023. 248. At this time, [NAME_12] remained unaware of [NAME_7] disabilities as previously discussed. I consider whether, objectively, the comments in the email about social isolation were nevertheless ‘related to’ disability. At this stage, I exclude from consideration [NAME_12]’s explanation for these comments. There was no compelling evidence before me that a propensity towards social isolation was a symptom related to dyslexia or ADHD. [NAME_46]’s report referred to people with ADHD potentially having ‘additional problems such as sleep and anxiety disorders’ and about a majority of them having one or two ‘co- occurring psychiatric conditions including (perhaps most relevantly) anxiety and depression. I concluded that the possible connection between the established disabilities in this case and the comments about social isolation was simply too nebulous and speculative to be held established on the balance of probabilities. It is too great a leap on the basis of [NAME_46]’s generalised statistics alone to conclude the necessary connection. C himself gave no evidence that the difficulties associated with his then undiagnosed ADHD (or dyslexic) traits contributed to his social isolation or indeed his wider mental health deterioration. On the contrary, he expressed his conviction that (although he says these conditions were lifelong), his mental health issues were triggered relatively late into adulthood by the October 2019 cruel hoax call by his colleague. On the facts found, I could not reasonably or properly infer that [NAME_12]’s comments about [NAME_7] social isolation ‘related to’ disability for the purposes of section 26(1)(a). The burden does not, therefore, shift, and this complaint cannot succeed.

4107466/2023 Page 60 249. However, if I am wrong in that, I would not in any event have found that the comments about social isolation had the purpose or effect of violating [NAME_7] dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for him. When regard is had to the context, tone and undisputed factual accuracy of the comments, as well as the identity of the recipients (both managers with a proper interest in overseeing [NAME_7] performance and progress as a probationer) it is plain that the comments did not have the purpose proscribed by s.26(1)(b). There was no evidence they had that effect and, in any case, it would have been unreasonable for them to do so. 250. The next harassment allegation is that, in November 2021, [NAME_12] also ‘highlighted concerns about [NAME_7] reports and paperwork…’ (to colleagues). Again, the evidence for this lies in the email [NAME_12] sent on 14 November to [NAME_50] and [NAME_137]. In that email, [NAME_12] indeed highlighted such concerns and (as C avers) he provided examples where he felt C had fallen short in obtaining the relevant Information. As noted earlier, he was unaware of [NAME_7] dyslexia or ADHD when the email was sent. I consider whether, irrespective of [NAME_12]’s ignorance of [NAME_7] conditions, his comments about [NAME_7] reports and paperwork were ‘related to’ disability on an objective assessment. At this stage, I exclude from consideration [NAME_12]’s explanation for the comments. 251. The paragraph of the email with which issue is taken (p.211 of the bundle) describes an example of C preparing a statement which was lengthy but lacked the details of the circumstances of the assault. [NAME_12] described how he needed to sit C down after his first attempt and list everything C needed to cover, whereupon C prepared a suitable statement. C gave no evidence regarding the particular task [NAME_12] described or how he considered the comments generally related to disability. The only source of evidence before me about the potential impact of [NAME_7] then undiagnosed conditions on his paperwork and report writing was [NAME_46]’s report. I recognise this was not available to [NAME_12] at the time. It is nonetheless relevant evidence to properly take into account in deciding whether objectively, his comments related to the disabilities founded upon (whether [NAME_12] knew it or not). 252. In the report, [NAME_46] said, among other things, that“ [[NAME_7]] scores across a battery of tests used to inform diagnosis, highlights difficulties typically associated with dyslexia’ and that ‘an opportunity for development in relation to writing composition when organising own ideas [was] … observed. In terms of impact, [C] reported he has always found it difficult to structure and organise his thoughts in writing and this can have an impact on him in the context of his work.” I accept, on the balance of probabilities, that [NAME_12]’s comments that [NAME_7] ‘paperwork continues to be a concern and he does not yet meet the basic standard expected of him’ related to his protected characteristic of being a

4107466/2023 Page 61 disabled person by virtue of his Dyslexia. It is true that his status as a non- native speaker of English may also have influenced the quality of his reports and paperwork. Be that as it may, I am satisfied that it is more probable than not that his dyslexic profile did so too. It is unnecessary that the dyslexia should be the sole cause of [NAME_7] weak report writing skills that prompted [NAME_12]’s comments. Indeed, disability need not be causative at all; all that is needed is that the comments ‘related to’ the dyslexia. 253. I am satisfied that the comments were ‘unwanted’ in that these criticisms were plainly not welcomed by C. 254. I consider next whether they had the purpose or effect of violating [NAME_7] dignity or of creating an environment of the sort proscribed by s.26(1)(b). C did not put to [NAME_12] or [NAME_10] respectively that the writing of the email or the inclusion of it in the summary had such a purpose. It is unnecessary to apply the burden of proof provisions in this respect; I am satisfied in any event that they did not ([NAME_160] applied). [NAME_12] did not send the comments to C in November 2021 but to [NAME_50] and [NAME_137] both of whom were involved in oversight of [NAME_7] progress and performance. The comments were supported by what [NAME_12] saw as a relevant example and, in tone and content, they were not hostile, intimidating, offensive, humiliating or degrading. The comments were entirely relevant to the question of [NAME_7] progress as a probationer against the objective in the earlier action plan of improving his report-writing and statement taking. I am satisfied on the balance of probabilities that [NAME_12]’s purpose was to update relevant managers about the development of [NAME_7] performance in a relevant area since the expiry of the action plan. I am likewise satisfied that [NAME_10]’s purpose in including the comments in the Discharge Summaries was that he regarded them as bearing upon [NAME_7] performance in a key competency of a [NAME_3]’s role and, therefore, material to the question for the Divisional Commander’s consideration. 255. C led no evidence of the effect these particular comments about his reports and paperwork had on him when he first saw them in the First Discharge Summary in February 2023. In any case, in all the circumstances, I am satisfied that even if he perceived the comments violated his dignity or created a proscribed environment for him, it was not reasonable for them to have done so, given their nature, tone and substantiation with an example. It follows that this complaint of harassment cannot succeed, the requirements of section 26(1)(b) not being met. 256. The final alleged act of harassment in 2021 is that, in November 2021, [NAME_12] also said (to colleagues) that C was looking for employment outwith the Police Service, something C denies. In the email of 14 November 2021, [NAME_12] indeed told [NAME_50] and [NAME_137] that he was aware C was looking for other employment outside the Police Force. However, I have found that this

4107466/2023 Page 62 information was not falsely given when [NAME_12] wrote it, as asserted in the Claim (para 19 and 42). The allegation is therefore not made out on the facts. In any event, even if it had been, I would have found that it did not relate to either [NAME_7] condition of Dyslexia or of ADHD. No arguments were put forward to C as to how it was said to do so. 257. To the extent I have jurisdiction, I would find that none of the alleged acts of harassment in 2021 succeed on the merits. These alleged acts of harassment are also prima facie time barred. I consider at paragraphs [320 et seq] the question of whether I have jurisdiction to hear these complaints. Allegations about events in 2022 258. C has made complaints of harassment relating to disability (s.26) and of discrimination arising from disability (s.15) in relation to a number of alleged incidents in 2022. He has also asserted a failure to make reasonable adjustments during the period from 10 June to 30 September 2022. I begin by considering the s.15 and s.26 allegations which proceed on the same alleged facts. 259. In 2022, C alleges (i) [NAME_11] attempted to deter C from attending Alcoholic Anonymous on 19 August 2022; (ii) [NAME_11] put C under pressure to take a breathalyser test on 20 August 2022; and that (iii) R requested tests for traces of illegal drugs to be carried out on bottles used by C on 24 October 2022. None of these allegations has been found to be established on the evidence.

Accordingly, the complaints of harassment and discrimination arising from disability premised on these thee allegations in August and October 2022 do not succeed on the facts found. 260. I turn to [NAME_7] complaint about a failure to make reasonable adjustments in the period from 1 June to 30 September 2022, being a period when C was in attendance at work in 2022. It is convenient to consider this period alongside part of the later period which is also the subject of a reasonable adjustments complaint, namely from 24 December 2022 to 2 Jan 2023. During both periods, C was based at Loreburn St Station as was his line manager, [NAME_13], who was actively involved in his management. During both periods, C was being allocated similar types of duties (in contrast to the later period when C moved to Dumfries HQ). The periods from 10 June to 20 September 2022 and from 24 December 2022 to 2 January 2023 are thus dealt with together and are cumulatively referred to as the “2022 RA Period”. 261. I begin by considering whether a duty to make adjustments was triggered during the 2022 RA Period pursuant to section 20(3) of [NAME_6]. 262. Did R know / could it reasonably have been expected to know that C was a disabled person by virtue of dyslexia and ADHD? R admits it had

4107466/2023 Page 63 knowledge of [NAME_7] disability status in relation to his dyslexia throughout the period from 10 June to 30 September 2022. In relation to ADHD, [NAME_59] says R could not have known of [NAME_7] prior to his formal diagnosis on 27 July 2022. He says that [NAME_46] was ‘only a psychologist and that for a diagnosis to be made, a specialist’s input would be required’. 263. I accept that R did not have actual knowledge that C had a confirmed diagnosis of ADHD between 10 June and 27 July 2022. I consider, however, whether R could reasonably have been expected to know at that time that C had a mental impairment which met the requirements of section 6 of [NAME_6], whether or not there was a formal psychiatrists’ diagnosis that the impairment was called ADHD. I remind myself that it is unnecessary that there be a clinically well recognised condition for section 6 to be satisfied and that the focus should be on the effect the condition is having on the person as opposed to seeking a clinically well-recognised name or formal diagnosis. In that respect, R was on notice by 10 June 2022 from the contents of [NAME_46]’s report that [NAME_7] traits and profile were consistent with ADHD. R was on notice that these traits had been reported as present since childhood / adolescence (that they were ‘long term’). R was on notice that these traits had reported impacts on C with respect to work / education, relationships, social contacts, and free time hobbies. R knew [NAME_7] concentration and processing were affected. R was on notice that [NAME_46]’s opinion was that neurodiverse conditions were covered by the [NAME_6]. R knew that C awaited assessment by a psychiatrist, but also that this step was required not because C or R or indeed any medical professional was challenging [NAME_46]’s observations about [NAME_7] impairments, but because a psychiatric assessment was necessary to formalise the particular diagnosis of ADHD. 264. I am satisfied that, based on their awareness of [NAME_46]’s assessment, R could reasonably have been expected to know that C had traits consistent with ADHD which amounted to a mental impairment which had a more than trivial effect on his ability to carry out normal day to day activities. I am satisfied R could reasonably have been expected to know that these effects had lasted more than 12 months based on [NAME_46]’s report. I, therefore, conclude that throughout the entirety of the 2022 RA Period, R could reasonably be expected to have known that C was a disabled person by virtue of traits consistent with ADHD as well as by virtue of dyslexia. 265. Did the PCP apply and did it put C to the asserted disadvantages during the 2022 RA Period? C asserts R had a PCP of officers being able to provide written reports of a suitable standard. [NAME_59] disputed in his submission that R applied the PCP to C of requiring to provide written reports of a suitable standard. He said C was working on restricted duties. However,

4107466/2023 Page 64 it is not necessary that the PCP be applied to C specifically ([NAME_152] v [NAME_171] Service), only that R had the PCP and that it put C at a substantial disadvantage. 266. It was not disputed by R that, in the usual course, the requirement to provide written reports of a suitable standard was indeed a PCP which it applied to police officers and to probationary officers on normal operational duties. I find that R had such a PCP. It is true that C was not himself on operational duties during the 2022 RA Period. He was carrying out ‘back office’ activities, which activities include report writing tasks delegated to him by [NAME_13] and other officers / probationary officers. Whether or not R applied the PCP directly to C (that is to say, whether or not he was held to the same exacting standard in terms of the standard of his input as those officers ultimately responsible for the finalised reports), I consider whether the PCP put C to the disadvantages he asserts. 267. He asserts 5 disadvantages. I begin by discussing the claimed disadvantage that the application of the PCP caused his writing to be criticised. 268. I found the evidence of such criticism during the 2022 RA Period confused and lacking in consistency. The matter of the PCP and disadvantage during the 2022 RA Period was not covered in [NAME_7] written witness statement. I gave him the chance to lead supplementary oral evidence. When asked about this period, at one point, he said he was told everything was fine when he turned in the work but that he only discovered later, in 2023, that his reports were being criticised as awful. However, there was no evidence to support the suggestion that C discovered any such criticism in 2023 of the written work he undertook in 2022. (He did have sight of [NAME_12]’s monitoring log which included criticisms he saw after the fact, but these criticisms related to work undertaken in 2021 which is not relevant for present purposes). At another point when asked about 2022, he said there were mistakes in his work, or at least in the draft versions he was working on. C said errors were noticed in his drafts by supervisors who accessed them directly on the system and that C would then go back to rectify them, but he had so much work he didn’t have time. I asked how he knew he had mistakes in order to go into the draft and rectify them without having been given feedback. To this, C said that he would love feedback but not if it was rude or designed to humiliate him. He gave no specific instances of criticism of his reports, rude or otherwise, during the period. He was given the chance to but did not identify any officer or supervisor who criticised his written work during the period at hand. In relation to the timeframe from 10 June to 30 September 2022, I found [NAME_7] evidence to the Tribunal difficult to square with his words in an email to [NAME_17] in November 2022, when he said, “I have been responsible for creating crime reports, PDF reports, VPDs, missing person reports etc. … Several

4107466/2023 Page 65 cops told me, and I quote “[NAME_127] what are we going to do when you go will go back on the street? Who is going to handle or paperwork?” so, I think I was doing something good.” 269. On balance, I find on the evidence that [NAME_13] and others delegating written report work to C in the 2022 RA Period did not criticise his writing as averred. To the extent that, as C now alleges, there were errors in the report writing he undertook, I conclude that those mistakes were tolerated by those delegating the work who were ultimately responsible for the finalisation of the including the rectification of any errors. 270. A further disadvantage which C asserts is that he was required to redo work despite being engaged in other tasks. There was a lack of evidence for this allegation during the 2022 RA Period and I do not find it proved that C was put to this claimed disadvantage during the relevant timeframe. 271. C says the PCP also put him to the disadvantages that he found it hard to concentrate on written work, to process information and to compile the reports. C gave evidence that he had difficulty concentrating on this kind of work and on producing reports, particularly given the open plan arrangement at [ADDRESS]. I accepted this evidence which chimed with what he had told [NAME_46] earlier in 2022 and with her assessment (see paragraph [186]). 272. I considered whether the PCP put C to this advantage compared with people not sharing his disabilities. I remind myself that a PCP is a concept that should be approached in a liberal, rather than an overly technical manner. Avoiding an unduly restrictive approach, I am satisfied that R’s requirement that officers provide written reports of a suitable standard put C to the disadvantage that he found it hard to concentrate on written work, to process the information and to compile the reports. The broad requirement that R had for written reports of a suitable standard resulted in parts of that work being outsourced by the officers to C. Even if those officers did not impose the same exacting standards to [NAME_7] input, the broad requirement upon them resulted in C being delegated the written reports and experiencing difficulties with concentration, processing and output of this work. 273. I accept the PCP was not applied directly to C in the same strict manner it was applied to the officers ultimately responsible for the finalised reports he worked on. He was, nevertheless, aware of the standard to which they were subject and no doubt attempted to meet it, whether successfully or not. I am satisfied that report-writing of the kind described would require concentration. I recognise that non-disabled persons might also experience difficulties concentrating on writing reports in a busy open plan office. However, I accept that the PCP would bite harder on persons disabled by virtue of ADHD and dyslexia. I accept that it did bite harder on C and that

4107466/2023 Page 66 the difference in impact was more than minor or trivial in comparison to persons not sharing his disabilities. Likewise, I accept that, with [NAME_7] reduced working memory and processing speed observed by [NAME_46] following diagnostic tests, he was put to a substantial disadvantage compared with non-disabled persons in processing the information necessary to compile reports. 274. C asserts he was put to the further disadvantage that it took him longer to write reports. I accept his evidence that it took him longer to write reports. On the particular facts of this case, however, I do not find it established that the increased length of time which it took C amounted to a disadvantage which was substantial. I was not persuaded on the evidence that C was granted an inadequate amount of time to attend to the tasks he was delegated in the period, as discussed earlier at paragraph [187]. 275. In summary, I find that in the 2022 RA Period, R had the PCP of requiring officers to provide written reports of a suitable standard. I find that the PCP was not strictly applied to C himself in this period, but that R did apply it to others which had a direct impact on the work delegated to C in the period. I find that the PCP put C to the substantial disadvantages of finding it hard to concentrate on written work and finding it hard to process information and compile reports. The other asserted substantial disadvantages are not made out. 276. Did R know or could it reasonably have been expected to know that C was likely to be placed at the disadvantage? The duty to make adjustments does not apply if R did not know or could not have reasonably been expected to know that C was likely to be placed at the disadvantage as a result of the PCP. 277. I accept that C did not raise with [NAME_13] or others any specific concerns about the disadvantages in the 2022 RA Period when undertaking the work. However, [NAME_13] did have sight of [NAME_46]’s report from 27 February 2022. In it, [NAME_46] specifically identified difficulties with the processing of language-based information and organisational ability as associated with dyslexia. In relation to [NAME_7] tests, she had explained that his “Working Memory and Processing Speed were both significantly reduced”. She had also observed that she identified in him “opportunity for development in relation to writing composition when organising own ideas ...” and that C had reported to her difficulties in structuring and organising his thoughts in writing which could have an impact on him in the context of his work. [NAME_13] had an awareness of the types of written work he was delegating to C and, as [NAME_7] line manager, he could reasonably be expected to have known what types of tasks others were delegating to C. In the circumstances, notwithstanding [NAME_7] lack of complaint about the matter, I am satisfied that R could reasonably be expected to have known that C was likely to be placed at a substantial

4107466/2023 Page 67 disadvantage of finding it difficult to concentrate on written work and to process information / compile reports. 278. Would it have been reasonable for R to implement the adjustments to alleviate the disadvantage? [NAME_59] says in relation to all of the adjustments that R’s primary position is that it was not reasonable for R to have to make any of the adjustments because of the complexity of [NAME_7] ongoing alcohol problem, his hospitalisations, his relationship troubles, his absences and [NAME_162]. I do not find this argument persuasive. In the period 2022 RA Period, C was not on long term absence but was at work. He was not, in this period, hospitalised, and it has not been established that he was drinking dependently during these particular periods at work. It is true that the [NAME_162] had understandably focused on these grave and pressing health issues and stressors in [NAME_7] life. I do not accept, however, that this focus made it objectively reasonable for R to decline to make reasonable adjustments to alleviate [NAME_7] difficulties with concentrating, processing information and compiling written reports in circumstances where allocating him this type of work. 279. I consider below the individual adjustments for which C contends and whether they were reasonable steps for R to take on an objective assessment. They are: a. Provision of a computer with speech to text: C had a computer with speech to text functionality in Word. He also had access to a specialist dictaphone. He did not attempt to use either throughout the period despite encouragement in 2021 by [NAME_12] to make use of the dictation equipment at his disposal. He suggested that maybe there was specialist software for this purpose. There may be, but there was no evidence before me about such software or about why it might have alleviated the disadvantage in circumstances where C had not attempted to use the standard dictation functionality available to him. I find that R did provide C with a computer with speech to text so did not fail to make this adjustment. It was not included in the LOI but given C is a litigant in person, I also considered whether R might, alternatively, have had an obligation to make this adjustment pursuant to section 20(5) (auxiliary aids). However, I concluded that R did not. It provided the auxiliary aid of speech to text computer functionality and Dictaphone technology. It was not established on the evidence before me that the omission to provide any alternative, specialised dictation software put C at a particular disadvantage for the purposes of s.20(5). b. Provision of guidance on structuring written information / reports in a specific format: [NAME_163] had provided such

4107466/2023 Page 68 guidance to C in a one-to-one session in around April 2021. It is not established on the evidence that further guidance would have alleviated the disadvantages established. c. Provision of templates or example reports in a specific format. [NAME_83] provided these to C in around April 2021. It is not established on the evidence that further templates / examples which had not been provided would have alleviated the disadvantages which have been established. Again, I considered whether, in the alternative, R had had an obligation to make this adjustment pursuant to section 20(5) (auxiliary aids). I concluded it did not. It provided the templates / example reports and it is not established that the omission to provide further templates / examples put C at a substantial disadvantage. d. Working from a quieter location. C was working in an open plan set up throughout the period at hand. The established disadvantages include difficulties concentrating and processing information. I acknowledge that C had not specifically raised his working environment as a concern with [NAME_13]. However, [NAME_46] had identified in her report that C reported to her difficulties in relation to sustaining concentration where there are lots of distractions. There was no evidence before me that there was a lack of potential quiet work areas in the station. I recognise that R had some competing objectives for C and that deficiencies identified in the formal action plan in 2021 had included interpersonal communication and teamworking. I acknowledge R’s wish to encourage development in [NAME_7] relationships with colleagues and that there may have been perceived benefits to his being generally based in the open plan. Nevertheless, I find that it would have been objectively reasonable for R to provide C with access to a quiet location for occasions when he required to concentrate on written tasks which were difficult or required sustained concentration. e. Short but frequent breaks or changes of activity. In the period from 10 June to 19 August, I am satisfied that C had the opportunity to and did take frequent breaks at times of his choosing including, often of sufficient length to accommodate a visit to the local bakery or outside to vape. On 19 August, [NAME_13] raised concerns about this, and I accept that in the wake of that discussion, C felt inhibited about taking frequent breaks. I acknowledge that C did not raise with [NAME_13] the benefits of frequent breaks in aiding his concentration during that discussion or at all. Nonetheless, I am satisfied that [NAME_13] was on sufficient notice from [NAME_46]’s report that frequent short breaks or

4107466/2023 Page 69 changes of activity was an adjustment which might assist C. It is undisputed that [NAME_13] made no attempt to discuss or agree with C an appropriate pattern of breaks or the length of these in recognition of [NAME_7] or dyslexia. There was no evidence that, for example, R had insufficient resources to accommodate C taking frequent short breaks. On an objective assessment, I find it would have been reasonable for R to do so. It would have been reasonable for R to have confirmed a willingness to accommodate a pattern of more frequent breaks than might be tolerated for others who did not have [NAME_7] disabilities. R failed to do this. (This does not mean that R could not have reasonably imposed restrictions on the length of such breaks and where they would be spent). f. Typing tutor apps to help improve typing skills and fine motor control. I have found the PCP put C to the substantial disadvantage of finding it hard to concentrate on written work and finding it hard to process information and compile reports. There was no evidence before me about how or why such an adjustment might be likely to alleviate those established disadvantages beyond the fact that it featured in [NAME_46]’s long and untailored list of potential adjustments. There was no evidence that [NAME_7] typing skills were poor. The diagnostic tests described in her report did not measure typing speed but measured handwriting speed (and found [NAME_7] speed to be above average). There was no evidence in the report that C had poor motor control. On the contrary, [NAME_46] recorded that C reported no particular difficulty with coordination or fine motor control. On the evidence before me, it is not established that apps of this kind would alleviate [NAME_7] difficulties concentrating or processing information or his difficulties compiling reports. In those circumstances, it was not a reasonable step for R to take pursuant to section 20(3). (Again, I considered whether, for the purposes of s.20(5) but for the provision of this auxiliary aid, C would be put at a substantial disadvantage. I concluded that it was not established on the evidence that he would be so for the reasons outlined. Therefore, this complaint does not succeed under s.20(5) either). g. A range of mind mapping software. [NAME_46] observed in her report that: “A range of mind mapping software is available, which allow you to easily draw a mind map or flow chart and convert it to a text outline, organise ideas and convert visual mind maps with text content into a Word document.” At this stage, the burden of proof sits with R to show the duty did not apply because the step contended for was not reasonable. There was no evidence before me about the cost of such software or whether it was technology of which R had any experience.

4107466/2023 Page 70 On the face of it, according to [NAME_46]’s description, it appears that it is a tool which is designed to and may be successful in alleviating difficulties of the kind C experienced in processing information and compiling reports. R has not shown that the step was not reasonable. h. Making use of a smartphone to make notes. C was provided with a work smartphone which he was free to use to make notes. He did not try to use it for this purpose. He suggests he believed would have been chastised for doing so because he was chastised for spending too much time on his personal mobile phone. He did not suggest he ever used his personal or work mobile phone for the purposes of making work-related notes. I am not satisfied that C was deterred from making notes on his phone by [NAME_13] either expressly or by any implied pressure not to do so. Spending time on a personal mobile on non- work-related matters is quite different to using a work phone to make notes. [NAME_13]’s evidence, which I accepted, was that he would have had no difficulty with C using his work phone for the purpose mentioned. R did not fail to make this adjustment in circumstances where the phone was provided, and C was at liberty to use it for the purpose specified. i. Encouraging accuracy first with speed increased at a later stage. It has not been established that the PCP put C to a substantial disadvantage in relation to it taking him longer to compile written reports. It has not been established that C was allocated insufficient time to do the work allocated, even allowing for his difficulties. In these circumstances, the premise that speed was prioritised at the potential expense of accuracy when work was delegated to C is not established. I do not conclude on the evidence before me that this step was likely to alleviate the disadvantages which have been made out (i.e. the difficulties concentrating on written work, processing information or compiling reports). j. Neurodiversity coaching with access to a neurodiverse network and training for managers. There was no evidence on how this step would have alleviated the established disadvantages for C. When I asked C about this adjustment, he said he felt it would be beneficial for his colleagues to understand ADHD and to look at him through a different lens. That may be so, but the duty on R is a specific one. It is to take such steps as it is reasonable to have to take to avoid (or alleviate) the particular disadvantage(s) established. I find the connection between the proposed adjustment is too remote and speculative. I do not find it established on the evidence that neurodiversity coaching / training for [NAME_13] and other relevant managers

4107466/2023 Page 71 would alleviate [NAME_7] difficulties concentrating, processing information, or compiling reports. 280. To the extent I have jurisdiction to do so, I would find that R failed in its obligations under s.20 of [NAME_6] during the 2022 RA Period by failing to (i) provide C with access to a quiet location for occasions when he required to concentrate on difficult written tasks; (ii) accommodate an agreed pattern of more frequent short breaks than might be tolerated for those without dyslexia and ADHD; and (iii) provide C with mind mapping software to allow him to easily draw mind maps or flow charts and convert them to a text outline, organise ideas, and convert visual mind maps with text content into a Word document. To the extent I have jurisdiction, I would find that the other complaints relating to 2022 do not succeed. This is subject to the important proviso that these alleged acts of discrimination are prima facie time barred. I consider at paragraphs [320 et seq] the question of whether I have jurisdiction to hear these complaints. Allegations about events in 2023 281. I turn next to [NAME_7] complaints about events in 2023. I begin by considering the allegations which he complains amounted to discrimination arising from disability and / or harassment. 282. Omission to discuss [NAME_46] report - Section 15 claim. C says R failed to discuss [NAME_46]’s report or recommendations with C or to investigate the feasibility of the recommendations between January 2023 and 12 May 2023 (Para 29 of the Claim). I consider whether this omission could amount to unfavourable treatment because of something arising in consequence of his disabilities, namely [NAME_7] communication difficulties. It was [NAME_13] who was [NAME_7] line manager throughout the material period in 2023 and indeed had held this role since [NAME_46] issued her report in early 2022. I have found that neither he nor any other manager within R discussed [NAME_46]’s report and recommendations with C until [NAME_61] did so on 12 May 2023. There was no evidence that R took steps to investigate the feasibility of any of the steps [NAME_46] recommended in the period from January to May 2023 (or at all). 283. I have regard to the burden of proof provisions and consider whether there are facts from which I could reasonably infer that [NAME_7] communication difficulties were an effective cause of R’s omission to discuss [NAME_46]’s report with C. The failure essentially sat with [NAME_13] as [NAME_7] line manager. I consider all relevant evidence adduced by both parties but leave out of account [NAME_13]’s explanation for his omissions at this stage. It is undisputed that C had communication difficulties (at least of the sort pointed up in [NAME_46]’s report) and that [NAME_13] didn’t discuss [NAME_46]’s report in the period founded upon, or at all. C gave no submission as to how or why he says an inference can be drawn of

4107466/2023 Page 72 a causal link between his communication difficulties and the omission to discuss the report. C had various ‘welfare discussions’ with [NAME_13] at [NAME_7] request about various matters of concern to C which his claim does not concern in the period that [NAME_13] was his line manager. There was no evidence at all to suggest that [NAME_7] communication difficulties rendered him unable to articulate concerns about his workplace. On the contrary, he did so to [NAME_13] about other matters and he did so at length to [NAME_17], his [NAME_20] rep. There was likewise no evidence that [NAME_13]’s management style or manner inhibited C in raising concerns because of his communication difficulties. There was no evidence which could point towards a conclusion that [NAME_13] himself was deterred from discussing [NAME_46]’s report with C because of perceived or anticipated communication difficulties on [NAME_7] part. To shift the burden to R, it is not enough to show merely that C experienced unfavourable treatment and that he had communication difficulties. Something more is required and is lacking in this case. C has not surmounted Stage 1. 284. In any event, had the burden shifted to R, I would have found it proved on the balance of probabilities that the omission was not because of [NAME_7] communication difficulties. I am satisfied as a matter of fact that [NAME_13] omitted to do so initially because he awaited further [NAME_26] advice (in May / June 2022) and latterly because he believed further tailored [NAME_8] advice on the subject was to be pursued by way of a review by the [NAME_120] (post July 2022). [NAME_13] was misguided or ineffectual in his management of the matter is not the question. I am satisfied on the evidence that [NAME_7] communication difficulties were not the reason for [NAME_13]’s omission to have the discussion. Therefore, this section 15 complaint cannot succeed. 285. Omission to discuss [NAME_46] report - Section 26 claim: I consider whether the omission to discuss [NAME_46]’s report could amount to harassment related to [NAME_7] disabilities of ADHD and dyslexia. Assuming for the sake of argument that the conduct was unwanted (without making a finding to this effect), I consider whether the omission ‘related to’ the relevant protected characteristic of disability. I am satisfied that it did. It is not necessary that the omission be ‘on the grounds of’ or ‘because of’ the protected characteristic. [NAME_13]’s subjective motivations, the omission related to [NAME_46]’s report, the subject matter of which was [NAME_7] disabilities. I find there is a sufficiently close connection between the omission and the protected characteristic to meet the requirement that the conduct ‘related to’ disability. 286. I consider next whether the conduct had the purpose of violating [NAME_7] dignity or of creating an environment for C of the sort proscribed by s.26(1)(b)(ii). It is unnecessary to apply the burden of proof provisions; this is not a case where there is room for doubt ([NAME_160]). It is proved on the balance of probabilities that this was not [NAME_13]’s purpose. He failed to discuss the report

4107466/2023 Page 73 because of his belief that further [NAME_8] advice / processes were to be forthcoming in connection with [NAME_7] support. Whether he was ultimately incorrect about that, I am satisfied that his purpose was not to violate [NAME_7] dignity or create a prohibited environment. 287. I am also satisfied that the omission did not have this effect on C. There was no evidence that this omission did so. It would not have been objectively reasonable for it to have done so. Relevant context is that (i) C initially made it clear he did not wish a discussion with [NAME_13] following the issue of the report in March / April 2022; (ii) C did not at any point thereafter seek a discussion about the report / adjustments despite seeking out various welfare conversations about other personal matters; and (iii) C did not himself perceive that, in the period complained of, from January to 12 May 2023, he required any of the adjustments in [NAME_46]’s report, given the duties he was performing. This section 26 complaint cannot succeed as the requirements of s.26(1)(b) are not met. 288. 12 May 23 meeting without representation – s.15 claim. I consider the complaint that on 12 May 2023, [NAME_61] met C without giving him the chance to obtain representation from the [NAME_20] (para 33 of the Claim). There is no dispute this occurred. There is also no evidence that C requested or was refused representation. I consider whether the omission to offer C the opportunity of being accompanied amounted to unfavourable treatment because of something arising in consequence of his disabilities, namely [NAME_7] communication difficulties. I assume at this stage, for argument’s sake, that the omission was ‘unfavourable treatment’. 289. I consider whether the treatment was ‘because of’ of [NAME_7] communication difficulties. I apply the burden of proof provisions and, at this initial stage, consider all relevant evidence but exclude from consideration any explanation for the omission put forward by R. C advanced no submission regarding the basis on which he says a causal connection could be inferred between the omission of offer representation and his communication difficulties. There was no evidence before me from which I could reasonably and properly infer such a causal connection. The mere fact that there was a meeting when C was not offered representation and that C had communication difficulties of the kind indicated in [NAME_46]’s report is not sufficient to shift the burden on to R. This was not a meeting of a type where there was any statutory right to representation. The subject matter ([NAME_46]’s report) was a report with which C was familiar, having had had a copy of it for a long time when the meeting was called. [NAME_7] communication difficulties did not relate to his verbal comprehension which [NAME_46] noted was well developed. Without something more, I cannot conclude that [NAME_61] omitted to offer

4107466/2023 Page 74 C accompaniment ‘because of’ [NAME_7] communication difficulties. This section 15 complaint cannot succeed. 290. 12 May 23 meeting without representation – s.26 claim. I consider next whether [NAME_61]’s omission offer C accompaniment on 12 May 2023 was harassment related to disability. I assume for argument’s sake (without making findings to that effect) that the omission to offer representation was unwanted and that it related to disability. 291. I consider whether the omission had the purpose of violating [NAME_7] dignity or of creating a proscribed environment for C as per s.26(1)(b)(ii). There is no need to apply the burden of proof provisions as this is not a case where there is room for doubt, and I am able to make positive findings on the question ([NAME_160]). The purpose of the meeting was to discuss [NAME_46]’s report and to identify whether and what additional support might be appropriate in relation to [NAME_7] specific duties. [NAME_61] had been directed to meet C for this purpose by [NAME_21]. There was no statutory right to accompaniment or any standing arrangement that C should be accompanied at meetings. Accompaniment at meetings was not one of the adjustments [NAME_46] had suggested for C. The subject matter for discussion at the meeting was factual matters about his day-to-day duties and any adjustments which might support these, areas of enquiry that he was well placed to answer. I conclude on the balance of probabilities that violating [NAME_7] dignity to creating a proscribed environment for him was not [NAME_61]’s purpose in convening the meeting without 292. I consider whether the omission to offer C accompaniment alternatively had that effect. The evidence did not support a finding that such was the subjective effect on C. He said that the encounter was ‘uncomfortable’ causing him to feel ‘anxious and stressed’. However, when asked in cross examination, he did not suggest there was anything unprofessional in the tone of the meeting. He did not raise any complaint to R at the time about the tone of the meeting or the decision to conduct it without his rep present. In the immediate aftermath of the discussion, on 12 May, he emailed [NAME_17] and said, “I do not have deadlines … I am often sitting on my own … and it is very quiet …I am aware I can take short breaks when possible and get a smoke. Actually he [[NAME_61]] is right at the moment and I do not know what else I could ask for.” Later, on 18 May 23, he suggested they had taken him by surprise, that he didn’t know what to say, and that they were trying to ‘catch him out’. 293. Not every example of unwanted conduct will violate dignity or otherwise infringe s.26(1)(b). Dignity is not necessarily violated by things where it should have been clear any offense was unintended (Richmond Pharmacology). I am not satisfied that evidence of ‘feeling uncomfortable’

4107466/2023 Page 75 or even ‘anxious or stressed’ is sufficient in this case to sustain a finding that C perceived his dignity had been violated or that an environment was created for him which was intimidating, hostile, degrading, humiliating or offensive. I do not find that this was the effect on C. In any event, even if it had been, in all of the circumstances of the case, I am satisfied that it was not objectively reasonable that it should have this effect. The unwanted conduct in question of omitting to offer [NAME_20] representation in the absence of a request does not reach the bar set by s.26(1)(b). It does not come close on the particular facts here. 294. Recommendation of termination of [NAME_7] probation and agreement to that recommendation – s.15 claim. C alleges that recommending termination of his probation and the agreement to such recommendation was unfavourable treatment because of something arising in consequence of his disabilities (his communication difficulties). There is no disputed that [NAME_21] made this recommendation (on 14 June 2023) and that [NAME_178] agreed to it (on 12 July with communication to C on 14 July 2023). I accept this was unfavourable treatment did not argue otherwise. 295. I turn to the question of whether the treatment was ‘because of’ [NAME_7] communication difficulties. I find that the required causal link is established. It is unnecessary to apply the burden of proof provisions as I am in a position to make a positive finding to that effect ([NAME_160]). 296. I accept that the written reasons given for the recommendation in her rationale document reflected [NAME_21]’s true reasons. It was not suggested by C that she had sought to misrepresent her reasons in the document. The reasons were several. They included: that [NAME_7] alcohol use remained unpredictable; that there were no projected timescales within which C would be able to return to operational duties; that his last operational shifts were 18 months previously (and he showed hesitation / anxiety); that there were no additional support measures that could be put in place; that C already had 4 years and 6 months’ service and, were they to reach a stage where he could be considered for operational duties, she said there were still considerable areas of concern in relation to his performance. In relation to this last point, [NAME_21] referred to the 2021 formal action plan and to the identified areas for improvement including, among others, effective communication. 297. [NAME_7] lack of acceptable competence when it came to effective communication was neither the sole cause nor even the main cause for her recommendation. Nevertheless, it was expressly a consideration which she took into account. I accept that it had a significant influence on her reasoning (in the sense of being more than trivial) and so was an effective cause of the unfavourable treatment (Pnaiser).

4107466/2023 Page 76 298. I further accept, in the absence of any suggestion or evidence to the contrary, that the Chief [NAME_3] accepted [NAME_21]’s recommendation for the reasons set out in her rationale document, including – among the other things mentioned – his lack of competence when it came to effective communication. It flows that [NAME_7] communication difficulties likewise had a significant influence on the Chief [NAME_3]’s reasoning and that the asserted ‘unfavourable treatment’ was ’because of’ [NAME_7] communication difficulties in the sense of being an effective cause. 299. R defends the complaint on the grounds that the recommendation and termination were a proportionate means of achieving a legitimate aim for the purposes of section 15(1)(b). R says the aims were (among others) to ensure [NAME_7] reports were of an adequate standard so that they could be relied upon by colleagues, to provide an adequate policing service, to ensure C could carry out the role safely and efficiently and to ensure their operational police officers were fit for service. 300. I accept that these aims are legitimate ones given the context of the crucial work carried out by R in enforcing the law and protecting the public. 301. I considered whether [NAME_21]’s recommendation to terminate [NAME_7] probation was a proportionate means of achieving those aims or any of them. I considered the working practices of R, and the important reasons sitting behind the requirement for effective communication in reports and orally with team members. I had regard to the evidence given by R of the risk that the Procurator Fiscal would throw out cases if crime reports or witness statements were not of an adequate standard. I recognised that there were certain adjustments which might have been made previously which had not been, including the provision of mind mapping software, the provision of a quieter working space and the agreement of a pattern of breaks. I recognise that these may have assisted C and allowed him to achieve some improvement in his report writing skills. 302. With that said, it is fair to reflect that there was no evidence before me that they would have had any positive effect in relation to the other competencies which had been identified as wanting in the formal action plan. I considered whether some less discriminatory option could have been pursued instead of recommending the termination. In this regard, I took into account that, at the time [NAME_21] made her recommendation in June 2023, C was not fit to be deployed operationally and there was no timescale in which he was predicted to be so. She was also aware that C himself felt a return to operation deployment was not viable because of trust issues with the organization and his colleagues. In this context, I concluded that by this stage in June / July 2023, allowing C to continue in a non-operational role, even with additional adjustments in place to support a potential improvement

4107466/2023 Page 77 in his written report writing and communication skills, was unlikely to achieve the aims of ensuring C could carry out a police [NAME_3] role safely and efficiently and ensuring that R’s operational police officers were fit for service. 303. Many of the factors in [NAME_21]’s rationale related not to [NAME_7] communication skills arising in consequence of his disabilities but to other matters which had a considerable influence on the trajectory of his employment and on the state of affairs which pertained at the point when [NAME_21] was making her recommendation. These included deterioration in [NAME_7] mental health and trust in his colleagues following a cruel hoax in October 2019 as well as other factors in his decline including the breakup of a relationship, financial stressors, domestic abuse allegations, and extended absences/hospitalisations as a result of alcohol misuse. In all of the circumstances, applying an objective test, I am satisfied that the recommendation of discharge was a proportionate means of achieving the legitimate aim of ensuring operational police officers were fit for service and could give safe and efficient service. 304. The Chief [NAME_3]’s acceptance of the recommendation was for the same reasons and in pursuit of the same aims. The reasoning above therefore applies equally to his agreement to [NAME_21]’s recommendation. 305. In these circumstances, this complaint that the recommendation to terminate and the agreement to do so were contrary to s.15 of [NAME_6] does not succeed. 306. Recommendation of termination and agreement to terminate – s.26 claim. C alleges that [NAME_21]’s recommendation to terminate his probation and the Chief [NAME_3]’s acceptance and execution of the recommendation were acts of harassment related to disability. I accept that these acts were unwanted conduct. R did not argue otherwise. C plainly found the recommendation that his employment be terminated and the decision to do so unwelcome. 307. I consider whether the unwanted conduct related to [NAME_7] disabilities. It is unnecessary to apply the burden of proof provisions as I am in a position to make a positive finding, on the balance of probabilities that the conduct did indeed relate to [NAME_7] disabilities. I am satisfied [NAME_7] disabilities had an adverse impact on the key competency of effective communication in particular in relation to report writing. [NAME_7] performance in this area, though far from being the sole reason for [NAME_21]’s recommendation, was one of the factors expressly identified. It follows that it was a factor too in the Chief [NAME_3]’s acceptance and execution of the recommendation. I am satisfied there is a sufficient connection between the conduct complained of and [NAME_7] disabilities to meet the requirement to be ‘related to’ disability.

4107466/2023 Page 78 308. I consider whether the recommendation or its acceptance had the purpose of violating [NAME_7] dignity or of creating an environment for C that was intimidating, hostile, degrading, humiliating or offensive. I am satisfied, on the balance of probabilities, that [NAME_21] wrote her recommendation and rationale on 14 June 2023 because she was charged with doing so in accordance with her remit as the Chairperson of [NAME_7] 9 Discharge hearing. I accept that she made the recommendation she did because she believed it to be the appropriate one to make, based on the reasons she set out in her rationale. Though C disagreed that the recommendation was the correct one and disagreed with procedural aspects of how an informal and formal action plan had been implemented, he did not lead any evidence to suggest that [NAME_21] had some nefarious or proscribed purpose in giving her recommendation or that her rationale was otherwise than stated. I am satisfied [NAME_21]’s purpose in making the recommendation was not as described in s.26(1)(b). Likewise, there was no evidence before me from which I could conclude that the Chief [NAME_3] acted with such a purpose in accepting [NAME_21]’s recommendation. 309. I consider whether the recommendation or its acceptance had the effect proscribed by s.26(b) of [NAME_6]. C gave oral evidence that he did not actually see [NAME_21]’s rationale document until 2024 when he says it was first disclosed to him in connection with preparation for the present Tribunal proceedings. He gave no evidence from which I could find that the effect on him at the point when he must have inferred the fact of [NAME_21]’s recommendation when he learned of his discharge on 14 July 2023 was an effect proscribed by s.26(1)(b). Nor was there any evidence that this effect was subjectively experienced by him on reading the terms of [NAME_21]’s recommendation rationale document at the point he says he did so, long after the claim was raised. 310. The evidence that C subjectively perceived the Chief [NAME_3]’s acceptance of the recommendation and termination of the employment violated his dignity or otherwise created a proscribed environment was slim. In relation to the ‘execution’ of the recommended discharge, he described being escorted from the building and accompanied to his house to retrieve his uniform. He suggested in this respect he was ‘treated like a criminal’. He said that the circumstances of his discharge were so secretive that no one had the opportunity to bid him farewell. I am doubtful that these observations are sufficient to sustain a finding that C subjectively perceived that the Chief [NAME_3]’s conduct in accepting the recommendation (or the associated execution of that decision) fell within the parameters of s.26(1)(b). 311. Even if this was indeed [NAME_7] subjective perception, I am satisfied that, having regard to the overall circumstances, it was not objectively reasonable for it to have been that the conduct .

4107466/2023 Page 79 312. The Chief [NAME_3]’s documentation accepting the recommendation is very brief and factual. It merely conveys the decision and sets out the basis with reference to the terms of Regulation 9. In terms of how this was communicated to C, he was given a final opportunity, should he wish to do so to resign (a step enshrined in Reg 9(3) of the Police Service of Scotland Regs 2013). Thereafter, the termination was carried out in an appropriately confidential manner and, as one might expect, R attended swiftly to the practicalities of retrieving police property from C, including from his home. C may have felt upset by this process, but I am satisfied that, objectively, there is a clear imperative for the prompt retrieval of police uniform and equipment, given the scope for it to be abused should it be lost or fall into the wrong hands. Equally, I am satisfied that there was nothing offensive, humiliating, intimidating, degrading or hostile in the tone or choice of expression in the documentation connected to the recommendation or discharge nor in the ultimate execution of the discharge. It was not reasonable that these acts should have such the effect of creating a prohibited environment for C or of violating his dignity. As the EAT has alluded to in Richmond, there must be a balance between safegarding dignity at work based on protected characteristics and discouraging a culture of hypersensitivity. The allegation that [NAME_21]’s recommendation of discharge or the Chief [NAME_3]’s acceptance thereof and execution of the recommendation were harassment contravening s.26 of [NAME_6] are not well founded and do not succeed. 313. Failure to conduct a welfare check C alleges that no welfare checks were conducted after he was discharged from R (Para 37 of the Claim). To the extent this allegation continues to be pursued, it does not succeed. [NAME_13] did conduct a welfare check on 15 July 2023, the day after the discharge, by telephone. It was not disputed by C in his evidence that [NAME_13] enquired after [NAME_7] wellbeing during that call. The allegation that an omission to check on his welfare after discharge amounted to harassment is not, therefore, well founded and does not succeed. Likewise, the allegation that such an omission contravened section 15 of [NAME_6] is not well founded and does not succeed. 314. Reasonable adjustments claim 2023. In relation to the period from 3 January 2023 to 12 July 2023 (the “2023 RA Period”), the duties allocated to C were different and his work environment had altered. Although R continued to have the PCP of officers being able to provide written reports of a suitable standard, this PCP did not put C to a substantial disadvantage or disadvantages as it had done during the 2022 RA period. Unlike during his time at Loreburn St Station, the PCP was no longer having a direct impact on the nature of the work delegated to C. He was not required from 3 January 2023 to prepare or input into the types of complex text-based reports he had been working on at Loreburn St. During this later period at Dumfries HQ this

4107466/2023 Page 80 type of activity was not a material component of his duties. It is not, therefore, established that C was finding it hard to concentrate on such written work or that he was fining it hard to process information and compile reports. It is not established on the evidence that it was taking him longer to do the work allocated in he 2023 RA period or that his writing was criticised or required to be re-done. 315. It not having been established that C was put to a substantial disadvantage by the PCP, his complaint under section 20(3) of [NAME_6] cannot succeed in relation to the 2023 RA Period. 316. In fairness to C, a litigant in person, I considered whether or not his complaints in relation to the adjustments contended below might alternatively succeed under section 20(5) of [NAME_6] on the basis that these might be said to amount to auxiliary aids. i. a computer with speech to text ii. guidance on structuring written information or reports in a specific format iii. Templates or example reports iv. Typing tutor apps v. Mind mapping software vi. A smartphone to make notes 317. I concluded that this alternative basis for asserting an obligation on R’s part to make these adjustments does not assist C. In relation to items (i), (ii), (iii) and (vi), I have found that C was provided with these items (or potential ‘auxiliary aids’). I have found that it is not established C would, but for the provision of typing tutor app, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled during the 2022 RA Period (see para [279(f)]). The same reasoning applies in relation to the subsequent period and is adopted. Essentially, there was no evidence that [NAME_7] typing skills were poor or that apps of this kind would alleviate [NAME_7] other difficulties with concentration or processing information. 318. In relation to mind mapping software, the different nature of the [NAME_7] duties in the 2023 RA Period means that the conclusions as to disadvantage applicable to the 2022 RA Period do not flow. The question is whether, but for the provision of this software, C would be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. In [NAME_46]’s report, she described the software as: “allow[ing] you to easily draw a mind map or flow chart and convert it to a text outline,

4107466/2023 Page 81 organise ideas and convert visual mind maps with text content into a Word document.” According to this description, this is a tool designed to alleviate difficulties processing information to convert thoughts and ideas into text content in a word document. I am not satisfied on the evidence before me that, from 3 January 2023, [NAME_7] duties required him to organise thoughts and ideas into text-based reports. I, therefore, conclude that it is not established that but for this auxiliary aid C would be put to a substantial disadvantage in comparison with non-disabled persons in the period from 3 January to 12 July 2023 (aka the 2023 RA Period). 319. Therefore, the reasonable adjustments complaints pertaining to the 2023 RA Period cannot succeed either under section 20(3) or under s.20(5) of [NAME_6]. Time limitation issue in relation to allegations pre-dating 10 July 2023 320. It remains to be considered whether those complaints relating to acts or omissions before 10 July 2023 are time barred. This question requires to be determined for all such complaints, including those which I have found would not succeed on their merits, since the time limitation question goes to this Tribunal’s jurisdiction to hear and decide the complaints which are prima facie out of time. 321. It is not established that any of the acts or omissions complained about which took place before 10 July 2023 amounted to prohibited conduct extending over a period which ended after 10 July 2023. As none of the allegations on or after 10 July 2023 have been found to be prohibited conduct contravening the [NAME_6], it follows that any earlier conduct cannot be ‘knitted together’ with the post 10 July 2023 conduct so as to be categorised as conduct extending over a period in respect of which a claim was brought within the ‘normal’ three-month time limit in s.123(1)(a) (South Western Ambulance NHS Foundation Trust v [NAME_164] ). 322. I have found that all allegations pre-dating 10 July would not, in any event, succeed on their merits with the exception of the failure to make three adjustments in the 2022 RA Period (from 10 June to 30 Sep 2022 and 24 Dec ’22 to 3 Jan ’23). 323. I consider the question of when time limits began to run (and when they expired) in relation to the reasonable adjustments complaints. I remind myself that a failure to do something is to be treated as occurring when the person in question decided on it. Where an employee complains about a failure to make reasonable adjustments under s.20 of [NAME_6], the failure is not ‘conduct extending over a period’, but time instead runs from the date on which the person in question decided upon it.

4107466/2023 Page 82 324. In relation to the period from 10 June to 30 September 2022, I am satisfied that the latest point at which [NAME_13] decided not to discuss [NAME_46]’s report with C or to implement any of [NAME_46]’s listed adjustments was on 31 July 2022, when he contacted [NAME_26] for guidance following confirmation of [NAME_7] diagnosis and was told a review would be arranged with the [NAME_120]. At that point [NAME_13] actively decided not to take any further action himself in relation to implementing any adjustments mentioned in [NAME_46]’s report. The normal time limit for this period, therefore, expired on 30 October 2022, no Early Conciliation having been initiated before its expiry to ‘stop the clock’. The claim in respect of this period was, therefore, lodged just under one year and two months after the expiry of the ‘normal’ time limit in s.123(1)(a). 325. In relation to the period from 24 Dec ’22 to 2 Jan ’23 (when C returned briefly to Loreburn St), I am satisfied that the latest point at which [NAME_13] decided not to implement the adjustments was on 24 December 2022. At that point C returned to work and [NAME_13] had taken [NAME_26] advice on 19 December 2022 which had referred to [NAME_46]’s potential adjustments. Dr A had said in that advice that he was not suggesting that consideration / implementation of any of [NAME_46]’s recommendations would be a prerequisite to [NAME_7] rehabilitation into work and that the recommendations could be considered by police Scotland after [NAME_7] return. I am satisfied that [NAME_13] chose to interpret that advice as not requiring him to do anything about [NAME_46]’s report while C remained on non-operational duties and he decided at that time not to implement any of the adjustments mentioned in her report. The normal time limit for this period, therefore, expired on 23 March 2023, no Early Conciliation having been initiated’. The claim in respect of this period was, therefore, lodged approximately 9 months months after the expiry of the ‘normal’ time limit in s.123(1)(a). 326. In relation to the period from 3 January 2023 to 14 July 2023, as discussed earlier in the judgment, I have found that R did not fail in a duty to make adjustments during this period. It follows that the allegation of prohibited conduct in this period cannot form part of ‘conduct extending over a period’ with earlier alleged failures. In any event, I am satisfied that the complaint of a failure to make reasonable adjustments during the period between 3 January and 14 July 2023 was not itself brought within the ‘normal’ three- month time limit. It is clear and undisputed that [NAME_61] made the decision not to implement any of [NAME_46]’s listed adjustments on 12 May 2023. That is the date from which time runs. Even if the reasonable adjustments complaint relating to [NAME_7] time at Dumfries HQ in 2023 had merit (which I have found it does not), it was not brought within the time limit in s.123(1)(a) of ERA. The normal time limit for this period of the reasonable adjustments complaint expired on 11 August 2023. No Early Conciliation was initiated before its expiry, so the clock was not stopped by the later EC process.

4107466/2023 Page 83 ([NAME_143]). The complaint was not brought until over four months later. The reasonable adjustments complaints were therefore all late with the degree of lateness ranging between just under fourteen months and just over four months, depending on the period complained about. 327. At the hearing, I asked C if he wished to ask the Tribunal to exercise its discretion to extend the ‘normal’ time limit in section 123(1)(a) to allow all his complaints to be received on the basis, for the purposes of s.123(1)(b) that it was just and equitable to do so. C confirmed he seeks such an extension. The only allegations in this case which have been the subject of a timeous Tribunal claim are the allegation that the Chief [NAME_3] accepted the recommendation to discharge C and the allegation that R failed to carry out a welfare check after discharging him. All other complaints, whether brought under s.15, s.20 or s.26 of [NAME_6], were brought outside the ‘normal’ time limit. In each case, it would be necessary to extend the time limit to 20 December 2023. (As C had not initiated EC before the normal time limits expired for these complaints, he benefits from no extensions pursuant to section 140B of [NAME_6], and the subsequent EC, begun on 9 October 2023, did not operate to extend time in relation to these complaints ([NAME_143]). 328. I considered all relevant factors to determine whether it would be just and equitable to extend time to 20 December 2023 for presenting all complaints. 329. Factors which weighed in favour of extending time to that date included: a. that the disadvantage to C if the extension is refused is substantial in that C will be deprived of the opportunity to have the ‘late’ complaints judicially determined. I gave particular significance to the fact that, if not time barred, I would find that the complaint of a failure to make reasonable adjustments pertaining to the period 10 June to 30 September 2022 and 24 December to 3 January 2023 to be successfully established in respect of three of the adjustments identified. b. that C was unaware of a diagnosis of the relevant disabilities until January 2022 (Dyslexia) and July 2022 (ADHD); c. that, in relation to the criticisms of [NAME_7] performance in [NAME_12]’s monitor log compiled in relation to the formal action plan in 2021, C did not get sight of these until around September 2022; d. that C was unaware of his right to bring Tribunal complaints against R or of the time limits for doing so until he instructed [NAME_165] sometime after 14 July 2023;

4107466/2023 Page 84 e. that C during material periods experienced some very poor mental health and hospitalisation in relation to alcohol use; and f. that C during material periods was experiencing stress in relation to domestic and financial issues. 330. However, the following factors ultimately weighed more heavily in my deliberations: a. that the disadvantage to R of permitting the extension is also significant in that an extension means the complaints relating to acts or omissions before 10 July 2023 will be judicially determined. I was concerned that the delay carried real implications for the cogency of the evidence. On the facts and circumstances of this case I was concerned that there was real scope for R to have been prejudiced by such delay, particularly in relation to the allegations dating back to 2021 and 2022. This is not a case where C had previously raised internally the allegations at the time they were said to take place by way of an internal grievance or complaint. In such cases, it can sometimes be that, even if the Tribunal claim is lodged late, the employer has been on earlier notice of the allegations and has, often as part of an internal process, had the opportunity of obtaining witness statements from relevant actors not long after the events and of gathering / preserving any other relevant evidence. This was not the scenario here. C sought to complain in December 2023 about various events, some of which were over a year or even two years old by the time R first had notice of the allegations. I was concerned there was a real risk that this delay has affected the recall of witnesses, memories being apt to fade with the passage of time. b. that time limits are designed to ensure compliance with the principle of legal certainty and departures from these time limits should be the exception; c. I noted that the period of delay was variable in relation to different complaints but in relation to the earliest complaints, it was quite substantial, substantially exceeding a year. Even in relation to the later complaints such as [NAME_21]’s discharge recommendation on 14 June ’23, the claim was not brought until some 6 months’ later, more than 3 months after the time limit for doing so had expired. The delay was not a trifling matter of hours or a day or two in relation to any of the complaints; d. that although I accept C was unaware of his rights to bring Tribunal complaints or the rules relating to time limits, he made no enquiries

4107466/2023 Page 85 to acquaint himself with his rights relating to disability or in relation y to the specific matters raised in his Claim despite having access to a [NAME_20] representative over a prolonged period of his employment; e. that, though it is right to recognise that during the period concerned, some periods were characterised by poor mental health or prolonged alcohol misuse, there were also periods of sustained sobriety and work attendance when it would seem C was fit and alert to pursue any enquiries about his rights and options. I found C to be a resourceful and intelligent individual who, had he turned his mind to making online investigations, I am confident would likely have succeeded in educating himself about the time limits associated with Tribunal complaints. f. that C did not act promptly to lodge a claim even after he was informed that he had been discharged on 14 July 2023. He said he sought a solicitor after being discharged but it was unclear when he first instructed [NAME_136]. If he delayed in doing so, there was no explanation for the delay. If after [NAME_136]’s instruction, there was a delay in obtaining advice on time limits or in initiating conciliation / bringing a claim, no explanation was proffered for that delay. 331. Balancing all relevant factors, I conclude that, in the circumstances of this case, it would not be just and equitable to extend the time for receiving of the claimant’s complaints relating to acts before 10 July 2023 to 20 December 2023. These complaints are accordingly time barred and, since the Tribunal lacks jurisdiction to decide them, they are dismissed.

Date sent to parties: 9 April 2026