Employment Tribunal Rejects Discrimination and Unfair Dismissal Claims

OUTCOME: Dismissed

1 Case Number: 3309679/2023 3300250/2025

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

Bury St Edmunds (by video)

On:

7 – 16 April 2026

17, 20, 21 April 2026 (in chambers)

Before:

Employment Judge Graham

Representation Claimant:

[redacted] Respondent: [redacted]

RESERVED JUDGMENT

1. The complaint for equal pay fails and is dismissed.

2. The complaints of direct age, disability, race, and sex discrimination fail and are dismissed.

3. The complaints of harassment related to age, disability, race, and sex fail and are dismissed.

4. The complaints of associative direct race and religious discrimination fail and are dismissed.

5. The complaints of associative indirect race and religious discrimination fail and are dismissed.

6. The complaints of harassment related to associative race and religion fail and are dismissed.

7. The complaint of failure to make reasonable adjustments fail and are dismissed.

8. The complaint of discrimination arising from disability fails and is dismissed.

9. The complaint of indirect disability discrimination fails and is dismissed.

10. The complaints of victimisation fail are dismissed.

2 11. The complaint of constructive unfair dismissal fails and is dismissed.

12. The Respondent was in breach of its duty to give the Claimant an updated statement of employment particulars, however no award is due.

REASONS

Table of Contents Introduction .................................................................................................. 2 Conduct of the final hearing ........................................................................... 3 List of Issues ................................................................................................. 6 Findings of fact ............................................................................................. 22 Submissions ................................................................................................ 59 Law .............................................................................................................. 60 Conclusions and decision ............................................................................. 93 Time .......................................................................................................... 122 Remedy ..................................................................................................... 123

Introduction

Background

1. ACAS Early Conciliation took place between 16 June and 28 July 2023.

2. Claim 33097679/2023 was filed on 10 August 2023. At that time the Claimant remained employed by the Respondent and he complained of disability discrimination. An ET3 denying the claim was filed on 28 March 2024.

3. Claim 3300250/2025 was filed on 23 July 2024. Within that claim the Claimant complained of discrimination on grounds of age, sex (including equal pay), disability, race and religion. The Claimant remained employed by the Respondent at that time. An ET3 was filed denying the claim.

4. On 16 October 2024 the Respondent conceded that the Claimant was disabled from January 2023 by virtue of post-COVID syndrome (Long COVID).

5. A first private preliminary hearing for case management took place before Employment Judge Talbot-Ponsonby on 25 September 2024 and a draft list of issues requiring additional information was produced. This related to claim 33097679/2023 only.

6. A second private preliminary hearing for case management took place

3 before Employment Judge Young on 12 November 2024. This related to claim 3300250/2025. The Claimant had applied to amend his claim but the hearing was abandoned as the Claimant was unable to articulate the amendment. The Respondent was given permission to amend its Response.

7. A third private preliminary hearing for case management took place before Employment Judge Young on 18 December 2024 at which time the claims were consolidated. The complaints were clarified as follows:

i. Equal Pay ii. Direct disability discrimination iii. Discrimination arising from disability iv. Failure to make reasonable adjustments v. Harassment related to disability vi. Indirect disability discrimination vii. Indirect associative religious discrimination viii. Indirect associative racial discrimination ix. Direct age discrimination x. Direct race discrimination xi. Direct sex discrimination xii. Direct associative religious discrimination xiii. Direct associative racial discrimination xiv. Harassment related to associative religion xv. Harassment related to associative race xvi. Harassment related to race xvii. Harassment related to age xviii. Harassment related to sex xix. Victimisation xx. Failure to provide changes to the Claimant’s statement of particulars of employment

8. A victimisation complaint about failing to appoint the Claimant to the role of interim Business Partner Leads was dismissed upon withdrawal. The Respondent was given permission to file an Amended Consolidated Response. Within that document the Respondent sought to correct what it said were errors in the case management summary and the Respondent’s earlier submissions with respect to the Claimant’s employment history.

9. A fourth private preliminary hearing for case management took place on 16 July 2025 before Employment Judge French. At that hearing the Claimant was granted permission to amend his claim to add a complaint of constructive unfair dismissal and he relied upon the cumulative actions of the Respondent as set out in the list of issues together with an [NAME_8] last straw comprising an email of 25 March 2025 in which he says the Respondent refused to mediate. The Respondent was granted permission to file another Amended Response to the claim and this was filed on 13 August 2025.

Conduct of the final hearing

10. The matter was listed for 11 days to commence on 7 April 2026. I read in the papers in advance of the hearing on 3, 4, 5, and 6 April 2026 over the [COMPANY_9] holiday in my own time so that we could complete this large case in

4 the allotted time and not go part heard.

11. At the start of the final hearing, I was provided with a bundle of documents of 1,830 pages including one additional document. I was provided with a witness statement from the Claimant who gave evidence on 7, 8 and 9 April 2026.

12. I was provided with statements on behalf of the Respondent from [NAME_50] (former Head of HR Operations); [NAME_12] (Senior Employee Relations Manager); [NAME_14] (current Head of HR Operations); [NAME_89] (former Head of Learning and Development); [NAME_18] (Chief People Officer); [NAME_21] (Head of People Integration); and [NAME_200] (HR Director).

13. [NAME_26] gave evidence on 10 April; [NAME_27], [NAME_28] and [NAME_29] gave evidence on 13 April; [NAME_30] and [NAME_31] gave evidence on 14 April; and Ms [NAME_25] gave evidence on 15 April 2026.

14. I encountered difficulty understanding the Claimant’s associative discrimination complaints as the Claimant’s answers to cross examination suggested some confusion on his part with the claims that had been brought, in particular with the [NAME_32] issue on the associative direct discrimination complaint, and also with respect to group disadvantage for the indirect associative discrimination complaints.

15. This confusion continued when the Claimant came to cross examine the Respondent’s witnesses on 13 April 2026, therefore I converted this to a private preliminary hearing for case management on the morning of 14 April 2026 for half an hour or so. This is because a Tribunal cannot fairly determine a case if it does not know what it is, and [NAME_33] advised us that the Respondent did not understand some of the Claimant’s associative discrimination complaints.

16. The confusion related to a number of matters. By way of example, for the associative direct discrimination complaints the Claimant complained about the Respondent refusing to issue organisational communications about the Palestine/Israel conflict. The Claimant was seeking to argue direct associative discrimination as he has a partner who is Muslim and from Palestine. However, the Claimant accepted that anyone who requested an organisational communication to be issued about that conflict would also have been refused, whereas the Respondent had issued a communication about the Ukraine/Russia conflict. It did not appear that the basis of comparison was with someone in materially the same circumstances save for race or religion.

17. Likewise, for the indirect associative race and religious discrimination complaints, the Claimant appeared to be arguing group disadvantage however it was unclear if the pool for comparison was [NAME_34] or Palestinians in general, or just those working for the Respondent, and the [NAME_8] group disadvantage appeared to involve the Claimant asserting what he considered [NAME_34] would feel, however we were not provided with evidence of it, save for the Claimant’s own oral evidence.

18. I discussed legal issues 8, 9, 13, 14, 15 and 16 with the Claimant to check

5 my understanding. For the associative direct race and religious discrimination complaints the Claimant maintained he was relying on a prohibition on posts about the Palestine/Israel conflict which he agreed applied to everyone and that he was not singled out.

19. For the harassment related to associative race and religion complaints, the Claimant explained why he said the refusal of the organisation wide communication and the refusal to publish his blog was conduct related to race or religion.

20. For the indirect associative race and religion discrimination complaints the Claimant confirmed the pool for comparison was [NAME_35]; he agreed that he was not bringing any evidence of group disadvantage to Palestinian and Muslim colleagues (such as statistics or complaints from [NAME_35]); rather the Claimant confirmed that he was asking me to rely on inferences, and he maintained that he experienced the same disadvantage as these Muslim and Palestinian colleagues.

21. I then resumed the hearing after clarifying these points with the Claimant having assured myself that I had made reasonable efforts to clarify the legal issues.

22. I made adjustments for the Claimant by providing frequent breaks throughout the hearing as well as checking his understanding and enquiring as to his health. When I noticed the Claimant appeared to be tired (for example rubbing his eyes) I imposed a break. The Claimant would also inform me when he needed a break. I also ensured that there were breaks between witnesses to give the Claimant time to prepare himself.

23. I also arranged for closing submissions to be staggered as an adjustment for the Claimant. I adjourned the hearing after the witness evidence ended at midday on 15 April, so that both sides had the afternoon to prepare their closing submissions. I asked [NAME_33] for the Respondent to provide [NAME_36] with the Respondent’s closing submissions later that evening and these were then supplemented orally briefly on the morning of 16 April, and then the Claimant had a further half day to finalise his until the afternoon that day. This was the equivalent of a day for the Claimant to prepare his closing submissions with the benefit of having had early sight of the Respondent’s.

24. The Respondent provided written closing submissions of 12 pages and spoke to them briefly for 30 minutes at 10am on 16 April. I adjourned until 1pm when the Claimant then provided written closing submissions of 31 pages but did not seek to expand on them orally. The Claimant withdrew issue 23.2.1 which was a reasonable adjustments complaint. When it was put to the Claimant that issue 23.2.2 was parasitic upon issue 23.2.1, I asked the Claimant to take a break to think how he wished to proceed, and upon his return he confirmed that he intended to withdraw both, and to confirm that no pressure had been applied to him to do so.

25. We then discussed the like work element to the equal pay claim which was not addressed to any degree in the closing submissions, which the Claimant then offered to withdraw and I encouraged him to think and not act in haste.

6 The Claimant chose to continue with that claim.

26. We then discussed the remainder of the equal pay claim as the Claimant appeared to challenge the Respondent’s [NAME_38] but it was not clear if he was saying it was tainted by sex discrimination. I gave the Claimant 45 minutes to think about this, and the Respondent 45 minutes to consider the Claimant’s reply and at 3pm I heard from the parties. The Claimant challenged the [NAME_38] but did not address why he said it was tainted by sex discrimination.

27. The hearing finished at 3:30pm on 16 April 2026.

28. The Claimant has named a [NAME_32] in this claim. I have indicated to the parties that the [NAME_32] will be referred to as [NAME_39] in this judgment because we will be discussing a considerable amount of their personal information, including their employment history and their salary information. That person is not a party to these claims, and they have not given evidence as a witness. The public reading this judgment do not need the name of that person to understand how the decisions have been reached, and both parties pragmatically agreed with me. I have not however made an order for anonymity.

List of Issues

29. I was provided with the following agreed list of issues which had been previously discussed at the earlier private preliminary hearing before Judge Young on 18 December 2024, Judge French on 16 July 2025, and subsequently finalised by the parties:

1 Time limits

1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 17 March 2023 in respect of claim 3309679/2023 may not have been brought in time.

1.2 Given the date the second claim form was presented and the dates of early conciliation, any complaint about something that happened before 1 March 2024 in respect of claim 3300250/2025 may not have been brought in time.

1.3 Were the discrimination, harassment and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:

1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.3.2 If not, was there conduct extending over a period?

1.3.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.3.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:

7 1.3.4.1 Why were the complaints not made to the Tribunal in time?

1.3.4.2 In any event, is it just and equitable in all the circumstances to extend time?

2. Equal Pay (Equality Act 2010, sections 65-70)

2.1 The [NAME_8] [NAME_32] is:

2.1.1 [NAME_39].

2.2 The Claimant and the [NAME_32] were employed by the same employer from 1 April 2022.

2.2.1 Did the Claimant and the [NAME_32] work at the same establishment? If not, did common terms apply at the respective establishments?

2.3 For each [NAME_32], did the Claimant and the [NAME_32] do “like work” (as defined in section 65(1)(a) EQA).

That is:

2.3.1 Was their work the same or broadly similar, and

2.3.2 Were any differences between their work not of practical importance in relation to the terms of their work.

2.3.3 Was their work rated as equivalent?

2.4 It is agreed that there was a term of the Claimant's contract that was less favourable to the Claimant than the relevant corresponding term of the [NAME_32]’s contract was to the [NAME_32], namely salary and bonus. It is also agreed that the Claimant's contract did not include a term which corresponded to a term of the [NAME_32]’s contract that benefited the [NAME_32], namely a travel allowance.

2.5 For any difference in terms that is found to exist, has the Respondent shown that the difference was:

2.5.1 because of a material factor

2.5.1.1 the Respondent submits that:

(A) There were material differences in the tasks the Claimant and his [NAME_32] performed, the skill involved in the performance of their jobs and in their knowledge, expertise and responsibility;

(B) The [NAME_32] is more experienced than the Claimant and the Respondent had a business need for the experience possessed by the [NAME_32] at the time of her appointment; and/or

8 (C) The [NAME_32]'s salary was protected following her TUPE transfer, and the basis on which her protected salary had been determined was via a different collective bargaining process to that which had applied to the Claimant.

2.5.2 reliance on which—

2.5.2.1 does not involve treating the Claimant less favourably because of sex, and

2.5.2.2 if the factor puts men who are doing the work at a particular disadvantage compared to women, is a proportionate means of achieving a legitimate aim.

2.6 The Claimant alleges that his contract was less favourable in relation to pay, bonus, retention payment, pension.

2.7 Should his contract be modified in accordance with section 66 EQA?

Remedy

2.8 If the Claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the Claimant is awarded compensation and/or damages, will decide how much should be awarded.

3 Direct disability discrimination (Equality Act 2010 section 13)

3.1 For the purposes of each of his disability-related claims, the Claimant relies on Long Covid. The Respondent accepts that the Claimant disabled within the meaning of the Equality Act 2010 from January 2023 onwards by virtue of his Long Covid and that it had constructive knowledge of the Claimant's disability from 23 January 2023. For this direct disability discrimination claim, the Claimant compares his treatment with those that do not have Long Covid but have the same symptoms as the Claimant.

3.2 Did the Respondent do the following things:

3.2.1 In breach of its capability policy, fail to allow the Claimant to appeal against a capability outcome letter in February 2023?

3.2.2 Give the Claimant a lower performance score March 2023? It is agreed that the Claimant received a score of 2-3-2.

3.2.3 Pay the Claimant a reduced bonus in July 2023? It is agreed that the amount of the Claimant's 2023 bonus was determined by his performance score of 2-3-2.

3.2.4 Fail to give the Claimant an opportunity to apply to for Business Partner Lead role December 2023/January 2024? It is agreed that the Claimant was not invited to apply for the role.

3.2.5 Fail to appoint the Claimant to role of business partner lead role in January 2024? It is agreed that [NAME_39] was appointed to the role, not the Claimant.

3.3 Was that less favourable treatment?

9 The Tribunal will decide whether the Claimant was treated worse than [NAME_39] in relation to issues 3.2.4 & 3.2.5. There must be no material difference between their circumstances and the Claimant’s.

If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated.

In respect of all the other direct disability discrimination issues, the Claimant has not named anyone in particular who they say was treated better than they were and relies upon a hypothetical [NAME_32]

3.4 If so, was the less favourable treatment because of the Claimant's Long Covid?

3.5 Did the Respondent’s treatment amount to a detriment?

4 Discrimination arising from disability (Equality Act 2010 section 15)

4.1 Did the Respondent treat the Claimant unfavourably by:

4.1.1 paying him reduced salary and bonus as a result of his performing less well in its performance development review process (PDR process). It is agreed that the amount of the Claimant's 2023 bonus was determined by his performance score of 2-3-2.

4.2 Did the following things arise in consequence of the Claimant’s disability:

4.2.1 His fatigue, difficulty concentrating and remembering information (colloquially referred to as “brain fog”), and having to perform work slower? It is agreed that the respondent had constructive knowledge from 23 January 2023.

4.3 Was the unfavourable treatment because of any of those things?

4.4 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that the aims of its performance review process were to:

4.4.1 measure employee performance;

4.4.2 facilitate employee development; and

4.4.3 maintain a high-quality workforce; and that its aims in connecting the performance review process with the determination of bonus awards were to:

4.4.4 reward performance; and

4.4.5 maintain a high-quality workforce.

4.5 The Tribunal will decide in particular:

4.5.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

4.5.2 could something less discriminatory have been done instead;

10

4.5.3 how should the needs of the Claimant and the Respondent be balanced?

5 Reasonable Adjustments (Equality Act 2010 sections 20 & 21)

5.1 The Respondent had constructive knowledge of the Claimant's disability from 23 January 2023.

5.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following [NAME_40]:

5.2.1 Having a performance development review process (this is agreed), and connecting salary increases (this is not agreed) and bonus payments (this is agreed) to that process

5.3 Did the [NAME_40] put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that:

5.3.1 He was suffering severe levels of fatigue cannot work such long hours (including beyond contractual hours) and as therefore likely to receive lower scores on the PDR process?

5.4 Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

5.5 What steps could have been taken to avoid the disadvantage? The Claimant suggests:

5.5.1 Adjustments to PDR process scoring system to allow for the Claimant’s difficulty working so that the Claimant scored a 3/5.

5.5.2 The adjustments set out in the [NAME_41] report of February 2023, being:

5.5.2.1 Protected time for longer more complex projects.

5.5.2.2 Minimize deadline on short turnarounds.

5.5.2.3 Using the Claimant’s calendar to ensure there a dedicated free meeting slots and Teams meetings calls, to aid focus and concentration.

5.5.2.4 Reminding the Claimant of appropriate work priorities, schedule, and consider longer lead times and fewer goals, or adjusted productivity and performance objectives which takes account of the extra time he needs to focus on tasks.

5.5.2.5 Flexibility in terms of protected time in his calendar to work through activities uninterrupted

5.6 Was it reasonable for the Respondent to have to take those steps and when?

5.7 Did the Respondent fail to take those steps?

11

6 Harassment related to disability (Equality Act 2010 section 26)

6.1 Did the Respondent do the following things:

6.1.1 On 16 November 2023 [NAME_31] refused to publish the Claimant’s [NAME_43] publication on mental health issues related to the Palestine/Israel conflict.

6.1.2 Fail to consult with the Claimant in or around December 2023/January 2024 regarding the appointment to the interim business partner lead role of which [NAME_39] appointed to in January 2024

6.1.3 Exclude the Claimant from the recruitment process to the interim business partner lead role in or around December 2023 of which [NAME_39] appointed to in January 2024

6.1.4 Fail to appoint the Claimant to the role of interim business partner leads considering the Claimant was line managing as a HR Business Partner before. The Claimant alleges the harassment took place on 21 May 2024.

6.1.5 Disclose to the Claimant on 30 August 2024 an email arranging an appeal hearing for the Claimant dated 21 August 2023, the words “the appeal hearing for DJ is on Wednesday (yes, we have had to make reasonable adjustments for that!)” trivialise the reasonable adjustments process and suggest that accommodating the Claimant’s disability was seen as a burden.

6.2 It is agreed that the conduct referred to at paragraphs 6.1.2 to 6.15 above was unwanted.

6.3 Did the unwanted conduct relate to disability?

6.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

6.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

7 Indirect disability discrimination (Equality Act 2010 section 19)

7.1 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP:

7.1.1 Having a performance development review process (this is agreed), and connecting salary increases (this is not agreed) and bonus payments (this is agreed) to that Process

7.2 Did the Respondent apply [NAME_44] to the Claimant? Yes.

12 7.3 Did the Respondent apply [NAME_44] to all employees including those without any disability, or would it have done so? Yes.

7.4 [NAME_44] put people with long Covid at a particular disadvantage when compared with those without, in that people suffering severe levels of fatigue cannot work such long hours (including beyond contractual hours) and are likely to receive lower scores on the PDR process?

7.5 [NAME_44] put the Claimant at that disadvantage?

7.6 Was [NAME_44] a proportionate means of achieving a legitimate aim? The Respondent says that the aims of its performance review process were to:

7.6.1 measure employee performance;

7.6.2 facilitate employee development; and

7.6.3 maintain a high-quality workforce; and that its aims in connecting the performance review process with the determination of bonus awards were to:

7.6.4 reward performance; and

7.6.5 maintain a high-quality workforce.

7.7 The Tribunal will decide in particular:

7.7.1 was [NAME_44] an appropriate and reasonably necessary way to achieve those aims;

7.7.2 could something less discriminatory have been done instead;

7.7.3 how should the needs of the Claimant and the Respondent be balanced?

8 Indirect associative religious discrimination (Equality Act 2010 section 19A)

8.1 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP:

8.1.1 The organisation's policy prohibiting posts about the Palestine/Israel conflict implemented in November 2023

8.2 Did the Respondent apply [NAME_44] to the Claimant?

8.3 Did the Respondent apply [NAME_44] to all employees including those without a partner who is Muslim, or would it have done so?

8.4 [NAME_44] put people with partner who is Muslim at a particular disadvantage when compared with those without?

8.5 [NAME_44] put the Claimant at substantively the same disadvantage as persons who do share the relevant protected characteristic?

13 8.6 Was [NAME_44] a proportionate means of achieving a legitimate aim? The Respondent says that its aim was:

8.6.1 maintaining political neutrality where this is the position taken by the Government.

8.7 The Tribunal will decide in particular:

8.7.1 was [NAME_44] an appropriate and reasonably necessary way to achieve that aim;

8.7.2 could something less discriminatory have been done instead;

8.7.3 how should the needs of the Claimant and the Respondent be balanced?

9 Indirect associative racial discrimination (Equality Act 2010 section 19A)

9.1 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCP:

9.1.1 The organisation's policy prohibiting posts about the Palestine/Israel conflict implemented in November 2023

9.2 Did the Respondent apply [NAME_44] to the Claimant?

9.3 Did the Respondent apply [NAME_44] to all employees including those whose ethnicity is Palestinian, or would it have done so?

9.4 [NAME_44] put people with at a particular disadvantage when compared with those without?

9.5 [NAME_44] put the Claimant at substantively the same disadvantage as persons who do share the relevant protected characteristic?

9.6 Was [NAME_44] a proportionate means of achieving a legitimate aim? The Respondent says that its aim was:

9.6.1 maintaining political neutrality where this is the position taken by the Government.

9.7 The Tribunal will decide in particular:

9.7.1 was [NAME_44] an appropriate and reasonably necessary way to achieve that aim;

9.7.2 could something less discriminatory have been done instead;

9.7.3 how should the needs of the Claimant and the Respondent be balanced?

10 Direct age discrimination (Equality Act 2010 section 13)

14 10.1 The Claimant was 33 at the time and they compare their treatment with [NAME_39] who is older than the Claimant.

10.2 It is agreed that the Respondent did the following things:

10.2.1 Failed to give the Claimant an opportunity to apply for the interim business partner lead role of which [NAME_39] was asked to fill in December 2023/January 2024.

10.2.2 Failed to appoint the Claimant to role of interim business partner lead role of which [NAME_39] appointed to in January 2024.

10.3 Was that less favourable treatment?

The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s.

The Claimant says they were treated worse than [NAME_39].

10.4 If so, was it because of age?

10.5 Was the treatment a proportionate means of achieving a legitimate aim? The Respondent says that its aims were:

10.5.1 facilitating the prompt cover of responsibilities corresponding to a business need;

10.5.2 ensuring the role was covered by someone with appropriate experience; and

10.5.3 rewarding experience.

The Tribunal will decide in particular:

10.6.1 was the treatment an appropriate and reasonably necessary way to achieve those aims;

10.6.2 could something less discriminatory have been done instead;

10.6.3 how should the needs of the Claimant and the Respondent be balanced?

11 Direct race discrimination (Equality Act 2010 section 13)

11.1 The Claimant’s race is mixed race (White English / Black Caribbean)

11.2 It is accepted that the Respondent did the following things:

11.2.1 Failed to give the Claimant an opportunity to apply for the interim business partner lead role of which [NAME_39] was asked to fill in December 2023/January 2024.

15

11.2.2 Failed to appoint the Claimant to role of interim business partner lead role of which [NAME_39] appointed to in January 2024.

11.3 Was that less favourable treatment?

The Claimant says they were treated worse than [NAME_39]

11.4 If so, was it because of race?

12 Direct sex discrimination (Equality Act 2010 section 13)

12.1 The Claimant’s sex is male.

12.2 It is accepted that the Respondent did the following things:

12.2.1 Failed to give the Claimant an opportunity to apply for the interim business partner lead role of which [NAME_39] was asked to fill in December 2023/January 2024.

12.2.2 Failed to appoint the Claimant to role of interim business partner lead role of which [NAME_39] appointed to in January 2024.

12.3 Was that less favourable treatment?

The Claimant says they were treated worse than [NAME_39].

12.4 If so, was it because of sex?

13 Direct associative religious discrimination (Equality Act 2010 section 13)

13.1 The Claimant’s relies on his partner’s religion of being a Muslim.

13.2 Did the Respondent do the following things:

13.2.1 On 8 November 2023, the Respondent, through its Chief [NAME_201], refused to issue an organisation-wide communication addressing

16 the Palestine/Israel conflict—despite the Claimant's request that the Respondent issue a communication substantially similar to the Ukraine/Russia communication issued in 2022 .

13.3 Was that less favourable treatment?

The Claimant has not named anyone in particular who they say was treated better than they were. The Claimant relies on a hypothetical [NAME_32].

13.4 If so, was it because of the Claimant’s association with his partner’s religion of being Muslim?

14 Direct associative racial discrimination (Equality Act 2010 section 13)

14.1 The Claimant’s relies on his partner’s ethnicity as a Palestinian.

14.2 Did the Respondent do the following things:

14.2.1 On 8 November 2023, the Respondent, through its Chief [NAME_201], refused to issue an organisation-wide communication addressing the Palestine/Israel conflict—despite the Claimant's request that the Respondent issue a communication substantially similar to the Ukraine/Russia communication issued in 2022.

14.3 Was that less favourable treatment?

14.4 If so, was it because of the Claimant’s association with his partner’s religion of being Palestinian?

15 Harassment related to associative religion (Equality Act 2010 section 26)

15.1 Did the Respondent do the following things:

17 15.1.1 On 8 November 2023, the Respondent, through its Chief [NAME_201], refused to issue an organisation-wide communication addressing the Palestine/Israel conflict—despite the Claimant's request that the Respondent issue a communication substantially similar to the Ukraine/Russia communication issued in 2022.

15.1.2 On 16 November 2023 [NAME_31] refused to publish the Claimant’s [NAME_43] publication on mental health issues related to the Palestine/Israel conflict.

15.2 If so, was that unwanted conduct?

15.3 Did it relate to the Claimant’s association with his partner’s religion as a Muslim?

15.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

15.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

16 Harassment related to associative race (Equality Act 2010 section 26)

16.1 Did the Respondent do the following things:

16.1.1 On 8 November 2023, the Respondent, through its Chief [NAME_201], refused to issue an organisation-wide communication addressing the Palestine/Israel conflict—despite the Claimant's request that the Respondent issue a communication substantially similar to the Ukraine/Russia communication issued in 2022.

16.1.2 On 16 November 2023 [NAME_31] refused to publish the Claimant’s [NAME_43] publication on mental health issues related to the Palestine/Israel conflict.

16.2 If so, was that unwanted conduct?

16.3 Did it relate to the Claimant’s association with his partner’s ethnicity as a Palestinian?

16.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

16.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

17 Harassment related to race (Equality Act 2010 section 26)

17.1 The Claimant states that he is of mixed race (White English / Black Caribbean)

18

17.2 It is accepted that the following things occurred:

17.2.1 The following comments in an email dated 4 April 2023 13:50 were made:

“The language used at times is focussed on racism and comes across as a personal agenda. Communications are often challenging or defensive rather than guiding and supportive which does not encourage others to take ownership. There are examples of where [name redacted] has reviewed a draft comms on behalf of DJ due to this point, (see screen shots attached)”

17.2.2 The following comments in an email dated 4 April 08:46 were made: “Overall, this is an aggressive and unnecessary approach by DJ and given the threat he has made of a tribunal I would be tempted to [redacted – out of scope]”

17.2.3 The Claimant was not consulted with in or around December 2023/January 2024 regarding the appointment to the interim business partner lead role of which [NAME_39] appointed to in January 2024

17.2.4 The Claimant was not included in the recruitment process to the interim business partner lead role in or around December 2023 of which [NAME_39] appointed to in January 2024

17.2.5 The Claimant was not appointed to the role of interim business partner leads considering the Claimant was line managing as a HR Business Partner before. The Claimant alleges the harassment took place on 21 May 2024.

17.3 It is accepted that conduct referred to at paragraphs 17.2.1 to 17.2.5 above was unwanted?

17.4 Did the unwanted conduct relate to race?

17.5 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

17.6 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

18 Harassment related to age (Equality Act 2010 section 26)

18.1 It is agreed that the following things occurred:

18.1.1 The Claimant was not consulted with in or around December 2023/January 2024 regarding the appointment to the interim business partner lead role of which [NAME_39] appointed to in January 2024.

18.1.2 The Claimant was not included in the recruitment process to the interim business partner lead role in or around December 2023 of which [NAME_39] appointed to in January 2024.

18.1.3 The Claimant was not appointed to the role of interim business partner leads

19 considering the Claimant was line managing as a HR Business Partner before. The Claimant alleges the harassment took place on 21 May 2024.

18.2 It is accepted that conduct referred to at paragraphs 18.1.1 to 18.1.3 above was unwanted?

18.3 Did the unwanted conduct relate to age?

18.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

18.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

19 Harassment related to sex (Equality Act 2010 section 26)

19.1 It is agreed that the following things occurred:

19.1.1 The Claimant was not consulted with in or around December 2023/January 2024 regarding the appointment to the interim business partner lead role of which [NAME_39] appointed to in January 2024.

19.1.2 The Claimant was not included in the recruitment process to the interim business partner lead role in or around December 2023 of which [NAME_39] appointed to in January 2024.

19.1.3 The Claimant was not appointed to the role of interim business partner leads considering the Claimant was line managing as a HR Business Partner before. The Claimant alleges the harassment took place on 21 May 2024.

19.2 It is accepted that conduct referred to at paragraphs 19.1.1 to 19.1.3 above was unwanted?

19.3 Did it relate to sex?

19.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

19.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

20 Victimisation (Equality Act 2010 section 27)

20.1 It is accepted that the Claimant did a protected act as follows:

20.1.1 On 13 March 2024, sent the Respondent an email raising issues of pay disparity.

20 20.2 Did the Respondent do the following things:

20.2.1 On 8 May 2024 [NAME_29] told the Claimant that he was no longer a Senior Business Partner and was HR Business Partner.

20.3 By doing so, did it subject the Claimant to detriment?

20.4 If so, was it because the Claimant did a protected act?

20.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

21 Remedy for discrimination, harassment or victimisation

21.1 What financial losses has the discrimination caused the Claimant?

21.2 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

21.3 If not, for what period of loss should the Claimant be compensated?

21.4 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

21.5 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

21.6 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

22 Schedule 5 Employment Act 2002 cases

22.1 It is accepted that when these proceedings were begun, the Respondent had been in breach of its duty to give the Claimant an updated statement of employment particulars which reflected that his job title had changed to HRBP from [NAME_45]?

22.2 If the claim succeeds, are there exceptional circumstances that would make it unjust or inequitable to make the minimum award of two weeks’ pay under section 38 of the Employment Act 2002? If not, the Tribunal must award two weeks’ pay and may award four weeks’ pay.

22.3 Would it be just and equitable to award four weeks’ pay?

23 Failure to make reasonable adjustments1

23.1 The Respondent had constructive knowledge of the Claimant's disability from 23 January 2023.

1 Withdrawn on 16 April 2026

21 23.2 A “PCP” is a provision, criterion or practice. Did the Respondent have the following [NAME_40]:

23.2.1 of refusing to engage in mediation to resolve workplace relationships on the ground that Employment Tribunal proceedings were ongoing; and

23.2.2 Moving the Claimant to half pay despite him being fit for work if a successful mediation took place? The Respondent accepts that the Claimant was moved from full to half pay in accordance with its sick pay policy.

23.3 Did the [NAME_40] put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that:

23.3.1 He resigned as he was unable to return to work; and

23.3.2 His pay was reduced from full to half pay?

23.4 Did the Respondent know, or could it reasonably have been expected to know that the Claimant was likely to be placed at the disadvantage?

23.5 What steps could have been taken to avoid the disadvantage? The Claimant suggests:

23.5.1 That the Respondent should have mediated to resolve workplace relationships to enable a safe return to work; and

23.5.2 That the Respondent should have kept him on full pay pending a successful mediation.

23.6 Was it reasonable for the Respondent to have to take those steps? If so, when?

23.7 Did the Respondent fail to take those steps?

24 Victimisation

24.1 It is agreed that the Claimant did a protected act, namely:

24.1.1 Bringing these claims 3309679/2023 and 3300250/2025

24.2 Did the Respondent do the following thing?

24.2.1 Fail to mediate to resolve workplace relationships.

24.3 By doing so, did it subject the Claimant to detriment?

24.4 If so, was it because the Claimant did a protected act?

24.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

22 25 Constructive dismissal

25.1 Was the Respondent in repudiatory breach of the implied term of trust and confidence by reason of:

25.1.1 The cumulative effect of the matters [NAME_8] in the list of issues 2-24; and/or

25.1.2 Its refusal in March 2025 to engage in meaningful mediation to resolve workplace relationship issues (contrary to [NAME_46] and its earlier agreement to do so), as confirmed in the HR Director’s email of 25 March 2025?

25.2 Did the Claimant's resignation arise from one breach or a 'last straw' in a series of breaches?

25.2.1 The Claimant submits that the “last straw” was the Respondent’s stance in March 2025 that mediation would not address the workplace relationship issues forming part of his grievances and tribunal claim, culminating in the Respondent's HR Director’s email on 25 March 2025 at 15:48, sent in response to the Claimants request on 25 March 2025 at 9:23 for the confirmation of the respondents position.

25.3 Did the Claimant resign without delay?

25.4 If the dismissal was unfair:

25.4.1 Has the Claimant taken reasonable steps to mitigate their loss?

25.4.2 Did the Claimant contribute to their dismissal and should any compensation be reduced accordingly?

25.4.3 Has there been a breach of the ACAS Code of Practice, and should any uplift or deduction be made?

Findings of fact

30. From the information and evidence before the Tribunal I made the following findings of fact. I made the findings of fact on the balance of probabilities taking into account all of the evidence, both documentary and oral, which was admitted at the hearing. I do not set out in this judgment all the evidence which was heard but only my principal findings of fact, those necessary to enable me to reach conclusions on the issues to be decided.

31. Where it was necessary to resolve conflicting factual accounts, I have done so by making a judgement about the credibility or otherwise of the witnesses I heard based upon their overall consistency and the consistency of accounts given on different occasions when set against any contemporaneous documents. I have not referred to every document I read or was directed or taken to in the findings below, but that does not mean they were not considered.

32. I make it clear at the start of the findings of fact, that each witness who gave evidence before me, did so honestly.

23 Claimant’s initial appointment and duties

33. The Claimant identifies as mixed-race (White English / Black Caribbean). At the material times the Claimant was the only mixed-race member of staff in the HR team he worked in.

34. The Claimant was originally employed by [COMPANY_205] (“[NAME_47]”) as a Senior Human Resources Business Partner (“HRBP”) (Organisational Development), and his employment began on 9 November 2020.

35. [NAME_47] was a wholly owned subsidiary of the Nuclear Decommissioning Authority (“[NAME_48]”) which itself is a non-departmental public body, but which is responsible to the Department for Energy, Security and Net Zero (“[NAME_49]”).

36. [NAME_47] was a relatively small company which eventually grew to approximately 250 staff, and it had a small HR department. When the Claimant joined he became one of three members of staff in the HR department. The Claimant was line managed by [NAME_50] who was then the Head of Human Resources. Whereas the Claimant’s job title was [NAME_45], he was not senior to anyone at the start of his employment as there were no [NAME_51] and he did not line manage anyone, although later on he started to line manage [NAME_52] who was a more junior member of the HR team.

37. The contents of the Claimant’s [NAME_45] job description suggest that the role was a generic one, and the main purpose of the role was described as providing a blend of strategic and operational expertise, and leading the organisational development agenda.

38. The experience required for the role included significant generalist HR background with specialist experience of organisation development and equality, diversity and inclusion (“[NAME_55]”) roles. The role also required the ability to obtain buy-in to strategic HR decisions at all levels in the organisation; project management experience; strong stakeholder engagement skills; flexibility and ability to work under pressure and managing own time and meeting deadlines.

39. In terms of qualifications, the role required the job holder to be either a Member of the Chartered Institute of Personnel and Development (“MCIPD”) or a preferably a Fellow (“FCIPD”). Other necessary experience included proficiency in the Microsoft Office suite; ability to act and support complex employee relations casework; and experience of coaching and mediation to resolve conflict.

40. In terms of the key duties and responsibilities, the job description records that this included acting as the lead on the [NAME_55] agenda with accountability for delivering the [NAME_55], and input into [NAME_55] related projects; working with senior leaders with respect to talent management and succession planning; ensuring the people aspects of transformation and organisational change drive service improvement agenda for HR; undertaking HR organisational development projects; working with the transformation and culture change programme to deliver the 360 feedback

24 process; and drive cultural initiatives and contributing to building a diverse working environment.

41. At this time the Claimant had in the region of 8 years of relevant experience and he had completed the level 7 postgraduate diploma in HR which can lead to both the MCIPD and FCIPD membership levels.

42. The Claimant had a background in diversity and inclusion, and this was something [NAME_26] was keen for him to develop in this role by way of performance objectives in his annual performance development plan (“PDP”).

43. Notwithstanding the contents of his job description, the Claimant’s role very quickly developed into becoming the [NAME_47] [NAME_55] subject matter expert, and it also became the main focus of his role. This was clear from the requirement to act as the lead on the organisation’s [NAME_55] agenda and to delivering the [NAME_55]. [NAME_57] featured heavily in the Claimant’s PDP objectives for 2021/2022 including (i) facilitating and upholding positive employee relations with particular links to the [NAME_55]; and (ii) leading the [NAME_55] agenda and acting as the HR team’s subject matter expert and actively engaging supporting the [NAME_55] activities and promoting an [NAME_55] culture.

44. The Claimant’s own mid-year and end-year PDP comments for 2021/2022 indicated that he had undertaken a considerable amount of [NAME_55] related work including advising and taking part in an [NAME_55] project, engaging and working with [NAME_55] leads and staff networks, and using survey results for future [NAME_55] plans. [NAME_47]’s organisational structure also records the Claimant as being [NAME_45] – [NAME_55]. Whereas the title uses the word senior, there were no [NAME_51] at that time – the role was not therefore senior in comparison to other [NAME_51] as none existed.

45. In practice, whilst he was in this role, the Claimant carried out very little, if any, organisational development, transformation or strategic work of the kind described in the job description. The Claimant does not set out any transformation work within his witness statement, save to say that he worked with the Executive Team and Senior Leadership Team to shape transformation programmes and leadership development initiatives. The limited amount of work analogous to that, as described contemporaneously within the PDP, was associated with, or done in the context of his wider [NAME_57]. This is reflected in the comments of both the Claimant and [NAME_26] in the PDP which repeatedly refer to the [NAME_57].

Claimant’s grade

46. [NAME_47] operated (and the Respondent continues to operate) a job rating system known as career ladder range of levels. At some point prior to [NAME_26]’s arrival in October 2016, [NAME_47] had undertaken a job evaluation exercise led by [NAME_58] utilising the Hay job evaluation scoring matrix which uses three factors or criteria (know-how, problem solving, and accountability) to assess the size and value of a role. Various sub-factors or sub-criteria are assessed and then scored, and that final score determines where the job sits within a pay/salary structure.

25 47. Each role was matched to a particular ladder within which there are defined levels. There are clear differences between both the different ladders and the levels within a ladder, in terms of the skills, knowledge and experience expected of the post holder.

48. The Claimant’s [NAME_45] role was mapped to the 4-3 ladder at level 4 which was junior to a role at level 3 which was at the top of that ladder. A promotion would be required for someone to either move up a level within a ladder, or to move ladders. The Claimant argues that the job evaluation exercise had graded his role (at level 4) and that of his [NAME_32] [NAME_39] (at level 3) to be equivalent as it had placed them in the same career ladder but at different levels to reflect only salary. I find that to be factually incorrect. I was not provided with documents which record both roles to have been rated as equivalent.

49. Moreover, the evidence of [NAME_26], which I have accepted, was that there is a difference between the levels of a ladder in terms of skills, knowledge and experience that a post holder is expected to have. The Respondent does not accept that the Claimant’s level 4 role was rated as equivalent to [NAME_39]’s level 3 role in the earlier job evaluation exercise.

50. I accepted [NAME_26]’s evidence because it appeared to me that whereas roles on the same ladder may be related and have a progression relationship to each other, and they may share some underlying professional characteristics, it does not automatically follow that they were evaluated as having equal demands, nor that the job evaluation study treated them as equivalent. Had the jobs been rated as equivalent then in my view there would have been no point at all in assigning them different levels in the same ladder.

2021/2022 personal development plan / appraisal

51. [NAME_47] operated an annual PDP or appraisal process with objectives set in advance, and then mid and end year reviews where both the job holder and line manager provide their comments. The line manager will then score the job holder on three areas with a [NAME_15] out of five. The performance score is is weighted at 70%, and then the values-based scores referred to as "Safe and Professional" and "Engaging and Learning" are weighted at 15% each.

52. The PDP scores directly influence the level of bonus awarded to a job holder, including whether one is paid at all. In addition, the eligibility to apply for promotion would be dependent upon someone demonstrating consistent performance in their role and achieving performance scores of at least 3 out of 5 in the PDP. A score of 2 or 1 would prevent progression within that particular year.

Accordingly, the PDP scores do not directly influence salary, however they may do so indirectly if the job holder receives a low score which prohibits promotion for that year.

53. [NAME_26] recorded at mid-year the Claimant had brought significant added value to a key organisational development agenda (including in the [NAME_55] space), and he had moved the [NAME_55] agenda to the next level due to his exceptional work; he had picked up a number of additional activities and was always willing to contribute. For the mid-year scores the Claimant was awarded 4 for performance in role, 4 for safe and professional, and 3 for

26 engaging and learning.

54. The Claimant suffered his first Covid-19 infection during September 2021. The return-to-work form records there was consideration of whether an [NAME_41] referral was needed, and this was answered no.

55. In the end of year report in April 2022 [NAME_26] recorded that by the time of the second half of the year the Claimant had not fully delivered on the potential shown. It was recorded that the Claimant had worked well on the [NAME_55] theme for which he had begun to take a more direct leadership role by chairing the [COMPANY_59] and contributing positively across networks.

56. However, it was also recorded that the Claimant needed to balance empowering others to deliver with ensuring that had sufficient visibility in the business, and there had been a number of opportunities for him to have an impact at Board and Executive level which had not necessarily gone as well as expected, and he should be able to demonstrate and own his subject matters areas. It was recorded that some of his remit successes had been facilitated by him but had been delivered through others. There were repeated comments that the Claimant needed to show up and to own his performance.

57. The Claimant was therefore scored a 3 for his end of year performance which was a reduction from 4 at the mid-year. The other scores remained the same. Within the [NAME_26] confirmed there was reasonable evidence that the Claimant had the capability for promotion within the next 12 – 24 months. The results of the PDP demonstrate that the majority of the Claimant’s work in that role were [NAME_55] related.

Creation of the Respondent and reorganisation

58. In January 2022 the Respondent was formed and it brought together [NAME_47] and [COMPANY_60] (“[NAME_61]”) under the trading name of [COMPANY_4].

59. In April 2022 the Respondent commenced an organisation design process to unify the [NAME_47] and [NAME_61] directorates. This process was led by [NAME_21] the then Head of People Integration. The HR directorates in both organisations were the first to undergo the unification process. [NAME_28] led the process of deciding which areas of the Respondent would require business partnering (HR support). A brand new structure was created in an entirely new organisation, and none of the roles that anyone had performed in the HR teams within [NAME_47] or [NAME_61] continued to exist without change.

60. A matching exercise was undertaken whereby many staff were matched to a new role in the new organisation based upon what they had been doing before. All grades and terms and conditions were maintained rather than harmonised.

61. As part of that matching exercise, if a new role comprised 70% or more of the role the individual previously performed, it was deemed a match, and the member of staff would be consulted and entitled to object to being matched. If there was no match for a role then a recruitment process would

27 be engaged.

62. On 5 April 2022 [NAME_18], Director of HR and Transformation, sent an email to all staff inviting applications for a 12 month dedicated role called HRTD Project role: [NAME_55]. The duties and responsibilities included (but were not limited to) developing and executing the [NAME_55] plan; developing the organisational scorecard and identifying appropriate targets for organisational diversity; attending the [COMPANY_62] as lead; creating a calendar of events; supporting the development of new networks and participating in them and supporting group wide policy creation. The Claimant applied for the role but was not interviewed.

63. On 1 April 2022 [NAME_39] transferred to [NAME_47] as a People Change Lead from the [NAME_48]. [NAME_39] had worked at [NAME_48] since October 2021 on a fixed term contract and she had previously worked closely with [NAME_28] who had also worked there. The evidence of [NAME_28] was that [NAME_39] (and others) were TUPE transferred across to [NAME_47] and she had been spending 100% of her time at the [NAME_48] engaged on work for [NAME_47]. [NAME_39] had considerable experience of strategic business partnering and organisational design (including from the private sector) which [NAME_28] considered was a gap within [NAME_47], and thus [NAME_39] was transferred to [NAME_47] to work on the operational design plan and the merger with [NAME_61].

64. [NAME_39] moved to [NAME_47] terms and conditions save for her existing salary which was protected. [NAME_39]’s salary was £60,000, she was eligible to participate in a bonus scheme of up to 35% of her basic salary; and she was eligible for a travel allowance of up to £7,620. It is not disputed that [NAME_39]’s terms with respect to salary and travel allowance were more generous than those of the Claimant. At this time the Claimant’s salary was £50,000; the Claimant’s potential bonus was limited to up to 30% of base salary; and the Claimant’s role did not benefit from a travel allowance, although he did not need to travel to other sites in any event.

65. The Respondent has described this as a TUPE transfer, and whereas no documents have been disclosed which would evidence such a transfer, [NAME_28] confirms in her witness evidence that it was what had happened. Although the Claimant disputes that there was a TUPE transfer, he does so on the basis that there are no documents to evidence that it was.

66. I have found [NAME_28] to have been an honest and a candid witness in these proceedings, and at no point did I have cause to question the veracity of her account. I came to such a view in part because [NAME_28] had remained consistent in her evidence about her view that the Claimant had later been matched substantively to an [NAME_55] role (addressed further below), whereas the evidence of her line manager [NAME_30] was that this was a secondment. This suggested to me that [NAME_28] was prepared to give honest evidence to the Tribunal even if it suggested some inconsistency or confusion in the Respondent’s account.

67. Moreover, there is no dispute that [NAME_39] did move to [NAME_47] from the [NAME_48]; [NAME_39] had been working on the [NAME_63] project (where [NAME_47] and [NAME_61] would join to become the Respondent); and the organisation design work was transferred to [NAME_47] and then to the Respondent. This was entirely consistent, and I accept [NAME_28]’s evidence that [NAME_39] transferred across to

28 the Respondent in early 2022 by way of a TUPE transfer.

68. Whereas the Claimant has sought to challenge or query the salary at which [NAME_39] was appointed at [NAME_47], by reference to it being in excess of the midpoint for that level which would involve some additional justification as per the Respondent’s Career Progression Guidance, the fact is that [NAME_39] was transferred across from the [NAME_48] which had already set her salary and it was maintained upon transfer to [NAME_47].

69. [NAME_39]’s role was at the level 3 on the 4-3 ladder which was equivalent to the level she was on within the [NAME_48]. The Claimant was on at level 4, therefore junior to [NAME_39]. The Claimant has argued that his role and that of [NAME_39] had been rated as equivalent in a job evaluation study by the Respondent however that is factually incorrect.

70. The unchallenged evidence of [NAME_28] was that the role did not involve day to day business partnering activities, rather [NAME_39] had to engage with the senior members or leaders of [NAME_47], including the Chief Financial Officer, and providing advice and guidance about the organisational design. Specific work involved undertaking a full activity analysis and then undertaking people impact assessments, as well as leading on trade union consultation. Given that the work was clearly a priority for [NAME_47] due to the impeding creation of the Respondent, [NAME_39] regularly reported to the HR Director as well as other senior executives.

71. The role of [NAME_39] was clearly strategic in nature working closely with senior leaders with respect to transformation, whereas the work of the Claimant at that time was by comparison limited to leading on [NAME_55] across the business with some interaction with senior leaders, combined with some general reactive HRBP work.

72. On 4 May 2022 the organisation design process proposals were presented to the Respondent’s HR directorate which was the first directorate to undergo changes. This took place at an away day at [NAME_64] which the Claimant attended. The slide deck showed changes to the [NAME_45] roles (discussed below) – this included the removal of the word “Senior” from the job titles.

73. Around this time, [NAME_28] matched the Claimant’s role to the [NAME_55] role as he was spending at least 70% of his time on [NAME_55] activities. The functions were the same as or very similar to the secondment advertised by [NAME_30].

74. The view of [NAME_28] was that her early conclusion was that there was little to no strategic organisational design HR business partner capability in either organisation; that both HR teams comprised more personnel-type generalists; and that the former [NAME_47] HR team had leads in an area that they focussed on. In the Claimant’s case his area was [NAME_55]. This lead or specialist approach was different to the traditional business partner model where those [NAME_51] would be attached (or were dedicated to) a function or a part of the business.

75. The Claimant suffered from a second Covid-19 infection during June 2022.

29 76. On 1 July 2022 the changes to the Respondent’s HR directorate took effect. [NAME_51] were then attached to specific parts of the business rather than leading on a particular area. [NAME_28], who was senior to the Claimant, became the Head of Organisational Effectiveness and held a very large remit across the business which crossed various directorates including working on various pieces of organisational design activity such as corporate services, communications and stakeholder engagement.

77. [NAME_65], [NAME_12], and [NAME_67] had been employed by [NAME_47] as Senior [NAME_51], however their roles were matched with the role of HRBP in the new organisation (without the senior title) given that their previous roles were of that personnel-type generalist nature in a smaller organisation, as distinct from a [NAME_45] in the much larger new organisation. Their terms and conditions and grades remained the same, and they did the same work as before but for both [NAME_47] and [NAME_61]. Inevitably this meant the remit of those roles was broader, but the roles remained the same. [NAME_27] then moved to the role of Senior Employee Relations Manager around this time.

[NAME_45] role

78. [NAME_39] was matched to the new role of [NAME_45] at level 3 in the 4-3 ladder and was partnered with the operational side of the business which dealt with nuclear waste – this was the largest part of the Respondent’s work. The job description for the role suggests a senior role operating at a high level in the organisation; working closely with the Executives and senior leaders; and providing a considerable level of strategic support with respect to transformation and specifically integrating both businesses.

79. As to what work [NAME_39] performed in reality, I find that the [NAME_45] role performed by her did not involve regular day-to-day business partnering activity, and the role instead focused on working with senior members of the organisation, including the Chief Financial Officer, directors and senior business leads, to provide advice, guidance and support on the design and structure of the organisation as part of the transformation programme. The role involved leading on work to bring the target operating model into effect, including undertaking detailed activity analysis and carrying out people impact assessments.

80. [NAME_39] was also responsible for leading trade union consultation in relation to the proposed organisational changes. [NAME_28] described the role as pivotal at the time [NAME_39] was appointed, given the scale of the transformation required for the creation of the Respondent. In that capacity, [NAME_39] reported regularly to the HR Director and liaised with members of the Executive. [NAME_28] further explained that [NAME_39]’s prior experience of working at a senior level, both within the [NAME_48] and previously in the private sector, together with the skills she had demonstrated in her [NAME_48] role, meant that she considered that [NAME_39] was particularly well suited to the duties and the senior responsibilities entailed. The role also involved a high level of visibility which necessitated significant travel to other sites.

81. In terms of the knowledge and experience required, the job description records that the role required substantial experience, knowledge and understanding of supporting organisational design and development, and of

30 working within a genuine HR business-partnering model or, alternatively, within a generalist HR team supporting a defined customer base. Experience of business partnering within technical, programme or engineering-focused business areas was desirable. The post holder was required to have experience of planning and contributing to projects while managing or supporting cross-functional resources, together with strong coordination and interpersonal skills to enable effective collaboration and consultation with a wide range of internal and external stakeholders, including customers, suppliers, trade unions and regulators.

82. The role required excellent communication and presentation skills, with the ability to distil complex issues and present information clearly and succinctly. It also required resilience and the ability to respond effectively to ambiguity and change, together with a flexible, solutions-focused and adaptable approach, and a demonstrable willingness to adopt a hands-on style of working. In addition, the role required experience of operating at HR generalist manager or HR Business Partner level, with the ability to advise and work effectively with senior leaders. The post holder was also expected to be able to use data, metrics and evidence to inform decision-making and to drive change across business areas.

83. The required qualifications were a degree in Human Resource management or business (or related subjects) or equivalent experience in Human Resource Management; and also recognised professional membership and qualification or working towards it (such as CIPD Level 7-5 or equivalent).

[NAME_55] role

84. The Claimant commenced the role of Diversity, Inclusion, and Engagement Lead on 1 July 2022. The job description for the role explains the importance of equality and diversity and that the role would be the visible lead for that area and championing it as part of the transformation and culture change programme.

85. I have heard considerable evidence on the reality of what the role involved, particularly from the Claimant’s PDP which will be discussed later in this judgment. I find that the role included developing the [NAME_55] plan and ensuring it received sign off from the Executive Team; providing regular updates on the plan; developing the diversity scorecard with targets for organisational delivery; attending the [NAME_48] [COMPANY_62] and representing the Respondent; creating a calendar of events which would involve liaising with [COMPANY_70]; and supporting the development of networks.

86. Whereas the job description recorded the role would involve ensuring that [NAME_55] policies and processes are regularly reviewed and updated, I find that this applied to a limited number of policies as the Claimant’s offer to update policies (raised in his PDP) was not accepted and it did not appear that this was part of his role with respect to all policies.

87. I also find that the role involved developing and delivering [NAME_55] related training; working with recruitment to make sure that job advertisements were non-biased and [NAME_55] compliant; and taking ownership of the [NAME_71] (staff) survey and delivering this to staff and following up actions with the

31 Directorate Executive and leads; responsibility for [NAME_55] employee engagement data and reporting requirements and working with HR to deliver reports such as gender gap and [NAME_72] data and staff engagement reports. No travel was required for this role.

88. The essential knowledge, skills and experience required involved energy, passion, and a bit of creative flare; comfort in delivering [NAME_55] initiatives; engaging with stakeholders at all levels; being the go to person for up to date [NAME_55] knowledge and best practice; understanding data and identifying trends and highlighting priority areas; being organised and able to juggle projects; passionate and about being part of change a creating an inclusive working culture. The desirable knowledge, skills and experience comprised delivering [NAME_55] workshops, training and facilitation; and understanding of the [NAME_73] (“[NAME_74]”).

89. [NAME_28]’s evidence was that it was difficult to compare the [NAME_45] role to the [NAME_55] role as the latter was task based and limited to diversity and inclusion work, whereas [NAME_39]’s role comprised strategic long term project work which related to a variety of the Respondent’s people’s objectives and which required her to consult with, advise and engage with employee at all levels of the business, necessitating travel to various sites (unlike the Claimant who did not have to travel at all).

90. This Claimant’s appointment was confirmed in a letter dated 15 August 2022 from [NAME_75], which recorded that he had been appointed to the role of Equality and Diversity & Inclusion Engagement Lead within the [NAME_211] as of 1 July 2022. The Claimant was told he would report to [NAME_50], the then Head of Operations, and that he would continue to be employed and renumerated by [NAME_47] and all other terms and conditions would remain unchanged.

91. That letter did not mention if this was a secondment, nor any end date. [NAME_75] considered the Claimant had been appointed to the 12 month secondment (although in error the letter made no such reference), however [NAME_28] considered the Claimant had been substantively matched to that role and that the organisation design process superseded the advertised secondment.

Performance improvement action plan

92. The Respondent has a capability policy to address performance issues. The policy provides for an initial informal stage whereby performance issues should first be addressed through regular one-to-one and performance review discussions. If performance does not improve, the manager should consult HR and hold an initial counselling session to explain the concerns, expectations, and required improvements, and provide support and guidance. An Improvement Action Plan (“IAP”) must then be agreed with the employee, setting out clear objectives, support and timescales. The IAP will normally run for up to six weeks. If satisfactory improvement is achieved, the IAP will be closed; if not, the matter will progress to the formal capability process.

93. At the beginning of September 2022, which was within three months of the Claimant starting the [NAME_55] role, [NAME_26] placed the Claimant on an

[NAME_212] due to concerns about his performance, in particular his visibility in the role and also his ownership of work which was falling to others to complete, in particular to [NAME_31].

94. [NAME_26] agreed five clearly defined objectives with the Claimant which included delivering an [NAME_55] strategy; delivering a pay gap report; updating on survey result actions; demonstrating visible leadership including at an event on 11 October; and reviewing work done on particular [NAME_55] policies. Brief guidance was included on how this should be done, and the Claimant was provided with dates for compliance by 30 September or within October – giving him in the region of a month for compliance.

Mid-year 2022/2023 personal development plan

95. The Claimant failed to attend the Respondent’s Big Picture Event in October 2022 which was the first time that the Respondent had come together in person. The Claimant was expected to attend to showcase the [NAME_76] work with the [NAME_77] who had a stand at the event and who were planning to showcase their work to the [NAME_213].

96. The Claimant did not attend as he needed to rehome his dog(s) and he informed the Respondent at short notice that he would not be there. In his evidence in this hearing the Claimant said that he accepted that this had nothing to do with Long Covid and he should have gone. The Claimant later in his evidence appear to recede from that evidence as he said that his role required excessive energy and monthly meetings, and had he attended the event it would have had more impact on his condition. I noted that it was not until January 2023 that the Claimant started to consider he may be suffering from Long Covid therefore I do not accept that part of the Claimant’s evidence which appeared to suggest a health-related reason for not attending that event – this appeared to me to be an ex post facto justification during this hearing.

97. In addition, the Claimant had also failed to ensure that the [NAME_57] which he was leading on was represented at the event, following which the [NAME_55] network leads expressed disappointment that their work had not been represented. I understand that the networks attended the event at their stand but there was no-one in attendance in the Claimant’s place to act as a visible lead for [NAME_55].

98. [NAME_30] wrote to the Claimant at the time to express disappointment with his failure to attend the event. The unchallenged evidence of [NAME_30] was that the networks had already fed back to her prior to the event that the Claimant involvement in the preparations had been extremely limited.

99. [NAME_30] had her own concerns about the Claimant’s performance in the role as he had been responsible for drafting the [NAME_55] strategy plan which she felt was not up to standard and she had to recreate it in her own time as the Chief People Officer. [NAME_30] relayed her concerns to [NAME_26].

100. The Claimant’s mid-year PDP for 2022/2023 took place on 24

33 October 2022, and the PDP records the Claimant’s objectives as:

i. Lead the [NAME_55] agenda as the HR team subject matter expert; actively engage and support the [NAME_55] activities and promote an [NAME_55] culture;

ii. Lead the engagement theme ensuring delivery of the [NAME_71] (staff) surveys;

iii. Demonstrate visible inclusive leadership in leading and supporting the delivery of the [NAME_48] group inclusion strategy;

iv. Lead the data collation requirements and reporting to [NAME_48] group as necessary;

v. Uphold positive employee relations with links to the [NAME_55] agenda; and

vi. Support delivery of HR Ops input to Corporate Target 01; creating [COMPANY_4] 1.1 as Senior Team Member of the HR Ops Team.

101. Within the mid-year comments [NAME_26] spoke positively of the Claimant’s understanding and awareness of the [NAME_55] agenda and his insight, and that he was very principled with a high level of belief in the values underpinning his work.

102. Repeatedly throughout the mid-year comments, [NAME_26] referred to the need for the Claimant to lead and be accountable for his responsibilities. It was recorded that the Claimant faced difficulties bringing core collaborators together and operating and delivering at a senior level, for example the Executive had fed back unawareness of [NAME_71] (staff) survey training.

103. Within the overall comments, [NAME_26] said the Claimant had a challenging six months and that the [NAME_55] network leads had been vocal in reflecting a lack of collaboration and support from the Claimant as their lead. [NAME_26] said the Claimant needed to differentiate between appearing to empower others and meeting his own core accountabilities. It was recorded that there was a sense he had been failing to get colleagues’ agreement not just within the network level but across the wider group and at Executive levels and that he needed to show more drive, visibility and awareness of how best to deliver at a senior level.

104. In the hearing the Claimant explained he did not know when certain senior meetings were held, however there was no evidence from him that he ever asked or tried to get himself invited to those meetings either. [NAME_26] also referenced the Claimant needed more focus on the quality of the content of what he was delivering.

105. [NAME_26] scored the Claimant a 2 (performance in role), 3 (safe and professional), and 2 (engaging and learning).

106. The Claimant disagreed with the scores and comments, and he

34 indicated he believed he should have been scored a minimum of a 3 for performance as he said he had completed the majority of his actions, or they were on track to be completed. The Claimant said he agreed with the comments about accountability with respect to employee networks. The Claimant mentioned positive work he had been involved in, including sessions which had been engaging and useful with positive feedback. The Claimant said that he considered his score of 2 for learning and engaging should be between 3-5 due to his work as chair of the [COMPANY_59] and the [COMPANY_78].

107. The Claimant provided other examples of where he said he had delivered and was operating at a score of 3-5, including adopting different communication styles, and always engaging in writing networks and providing input, and he said there would not be a network lead meeting without him. The Claimant said he had been asked by diversity and inclusion leads for support, and by colleagues including [NAME_27].

108. The Claimant suggested he had been given a score of 2 which could have been based on feedback from the Executive about something which had not been his decision. I understand that this related to scheduling of some [NAME_71] (staff survey) training. In any event, the Claimant was clear that he did not consider that he was underperforming, but the issues were due to others and not him.

109. The Claimant then moved away from discussing his own performance and commented within the mid-year PDP that they needed to look at the PDP process to ensure that it was fit for the future, it could be looked at through a [NAME_72] lens taking into consideration legal requirements under the [NAME_73].

110. During the hearing it was drawn to the Claimant’s attention that he appeared to be saying inconsistent things. In the contemporaneous documents the Claimant appeared to be saying he was meeting or exceeding targets, whereas in this claim the Claimant was seeking to argue that the Respondent’s expectation caused him difficulties due to symptoms from his disability of Long Covid which was the reason or underperforming. After considering this for a moment the Claimant told me that his case was that he was underperforming (due to things associated with his disability). Later in his closing submissions the Claimant suggested he was not underperforming, rather he was carrying an unsustainable volume of work, and the onset of his disability of Long COVID deprived him of the energy the Respondent itself identified as the first essential requirement of the role.

Stage one capability hearing

111. As [NAME_26] determined that the Claimant’s performance had not improved he invited the Claimant to a formal stage one capability meeting to take place on 9 December 2022. The meeting did not take place until 12 January 2023 due to the Claimant’s annual leave and sickness absence due to a third Covid-19 infection during December 2022.

112. On 23 December the Claimant wrote to [NAME_26] and noted that he had been told that the informal IAP was the first stage of counselling (under the Respondent’s Capability policy). The Claimant sought to provide

35 context about the situation during the mid-year PDP and he referred to the loss of both grandparents within a couple of weeks; the funeral was near to the anniversary of the murder of one of his friends; and he was trying to rehome his dog and he was in a very low mood and emotionally fatigued. The Claimant said he was now feeling a lot better. This appeared not to be consistent with the present complaint where the Claimant is saying he was unable to meet the demands or expectations of the role which involved working long hours, due to the symptoms of Long Covid. At the material time the Claimant appeared to be recognising there was some sort of performance issue but that it was attributable to the clearly very upsetting things he had experienced in his personal life.

113. The Claimant mentioned his job description and said that the reference to energy and passion may have been well intended but could discourage applicants and indirectly discriminate against those with disabilities (although he did not refer to himself) and he offered to help work with [NAME_26] on redrafting it to include inclusive language. The Claimant accepted the offer of a coach; he referred to needing administrative support to help his return to work as it felt stressful coming back to hundreds of emails, and he asked to look at what he should stop doing and what he should focus on as a priority. The Claimant also thanked [NAME_26] for all of his support.

114. During the meeting the Claimant’s IAP objectives were discussed. With respect to the [NAME_55] strategy it was recorded that there had been good feedback but the Claimant had required a lot of staffing (which meant support from others). The Claimant expressed concern about the managing the volume and drafting Board papers and needing a reasonable amount of time for delivery.

115. As regards the gender pay gap report, it was again recorded that this was completed but had needed more narrative and staffing (support from others). While some progress was noted on staff survey actions, it was observed that the Claimant's Board paper did not meet the expected standards for quality and action planning from a subject matter expert, requiring others to step in and assist. The Claimant confirmed he agreed it was a priority, but it was unfortunate that it crossed over due to leave and sickness absence. The Claimant said he had not prepared a Board paper before, and he was disappointed he had not been able to commit more meaningful time.

116. As regards visible leadership, it was recorded that there had been no visibility from the Claimant which should have been possible even with his absence from the Big Picture event. The Claimant suggested he needed to know what was expected of him as the [NAME_55] lead and that his role was to gather feedback or to respond to issues on behalf of the company but he did not think it was his role to get involved with the networks and ensure that they run on a day to day basis, rather he said that his was a supporting role.

117. On 23 January 2023 the Claimant added his comments to the IAP and in his email the Claimant asked for a standard formula to check in from a health and wellbeing perspective with conversations about physical and mental wellbeing, work pressures and support if needed; and upcoming work he was unaware to help him prepare. The Claimant added “As I know

36 I am experiencing similar things as colleagues in relation to covid such as brain fog and low fatigue.” This was the first time the Claimant had mentioned the ongoing effects from Covid.

118. In the stage one outcome letter dated 2 February 2023 [NAME_26] acknowledged the Claimant’s multiple instances of Covid which they had talked though during return to work meetings and he said he had hoped the Claimant would have been able to raise any concerns then but he would be more explicit in future. It was recorded that a coach had been procured which should provide some support. [NAME_26] recorded he had previously mentioned [NAME_41] referrals (in the return to work meetings) and he asked the Claimant to agree to a referral.

119. The Claimant was informed that there had been good progress, and the performance issues were not insurmountable and the Claimant had expressed a willingness to improve. Nevertheless, the Claimant was issued with a stage one verbal warning and informed that if he failed to reach the required standard of performance during the review period he may move to stage two of the capability process. [NAME_26] did not inform the Claimant of a right to appeal, he stated that if the Claimant had any questions about the outcome of the review, or the contents of the letter, he should let [NAME_26] know.

120. The Claimant responded on 6 February 2023 confirming he would be content to be referred to [NAME_41] and he then pasted what he said was constructive feedback on the capability policy and the learning they needed to do as an organisation regrading capability. The Claimant also pasted what he said best practice should look like with various stages of informal and formal actions leading up to a stage one capability meeting.

121. I noted that at the end the Claimant had included an appeals process, and he added that he was more than happy to be involved in the development of the policy when he returned from his shared parental leave because the organisation would be putting themselves at a high risk for unfair dismissal and disability discrimination claims based on his experience of the process – again the Claimant did not refer to himself in that context.

122. The Claimant has [NAME_8] that the Respondent failed to allow him to appeal the stage one warning. This is inaccurate and the reality was rather muddled. [NAME_26] did not inform the Claimant of his right to appeal. In his witness statement [NAME_26] suggests that this was a cut and paste error when using the Respondent’s template. In the hearing it was established that the Respondent’s then capability policy did not even list a right of appeal at that first stage, rather the appeal process appeared at the end of the capability process.

123. On looking at that policy during the hearing [NAME_26] then queried whether there had been a cut and paste error at all from a template letter, as he was not even sure that one existed, and he opined that he had in fact just used a previous letter he had sent before, and that too did not include anything about an appeal. It appeared to me that this was far more credible, that the policy did not mention an appeal at stage one, and that [NAME_26] had simply used a previous letter as his own template, and that did not include reference to an appeal because the policy was silent on it at stage

37 one. This appeared to me to be the most likely explanation for the Claimant’s letter not referencing a right of appeal.

124. The Claimant’s evidence to me was that he did not know that he would have had a right of appeal. I found this to be not credible given that the Claimant worked within HR, and moreover the Claimant had spent a considerable amount of time in his evidence explaining (for the purposes of his equal pay claim) that he had been working at the level of a [NAME_45]. When I raised this with the Claimant he then told me that his knowledge of the policy was only at a basic level as it was not his area. I also found this not credible, not least because of the Claimant’s long experience and qualifications in this area, but also because on 6 February 2023 the Claimant told [NAME_26] what a best practice process should look like and he included an appeal stage. In addition, on 6 April 2023 the Claimant wrote to [NAME_26] to say that he had been involved in challenging multiple capability and performance review processes and procedures, and he was happy to share his feedback.

125. In addition, I have found the Claimant to be incredibly experienced and knowledgeable of equality and diversity and the overlap with performance management as it pertains to disability, and the Claimant is evidently a highly intelligent, articulate, and sophisticated HR professional. The Claimant would have been aware of his entitlement to challenge the warning, and had he wished to do so he surely would have done so.

126. Clearly the Claimant knew he was entitled to appeal, but he did not do so. I do not find that the Claimant’s email about best practice to have been a request for an appeal – the Claimant knew he could appeal, and had he wanted to do so he could have explicitly said so. At the very most the Respondent failed to notify the Claimant of his right to appeal, however he knew he could anyway.

127. The Claimant then went on shared parental leave from 3 March to 3 July 2023. Upon the Claimant’s return to work he moved to working part time at his request.

[NAME_46]

128. Advice from [NAME_41] was sourced promptly and received on 27 February 2023. The report recorded the Claimant’s symptoms which Respondent was first made aware of generally on 23 January, and these included difficulty concentrating and focussing; problems with memory and recall; difficulty processing information quickly; and exhaustion and burnout. It was recorded that the impact of Covid-19 was still being learned, the symptoms were unpredictable and varied between people, but it was understood that some people experience ongoing symptoms, including beyond 12 weeks.

129. The report records that the Claimant had no issues with any self-care or activities of daily living, however he reported that he was experiencing ongoing fatigue, fluctuating sleep pattern, some of which was non- restorative seep. The report stated the Claimant said that the brain fog and neurocognition aspects manifest themselves in loss of focus, concentration and distractibility, and less quick memory recall. This aspect of the report

38 was difficult to follow as the Claimant appeared to be saying that there were no issues with daily activities, whilst then complaining of problems with his sleep and concentration, both of which are daily activities.

130. It was recorded that the Claimant was currently fit for work and a number of adjustments were recommended, comprising:

i. Protected time for longer more complex projects; ii. Minimise deadline on short turnarounds; and iii. Use his calendar to ensure there are dedicated free meeting slots and Teams meetings calls, to aid focus and concentration.

131. The report expanded on the above to advise that the Claimant be reminded of appropriate work priorities, schedules, and consider longer lead times and less goals or adjusted productivity and performance objectives which takes account of the extra time he needs to focus on tasks; and flexibility in terms of protected time (in his calendar) to work through activities uninterrupted. In addition, it was recorded that whereas the impact upon the Claimant’s own mental health had not been discussed, there was correlation to suggest that diminished fitness or psychologically his idea of what he was able to achieve prior to Covid could well impact on his mental health.

132. The recommended adjustments were discussed in this final hearing. It was put to the Claimant that he already had flexibility, to which the Claimant disagreed and said that he had set deadlines. I note that the report did not state that the Claimant could not have deadlines, rather it recommended that there be some flexibility. It was not established before me that there was any specific deadline given to Claimant which caused him a particular or a substantial difficulty.

133. As regards protected time, the Claimant confirmed in his evidence that he had control of his own diary. It was put to the Claimant that he could block out time, to which he said he could do so in theory but not in practice. It was not established before me by the Claimant that there were any occasions where he sought to block out time but was prevented from doing so.

134. Likewise I was not persuaded from the Claimant’s evidence that he was given constant short deadlines, and I was not provided with examples of these short deadlines. Rather, the Claimant was issued with an IAP with deadlines within the same month (or following month) and the Claimant’s response to that process was that he had met his deadlines.

135. The Claimant sought to argue that there was a culture or an expectation of working long hours within the HR department. [NAME_26] disputed this, as does [NAME_30]. I was referred to the staff survey results from 2023 where someone had replied that they only heard feedback and praise for those who work long hours and at weekends. A similar comment was made in December 2023 that additional hours were required to meet the demands of the business. I was further referred to comments later on in February 2025 that there was a high workload which meant working extra hours; and a separate comment at that time said that excess hours were a must rather than an option, the organisation was very meeting

39 focussed which left little time to do the day job which meant it must be done outside core hours.

136. I asked the Claimant if it was known who had made the comments however he informed me the survey was anonymous, and when I asked him if he had made the comments he told me that he had not.

137. It was not possible for me to ascertain if these were the comments of one person with a unique experience, or if these comments were made by more than one person with a shared view about excessive workloads and having to work longer hours.

138. In any event [NAME_26] denied in his evidence that the Claimant was subjected to culture of working long hours and he said the Claimant’s work was manageable; after the report the Respondent worked to make sure he was not working long hours; and [NAME_26] said that he role modelled not working long hours. [NAME_26] also explained that the Claimant had been provided with additional time to work on the [NAME_55] strategy and things were deferred on a day to day basis for the Claimant.

139. [NAME_30] in her evidence said there had never been an expectation that the Respondent’s employees would work long hours; like any job there are peaks and troughs in the volume of work; [NAME_30] had been a big advocate for employees to take back time back if they worked beyond contractual hours for example with respect to a particular task or travel for work, and they could take this back at a time when they could naturally step away. Moreover the evidence of [NAME_30] was that the number of hours worked had no impact on performance scores, rather the scores were a reflection of the quality of the work of the job holder. Leaving aside whether there was a culture, I am not persuaded that the Claimant was ever required to work long hours – there was no evidence before me of occasions where the Claimant had to do so.

End year 2022/2023 personal development plan

140. On 30 March 2023 [NAME_26] sent the Claimant the end of year PDP and he was asked to provide his comments. This was during the Claimant’s period of shared parental leave. The Claimant’s end of year score of 2, 3, 2 remained unchanged from the mid-year.

141. Within the cover email [NAME_26] wrote “Thanks for flagging your OH report and I have seen that now. As part of your future return to work we will of course discuss reasonable adjustments as identified. Aligned to our regular 1-2-1 meetings we can establish a health and wellbeing check to support that and entire the right support is in place.” This tended to suggest that there had not been prior consideration of reasonable adjustments before issuing the PDP.

142. [NAME_26] recorded that the Claimant had delivered some good induction and awareness training and had shown a strong understanding of his subject matter, and shown willingness to work through the areas for improvement. It was again recorded that the Claimant had not managed to have the visibility or impact that the role required and he had a more passive engagement across the business with lots of examples of him engaging and

40 discussing with others but limited examples of where he led and delivered. Specifically it was recorded that the Claimant had been asked to lead delivering the [NAME_55] strategy but the outcome was only delivered with significant input from others which was not expected for someone at that level of role.

143. It was recorded that whereas improving his visibility had been a key area for improvement, the Claimant had not attended any SLT meetings as he was waiting to be invited, and [NAME_26] recorded this as a passive approach. Similarly, it was recorded that the [NAME_79] had offered for her to be used to champion the [NAME_72] agenda however the Claimant had not taken her up on the offer, and these things reflected the concerns about his ownership and visibility. Within the hearing before me the Claimant acknowledged that this was something he had not done.

144. [NAME_26] said that the Claimant’s willingness to learn from feedback had not translated into evidence of delivery. [NAME_26] also recorded the Claimant’s personal circumstances of bereavements and having to re-home his dog, and whereas he had plenty of notice he did not make arrangements to travel to front up the [NAME_72] aspects of the Big Picture event in person or even virtually, and that the [NAME_72] network leads “didn’t appear to recognise his value-add to the event or their wider agenda either.”

145. The PDP was sent to the Claimant on 30 March 2023, and the following day on 31 March 2023 the Claimant provided comprehensive comments within the PDP report. In his cover email the Claimant said that everything was going well his end, other than for sleep, but he was in a better place mentally. Within the PDP report the Claimant suggested that there had been a failure to implement reasonable adjustments, including prior to the IAP. The Claimant requested his scores to be calibrated to take into account adjustments to come out of his [NAME_41] report which he said had yet to be implemented, and he asked for all policies and procedures to be reviewed with a [NAME_72] lens.

146. The Claimant said:

“I have sought legal advice and have been advised that the failure to make reasonable adjustments is a clear breach of the Equality Act 2010. I am considering taking [NAME_63] to an employment tribunal to seek the reparation that I am entitled to for the discrimination that has occurred on the basis of my disability, if this isn’t resolved informally.”

147. The Claimant also said he would prefer the matter to be addressed without the need for legal action and he asked for a response by 28 April 2023. The Claimant asked for acknowledgment and an apology for errors in the capability and IAP processes; removal of his warning; adjusting his scores; reviewing policies with a [NAME_72] lens, workshops for all disabled employees who had gone through the capably process, and to discuss the annual performance review process. The Claimant also said that taking a passive approach was not the reason for his lack of visibility and it was not inclusive behaviour to say that it was.

148. [NAME_26] shared the Claimant’s response with [NAME_27] on 3 April 2023. I find the primary reason was because of her role leading on

41 employee relations, but supplemental to that, the Claimant had named her in his PDP as someone he had supported in his role, and she would have some insight having worked alongside him.

149. [NAME_27] responded on 4 April 2023 at 08:46 and commented that the Claimant had failed to recognise it is not just what you do, it is how you do it. [NAME_27] provided examples of where she said the Claimant was engaging in employee relations casework which was not his place (and the Claimant accepted as such in the hearing before me) and she also referred to no communication between the networks which the Claimant should have been leading and guiding, and she said that others were having to pick up the Claimant’s work; and the Claimant was providing no feedback on the [NAME_80] on which he represented the Respondent.

150. [NAME_27] said that overall this was an aggressive and unnecessary approach by the Claimant and she recommended seeking legal advice or at least having it investigated as a grievance.

151. The Claimant challenged [NAME_27] in the hearing about this comment, suggesting that it had played into racist stereotypes that black males are aggressive. It is important to note that [NAME_27] did not state that the Claimant was aggressive, rather she said that the Claimant’s response to the PDP was aggressive and a threat. [NAME_27] maintained this was her view in the hearing.

152. [NAME_27]’ evidence was that she considered the Claimant’s approach to have been aggressive and as an HR professional he would understood that the PDP was not the appropriate channel to have raised the serious allegations he made, and that there other ways he could have done so, and this also came across as a threat which she did not feel was appropriate, and she was surprised the Claimant had felt the need to do so.

153. Whereas the Claimant denied that it was a threat, and instead said he was providing “transparency”, clearly this was intended as a threat as he was stating that if his requests were not met he would take the Respondent to a tribunal. Whereas the Claimant was entitled to bring a claim if he felt the circumstances justified it, nevertheless it was still a threat.

154. Later on 4 April 2023 at 13:50 [NAME_27] provided more detailed comments on the Claimant’s PDP response and she stated that some of the objectives had not been completed; she said the Claimant was not providing leadership and guidance with the networks, and the [NAME_215] had not been invited to an [NAME_55] meeting; feedback from the networks was not being provided; it was not for the network leads to present the monthly report to the Executive, rather it was for the Claimant to do so and [NAME_27] said she had pushed back on doing it for him as she was not there to do the Claimant’s admin. [NAME_27] queried why the Claimant had not requested a referral to [NAME_41] himself earlier, and as he had developed the Respondent’s Passport he would have been fully aware of the process for making reasonable adjustments.

155. The Claimant had included examples in his PDP comments of where he said he should have scored a 5 – such as being asked to provide support by the [NAME_48] [NAME_72] leads and also by [NAME_81] and [NAME_27], as well

42 as with respect to use of inclusive language and speaking up where language and behaviour has not improved – the Claimant said he was constantly doing this in particular recently with respect to an advert for an [NAME_55] secondment lead role. [NAME_27] commented in her reply that:

“The language used at times is focussed on racism and comes across as a personal agenda. Communications are often challenging or defensive rather than guiding and supportive which does not encourage others to take ownership.”

156. [NAME_27] provided screenshots of occasions where she said she had reviewed draft communications on behalf of the Claimant. None of the attachments had anything to do with allegations of racism, rather they concerned what [NAME_27] considered to be challenging communications from the Claimant.

157. In her witness statement [NAME_27] said she cannot recall what she had in mind when she referenced the Claimant’s language was at times focussed on racism. During the hearing [NAME_27] was asked about this, and whereas she could not remember in detail, she mentioned the Claimant had spoken about young black males being stopped and searched by the Police more than others, and also Covid was impacting people from black and ethnic minority communities. [NAME_27] did not mention anything which the Claimant had said in connection with his work.

158. The Claimant has repeatedly suggested that he was accused of having a hidden agenda, however the words used by [NAME_27] was personal agenda. In his evidence the Claimant said that [NAME_27]’ comments were evidence of a hostile state of affairs towards him behind the scenes.

159. On 6 April 2023 the Claimant wrote that he did not believe that a formal grievance process was necessary and that the matter could be resolved informally through a constructive conversation. [NAME_27] advised [NAME_26] that a formal process should be engaged as the Claimant had raised a grievance stating he had been discriminated against, and the Respondent was under a duty to ensure it was fully investigated given the seriousness of the allegations.

Grievance investigation

160. An investigation was undertaken in May 2023 by an external provider, [NAME_82]. The investigation looked at the issues raised by the Claimant in his PDP response with clarifications from the Claimant to include his belief that he was disabled (although at the material time he did not consider himself to have been), and that he had been put to substantial disadvantage to perform well and to achieve his objectives; and that adjustments had not been considered for him for the IAP and the capability process; adjustments recommended by [NAME_41] were not considered or implemented; and the Claimant did not believe that it was his responsibility to invite himself to [NAME_83] meetings, rather he should have been invited to them. Interviews were conducted with the Claimant, [NAME_26], [NAME_81] and [NAME_29].

43 161. This was a particularly thorough investigation, and a very detailed outcome report was produced which found that the Claimant had the opportunity to raise health and disability concerns at the commencement of the IAP and formal capability process but he had not done so; it was reasonable for [NAME_26] to take the view that there were no health issues impacting the Claimant’s performance; the Respondent were not aware of the Claimant’s ill health until receipt of the [NAME_41] report and the report seemed to conclude the impact on normal day to day activities was not substantial; it was not clear that the adjustments would have impacted the Claimant’s targets or prevented a lower PDP and bonus; and the Claimant being in an HRBP role should have the competence and desire to request invitation to the senior leadership meetings.

[NAME_39]

162. On 1 June 2023 [NAME_39] was permanently appointed to the role of [NAME_45] reporting to [NAME_28].

Grievance outcome

163. [NAME_27] passed the grievance investigation to [NAME_30] and asked her if she was content for the matter to proceed to a hearing with [NAME_31] as the chair. Upon confirmation that she did, [NAME_27] asked [NAME_30] if she just wanted the grievance closed down with the capability hearing to proceed, or did she want to advise they deemed the allegations as vexatious. [NAME_30] said she thought the allegations were vexatious which should be mentioned alongside the capability process, and she opined whether it should be considered as part of a tactic to derail or disguise a performance management situation.

164. Later that day [NAME_27] passed the report to [NAME_31] and she advised him that she had shared views with [NAME_30] and:

“and would want the outcome to identify that the allegations are perceived as vexatious with the intent being to derail the capability process the employee is subject to. The capability process will continue and will take into account any reasonable adjustments resulting from the [NAME_41] report” and further:

“There is background which led to the capability process, so you may want to touch base with both [NAME_50] before the hearing, so you have all the facts to hand.”

165. [NAME_27] prepared a brief for [NAME_31] for the grievance. Whereas at first sight it might appear that [NAME_27] had prepared a draft outcome before the hearing had taken place, it was clear that [NAME_27] was referring to the findings from the independent investigator, [NAME_82], for use as discussion points in the hearing itself. This was not a draft outcome letter of a pre-determined grievance decision, rather it was a template for use in aiding discussion around the subject matter of the grievance by reference to the investigation findings. It was clear to me that this was the intent behind the document as [NAME_27] made repeated references to inviting comments from the Claimant and further she recorded:

44

“Advise him that while the investigation has concluded that the grievance allegations are not upheld, you are not bound by that and this is my opportunity to consider his concerns. Whilst you are informed by the investigation findings, you will reach your own verdict once you have considered all the relevant information and heard from [NAME_2] in response to the findings.”

166. In addition, the draft from [NAME_27] was “I currently agree with the finding not to uphold your allegation that… but invite you to make further representation, before my final decision.”

167. On 6 July 2023 [NAME_31] issued the Claimant with the outcome of the grievance hearing. Whereas the Claimant has [NAME_8] that given the comments from [NAME_27] and [NAME_30], that the process had been unfair as the outcome had been pre-determined, this is not the case. [NAME_31] produced a thorough grievance outcome but did not make the finding that the grievance had been vexatious.

168. [NAME_31] used the word vexatious within his witness statement for this hearing, this was in connection with the Claimant’s allegation that the appointment of [NAME_39] to the Business Partner Leads role was an act of harassment. It was not used in the same context as [NAME_27] had suggested in advance of the grievance hearing.

169. Rather than finding the grievance allegations to be vexatious (as suggested by [NAME_27]), [NAME_31] instead upheld part of the grievance on the basis that it could have been clearer that the Claimant was entering the counselling stage under the capability policy. However, [NAME_31] dismissed the remainder of the grievance, noting that the Claimant had said during the grievance process that at the time he did not consider he had a disability; the Claimant was unaware at the time of the IAP of any health impact on his performance; and the Claimant had opportunities to raise his health concerns and to request an [NAME_41] referral.

170. [NAME_31] decided to remove the verbal warning from the Claimant’s file; he would revert to the counselling stage of the process; and the capability process would continue for a period of no less than three months aligned to his PDP objectives for 2023/24.

171. The allegation about not being invited to meetings was not pursued by the Claimant. [NAME_31] further decided that the Claimant would have regular meetings with his new line manager, [NAME_29], and any recommended adjustments from a new [NAME_41] referral the following week would be incorporated into a Workplace Passport together with his existing recommended adjustments. The Claimant was advised that given that his performance had been assessed with the whole year of 2022/23, this included the period prior to entering any stage of capability process, his scores would not be changed nor result in an additional bonus payment. [NAME_31] agreed to further coaching session for the Claimant.

172. The Claimant returned from shared parental leave at the start of July 2023 and on 6 [NAME_29], the Claimant’s new line manager, wrote to him to set out the agreed adjustments for him for inclusion in his Workplace

45 Passport. It was agreed that the Respondent would agree to the Claimant allocating himself dedicated uninterruptable time in his calendar to aid focus and concentration; regular mini breaks away from the screen; where possible minimum 48 hours notice of changes to deadlines and short turnarounds; decide upon essential meetings to avoid back to back meetings; ensuring [NAME_36] feels empowered to switch off the work laptop/phone; regular meetings (recommended weekly) with a focus on discussing wellbeing including changes to his symptoms, impacts of workload on his health, amendments to the workplace passport, effectiveness of current adjustments.

Claimant’s Grievance appeal

173. On 19 July 2023 the Claimant filed an appeal against the grievance outcome. Within his email the Claimant agreed that the Respondent was not aware that he had any health issues that might constitute a disability, but he said there were clear signs and indicators of his health issues that the Respondent failed to recognise – for example in October 2022 he was in a bad place and said he said he was going to quit; and in December 2022 he told the Respondent that it was important to understand context of what was going on before commencing a formal capability process.

174. The Claimant said there was a PCP which placed him at a disadvantage, and adjustments should have been made to his objectives and his this should have been taken into account with his end of year scores. The Claimant said that adjustments had not been made or discussed with him; his target dates were not changed; and he was subject to unfair performance expectations and lack of feedback.

175. The Claimant suggested that the duty to make adjustments was engaged even if he was unaware of his condition or diagnosis at the time as the Respondent failed to respond to clear signs and indicators. The Claimant complained of a failure to discuss his well-being and a breach to the capability process by not making it clear he was entering the counselling stage – this had already been upheld by [NAME_31].

176. The Claimant said there was a month (within the appraisal year) where adjustments could have been made but were not. The Claimant [NAME_8] that denying him a bonus was discrimination arising from disability, and he asked for his scores to be changed and his bonus to be paid.

177. The Claimant filed the ET3 for Claim 33097679/2023 on 10 August 2023.

178. The Claimant’s appeal hearing took place on 23 August 2023 and it was agreed that he would be provided with the hearing questions in advance as a reasonable adjustment for him.

179. On 21 [NAME_26] returned from a period of absence and [NAME_27] provided him with an emailed update on her work. [NAME_27] explained that work had been hectic and that the Claimant’s appeal was due to take place and she said:

“The appeal hearing for DJ is on Wednesday (yes, we have had to make

46 reasonable adjustments for that!), so I won’t be around all day.”

180. [NAME_27] explained that policy work had been a nightmare and she was having to re-engineer a year’s worth of work to fit a new template, and she referred to various other strands of work.

181. In her evidence to the Tribunal [NAME_27] denied that she had been trivialising the Claimant’s adjustments or suggesting that accommodating his disability was seen as a burden, rather she said she was flagging her capacity and that there was additional work for her to do.

182. The grievance appeal hearing took place on 23 August 2023. [NAME_27] collated the grievance appeal documents for [NAME_84] the Interim Corporate Services Director who heard the appeal. The Claimant provided detailed answers to the questions which had been provided to him in advance.

183. In her cover email [NAME_27] used the subject line of “Project Ash.” This was the first time the reference appeared in the documents I was referred to. The subject line was used on a number of emails relating to the outcome of the grievance appeal. The next time it was used was in connection with providing answers from an external mediation provider as to the format of a proposed mediation in an email dated 4 March 2025 (addressed in more detail later in this judgment). The subject line was Project Ash 2. There was nothing untoward in the contents of that email which was simply [NAME_27] passing on what the external company had told her about the format.

184. It was not established before me that there was any particular project with respect to the Claimant. It appeared to me that the subject line was used, most likely as a label and there was no more to it than that. I was not provided with evidence of any sort of project or plan with respect to the Claimant.

185. The outcome letter demonstrates a thorough discussion about the Claimant’s grounds of appeal and substantive disability discrimination complaints. The first ground of appeal about the capability process was again upheld in part as [NAME_87] also found it could have been made clearer to the Claimant that he was entering the initial counselling stage of the capability process.

186. The remaining grounds of appeal were not upheld as [NAME_87] said there was no evidence to support the assertion that reasonable adjustments could have been made if neither the Claimant or his manager were aware of the need, and he referenced various types of support that had been offered, noting that the Claimant had the opportunity to raise health issues, and further that his performance had been assessed for the full year as the objectives for the [NAME_45] roles had been the same, irrespective of whether the latter had been a substantive role or a secondment.

Queries about the status of EDI Lead role

187. The Claimant did not query the basis of the appointment to the EDI

47 Lead role until 5 September 2023 after [NAME_87] told him in the grievance appeal outcome that his substantive role was as a [NAME_45] ([NAME_88]) and that he had been on secondment.

188. It was clear that there was some confusion within the HR Department about this. [NAME_30] had advertised the role as a secondment and considered the Claimant had been appointed to the role as a secondment by her, following which [NAME_28] carried out the matching exercise and found that the Claimant was performing at least 70% of the EDI Lead role in his then role of [NAME_45] and she considered she had matched him substantively to the role. Clearly there was a great deal of confusion and inadequate communication on this point.

189. On 5 September 2023 [NAME_27], Senior Employee Relations Manager, updated [NAME_75] and [NAME_89] about the grievance appeal outcome and said that it opened the door to finalise the situation about a requirement for the role and where it might sit.

190. In addition, [NAME_14], the Claimant’s new line manager informed him in early September 2023 that he was still seconded to the role of EDI Lead and his substantive role remained [NAME_45] ([NAME_88]). The Claimant asked where the role now sat, and [NAME_29] referred this to [NAME_75] and [NAME_31]. [NAME_30] confirmed that the Claimant’s substantive role sat as [NAME_45] reporting to [NAME_28] and was currently filled by an agency worker in place to allow time for the EDI role to be delivered. [NAME_30] said that “Whilst I recognise the role has significantly changed, the substantive role held is the job title and career ladder he was recruited into but the responsibilities have evolved.” [NAME_30] confirmed in her oral evidence that she had been referring to the job title of when the Claimant worked as [NAME_45] whilst at [NAME_47].

Business Partner Leads role

191. Near the end of 2023 [NAME_28] determined that she required support in her substantive role as she would soon be required to start work on the Respondent’s new reward programme from early 2024, and this would require her full time and attention.

192. [NAME_28] asked [NAME_39] to step up temporarily to take over her line management responsibility of the other [NAME_51]. This has come to be referred to as the Business Partner (or [NAME_90]) Leads role, but in reality it was simply [NAME_39] combining the role of supervision of the [NAME_51] in addition to her own substantive [NAME_45] functions. [NAME_39]’s pay was increased by a £7,106 to reflect a temporary additional responsibility allowance.

193. On 1 January 2024 [NAME_39] was appointed this role which had not been advertised, thus none of the other [NAME_51] had been able to apply for it. The Claimant was not an HRBP at the time and he was not part of that team as he was not doing business partnering at the time. The role would have been to manage staff more senior to the Claimant (the Senior [NAME_51] as well as the [NAME_51]). [NAME_28]’s evidence was that [NAME_39] was selected as the most experienced HRBP, it was part of her PDP for her to do so; this was part of the Respondent’s succession planning; and she was the most suitable due to her performance in post. I was not provided with a copy of a succession

48 plan and it was not established before me if there was any specific succession plan document.

194. The [NAME_91] policy provides that a temporary promotion can be used to fill a short term need for six to twelve months, and where there is an obvious candidate from the succession plan to step into the role, this can be done with immediate effect. It further provides that where there are a number of suitable candidate this should be advertised as a development opportunity with a recruitment process to identify the suitable candidate.

195. On 16 January (and 13 March 2024) the Claimant informed [NAME_29] that he would prefer to go back to his [NAME_45] role. Within that 13 March 2024 email timed at 10:01am the Claimant asked for pay data of eight colleagues. The Claimant said it was an opportune moment to reaffirm their commitment to equal pay, and he would like the pay data as one of the systemic issues that had been highlighted during some inclusive leadership modules was that new employees had been put on higher salaries than current members of staff, and he asked if there was a pay disparity what would be the next steps to resolve it.

196. [NAME_29] immediately sent a Teams message to [NAME_31] asking him to look at the Claimant’s email. At 11:10am [NAME_31] replied “ok will look its DJ… he’s a [NAME_90] not a Sr [NAME_90], that just a role title.” At 11:18am [NAME_31] sent another reply in which he said “f he’s a SBP gve hm technical and GDF” and this was intended to refer to the parts of the business he would partner with as an HRBP.

197. On 1 April 2024 the [NAME_47] employees were TUPE transferred from [NAME_47] to [NAME_61] which then changed its name to [COMPANY_5] (the Respondent).

198. On 17 April 2024 there was further discussion between [NAME_29] and [NAME_31] about the Claimant’s role. [NAME_29] sought advice on whether the Claimant would be HRBP or [NAME_45] in the new organisation. [NAME_29] said that the Claimant appeared to have accepted his PDP score and was “still pushing on the equal pay stuff” and he was ready for the Claimant to move teams however he needed to resolve the matter of his job title. [NAME_31] said that this was just a title or a status thing, and perhaps the Claimant’s forte was delivering training. [NAME_29] pointed out that the role would still be within the 4-3 ladder.

199. [NAME_31] advised [NAME_29] that the Claimant was employed as a Senior in a small organisation so that translated to Business Partner in a larger organisation. This was consistent with what happened with [NAME_27], [NAME_81] and [NAME_92].

200. On 18 April 2024 [NAME_29] responded to the Claimant’s email about equal pay data and asked him to follow the ACAS Guidance on Equal Pay claims including the questions and answers process. The Claimant responded the same day at 3:36pm and narrowed the request.

201. On 8 May 2024 [NAME_29] messaged [NAME_27] and said that he was in a dispute with the Claimant about his substantive role, however it

49 was quite amicable. [NAME_27] responded referred to the Claimant as a “lazy so and so”, to which [NAME_29] replied “haha yeah”.

202. [NAME_27] explained in her evidence that this comment was made because the Claimant did not volunteer for things; they had once been in a small team of three in HR and there was a requirement after lockdown eased for one person to come in to the office each day but the Claimant never volunteered for it, therefore it fell to the others to do so. In addition, [NAME_27]’ evidence was that it was the Claimant’s role to produce or to develop slides for management but he would email the network leads and ask them to do it.

203. I noted that within his [NAME_26] had recorded that the Claimant was always willing to pick up tasks, however I further noted [NAME_27] other evidence that the Claimant did not always feed back from the networks and some of his tasks were left for others to complete and she had objected to undertaking his EDI admin. In any event [NAME_27] said she was referring to times when capacity had been stretched and she apologised to [NAME_36] in the hearing for any offence he had taken.

204. On 8 May 2024 [NAME_29] informed the Claimant that his substantive role in the new organisation was that of HR Business Partner and this was confirmed by email of 13 May confirming the discussion. [NAME_29] recorded that this was reflected in the Management of Change and Organisational Design at the time and that legacy RMW titles of Senior HR Business Partner had been removed from his role and also that of [NAME_81], [NAME_92] and [NAME_93].

205. The Claimant was advised that [NAME_39] and [NAME_94] were Senior [NAME_51] due to the size of the roles they were managing, which included [NAME_96].

206. During the meeting the Claimant indicated his belief that he remained [NAME_45] and he said that he was not consulted, to which [NAME_29] said that this had taken place at the Manchester away day where he had the chance to raise concerns. The Claimant explained he had moved to the [NAME_55] role but it was not clear that it was a substantive role rather than a secondment, however [NAME_29] explained that did not change what had happened to the former [NAME_47] [NAME_45] roles.

207. The Claimant said that [NAME_97] (whom he had previously managed) and [NAME_98] were both [NAME_51] and he had significantly more experience than them, so it was not right that he would be on the same level. [NAME_29] explained that as per the slide deck the only two Senior Roles were allocated on the basis of the size of work area, and all other roles, regardless of previous title, were now aligned to the Business Partner title, and that [NAME_45] was a legacy title used for a much smaller organisation.

208. The Claimant complained of a lack of communication and formal documentation, and he referred to the grievance outcome referring to him as [NAME_45]. It was agreed that someone independent would be asked to investigate as there was a dispute about it.

50 HRBP job description investigation

209. On 14 May 2024 the Claimant moved to the role of HRBP at which point [NAME_39] became his line manager. The job description for the role is very detailed and suggests a mix of organisation design and development, and also business partnering. The Claimant was in this post until he went on sickness absence at the start of September 2024 and he never returned to work. Unfortunately, the Claimant’s witness statement tells me nothing about what he actually did in this role in the short period of time between mid May and the end of August 2024 before he went sick.

210. At the very most I find that the Claimant was providing general HR advice and support to managers and business areas. This included general advice on employee relations matters, performance and capability issues, and general people management issues. I have no evidence before me that the Claimant ever performed the organisational design and development tasks as referenced in that job description as the Claimant has not provided any such evidence before me. I simply do not know what more the Claimant was doing in that role beyond the provision of general advice and support.

211. As regards the qualifications required for that role it included a degree in Human Resource Management and a recognised professional membership/qualification (or working towards it) such as CIPD level 5 (as distinct from Level 7-5 for the [NAME_45] role). In his questions to the Respondent during the hearing the Claimant argued there was some sort of watering down in the requirement since his [NAME_45] role for [NAME_47], however that is not a relevant matter as that was a different organisation and a different role.

212. Whereas the Claimant appeared to suggest in his evidence that [NAME_39] was not supporting larger departments, within an email to [NAME_14] of 14 May 2024 where he discussed the equal pay issue, the Claimant acknowledged that [NAME_39] had larger departments (which I understand to be waste management which was the operational side of the business), however the Claimant said that had he been [NAME_45] the departments would have been split more evenly between the three of them.

213. On 15 May 2024 the Claimant emailed [NAME_29] to ask questions about the process undertaken in appointing [NAME_39] to the role of Business Partner Leads. Five minutes later [NAME_29] wrote to [NAME_28] and said that he was going to take legal advice as “this is starting to become a real burden.”

214. [NAME_28] replied to say that it was a temporary position to support interim changes; [NAME_39] was the most [NAME_45] and was ready to step up; it was part of her PDP and she was a successor in all things of HRBP activity which was based upon her performance in the role and level of experience; it was an interim change for development and it could not be offered to the wider group and there are budget restrictions they wanted to promote within their own team which allowed other [NAME_51] to move around and gain exposure.

215. [NAME_28] also added “I’m not happy about the way he is going about

51 stuff – if you need me to support on any convos give me a shout.” [NAME_29] replied “Me either he’s becoming a full time job to look after!” [NAME_31] added that the key aspect was that the decision was based upon someone’s ability in the HRBP role, and [NAME_39]’s current role was 100% relevant to the interim step-up position, whereas the Claimant would not have been successful in being stepped up as his performance was not commensurate.

216. [NAME_28]’s evidence before me was that she was incredibly busy at that time and she could not understand why the Claimant was raising something in May 2024 which had been decided back in January 2024. As regards the offer to have a conversation, [NAME_28] said she was offering to explain to the Claimant how the decision had been reached.

217. As regards referring to the Claimant as a full-time job, [NAME_29] explained to me that he said this because he had been frustrated by the Claimant challenging decisions, and he apologised to the Claimant in his witness statement and again to him during the hearing.

218. [NAME_31] told me that he did not challenge [NAME_29] referring to the Claimant as a full-time job and he explained that the whole team felt that they were walking on eggshells around the Claimant in terms of things they said or did in case it was used against them in future, although [NAME_31] confirmed he did not have that experience.

219. As the Claimant disagreed with where his role would sit, an investigation was conducted by [NAME_101], Head of Environmental, Health and Safety, and also Qualified Independent HR Investigator.

220. Within the investigation the Claimant said he felt that two other HR Business Partners ([NAME_97] and [NAME_104]) had less experience and were less qualified than him than him, and moreover he had previously managed [NAME_97] so it was not right that they were on a level footing. The Claimant is recorded as having said that the two Senior HR Business Partner roles (performed by [NAME_39] and [NAME_105]) ought to have been split to create a third for him to perform.

221. [NAME_106] determined that this had been a secondment; there had been inadequate communication with the Claimant; and his role would in any event have mapped across to [NAME_107] as the roles performed by [NAME_39] and [NAME_105] remained senior due to the size of the business areas they were supporting. [NAME_106] recorded that the requirement for CIPD level 7 was not a key differentiator between the two roles.

222. [NAME_106] made a mistake as to the career ladder for the [NAME_45] roles which she wrongly recorded as 3-2 whereas it should have been 4-3 which is less senior.

223. [NAME_106] did not speak to [NAME_28] who had led the organisation change process. [NAME_28] remained employed by the Respondent and she could have explained how it was undertaken. [NAME_28] suggested in her evidence that the people who knew she had undertaken this work had left the business. The Claimant has invited me to draw a negative inference from the Respondent’s decision not to call [NAME_106] to give evidence.

52 Palestine/Israel conflict

224. The Respondent had previously issued a message on their SharePoint/intranet about the invasion of Ukraine entitled “Support for colleagues affected by Ukraine invasion.” The message stated “We know that some of you will be finding the reports on Russia’s invasion of Ukraine difficult, upsetting and worrying. Some of you may even have loved ones directly affected by what’s happening in Ukraine at the moment.” The message went on to list the existing sources of support for staff which included the [NAME_108], the mental health first aid team, talking to their line manager, and contacting HR. The communication related to existing support routes rather than anything new or specific to that conflict.

225. On 7 November 2023 the Claimant wrote to the [NAME_216] to see if a similar message would be published with respect to the situation in Gaza. The Claimant was initially advised that the communications about Ukraine may have come from the Executive and the [NAME_48], and the Claimant was advised to raise it with [NAME_30], which he then promptly did.

226. [NAME_30] agreed to check what was the centrally agreed position and she was advised by [NAME_109] in the Communications team that guidance had been issued by the [NAME_48] (following the approach of [NAME_49]); they had not issued communications internally, but it had been referenced on an [NAME_48] all employee call where staff were directed to the usual support services. It was recorded that Ukraine was different because “we had some direct involvement in the response” which I understand to be a reference to the UK Government response to the invasion of Ukraine.

227. [NAME_112] said that it was a highly sensitive and political issue, “so if you do need to issue anything then I would advise keeping it very top level without any commentary on the conflict itself and direct staff to the usual services. Probably worth testing what is proportionate though in the first place.” [NAME_30] forward the response to the Claimant first thing the following morning and referred to the steer from [NAME_48] / [NAME_49] and she said they should use their support services for anyone that would like some support whilst the situation unfolds/continues.

228. The Claimant then produced a detailed communication which he shared with [NAME_30] which directly referred to what he said was “Support for colleagues affected by Palestine-Israel crisis.” The draft went on to refer to the various sources of support similar to that which was sent out for the Ukraine invasion, and it went further by referring to a safe, respectful and inclusive working environment, as well as setting out how to tackle antisemitism and islamophobia.

229. [NAME_30] replied a short time later to remind the Claimant that the steer was that they do not share communications that is related to or which references the conflict, and she suggested that they reinforce their wellbeing services and support services, and their safe space to report behaviours experienced in the work place.

230. There was discussion within the hearing about his associative

53 indirect race and religious discrimination complaints, and the Claimant was asked about the group disadvantage (arising from not issuing a communication) that he claimed to share due to his association with someone (his partner) who is Muslim and from Palestine.

231. The Claimant confirmed that as far as he knew, he was the only person who asked about the communication. It was put to the Claimant that everyone would have received the same answer he did, to which he agreed. The Claimant was asked what was the group disadvantage, and he replied that [NAME_113] had personal ties to the conflict and were being denied institutional recognition by the Respondent’s decision.

232. The Claimant was reminded of his evidence that no-one of any religion had asked about the communication, therefore he was in effect speaking hypothetically. The Claimant’s response was that he was the [NAME_55] and his role was to support those affected, and that he was unable to talk then he could not support those groups. The Respondent’s argument was that the Claimant had been told that he could communicate the support available, what he could not do was to comment on the conflict.

233. The Claimant was asked further about the particular group disadvantage to [NAME_34] and his evidence was that they were not acknowledged in the organisation or provided with support, or the [NAME_108], nor how to report islamophobia. The Claimant was asked what evidence he had, to which he said that the Respondent did not send out the communication and that the conflict needed acknowledging.

234. Following from that the Claimant was asked what was his associated personal disadvantage given that he had authored the communication and was well aware of all the support available. The Claimant confirmed that he did know about the support available.

235. After a break the Claimant was again asked in the hearing about the group disadvantage experienced by [NAME_34] by not sending out the communication. The Claimant wrote down an answer he had prepared during the break in which he said that [NAME_34] were more likely to have religious ties to Palestine and the conflict and were more likely to want to talk about the conflict and were prevented from doing so.

236. The Claimant was then asked what evidence he had to support this to which he said he did not have any although he said a question had been asked at work in the [COMPANY_114] if something would be published. It was put to the Claimant by [NAME_33] that it was the Claimant not someone else who had raised it, to which the Claimant replied he did not know who raised it nor their religion.

237. Having already been told about the prohibition about mentioning that conflict, that month (November 2023) the Claimant produced a blog for [NAME_43] to be published on the Respondent’s intranet. Within the blog the Claimant referred to his joy of becoming a father, and he referred to having taken shared parental leave. The Claimant then went on at the end of his blog to say that one of the challenges his family was facing was the situation in Gaza as his partner is Palestinian. The Claimant went on to comment about the situation including what he said was the

54 number of deaths reported by the [NAME_115].

238. [NAME_116] responded to the Claimant on 16 November 2023 to say that following the guidance and steer from [NAME_49], [NAME_48], [NAME_217] and communications, his included reference to the conflict had been removed from the version it proposed to publish. The Claimant was asked to confirm he was happy for it to be published on the Respondent’s intranet. The Claimant replied to say he was not happy with the removal and would like to come to a resolution as to how his message could be included and he asked for suggestions on rewording.

239. [NAME_119] confirmed she had checked and the position remained the same that they would not be making any reference to the conflict in any of the Respondent’s communications. The Claimant was asked if he still wished to publish the blog. The Claimant replied and pushed back and asked [NAME_119] to forward his request to the relevant individuals to include a small section about the situation in Gaza which he said was important and relevant to his topic.

240. The Claimant said the blog was about his experiences as a father and how he copes with challenges and the joys of parenting and “I want to share my whole life with my readers, not just half of it.” [NAME_36] went on to refer to what he said was the impact of the conflict upon him and his family – stating that Gaza was part of his life and was impacting his family’s mental health and well-being significantly, and he had to deal with the emotional stress and trauma the conflict caused him and his family, and it is important to be authentic with the audience and show them the reality of what was happening in Gaza and how it affects him and his family. The Claimant said he was happy to discuss how he could include the section in a respectful and balanced way that did not compromise the quality or tone of the blog.

241. [NAME_31] replied to the Claimant to state that this was a non- negotiable directive that they were adhering to, and he was asked to confirm his position about publishing the amended blog. The Claimant replied to say he was not happy with the removal but was happy to discuss how he could include a section in a respectful and balanced way and he attached an amended version which removed reference to the conflict. The Claimant included a reference to becoming father to a Palestinian, Trinidadian English son and his gratitude that he was born into this country which he said others do not have that privilege. The Claimant then added shared parental leave allowed him to bond with his son and to help support his Palestinian partner during a difficult time which was impacting their mental health.

242. [NAME_31] and [NAME_112] expressed concern with the amended version. [NAME_31] said that they needed to de-nationalise the blog, and [NAME_112] said he was not comfortable to publish the blog given the guidance the Respondent had received. After further discussion, [NAME_29] spoke to the Claimant who informed him that he was very unhappy and felt that the Respondent was not following its own diversity policy, in particular the following statement:

“All our people, whatever their background or story, are valued and

55 celebrated to enable everyone to thrive at work. An inclusive working environment is one in which everyone feels that they can be their true self without having to conform.”

243. The Claimant expressed that the Respondent was refusing to acknowledge his diversity and heritage. [NAME_29] agreed that referring to his son’s national origins was a statement of fact not opinion which he would be happy to include, and this was agreed by [NAME_112] and [NAME_31], and the latter asked for it to be explained to the Claimant that this was not about the Respondent’s policy, it was about following guidance issued by a higher authority. The blog was then published on the Respondent’s intranet which removed the reference to the conflict and the Claimant’s feelings about the impact upon his family.

244. After the decision had been reached the Claimant referred the matter to the Respondent’s CEO and said that the decision had left him feeling upset, emotionally drained, fatigued, and excluded from sharing the true story of his own family and it felt that his family’s story was not important and should not be discussed, contrary to the statement in the [NAME_76] strategy. The Claimant asked for details of who made the decision and the criteria they used.

245. Whereas the CEO indicated that they did not have an issue with the blog and would be happy for it to be shared, she was advised that the decision was based upon input from [NAME_48] and [NAME_49] and [NAME_36] should know that as an employee of a [NAME_120] that they are unable to do such things. The Claimant has invited me to draw a negative inference from the Respondent’s decision not to call the CEO to give evidence.

246. The Claimant was asked during his oral evidence about why he said that this restriction on commenting about the conflict amounted to disability discrimination. The Claimant’s evidence was that this was a publication about mental health and parts of it had been stripped away and had taken away the mental health impact of his blog.

247. The Claimant was also asked about his associative indirect race and religious discrimination complaints as well. The Claimant initially suggested that this was not a neutral policy but was applied personally to him. Upon some clarification from me on the difference between direct and indirect discrimination, the Claimant was asked about what evidence there was of group disadvantage. The Claimant’s oral evidence was that people from Palestine, or [NAME_34], would share a cultural grief in that area and the disadvantage they suffered was that they would not be able to share or to talk about themselves in the workplace. It was later clarified that the pool for comparison was those within the workplace who were either Muslim or from Palestine.

248. The Claimant was asked what evidence he had that members of that group would want to publish something about the conflict, however the Claimant said he would not have the evidence, and he confirmed he did not have the knowledge either. The Claimant was again asked why [NAME_34] would be put to a particular disadvantage, and he again responded that they would be unable to talk about their lived experience and grief. The Claimant

56 then added that this would also impact the [NAME_121] as well. The Claimant suggested that [NAME_34] in general had a connection to Palestine and were experiencing personal distress from the conflict, and the Respondent put in place something which prevented them from talking about it which then silenced the group.

249. During his question to the witnesses, in particular to [NAME_29], the Claimant appeared to reframe the [NAME_8] group disadvantage by arguing that “geopolitical conflicts disproportionately effects those members of staff with connections with the effected region.” This was not a matter which [NAME_29] could answer. The disadvantage was reframed a further time whereby the Claimant put to [NAME_29] that “an employee whose partner was Ukrainian or Christian would not have been censored about a conflict relating to their partner’s race or religion.” This did not appear to be part of the pleaded complaint for associative indirect race (or religious) discrimination, and it also appeared to stray into a complaint of direct discrimination, or some other complaint which was not understood.

250. As indicated earlier in this judgment, I briefly converted the final hearing to a private hearing for case management on 14 April 2026 to check my understanding of what claim it was that the Claimant was seeking to bring. During that brief hearing the Claimant explained that the issues remained as those set out in the original list of issues, and the Respondent maintained that they did not make any sense, and it did not understand the complaint.

Sickness absence

251. The Claimant engaged ACAS Early Conciliation for his second ET1 (claim 3300250/2025) on 30 May 2024 and he filed his claim on 23 July 2024. The Claimant had made a subject access request and he was issued with the results on 30 August 2024. The Claimant was disclosed a number of documents, including the email from [NAME_27] which referred to making adjustments for the Claimant for the grievance hearing; her comments on the Claimant’s PDP response which she considered to be a threat and aggressive; what she referred to as the Claimant’s personal agenda and focus on racism, as well as [NAME_29]’s comments referring to the Claimant as a full-time job and a burden.

252. The Claimant then went on sick leave from 3 September 2024 and the fit note records that it was due to stress related problems. The Claimant remained on sick leave and never returned to work, and his fit notes referred to stress related problems and work related stress.

January 2025 [NAME_41] referral

253. On 8 January 2025 the Respondent referred the Claimant to [NAME_41] for advice.

254. The report dated 14 January 2025 recorded that the Claimant said his absence was due to stress which he said was triggered due to disclosure of documents he had requested for his Employment Tribunal claim, including what the Claimant said were controversial comments which he said he found distressing, leading to increased anxiety, low mood, and

57 altered sleep. It was recorded that the Claimant may wish to contact [NAME_208] for ongoing support on returning to work and through the tribunal proceedings.

255. The report recorded that the Claimant said that the Long Covid symptoms had been exacerbated by the emotional distress he had experienced. Later within the report it advised that the Claimant was receiving specialist support from a Covid specialist due to fatigue, cognitive impairment and breathlessness secondary to Covid, and which could be exacerbated by emotional distress. [NAME_41] recommended that high levels of stress and working hours should be avoided and managerial support be put in place.

256. The report said the Claimant reported anxiety and apprehension about a return to work, he was keen to explore mediation prior to a return to work with the anticipation that any outstanding workplace issues would be resolved, and whereas there was ongoing managerial discussion relating to his role and the Tribunal matter, the recommendation from [NAME_41] was that this be resolved at the earliest opportunity to reduce further impact on his mood and Covid symptoms.

257. The report recorded the health benefits of work, however the Claimant had reported he perceived the workplace to be unsafe and triggering to his poor mental health, and therefore [NAME_41] advised it was unlikely he would be unable to return to work until any workplace stressors (actual or perceived) were resolved. [NAME_41] recommended mediation prior to a return to work and a workplace stress risk assessment.

258. It transpired that there were two almost identical versions of the report produced which will be addressed below.

Mediation and termination of employment

259. [NAME_122] (HR Director) became the Claimant’s line manager at or about the time he commenced sickness absence. During his absence, she held regular one-to-one meetings with him. The Claimant repeatedly raised concerns which he considered unresolved, notwithstanding that his grievance process had concluded.

260. On 29 January 2025 the Claimant wrote to [NAME_124] proposing mediation and identified a number of matters he wished to be addressed, including [NAME_8] inappropriate comments made about him by colleagues and his perception that he had been treated as having a hidden agenda or as a burden. The Claimant stated that addressing these matters would assist his return to work.

261. On 12 February 2025 [NAME_124] replied, confirming that the Respondent was willing to engage in mediation for the purpose of facilitating the Claimant’s return to work, on a without-prejudice basis. It was explained that the mediation would be forward-looking; it would not address historical matters which had been exhaustively investigated or were the subject of Tribunal proceedings, and would not involve the individuals complained about. [NAME_124] indicated that she and legal counsel would attend on

58 behalf of the Respondent and proposed [NAME_82] as the mediation provider.

262. [NAME_124]’s evidence was that she took this approach because she considered that the Claimant wished to use mediation to challenge individuals about historical matters and seek admissions of wrongdoing, which she regarded as inappropriate, inconsistent with her duty of care to those individuals, and inconsistent with the purpose of mediation. [NAME_124] also considered that some matters had been exhausted through internal processes or were properly matters for the Tribunal.

263. The Claimant replied the same day, stating that unresolved workplace relationship issues were a contributory factor in his sickness absence and that mediation would not be effective unless those matters were addressed. The Claimant sought to broaden the scope of the mediation accordingly and asked whether the individuals concerned would have any involvement. The Claimant also requested that his full sick pay be maintained.

264. On 20 February 2025, [NAME_124] responded and agreed to broaden the scope of the mediation to include matters which were also the subject of the Tribunal proceedings, while maintaining that the individuals named would not participate and that sick pay would not be extended beyond contractual entitlement. The Claimant replied the same day, expressing his appreciation for the broadened scope but he expressed his dissatisfaction regarding sick pay and perceived delays, and proposed dates for the mediation.

265. On 21 February 2025, [NAME_124] sought confirmation of the mediation provider and details of the Claimant’s companion. Around this time, the Claimant was offered alternative employment elsewhere. On 21 February 2025 the Claimant declined that offer, stating that it was the wrong time for him.

266. On 24 February 2025 [NAME_124] again requested the companion’s contact details, which were provided the same day, and a confidentiality agreement was issued.

267. On 3 March 2025 advice was received from [NAME_82] that the session would take the form of a facilitated discussion rather than mediation in the strict sense, focusing on return-to-work arrangements and excluding the Tribunal claims, and terms of reference were to be agreed in advance. The Claimant took issue with this characterisation and perceived it as a reluctance to engage in meaningful mediation.

268. [NAME_124] spoke with the Claimant by telephone on 6 March 2025. In his email of 7 March 2025, the Claimant reiterated his frustration about delays, raised concerns about the involvement of legal counsel, and stated that unresolved workplace relationship issues, which overlapped to some extent with his Tribunal claim, were distinct and required resolution before he could return to work.

269. On 18 March 2025, [NAME_124] set out the Respondent’s position in writing. She reiterated that the proposed session would be forward-looking

59 and focused on facilitating a return to work, including reasonable adjustments. It was explained that matters forming part of the Tribunal proceedings could not be resolved through mediation and would likely only be determined by the Tribunal.

270. [NAME_124] explained that [NAME_82] would facilitate the discussion, terms of reference would be agreed, a companion was permitted, and that if the scope were limited to return-to-work arrangements legal counsel need not attend. [NAME_124] also indicated that an in-person meeting would be more appropriate.

271. The Claimant replied the same day, relying on [NAME_46] and stating that resolution of workplace relationship issues was essential to his return to work. The Claimant sought confirmation by 20 March 2025 as to whether the Respondent refused to address those matters through mediation and stated that if it did so, he would consider his position untenable.

272. [NAME_124] did not respond by that date. On 25 March 2025, the Claimant sent a further email, asserting that the Respondent was failing to follow [NAME_46] and stating that unless he received a satisfactory response that day, he would treat himself as constructively dismissed.

273. [NAME_124] replied later on 25 March 2025 stating that the Respondent remained willing to engage in mediation on the terms set out on 18 March, that the Claimant had misinterpreted the [NAME_41] report, and that it did not require mediation of matters forming part of ongoing Tribunal proceedings. [NAME_124] enclosed an extract from the report and explained that, in her view, mediation might assist the Claimant to feel able to return to work but could not guarantee resolution of all stressors.

274. The Claimant responded shortly afterwards, citing a passage from a version of the [NAME_41] report which stated that mediation should address ongoing work issues. There were two versions of the report in existence, containing minor differences. [NAME_124]’s evidence was that even had she seen the quoted wording, it would not have changed her approach, as [NAME_46] was based on the employee’s account and did not reflect the Respondent’s ability to mediate matters already litigated.

275. On 26 March 2025 the Claimant resigned with immediate effect, stating that the Respondent’s refusal to address matters he considered essential to his return to work amounted to a fundamental breach of trust and confidence. [NAME_124] accepted the resignation later that day, and the Claimant’s employment terminated on 26 March 2025.

Submissions

276. This is already a very long judgment due to the number of legal issues for determination combined with the large volume of evidence in this matter. I therefore do not propose repeating all the parties’ written submissions in detail although I have read them and addressed the main

60 points in this judgment.

277. The Claimant’s submissions were particularly lengthy and referred to an extensive amount of caselaw, giving the impression that perhaps they may have been generated by [NAME_125]. Nevertheless, I have read and considered them.

278. Throughout the Claimant’s submissions he makes repeated reference to the [NAME_73], however as I explained during the hearing, the Tribunal does not have jurisdiction to consider [NAME_8] breaches of that duty – that falls to the Administrative Court.

Law

Protected characteristics

279. Age is a protected characteristic under s. 5 Equality Act 2010. Disability is a protected characteristic under s. 6; race is a protected characteristic under s. 9 and this includes national origins; religion is a protected characteristic under s. 10; and sex is a protected characteristic under s. 11 of that Act.

The Burden of proof

280. The initial burden of proof rests on the Claimant to prove facts from which it could be determined, in the absence of any other explanation, that discrimination has occurred. It is not until the Claimant discharges that burden that the burden of proof then shifts to the Respondent to show that it did not discriminate against the Claimant.

281. Section 136 of the Equality Act 2010 provides that 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. However this does not apply if A shows that A did not contravene the provision.

282. Guidance on the application of the burden of proof in discrimination complaints was provided in Igen Ltd v Wong [2005] IRLR 258:

“The revised Barton guidance

76. As this is the first time that the Barton guidance has been considered by this court, it may be helpful for us to set it out again in the form in which we approve it. In Webster Burton J (President) refers to criticisms made of its prolixity. Tempting though it is to rewrite the guidance in a shorter form, we think it better to resist that temptation in view of the fact that in practice the guidance appears to be offering practical help in a way which most employment tribunals and appeal tribunals find acceptable. What is set out in the annex to this judgment incorporates the amendments to which we have referred and other minor corrections. We have also omitted references to authorities. For example, the unreported case referred to in para (6) of the guidance may be difficult for employment tribunals to obtain. We repeat the warning that the guidance is only that and is not a substitute for the

61 statutory language.

Annex

(1) Pursuant to section 63A of the 1975 Act, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2, or which, by virtue of section 41 or section 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as “such facts”.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word “could” in section 63A(2). At this stage the tribunal does not have to reach a definitive determination that such *956 facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within section 74(2) of the 1975 Act.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and, if so, take it into account in determining such facts pursuant to section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(10) It is then for the employer to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

62 (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of [the protected characteristic], since no discrimination whatsoever is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that [the protected characteristic] was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof....”

283. It is not sufficient for a claimant to merely to prove facts from which the tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. Rather a claimant must establish a prima facie case of discrimination. As was held in Madarassy v Nomura International Plc [2007] ICR 867:

“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” [56]

284. The court in Madarassy indicated that at the first stage the tribunal would need to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complainant were of like with like; and available evidence of the reasons for the differential treatment. The absence of an adequate explanation for differential treatment of the complainant is not relevant to whether there is a prima facie case of discrimination by the Respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant.

285. The consideration of the tribunal then moves to the second stage whereby the burden is on the Respondent to prove that it has not committed an act of unlawful discrimination. The Respondent may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If it does not, the tribunal must uphold the discrimination claim.

286. As regards the “something more” needed to shift the burden of proof onto a Respondent, this will depend upon the facts of each case but it may include evidence of stereotyping, statistical evidence, lack of transparency or inadequate disclosure, or inconsistent explanations. However, mere unreasonable treatment by [NAME_126] “casts no light whatsoever” as to the question of whether an employee has been treated unfavourably - Strathclyde Regional Council v Zafar [1998] IRLR 36. This has also been followed by the Employment Appeal Tribunal in [COMPANY_127] and others v

63 Bahl [2003] IRLR 640 where it was held that mere unreasonableness is not enough as it tells us nothing about the grounds for acting in that way [94]. A similar decision was reached in Network Rail Infrastructure Ltd v Griffiths-Henry [2006] IRLR 865 where it was held:

“Plainly there cannot be a finding of sex or race discrimination every time [NAME_126] carries out a selection process unfairly to the detriment of someone who is black or female. Indeed, taken to its logical conclusion it would mean that there would be discrimination if one black woman were kept on and seven white males were dismissed provided the selection criteria were not fairly applied.” [26]

287. Accordingly, something more than mere assertions of less favourable treatment must be shown for a prima facie case of discrimination to be established for the burden of proof to shift to the Respondent employer to disprove such an inference of discrimination.

288. In [NAME_128] v Manchester City Council and others [2006] IRLR 748 the EAT provided helpful guidance on the application of the burden of proof, and in particular the potential for a tribunal to move direct to the second stage where the evidence suggests that the employer had discriminated against the claimant:

[redacted] whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.

76. Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage. They are not answering an examination question, and nor should the purpose of the law be to set hurdles designed to trip them up. The reason for the two-stage approach is that there may be circumstances where it would be to the detriment of the employee if there were a prima facie case and no burden was placed on the employer, because they may be imposing a burden on the employee which he cannot fairly be expected to have discharged and which should evidentially have shifted to the employer. But where the tribunal has effectively acted at least on the assumption that the burden may have shifted, and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever.

77. Indeed, it is important to emphasise that it is not the employee who will be disadvantaged if the tribunal focuses only on the second stage. Rather the risk is to [NAME_126] who may be found not to have discharged a burden which the tribunal ought not to have placed on him in the first place. That is something which tribunals will have to bear in mind if they miss out the first stage. Moreover, if the employer’s evidence strongly suggests that

64 he was in fact discriminating on grounds of race, that evidence could surely be relied on by the tribunal to reach a finding of discrimination even if the prima facie case had not been established. The tribunal cannot ignore damning evidence from the employer as to the explanation for his conduct simply because the employee has not raised a sufficiently strong case at the first stage. That would be to let form rule over substance.”

289. The court in [NAME_129] v London Borough of Croydon and anor [2007] ICR 909, CA recognised that in some cases the issue of less favourable treatment is so intertwined with the “reason why” that a sequential analysis can give rise to needless problems and should be dispensed with, and a tribunal may therefore be entitled to go to the second stage and to focus on the reason for the treatment complained of.

290. Similarly, the Supreme Court has held that the burden of proof provisions require careful attention where there is room for doubt as to the facts necessary to establish discrimination, but have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or another - Hewage v Grampian Health Board [2012] IRLR 870 [32].

291. However the EAT in [NAME_130] v [COMPANY_131] & others [2022] IRLR 948 [at 43] restated the importance of applying the burden of proof provisions, noting that if a tribunal chooses to disapply them it should explain why, but it urged caution before doing so as significant evidence of discrimination should not be ignored – the danger of going straight to the reason why question risks ignoring evidence of discrimination. If the claim fails at the first stage because there is no evidence of discrimination which could have shifted the burden of proof, it remains open to a tribunal to state that it nevertheless accepted the employer’s explanation anyway.

Direct age, disability, race, religious, and sex discrimination

292. Section 13(1) Equality Act 2010, together with sections 5, 6, 9, 10 and 11 of that Act, provides that direct discrimination takes place where [NAME_126] treats an employee less favourably because of age, disability, race, religion, and sex than it treats (or would treat) others.

293. Section 13(2) provides that if the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.

294. Section 39 of that Act provides that [NAME_126] must not discriminate against its employee by dismissing them or subjecting them to any other detriment. The term “detriment” should be given its broad ordinary meaning, and a detriment will exist if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to their detriment – Ministry of Defence v Jeremiah [1980] QB 87.

295. It is often appropriate to first consider whether a claimant has in fact received less favourable treatment than an appropriate [NAME_32], and then consider whether this less favourable treatment was because of the protected characteristic. Under s. 23(1), when a comparison is made there must be no material difference between the circumstances relating to each case. A comparison may be made with an actual [NAME_32], or with how

65 a hypothetical [NAME_32] would have been treated.

296. Given that a tribunal may take into account a wide range of factors including circumstantial evidence, there may be cases where there is someone who, whilst materially different to a claimant, may be of assistance as an evidential [NAME_32]. They may, depending upon the circumstances and in conjunction with other material, justify a tribunal drawing an inference that a claimant was treated less favourably than he or she would have been treated.

297. The victim who complains of discrimination must satisfy the fact- finding tribunal that, on a balance of probabilities, they have suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class: - [NAME_133] v [NAME_134] of the Royal Ulster Constabulary [2003] IRLR 285. Moreover In some cases, particularly if there is only a hypothetical [NAME_32] relied upon, it may be appropriate to first consider the reason why the claimant was treated as they were [8].

298. Comparators may constitute the aforementioned evidential material but they are no more than tools which may or may not justify the inference of discrimination on the prohibited grounds – [NAME_133] [109].

299. Very little discrimination today is overt or deliberate, and those accused of discrimination are usually unlikely to accept that they have done so, and possibly will be unlikely to recognise it in themselves. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances. In order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn - Nagarajan v London Regional Transport [1999] IRLR 572. If the prohibited grounds had a significant influence on the outcome, then discrimination is made out.

300. In cases of direct discrimination, an examination of the “reason why” someone was treated as they were should not be reduced to a simple “but for” question. It is therefore not appropriate to ask but for the protected characteristic would the Claimant have been treated better? Rather we must conduct a more rigorous inquiry into the mental processes of the Respondent to establish the underlying core reason for the treatment. This might be easier in cases where there is an overt or obvious reason for the treatment, however in other cases are more detailed analysis of the facts will be necessary.

301. The tribunal must ensure that it looks at allegations of discrimination as a whole and it should not therefore adopt a fragmented approach – [NAME_136] v [NAME_137] of [COMPANY_203] [1991] IRLR 264; Driskel v Peninsula Business Services Ltd [1999] EAT/1120/98.

302. As per Sedley LJ in [NAME_138] v University of Oxford and another [2001] ICR 847:

66 “The fragmented approach adopted by the Tribunal in this case would inevitably have the effect of diminishing any eloquence that the cumulative effect of the primary facts might have on the issue of racial grounds. The process of inference is itself a matter of applying common sense and judgment to the facts, and assessing the probabilities on the issue whether racial grounds were an effective cause of the acts complained of or were not. The assessment of the parties and their witnesses when they give evidence also form an important part of the process of inference. The Tribunal may find that the force of the primary facts is insufficient to justify an inference of racial grounds. It may find that any inference that it might have made is negated by a satisfactory explanation from the respondent of non−racial grounds of action or decision.” [9]

And:

“Very little direct discrimination is today overt or even deliberate. [NAME_220] tell tribunals and courts to look for, in order to give effect to the legislation, are indicators from a time before or after the particular decision which may demonstrate that an ostensibly fair−minded decision was, or equally was not, affected by racial bias.” [11].

303. The tribunal may therefore need to consider the mental processes of the [NAME_140], and whereas this is often referred to as motivation, it is not to be confused with motive as this is not a relevant consideration. It is possible for [NAME_126] to discriminate unlawfully even with a benign motive – Amnesty International v Ahmed UKEAT/0447/08; James v Eastleigh Borough Council [1990] ICR 554, HL.

304. It is clear from the judgment of the court in [NAME_142] v [COMPANY_218] [2003] EWCA Civ 329 that a tribunal is required to keep in mind the possibility that the employer’s treatment of the employee could have been subconsciously (as opposed to consciously) motivated by the employee’s protected characteristic.

305. In Earl Shilton Town Council v Miller [2023] IRLR 532 the court provided guidance on the approach to the reason why analysis in discrimination claims. Here HHJ Tayler noted that when considering whether treatment was due to a protected characteristic the tribunal spends much of its time considering the mental processes of the [NAME_140] in order to ascertain the reason why someone was treated as they were. However, the court held that there are at least two types of cases where it is unnecessary to consider the mental processes of the [NAME_140], the first is where the reason was obvious, and the second is where a criterion is used which corresponds exactly with the protected characteristic.

306. In [NAME_143] v [NAME_144] of Holloway School [1981] IRLR 487 the court noted the special nature of discrimination proceedings and that the person complaining of discrimination may face great difficulties when it comes to proof. The court held that where it may be appropriate to take into account evidence of hostility before and after the event (or act complained of) where it is logically probative of a relevant fact.

67 307. Even where a Respondent’s explanation is not accepted by a tribunal, the tribunal’s own fact finding may identify an obvious reason for the treatment, including a non-discriminatory reason - Bahl v Law Society [2004] IRLR 799,2 the Employment Appeal Tribunal having previously held:

“However, demonstrating the similar treatment of others of a different race or sex is clearly not the only way in which [NAME_126] who has acted unreasonably can rebut the finding of discrimination. Were it so, the employer could never do so where the situation he was dealing with was a novel one, as in this case. The inference may also be rebutted — and indeed this will, we suspect, be far more common — by the employer leading evidence of a genuine reason which is not discriminatory and which was the ground of his conduct. Employers will often have unjustified albeit genuine reasons for acting as they have. If these are accepted and show no discrimination, there is generally no basis for the inference of unlawful discrimination to be made. Even if they are not accepted, the tribunal’s own findings of fact may identify an obvious reason for the treatment in issue, other than a discriminatory reason.” [97]3

308. Findings of discrimination or discriminatory intent are serious matters, and as such, care should be exercised before drawing such an inference, not least where there have been a number of interactions between the parties but only a small number are [NAME_8] to be tainted by discrimination. [ADDRESS] of Appeal in Bahl observed that “It would be astonishing for a person subconsciously motivated by discriminatory considerations only to act in a discriminatory fashion in such a haphazard way.” [127]

Harassment related to age, disability, race, religion, and sex

309. Section 40 provides that [NAME_126] must not harass an employee. Section 26 provides that a person (A) harasses another (B) if it engages in unwanted conduct related to a relevant protected characteristic, and 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. In deciding whether conduct has the effect referred to, account must be taken of the perception of B; the other circumstances of the case; and whether it is reasonable for the conduct to have that effect. This analysis is not required where the conduct had the purpose of violating B’s dignity or creating the proscribed environment.

310. The Tribunal must address the issue of whether the conduct complained of was unwanted. Unwanted conduct means the same as unwelcome or uninvited, and specifically unwanted by the Claimant – Thomas Sanderson Blinds Ltd v English UKEAT/0316/10. A single incident may amount to unwanted conduct if it is sufficiently serious – Bracebridge Engineering Ltd v Darby [1990] IRLR 3.

311. The conduct complained of must be related to the protected characteristic. In Tees Esk and Wear Valleys NHS Foundation Trust v

2 Paragraph 101, endorsing the approach of the Employment Appeal Tribunal at paragraph 97 of that earlier judgment. 3 Law Society v Bahl [2003] IRLR 640

68 Aslam [2020] IRLR 495 it was held:

“…Section 26 does not bite on conduct which, though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as [NAME_8], no matter how offensive or otherwise inappropriate the Tribunal may consider it to be.” [25]

312. As regards whether the unwanted conduct is related to the protected characteristic it is appropriate for the tribunal to take into account the wider context and this is clear from Warby v Wunda Group Plc [2012] UKEAT 0434/11. The EHRC Code at paragraph 7.9 makes it clear that unwanted conduct related to a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. The recent case of [NAME_145] v University of Hertfordshire and another [2024] EAT 169 provides that:

“The requirement that the conduct be related to a protected characteristic is different to the requirement in a claim of direct discrimination that the treatment is because of a protected characteristic. The term “related to” is designed to cover all forms of conduct that, properly viewed, has a relationship to the protected characteristic.” [15]

And

“There is no requirement for a mental element equivalent to that in a claim of direct discrimination for conduct to be related to a protected characteristic. Treatment may be related to a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic, and there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser.” [24]

313. It is not necessary for harassment to be deliberate for it to be unlawful. If the unwanted conduct (related to the relevant protected characteristic) was deliberate and is shown to have had the purpose of violating a claimant’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment for them, the definition of harassment is made out. There is then no need to consider the effect of the unwanted conduct. 314. Where the conduct complained of was not deliberate, it may still constitute unlawful harassment. In such a case it will be necessary to decide whether the conduct has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. In doing so it is necessary to consider the factors set out in section 26(4), which are the perception of the claimant; the other circumstances of the case; and whether it was reasonable for the conduct to have that affect. 315. In Weeks v [COMPANY_203] of Further Education UKEAT/0630/11 it was held that a tribunal must be sensitive to all the circumstances; the fact that unwanted conduct was not itself directed at the Claimant is a relevant consideration but it does not prevent that conduct being harassment; the timing of an objection has an evidential importance,

69 however caution is urged before placing too much weight upon timing as it may be very difficult for the victim personally, socially and, in particular, in some circumstances, culturally, to make any immediate complaint about it. The lack of an immediate complaint cannot prevent a complaint being justified, but it may be a factor the tribunal is entitled to consider. The fact that terms that are plainly related to a protected characteristic but which are used only once in a long period of time would not prevent (in an appropriate case, and with appropriate surrounding circumstances), such comments being found to have created the environment relied upon. 316. In Weeks it was further held that in determining whether the unwanted conduct has created the proscribed effect, the tribunal must bear in mind that an environment is a state of affairs, but that could include one off incidents with effects of a longer duration. 317. As to whether the conduct had the requisite effect, there are both subjective considerations – the Claimant’s perception of the impact on them – but also objective considerations including whether it was reasonable for it to have the effect on the particular claimant, the purpose of the remark, and all the surrounding context - Richmond Pharmacology Ltd v Dhaliwal [2009] ICR 724. Conduct which is trivial or transitory is unlikely to be sufficient. In that case it was held: “A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard … whether it was reasonable for a Claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt …” [15].

and

“…Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…” [22].

318. Similarly, a claimant must perceive the unwanted conduct. In Greasley-Adams v Royal Mail Group Ltd [2023] ICR 1031 the claimant in that case became aware of earlier negative comments about his disability which came to light during a grievance investigation. The Tribunal at first instance held that the disparaging comments could have the effect of violating dignity but only once the claimant became aware of them, and whether it was reasonable for the comments to have had that effect had to

70 be assessed in the context in which they came to light. The decision was upheld on appeal, and the EAT determined that:

“Thus the unwanted conduct and the context of that conduct are relevant considerations in the carrying out of the exercise mandated by section 26(4) of EqA and the ET did not misdirect itself in this regard. Their conclusion, read fairly, was not that it was not reasonable for the conduct to have the proscribed effect “simply because” it arose in the context of the investigation (as the relevant ground of appeal is expressed). That context was however a relevant consideration when carrying out this objective assessment and their conclusion demonstrates no error of law in the carrying out of that exercise.” [22]

319. In HM Land Registry v Grant [2011] EWCA Civ 769 it was held:

“Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” [47]

320. Section 212 of the Act provides that a detriment does not include harassment. Accordingly, it is not possible for impugned treatment to amount to both direct discrimination (or victimisation) and harassment at the same time.

Reasonable adjustments

321. Section 20 Equality Act 2010 provides:

“Duty to make adjustments (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 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.”

322. Section 21 Equality Act 2010 provides:

“Failure to comply with duty

(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.”

71

323. [NAME_126] is not subject to the duty to make a reasonable adjustment if it does not know, and cannot reasonably be expected to know, that the claimant has a disability and was likely to be placed at the substantial disadvantage complained of – Paragraph 20, Part 3, Schedule 8 of the Act.

324.

Accordingly, a tribunal will have to determine (i) whether the employer knew that the employee was disabled and likely to be placed at a substantial disadvantage by [NAME_44], and (ii) if not, ought the employer to have known that both the employee was disabled and that the disability was liable to disadvantage the employee substantially? – Secretary of State for Work and Pensions v Alam [2010] ICR 665.

325. In Environment Agency v Rowan [2008] ICR 218 and General Dynamics Information Technology Ltd v Carranza [2015] IRLR 4, the EAT gave general guidance on the approach to be taken in the reasonable adjustment claims. A Tribunal must first identify:

i. [NAME_44] applied by or on behalf of the employer;

ii. the identity of non-disabled comparators where appropriate; and

iii. the nature and extent of the substantial disadvantage suffered by the Claimant in comparison with those comparators.

326. Once these matters have been identified then the Tribunal will be able to assess the likelihood of adjustments alleviating those disadvantages identified.

327. In Project Management Institute v Latif [2007] IRLR 579 the EAT gave guidance as to how Tribunals should approach the burden of proof in failure to make reasonable adjustments claims. The burden of proof only shifts once the Claimant has established not only that the duty to make reasonable adjustments has arisen, but also that there are facts from which it could reasonably be inferred, in the absence of an explanation, that it has been breached.

328. Therefore, the burden is reversed only once a potential reasonable adjustment has been identified. It will not be in every case that the Claimant would have to provide the detailed adjustment that would have to be made before the burden shifted, but “it would be necessary for the Respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not”. The proposed adjustment might well not be identified until after the [NAME_8] failure to implement it, and in exceptional cases, not even until the Tribunal hearing.

PCP

329. The case of [NAME_146] v the Business Academy Bexley UKEAT/0226/JOJ provides guidance as to what may amount to a PCP. It

72 was held that the phrase is to be construed broadly, having regard to the statute’s purpose of eliminating discrimination.

330. A provision can include any contractual or non-contractual provision or policy as well as potentially a one off decision - Starmer v British Airways Plc [2005] IRLR 862. A criterion means any requirement, pre- requisite, standard, condition or measure applied whether desirable or unconditional. A practice means the employer’s approach to a situation if it does happen or may happen in the future. All that is necessary is a general or habitual approach by the employer - [NAME_147] v [NAME_148] of Alderman Davies Church in Wales Primary School [2020] IRLR 589. In Nottingham City Transport Ltd v Harvey UKEAT/0032/12 Langstaff J referred to “practice” as having an element of repetition.

331. This approach has been affirmed in [NAME_149] v [NAME_150] for London [2020] EWCA Civ 112 as the Court of Appeal held that the words “provision criterion or practice” suggest a state of affairs indicating how similar cases will be treated in the future. Whereas a one off act can amount to a practice if there is some indication that it would be repeated if similar circumstances arise in future, nevertheless a one-off flawed application of a process will not – [NAME_151] [21] and also Davies v EE Ltd [2023] IRLR 258 although here it was noted that the requirement for general applicability does not mean [NAME_44] must be applied to the whole workforce.

332. For the duty to arise, the employee must also be placed at a "substantial disadvantage" in comparison with persons who are not disabled. Therefore, a comparative exercise demonstrating substantial disadvantage is required. Substantial in this context means “more than minor or trivial” according to section 212(1) of the Act.

333. The Tribunal must also be satisfied that the disadvantage would not equally arise in the case of someone without the employee’s disability - Newcastle upon Tyne Hospitals NHS Trust v Bagley UKEAT/0417/11 [87]. There is no requirement in the Equality Act for a strict causation test linking the disadvantage caused by [NAME_44] to the Claimant’s [NAME_8] disability. All that is necessary is that the Claimant prove facts from which a tribunal could infer that [NAME_44] simply put the Claimant at either:

i. a disadvantage compared to non-disabled people because they are a disabled person (rather than because of the disability); or

ii. that because the Claimant was a disabled person, [NAME_44], whilst causing a disadvantage to everyone whether disabled or not, put the Claimant at a more severe disadvantage because they were a disabled person when compared to non-disabled people [NAME_152] v University of Edinburgh UKEATS/0014/17 [2018] IRLR 1090. 334. It is necessary for a reason connected with the employee’s disability to be the cause of the substantial disadvantage experienced - Hilaire v Luton Borough Council [2022] EAT 166. Whether an employee is placed at a substantial disadvantage depends on the actual facts, regardless of what the parties believe the facts to be. The employee does not have to

73 show that the disadvantage arises because of their disability – [NAME_152].

335. The next question is whether there were any reasonable steps which the Respondent could have taken to avoid the disadvantage which were not taken. There is no onus on a disabled person to suggest adjustments. The duty to consider making reasonable adjustments falls on the employer. In Cosgrove v Caesar and Howie [2001] IRLR 653, the EAT held that it was principally for the employer to explore the possibility of reasonable adjustments, not for the employee to suggest them, however if the adjustment to be suggested is wholly exceptional then it is for the employee to advance it. When assessing whether a particular step would have been reasonable, this involves considering whether there was a chance it would have helped overcome the substantial disadvantage, whether it was practicable to take it, the cost of taking it, the employer’s resources and the resources and support available to it.

336. The question of whether a particular adjustment is reasonable is an objective test - Smith v Churchills Stairlifts Plc [2006] ICR 524. The Tribunal must examine the issue not just from the perspective of the Claimant but all the relevant factors including considering wider implications including the operational objectives of the employer - Udemma Lawrence v Birmingham City Council UKEAT/0182/16/DM. Ultimately, it is the Tribunal’s view of what is reasonable that matters. In assessing what adjustments are reasonable, the focus must be on the practical result of the steps which the employer can take, not on the thought processes of the employer when considering what steps to take - [COMPANY_9] of Scotland v Ashton [2011] ICR 632.

337. As to whether an adjustment would be effective, this is a question to be answered on the evidence available at the time the decision was taken whether to implement it - Brightman v TIAA Ltd EAT 0318/19. If based on the employee’s health position at the time the employer’s decision was made, there was no realistic prospect of a particular adjustment being effective, then the employer would not become retrospectively liable for failure to make reasonable adjustments simply because the employee’s health unexpectedly improved so as to make the step effective. The question whether and to what extent the step would be effective to avoid the disadvantage will always be an important one to weigh in the balance - Secretary of State for Work and Pensions (Job Centre Plus) v Higgins [2014] ICR 341, EAT [59].

338. In [NAME_153] v Secretary of State for Work and Pensions [2017] ICR 160, CA, it was held that “any modification of, or qualification to, [NAME_44] in question which would or might remove the substantial disadvantage is in principal capable of amounting to a relevant step.” [29]

339. It was held by the Supreme Court in First Group Plc v Paulley [2017] UKSC 4 that that there must be a real prospect the step would have made a difference.

340. In Romec v Rudham [2007] All ER 206 the EAT held that if the adjustment sought would have had no prospect of removing the substantial disadvantage then it could not amount to a reasonable adjustment.

74 However, if there was a real prospect of removing the disadvantage it may be reasonable.

341. An adjustment will not be a reasonable one to take if it would be completely futile – Conway v Community Options Ltd UKEAT/0034/12 [17, 19, and 22] and also [NAME_154] v Department of Work and Pensions UKEATS/0017/14 [43].

342. In O’[NAME_155] v Commissioners for Inland Revenue [2007] ICR 1359 the court determined that within the facts of that case, it would not have been a reasonable adjustment to continue to pay sick pay where that contractual entitlement had been exhausted. The further held:

“The Act is designed to recognise the dignity of the disabled and to require modifications which enable them to play a full part in the world of work, important and laudable aims. It is not to treat them as objects of charity...” [69]

343. A failure to consult does not of itself constitute a failure to make reasonable adjustments - Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 [71, 72].

344. There is no objective justification defence available in respect of [NAME_126]'s failure to make reasonable adjustments. The proposed adjustments are either reasonable or they are not.

Discrimination arising from disability

345. Section 15 Equality Act 2010 provides: “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.”

346. Guidance for Tribunals as to the correct approach to claims of discrimination arising from disability can be found in Pnaiser v NHS England [2016] IRLR 170:

i. The tribunal must first identify whether there was unfavourable treatment and by whom.

ii. The tribunal must determine what caused the impugned treatment, or what was the reason for it. The “something” that causes the

75 unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment.

iii. Motives are irrelevant.

iv. The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'.

347. The starting point is that the disability must have the consequence of causing something (the “something arising”) and secondly the treatment [NAME_8] to have been unfavourable must have been because of that something arising - Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14/RN.

348. As to what constitutes “unfavourable treatment”, the Supreme Court in [NAME_147] v [NAME_156] of Swansea University Pension and Assurance Scheme and anor [2019] ICR 230 held that only a relatively low threshold of disadvantage is being needed. One could answer the question by asking whether the Claimant was in as good a position as others, however the complaint is not made out where a claimant has been treated more favourably but argues they should have been treated more favourably still. A [NAME_32] is not required to show unfavourable treatment.

349. There must be a connection between the unfavourable treatment and the something arising from disability. It is insufficient for the disability itself to be relied upon, it must be the something arising in consequence of disability which is said to be the reason for, or the cause of, the [NAME_8] unfavourable treatment – [NAME_157] v Department for Work and Pensions [2020] EWCA Civ 859. The test if therefore the same as for direct discrimination – [NAME_158] v Secretary of State for [NAME_202] [2018] EWCA Civ 1998. However, the something arising from disability only needs to be an effective cause of the unfavourable treatment - [NAME_159] v [NAME_134] of [NAME_160] [NAME_161] [2015] IRLR 893. In other words, the something more must be more than a trivial influence on the treatment. There is no need that the [NAME_140] should have known that the relevant something arose from the employee’s disability - City of York Council v Grosset [2018] EWCA Civ 1105.

350. As regards the second element of causation (“something arising”) this is entirely objective, it follows that if the employee is wrong in thinking that the something which was the reason for the treatment, arises in consequence of their disability, then the claim will fail - Force Ltd v Wood UKEAT/0167/18 - the reason for the treatment must be for something arising in consequence of disability.

351. Where a Claimant proves facts from which the Tribunal could conclude that there was discrimination arising from disability, the burden of

76 proof will then shift to the Respondent to prove a non-discriminatory explanation, or to seek to justify the treatment as a proportionate means of achieving a legitimate aim. The burden of establishing this defence is on the Respondent. In [NAME_162] v [NAME_134] of [NAME_160] [NAME_161] [2012] UKSC 15 it was held that what is required is:

i. a real need on the part of the Respondent;

ii. what it did was appropriate (rationally connected) to achieving its objectives; and

iii. that it was no more than was necessary to that end. 352. In Hardy & Hansons plc v Lax [2005] ICR 1565 it was held that it is for a tribunal to make its own judgment as to whether the practice complained of was reasonably justified, and that there is no range of reasonable responses tests. Rather the more serious the disparate impact, the more cogent must be the justification for it. A measure may be appropriate to achieving the aim but to go further than is reasonably necessary in order to do so may make it disproportionate.

353. It is also appropriate to ask whether a lesser measure could have achieved the employer’s legitimate aim – [NAME_164] v Home Office (UK Border Agency) and Secretary of State for Justice [2017] UKSC 27.

Indirect discrimination

354. Section 19 Equality Act 2010 provides:

“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim. … 19A Indirect discrimination: same disadvantage (1) A person (A) discriminates against another (B) if—

77 (a) A applies to B a provision, criterion or practice, (b) A also applies, or would apply, the provision, criterion or practice to— (i) persons who share a relevant protected characteristic, and (ii) persons who do not share that relevant protected characteristic, (c) B does not share that relevant protected characteristic, (d) the provision, criterion or practice puts, or would put, persons with the relevant protected characteristic at a particular disadvantage when compared with persons who do not share the relevant protected characteristic, (e) the provision, criterion or practice puts, or would put, B at substantively the same disadvantage as persons who do share the relevant protected characteristic, and (f) A cannot show that the provision, criterion or practice is a proportionate means of achieving a legitimate aim.”

355. The practical effect of the burden of proof provisions under s. 136 Equality Act 2010 means that in a complaint for indirect discrimination a claimant will need to show:

a. Prima facie the existence of a provision, criterion or practice (“PCP”), and

b. That such PCP placed the Claimant’s group sharing their protected characteristic at a disadvantage as compared to another group that does not share his protected characteristic, and

c. That [NAME_44] was applied to the Claimant which resulted in them being subjected to that disadvantage.

356. Put simply, indirect discrimination occurs where “[NAME_126] or supplier has a rule or practice which he applies to all employees or customers, actual or would-be, but which favours one group over another and cannot objectively be justified.” – [NAME_166] v [NAME_167] and another [2016] ICR 756 [32].

[NAME_40]

357. This has already been addressed under reasonable adjustments (above).

Particular disadvantage

358. There is no statutory definition of disadvantage however it can encompass the same meaning as a detriment or unfavourable treatment which has been considered above in [NAME_147] v [NAME_156] of Swansea University Pension and Assurance Scheme and anor.

78

359. Assistance can be gained from the EHRC Employment Code which does not impose legal obligations but which tribunals should take into account where it appears relevant. The Code provides:

“Disadvantage’ is not defined by the Act. It could include denial of an opportunity or choice, deterrence, rejection or exclusion. The courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about – so an unjustified sense of grievance would not qualify. A disadvantage does not have to be quantifiable and the worker does not have to experience actual loss (economic or otherwise). It is enough that the worker can reasonably say that they would have preferred to be treated differently.” [4.9]

360. More recently in Louis v Network Homes Ltd [2023] EAT 76 the EAT gave consideration to whether there had been a disadvantage to a claimant as opposed to a failure to give an advantage. It was held:

“There is no disadvantage in not being given an advantage. A detriment, disadvantage or unfavourable treatment all refer to circumstances where a negative event occurs. In terms, this failure to be given an advantage cannot fall into that category. This is an advantage being given to a particular group that meet certain criteria. That advantage, it seems to me, cannot be converted to a disadvantage because it is not an opportunity given to those who do not meet that criteria.” [39]

Group disadvantage

361. For a case of indirect discrimination to succeed, there must be both personal disadvantage and group disadvantage to those who share their protected characteristic(s). The correct test for this is not whether there was an adverse effect on the group, but whether a seemingly neutral requirement has a discriminatory impact - Eweida v British Airways Plc [2010] EWCA Civ 80.

362. In doing so, a claimant does not need to prove why a PCP had the effect of disadvantaging the group they belong to, they just have to prove that [NAME_44] had that effect. A claimant also does not need to prove that all people belonging to the comparison pool are in fact disadvantaged. It is however for the claimant to simply prove on balance that the group is particularly disadvantaged as a result of [NAME_44] whether or not it actually affects all of that group - [NAME_164] v Home Office (UK Border Agency) and Secretary of State for Justice [2017] UKSC 27.

363. It is appropriate for tribunals to take judicial notice of matters where the facts are so well established and do not require further enquiry. In a claim for indirect sex discrimination it is appropriate to take judicial notice of the childcare disparity. In [NAME_168] v [NAME_169] Trust UKEAT/0220/19.

Personal disadvantage

79 364. A claimant must also prove that [NAME_44] put them at the disadvantage complained about and that the disadvantage they have is the same as the disadvantage their group has because of the words “that disadvantage” in s19 (1)(c).

365. In the case of complaints under s. 19A of the Act, and what has come to be referred to as “associative discrimination”, the claimant will need to also show the existence of that PCP; they will need to establish that [NAME_44] placed a particular group sharing a protected characteristic (which he or she does not have) at a disadvantage as compared to another group that does not; further the claimant will then need to demonstrate that [NAME_44] was applied to them and they suffered the same disadvantage as that group as a result of [NAME_44]. The measures were introduced following the decision in CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia [2015] IRLR 746.

Causation

366. Both the group disadvantage and the personal disadvantage must be caused by the application of [NAME_44] rather than because of any particular characteristic. In [NAME_164] the court said:

“Direct discrimination expressly requires a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination does not. Instead it requires a causal link between [NAME_44] and the particular disadvantage suffered by the group and the individual. The reason for this is that the prohibition of direct discrimination aims to achieve equality of treatment. Indirect discrimination assumes equality of treatment - [NAME_44] is applied indiscriminately to all - but aims to achieve a level playing [NAME_130], where people sharing a particular protected characteristic are not subjected to requirements which many of them cannot meet but which cannot be shown to be justified. The prohibition of indirect discrimination thus aims to achieve equality of results in the absence of such justification. It is dealing with hidden barriers which are not easy to anticipate or to spot.” [25]

367. Therefore, if the Claimant is not affected by [NAME_44] themselves accordingly their claim will fail. These are primary facts which the Tribunal has to find before the burden of proof shifts to the Respondent - Project Management Institute v Latif [2007] IRLR 579.

368. The situation is more nuanced with respect to claims brought under s. 19A of the Act and I have addressed in the paragraphs above, by reference to the case of Chez, that a claimant will need they suffered the same disadvantage as that group they claim to be associated with as a result of [NAME_44].

Justification

369. The obligation is on the employer to show that [NAME_44] complained of is a proportionate means of achieving a legitimate aim (“objective justification”). The relevant law with respect to justification is already set out above in connection with discrimination arising from disability.

80 Victimisation

370. Section 39 of that Act also provides that [NAME_126] must not victimise the employee by dismissing them or subjecting them to any other detriment.

371. Section 27 Equality Act 2010 provides:

“Victimisation (1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.”

372. When assessing whether a Claimant has been victimised it is appropriate for a Tribunal to ask:

i. did the [NAME_8] victimisation arise in any of the prohibited circumstances covered by the Equality Act 2010? ii. if so, did the employer subject the Claimant to a detriment? and iii. if so, was the Claimant subjected to that detriment because of having done a protected act, or because the employer believed that the Claimant had done, or might do, a protected act?

373. The detriment relied upon by a claimant must be linked to the protected act. Whereas conscious motivation on the part of the [NAME_141] is not a necessary ingredient of victimisation – [NAME_170], it is still necessary to determine the reason for the treatment complained of - [NAME_134] of [NAME_160] [NAME_161] v [NAME_171].

374. A detrimental act in response to a complaint of discrimination will not constitute victimisation if the reason for it is not the complaint as such, but rather some feature of it which can properly be treated as separable - [NAME_172]/0086/10 here it was held:

81 “The question in any claim of victimisation is what was the “reason” that the respondent did the act complained of: if it was, wholly or in substantial part, that the claimant had done a protected act, he is liable for victimisation; and if not, not. In our view there will in principle be cases where [NAME_126] has dismissed an employee (or subjected him to some other detriment) in response to the doing of a protected act (say, a complaint of discrimination) but where he can, as a matter of common sense and common justice, say that the reason for the dismissal was not the complaint as such but some feature of it which can properly be treated as separable.” [22]

375. If the protected act has a “significant influence” on the employer’s decision-making, victimisation will be made out - [NAME_170]. The word “significant” was considered by the Court of Appeal in Igen (below), where it was clarified that for an influence to be “significant” it does not have to be of great importance – is “an influence which is more than trivial.”

376. The words “significant” and “trivial” were again considered by the EAT in [NAME_173] v [NAME_174] and [COMPANY_175] and ors [2007] ICR 469, EAT where the EAT upheld a first instance decision that the protected act complaint was “only a very small factor, not a significant influence”4 in the decision to remove that Claimant from her role therefore it did not amount to an act of victimisation.

Time limits – Discrimination complaints 377. Section 123 Equality Act 2010 provides:

Time limits

(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of—

(a) the period of 3 months starting with the date of the act to which the complaint relates, or

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

(2) Proceedings may not be brought in reliance on section 121(1) after the end of—

(a) the period of 6 months starting with the date of the act to which the proceedings relate, or

(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 Paragraph 82

82

(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.”

378. In Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686, the Court of Appeal stated that the test to determine whether a complaint was part of an act extending over a period was whether there was an ongoing situation or a continuing state of affairs in which the claimant was treated less favourably. [NAME_176] it was found that the respondent’s decision to instigate disciplinary proceedings against the claimant created a state of affairs that continued until the conclusion of the disciplinary process.

379. When determining if there was a continuing state of affairs the tribunal will consider what the acts were, the context and who was involved. A tribunal may decide that some acts form part of a continuing act, while others remain unconnected - Lyfar v Brighton and Sussex University Hospitals Trust [2006] EWCA Civ 1548.

380. It is for the Claimant to show that it would be just and equitable to extend time - [COMPANY_177] (t/a Leisure Link) v Robertson [2003] EWCA Civ 576.

381. The court in British Coal Corporation v Keeble [1997] IRLR 36 provided guidance to tribunals when considering whether to exercise its discretion to extend time on this just and equitable basis. This will include consideration of the length of and reasons for the delay, but might include the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued had co-operated with any requests for information; the promptness with which the claimant acted once they knew of the possibility of taking action; and the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.

382. The court in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 has confirmed that the correct approach is for the tribunal to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time. The court advised against using a mechanistic approach and using the examples in Keeble as some sort of checklist.

383. In Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, it was held that Parliament had chosen to give the employment tribunal the widest possible discretion and that it was intended to be broad and unfettered. In that case the court held:

"There is no justification for reading into the statutory language any requirement that the tribunal must be satisfied that there was a good reason

83 for the delay, let alone that time cannot be extended in the absence of an explanation of the delay from the claimant. The most that can be said is that whether there is any explanation or apparent reason for the delay and the nature of any such reason are relevant matters to which the tribunal ought to have regard." [25]

384. In [NAME_178] v Secretary State for Health and Social Care [2024] EWCA Civ 1568 the Court of Appeal held:

“As the EAT observed, strictly speaking section 123 does not set out a primary time limit that may be extended but a time limit of three months or "such other period as the employment tribunal thinks just and equitable". Where the Employment Tribunal decides that a period other than three months is just and equitable, that is the time limit. Nonetheless, the use of the term "primary time limit" for the three months period (with an extension for ACAS early conciliation where appropriate) is a useful shorthand.” [26]

385. The situation with respect to reasonable adjustments complaints is more nuanced as this involves allegations of a failure to do something, and the difficulty arises as to when the time limit starts to run. Section 123(3)(b) provides that the failure to do something is to be treated as occurring when the person in question decided on it. In [NAME_181] v [NAME_182] upon Hull City Council [2009] IRLR 288 the Court of Appeal observed that the failure to make an adjustment is an omission rather than an act, and there is a distinction to be drawn between a situation where an actual decision was made not to do something, and situations where the employer simply did not do it, possibly either through lack of diligence or competence or any reason other than conscious refusal. Where [NAME_126] does not do an act inconsistent with complying with the duty to make an adjustment, the matter should be considered under s. 123(4)(b) which (as set out above) is the date when the employer might reasonably have been expected to do it.

386. Further guidance was provided in Morgan where the court rejected an argument that the date when the duty to make the adjustment begins is also the date when time starts to run. The court held that where there has not been a refusal to do something, then the period within which the employer might reasonably have been expected to comply had to be determined in the light of what the claimant reasonably knew. In other words, there will need to be consideration of when it became clear, or should have become clear to the claimant, that the respondent was not complying with its duty to make reasonable adjustments.

387. It is clear that a failure to make a reasonable adjustment is not to be regarded as falling within the definition of a continuing act under s. 123(3)(a), and in any event the Tribunal retains a broad discretion under s. 123(1)(b) to extend time where it appears just and equitable to do so.

Equal Pay

388. The relevant Equal Pay provisions are contained within Chapter 3 of the Equality Act 2010 as follows:

“Section 65

84

Equal work

(1) For the purposes of this Chapter, A's work is equal to that of B if it is—

(a) like B's work,

(b) rated as equivalent to B's work, or

…

(2) A's work is like B's work if—

(a) A's work and B's work are the same or broadly similar, and

(b) such differences as there are between their work are not of practical importance in relation to the terms of their work.

(3) So on a comparison of one person's work with another's for the purposes of subsection (2), it is necessary to have regard to—

(a) the frequency with which differences between their work occur in practice, and

(b) the nature and extent of the differences.

(4) A's work is rated as equivalent to B's work if a job evaluation study—

(a) gives an equal value to A's job and B's job in terms of the demands made on a worker, or

(b) would give an equal value to A's job and B's job in those terms were the evaluation not made on a sex-specific system.

(5) A system is sex-specific if, for the purposes of one or more of the demands made on a worker, it sets values for men different from those it sets for women.

….”

389. Section 66 of that Act implies a sex equality clause into every employee’s contract of employment which enables them to bring a complaint to the tribunal where they are treated less favourably than a [NAME_32] employee of the opposite sex in relation to a contractual term.

390. Section 66(2) further provides:

“(2) Where this section applies by virtue of section 64(1), a sex equality clause is a provision that has the following effect—

(a) if a term of A's is less favourable to A than a corresponding term of B's is to B, A's term is modified so as not to be less favourable;

85 (b) if A does not have a term which corresponds to a term of B's that benefits B, A's terms are modified so as to include such a term.”

391. Section 69 sets out the provisions as regards the defence of material factor:

“Defence of material factor

(1) The sex equality clause in A's terms has no effect in relation to a difference between A's terms and B's terms if the responsible person shows that the difference is because of a material factor reliance on which—

(a) does not involve treating A less favourably because of A's sex than the responsible person treats B, and

(b) if the factor is within subsection (2), is a proportionate means of achieving a legitimate aim.

(2) A factor is within this subsection if A shows that, as a result of the factor, A and persons of the same sex doing work equal to A's are put at a particular disadvantage when compared with persons of the opposite sex doing work equal to A's.

(3) For the purposes of subsection (1), the long-term objective of reducing inequality between men's and women's terms of work is always to be regarded as a legitimate aim.

(4) A sex equality rule has no effect in relation to a difference between A and B in the effect of a relevant matter if the [NAME_156] or managers of the scheme in question show that the difference is because of a material factor which is not the difference of sex.

(5) “Relevant matter” has the meaning given in section 67.

(6) For the purposes of this section, a factor is not material unless it is a material difference between A's case and B's.”

392. Tribunals are obliged to consider relevant parts of the Equal Pay Code prepared by the Equalities and Human Rights Commission where it appears relevant to the proceedings.

393. As was observed in Glasgow City Council v Marshall [2000] ICR 196, with respect to then then Equal Pay Act 1970, the legislation is concerned with unequal pay between the sexes, it is not concerned with fair pay generally.

Like work

394. There is a two stage test under s. 65(2). The first stage is for the tribunal to consider whether the nature of the work, and the knowledge and skill required to do it, are the same or broadly similar. This requires merely a broad, general consideration, avoiding a pedantic approach. As per the court in Capper Pass Ltd v Lawton [1977] ICR 83:

86

“It is clear from the terms of the subsection that the work need not be of the same nature in order to be like work. It is enough if it is of a similar nature. Indeed, it need only be broadly similar. In such cases where the work is of a broadly similar nature (and not of the same nature) there will necessarily be differences between the work done by the woman and the work done by the man. It seems clear to us that the definition requires the industrial tribunal to bring to the solution of the question, whether work is of a broadly similar nature, a broad judgment. Because, in such cases, there will be such differences of one sort or another it would be possible in almost every case, by too pedantic an approach, to say that the work was not of a like nature despite the similarity of what was done and the similar kinds of skill and knowledge required to do it. That would be wrong. The intention, we think, is clearly that the industrial tribunal should not be required to undertake too minute an examination, or be constrained to find that work is not like work merely because of insubstantial differences.

It seems to us that in most cases the inquiry will fall into two stages. First, is the work of the same, or, if not, “of a broadly similar” nature? This question can be answered by a general consideration of the type of work involved, and of the skill and knowledge required to do it. It seems to us to be implicit in the words of subsection (4) that it can be answered without a minute examination of the detail of the differences between the work done by the man and the work done by the woman.”

395. The above approach of the EAT in Capper Pass was endorsed in the decision of the Court of Appeal in [NAME_183] v [COMPANY_184] 1978 ICR 1159.

396. The tribunal will need to consider the respective jobs of the claimant and [NAME_32](s) as a whole, it is not possible to exclude any parts they do not have in common unless they in effect relate to a separate and distinct job – Maidment and Hardacre v Cooper and Co (Birmingham) Ltd [1978] ICR 1094. In other words, an equal pay claim cannot be founded on the basis of two roles being broadly similar in part (even if a large part).

397. Where the Tribunal finds that the work was of a broadly similar nature, the second stage requires the tribunal to analyse the details of the work more closely and to determine (i) the differences, if any, in the tasks actually performed; (ii) the frequency or otherwise with which such differences occur in practice; and (iii) the nature and extent of any such differences.

398. In this second stage analysis, the tribunal must carefully scrutinise the whole content of the relevant jobs. The similarities, as well as the dissimilarities, are relevant and over-concentration on the latter would tend to provide a skewed understanding of the roles. The tribunal will then need to consider whether the different tasks really make different demands on the employees.

399. The tribunal must go on to consider whether those differences of practical importance in relation to the terms of their work, and in doing so the tribunal is concerned to decide whether it would expect the differences which it has identified to cause a difference in pay and other contractual

87 benefits. It may be relevant to consider whether the differences would be expected to put the jobs in different grades on a job evaluation study.

400. In Capper Pass it was further held:

“But, secondly, if on such an examination the answer is that the work is of a broadly similar nature, it is then necessary to go on to consider the detail and to inquire whether the differences between the work being compared are of “practical” importance in relation to terms and conditions of employment.” In answering that question the industrial tribunal will be guided by the concluding words of the subsection. But again, it seems to us, trivial differences, or differences not likely in the real world to be reflected in the terms and conditions of employment, ought to be disregarded. In other words, once it is determined that work is of a broadly similar nature it should be regarded as being like work unless the differences are plainly of a kind which the industrial tribunal in its experience would expect to find reflected in the terms and conditions of employment.... The only differences which will prevent work which is of a broadly similar nature from being “like work” are differences which in practice will be reflected in the terms and conditions of employment.”

401. At the second stage the burden of proof falls to the Respondent. The Tribunal will consider any differences in the work actually done; how large the differences are; and how often they operate. Assistance can be gained from the Code which provides:

“36. It is for the employer to show that there are differences of practical importance in the work actually performed. Differences such as additional duties, level of responsibility, skills, the time at which work is done, qualifications, training and physical effort could be of practical importance. A difference in workload does not itself preclude a like work comparison, unless the increased workload represents a difference in responsibility or other difference of practical importance…

37. A detailed examination of the nature and extent of the differences and how often they arise in practice is required. A contractual obligation on a man to do additional duties is not sufficient, it is what happens in practice that counts.”

Work rated as equivalent

402. As per s. 65(1)(b) of the Act, a claimant may pursue a claim for equal pay where their work is rated as equivalent to that of someone of the opposite sex. Work is rated as equivalent where a job evaluation study (i) gives an equal value to the jobs in terms of the demands made on the worker, or (ii) would give an equal value in those terms if the evaluation were not made on a sex-specific system (this does not apply in this case). Section 80 of the Act sets out the definition of a job evaluation study, however this is not included here as there was no dispute about there having been a job evaluation study.

403. The Equal Pay Code provides

88 “39. Job evaluation is a way of systematically assessing the relative value of different jobs. Work is rated as equivalent if the jobs have been assessed as scoring the same number of points and/or as falling within the same job evaluation grade. A small difference may or may not reflect a material difference in the value of the jobs, depending on the nature of the job evaluation exercise.

40. A job evaluation study will rate the demands made by jobs under headings such as skill, effort and decision-making. Because the focus is on the demands of the job rather than the nature of the job overall, jobs which may seem to be of a very different type may be rated as equivalent. …

42. If a job evaluation study has assessed the woman’s job as being of lower value than her male [NAME_32]’s job, then an equal value claim will fail unless the Employment Tribunal has reasonable grounds for suspecting that the evaluation was tainted by discrimination or was in some other way unreliable.”

404. In Potter v North Cumbria Acute Hospitals NHS Trust [2008] ICR 910 the court considered the situation where the job content was said to have changed, or where tasks were performed infrequently. It is clear that judgment that the tribunal’s focus must be on what was the real part of the job. Following on from that, this focus on the realities of the job can include the level at which it is performed, rather than simply the job titles for the respective roles.

[NAME_38]

405. As set out in section 69 of the Act (referenced above), where a claimant has shown that they are doing equal work with a [NAME_32] of the opposite sex, the equality clause will take effect unless the respondent is able to demonstrate that the difference in pay (or other contractual term) is due to a material factor which itself does not discriminate either directly or indirectly because of sex.

406. In [NAME_185] it was held that where the matters relied upon as material factors were not tainted by direct or indirect discrimination, it will be sufficient for the respondent to show that those factors relied upon caused the pay disparity and that these factors were significant and relevant. The respondent is under no obligation to prove a “good” reason for the pay disparity. This reflected in the Code which provides:

“76. The employer must identify the factor(s) and prove:

•it is the real reason for the difference in pay and not a sham or pretence • it is causative of the difference in pay between the woman and her [NAME_32]

•it is material: that is, significant and relevant, and

89 •it does not involve direct or indirect sex discrimination.

77. Personal differences between the workers concerned, such as experience and qualifications, may be material factors.”

407. Further, in CalMac Ferries Ltd v Wallace [2014] ICR 453 it was held:

“…Where a pay disparity arises for examination, it is not sufficient for [NAME_126] to show why one party is paid as one party is. The statute requires an explanation for the difference, which inevitably involves considering why the claimants are paid as they are, on the one hand, and, separately, why the [NAME_32] is paid as he is…” [16]

408. The court in Baines v Blackpool Borough Council UKEAT/0428/07/MAA recognised that the same factors may be relevant to the issue of whether work is equal work, and also relevant to the [NAME_38], although the approach to answering both of those questions will be different [20 & 22].

Constructive dismissal

409. The applicable law is found in section 95(1)(c) of the Employment Rights Act 1996 which provides that “for the purpose of this Part an employee is dismissed by his employer if .......the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct”.

410. The leading case on constructive dismissal is [COMPANY_206] v [NAME_186] 1978 ICR 221, CA. The employer’s conduct must give rise to a repudiatory breach of contract. In that case Lord Denning said “If the employer is guilty of conduct which is a significant breach going to the root of the contract, then the employee is entitled to treat himself as discharged from further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed.”

411. There will be a breach of the implied term of trust and confidence where, looking “at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put-up' with it” - Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666.

412. In order for there to have been a repudiatory breach of the implied term of trust and confidence, there must have been no “reasonable and proper cause” for the employer’s actions: Hilton v Shiner [2001] IRLR 727.

413. In [NAME_187] v [COMPANY_188] SA 1997 IRLR 462 the [NAME_189] affirmed the implied term of trust and confidence as follows: “The employer shall not without reasonable and

90 proper cause conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”.

414. In [NAME_190] v [NAME_191] 2007 IRLR 232 the EAT had to consider whether for there to be a breach, the actions of the employer had to be calculated and likely to destroy the relationship of confidence and trust, or whether only one or other of these requirements needed to be satisfied. The view of the EAT was that the use of the word “and” by Lord Steyn in the passage quoted above from [NAME_187], was an error of transcription and that the relevant test is satisfied if either of the requirements is met, so that it should be “calculated or likely”.

415. As regards how the implied term of mutual trust and confidence may be breached, it was held in Croft v Consignia plc [2002] IRLR 851 that “It is an unusual term in that it is only breached by acts or omissions which seriously damage or destroy the necessary trust and confidence. Both sides are expected to absorb lesser blows.” [69].

416. In Omilaju v Waltham Forest London Borough Council [2005] ICR 481 the court provided guidance on the concept of a “last straw.” Dyson LJ held:

“The following basic propositions of law can be derived from the authorities.

1. The test for constructive dismissal is whether the employer's actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] ICR 221.

2. It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, [NAME_192] v [COMPANY_188] SA [1997] ICR 606, 610 e– 611a (Lord Nicholls of Birkenhead), 620 h– 622c (Lord Steyn). I shall refer to this as “the implied term of trust and confidence”.

3. Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, per Browne-Wilkinson J in Woods v W M Car Services (Peterborough) Ltd [1981] ICR 666, 672 a. The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship.

4. The test of whether there has been a breach of the implied term of trust and confidence is objective. As Lord Nicholls said in [NAME_192] , at p 610 h, the conduct relied on as constituting the breach must:

91 “impinge on the relationship in the sense that, looked at objectively , it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer” (emphasis added).

5. A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents. It is well put in [NAME_151] on Industrial Relations and Employment Law , para DI [480]:

“Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time. The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal. It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship.”” [14]

417. As to what might constitute a last straw specifically, it was held:

“Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim "de minimis non curat lex") is of general application.” [16].

418. In Meikle v Nottinghamshire County Council [2004] EWCA Civ 859 it was held that the employee’s resignation must be in response to the repudiatory act of the employer, however the fact that the employee also objected to other [non repudiatory] actions, this would not vitiate the acceptance of that repudiation. In other words, the resignation must be in response in at least in part to the fundamental breach of contract but it does not have to be the effective cause of the resignation.

419. Subsequent authorities have followed the approach in [NAME_193], confirming that once a repudiatory breach has been established, provided that the breach played a part in their leaving, an employee will be able to complain of constructive dismissal – it does not therefore need to be the only reason for leaving – Abbycars (West Horndon) Ltd v Ford UKEAT/0472/07; Logan v Celyn House Ltd UKEAT/0069/12; and Wright v North Ayrshire Council UKEAT/0017/13.

420. It was held in Weathersfield v Sargent [1999] IRLR 94 that the reason for an employee’s resignation is a question of fact for the tribunal to determine, and there is no requirement for the employee to state their reason for leaving at that time, but there must nevertheless still be evidence that the employer’s breach was a factor in the employee’s decision to resign. A similar approach was followed in Nicholson (nee Woodhouse) v Hazel House Nursing Home Ltd UKEAT/0241/15 although in that case the employee had provided other reasons for leaving so as not to harm their

92 chances of a positive reference.

421. In [NAME_194] v [NAME_195] 2018 IRLR 833 the Court of Appeal listed five questions that should be sufficient for the Tribunal to ask itself to determine whether an employee was constructively dismissed:

a. What was the most recent act (or omission) on the part of the employer the employee says caused, or triggered, their resignation?

b. Has the employee affirmed the contract since that act?

c. If not, was that act (or omission) by itself a repudiatory breach of contract?

d. If not, was it nevertheless a part (applying the approach explained in Waltham Forest v Omilaju [2004] EWCA Civ 1493) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation, because the effect of the final act is to revive the right to resign).

e. Did the employee resign in response (or partly in response) to that breach?

422. Whereas delay may often lead to a finding of affirmation, this will depend upon the circumstances of the case. In Waltons and Morse v Dorrington [1997] IRLR 488 the few weeks delay in resignation did not lead to a finding of affirmation as that time was spent looking for other work. In El-Hoshi v Pizza Express Restaurants Ltd [NAME_196] the claimant had been an assistant manager who was forced to transfer to the kitchen to work. Whereas there was a delay of two months in resigning, this did not affirm the contract as the claimant had gone off sick and continued to protest about his treatment.

Statement of particulars

423. Section 1 Employment Rights Act imposes a duty on [NAME_126] to provide an employee with a written statement of employment particulars. The statement must be given no later than the commencement of employment and must include the principal terms of the employment such as the names of the parties, the date employment began, the job title or description, the rate and frequency of pay, hours of work, holiday entitlement, notice periods, place of work, and any relevant pension or disciplinary arrangements.

424. Any change to those particulars must be confirmed to the employee in writing within one month. A failure to provide the statement does not in itself constitute a free-standing cause of action. An award is not due if the Claimant has also not succeeded in a complaint listed within Schedule 5 of that Act.

93 425. Where a claimant succeeds in a substantive claim, such as discrimination under the Equality Act 2010, and it is established that the respondent was in breach of the duty under section 1 of the Employment Rights Act 1996, section 38 of the Employment Act 2002 empowers the tribunal to make an additional award.

426. The tribunal must, unless it considers it just and equitable not to do so, make an additional award of either two or four weeks’ pay. In determining whether the higher or lower amount is appropriate, the tribunal may take into account factors such as the length and seriousness of the default, the extent to which the absence of proper particulars may have contributed to uncertainty or misunderstanding in the employment relationship, and any mitigating steps taken by the employer.

Drawing inferences

427. The court in Royal Mail Group Ltd v Efobi [2021] UKSC 33 provided guidance on the matter of drawing inferences where a party does not call a potential witness to give evidence. Here it was held:

“So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.” [41]

Conclusions and decision

2 Equal Pay (Equality Act 2010, sections 65-70)

428. By way of reminder, the Respondent was formed in January 2022 when [NAME_47] (the Claimant’s employer) joined with [NAME_61] under the name of [COMPANY_4].

429. The Claimant’s [NAME_32] [NAME_39] transferred across to [NAME_47] from the [NAME_48] on 1 April 2022 in the role of People Change Lead. At that time the Claimant’s job title was [NAME_45] but as I have found his work comprised mainly of the [NAME_57] with some limited HRBP type work which was associated with that wider [NAME_57].

430. On 1 July 2022 the changes to the HR department took effect. The previous roles of [NAME_45] with [NAME_47] were renamed HRBP. [NAME_39] was matched to the newly created role of [NAME_45]. On the same date the Claimant was matched the [NAME_55] role which was essentially the same role as he had been already undertaking without any HRBP related tasks.

94 431. On 1 January 2024 [NAME_39] was then appointed to the temporary role of Business Partner Leads which was in essence taking on the management and supervision of the [NAME_51] in addition to her role of [NAME_45].

432. In April 2024 [NAME_47] employees TUPE transferred across to [NAME_61] which then changed its name to [COMPANY_5] which is the Respondent.

433. On 14 May 2024 the Claimant moved to the role of HRBP and he went off sick on 3 September 2024 before resigning on 26 March 2025.

434. It is accepted by the Respondent that the Claimant and [NAME_39] were employed by the same employer from 1 April 2022. It does not appear to have been disputed by the Respondent that they worked as the same establishment or that common terms applied to them. I therefore move on to consider the crux of this issue which is whether they did like work as defined in s. 65(1)(a) of the Act.

435. My task has been made a little more difficult than perhaps may have been the case as the Claimant’s evidence on this complaint has been rather limited and it was not really put to the Respondent to any significant degree. Whereas the Claimant mentions like work generally in his witness statement, the slighter greater focus is on the worked rated as equivalent argument and also the Respondent’s [NAME_38], rather than getting into the detail of why it is said that [NAME_39] and the Claimant were engaged in like work in the first place.

436. This was particularly evident when it came to closing submissions as the Claimant failed to mention anything at all about like work, and when asked if the complaint was being pursued, the Claimant offered to withdraw it, following which I urged him to think before acting in haste. The complaint was not withdrawn therefore I will address it based upon the limited case advanced by the Claimant together with the Respondent’s evidence.

437. At this first stage the burden is on the Claimant to persuade me that the work was broadly similar, and this involves consideration of the type of work being undertaken by both (including their responsibility), together with assessment of the skill and knowledge required to perform it. I have reminded myself that I am looking at the work actually undertaken in reality, and not what the contract required or the job description envisaged. At this first stage I am conducting a broad general consideration and avoiding a pedantic approach.

438. I have found the evidence of [NAME_28], who led on the organisational design project, to be key in answering the question of whether their work was broadly similar. [NAME_28]’s evidence was that the Claimant and [NAME_39] did entirely different work which makes it difficult to compare, and further that the Claimant’s work was task based and limited to diversity and inclusion work whereas [NAME_39] did strategic long term project work related to the Respondent’s people objectives involving consultation with and advising and engaging with employees at all levels of the business, together with travel to various sites.

439. I have found [NAME_28]’s evidence to correctly summarise the

95 difference between the work of the Claimant and [NAME_39], and I have not been persuaded that the work of both was broadly similar at any time in the period between 1 April 2022 (when [NAME_39] joined) and March 2025 (when the Claimant resigned).

440. Starting with the period April 2022 when the Claimant’s role was [NAME_45] at [NAME_47], his work was almost exclusively [NAME_55] related, focussing on producing the [NAME_55] plan and strategy which involved looking at the staff survey and incorporating the results into those plans and subsequently producing the [NAME_55] scorecard. There was engagement with stakeholders such as the [NAME_77] and the Executive Team with respect to updates on the strategy and plans (although I note much of this was delivered through others and the Claimant did not attend leadership meetings as he said he was not invited).

441. Further task-based work included developing and delivering training, as well as checking job adverts; there was some limited input into policies and procedures from an [NAME_55] perspective; and also reporting on the gender pay gap for example. There was some engagement with external partners which was limited to representing the employer at the [NAME_80].

442. The knowledge and skills required centred around experience of, and a passion for, delivering an [NAME_55] agenda, as well as being organised and able to engage with stakeholders at all levels. This work continued from when the Claimant was matched to [NAME_55] role in July 2022 through to May 2024 when the Claimant moved an HRBP role, and I have already recorded that I was presented with little evidence as to what this involved save for generalist HRBP support which was provided to a specific business area. The Claimant performed that work until he went sick in September 2024 and ultimately resigning in March 2025.

443. I now compare this to the work of [NAME_39] at that time as the People Change Lead. This work also did not involve day to day business partnering activities, rather the work was strategic and involved engaging with senior leaders and executives, including the Chief Financial Officer, with respect to providing advice and guidance about the organisational design.

444. The specific work involved undertaking a full activity analysis and then undertaking people impact assessments, as well as leading on trade union consultation. The work remained the same from July 2022 onwards when [NAME_39] was matched to the [NAME_45] role upon the implementation of the first stage of the organisational transformation.

445. The work still involved leading on bringing the target operating model into effect and this necessitated a high level of visibility and significant travel to other sites, whereas in the Claimant’s case no travel was involved at all.

446. The work required substantial experience and knowledge of supporting organisational design and development, as well as planning and contributing to projects while managing or supporting cross-functional resources, together with experience of coordination and collaboration and consultation with internal and external stakeholders, including senior

96 leaders, trade unions and regulators. One of the other specific skills required was the ability to respond effectively to ambiguity and change.

447. By the time the Claimant moved to the HRBP role in May 2024, [NAME_39] continued to undertake the above work and to provide HRBP support to the waste management side of the business which was clearly the largest area of the business. [NAME_39] had also taken over management and supervision of the other [NAME_51] as the [NAME_90] role (from [NAME_28]), on top of her existing work. The Claimant for his part performed a generalist HRBP role, partnered with a smaller part of the business and the work comprised general employee relations matters, performance and capability issues, and general people management issues. The Claimant was not managing or supervising anyone unlike [NAME_39].

448. I heard very brief evidence on the qualifications for the roles, and I noted that the Claimant appeared to be suggesting that the requirement for the roles with the Respondent had been watered down from the requirement with [NAME_47].

449. I am not satisfied that this is the case as the Claimant appeared to be confusing a professional membership level with a qualification level based upon what little I was told. The [NAME_45] role at [NAME_47] required a CIPD membership level of MCIPD (essential) or FCIPD (desirable). Whereas with the Respondent, the HRBP role required a degree in Human Resource Management and a recognised professional membership and qualification or working towards it (CIPD qualification level 5); and the [NAME_45] role also required the degree but a CIPD qualification at level 7-5.

450. The Claimant appeared to be comparing a membership requirement at [NAME_47] with a qualification requirement of the Respondent - these are different things and no meaningful conclusion can be drawn from that.

451. Having regard to the differences in level, responsibility, scope and organisational impact identified above, I do not find that the Claimant’s work was the same as, nor broadly similar to, that of [NAME_39]. The differences between the roles was substantial and it appeared to me that the only similarities were that they worked in the same organisation in the HR department – other than that the roles were entirely different with [NAME_39]’s work being far more strategic in nature and carrying a far higher level of responsibility for what the Respondent would eventually look like. I find that the roles are not just different in degree, but were different in nature as well. The differences identified were not simply quantitative differences in level or volume of work, but qualitative differences going to the nature, scope and purpose of the roles.

452. In light of these differences, I do not find the work to be the same or broadly similar. It is therefore unnecessary to consider whether any differences were of practical importance, and whereas I do not therefore need to consider the Respondent’s [NAME_38] in detail, however I will go on to do so below for the sake of completeness.

453. As regards the issue of work rated as equivalent, the Respondent argues that this complaint is misconceived, and I agree with that

97 assessment. I have not found the roles of the Claimant and [NAME_39] to ever have been rated as equivalent by a Job Evaluation Study. The Claimant argues that they have been because they were placed on the same career ladder, however that is not the same thing.

454. The Claimant’s role was assessed as a Level 4 and it always remained that level. The role of [NAME_39] was assessed as a Level 3, and it always remained at that level. My focus is not on job titles but on the reality of the work and the level at which they are performed. The mere fact of being placed on the same career ladder does not mean that the roles were rated as equivalent. I have not been provided with any evidence that the job evaluation scores of the roles were the same – the evidence is absent. The mere fact that the roles were at different pay levels (Level 3 and Level 4) is indicative that they had not been rated as equivalent.

455. Again, I do not need to go any further in my assessment nor to consider the Respondent’s [NAME_38], however I have already indicated above that I will do so for the sake of completeness.

456. The Respondent relied upon three [NAME_8] which were (i) the skill involved in the performance of their jobs and in their knowledge, expertise and responsibility; (ii) [NAME_39] was more experienced than the Claimant and the Respondent had a business need for the experience possessed by the [NAME_32] at the time of her appointment; and (iii) [NAME_39]’s salary was protected following her TUPE transfer, and the basis on which her protected salary had been determined was via a different collective bargaining process to that which had applied to the Claimant.

457. It has not been disputed that [NAME_39] had experience and expertise in organisational design work (including from the private sector), nor that she had been working on the Respondent’s organisational design whilst at the [NAME_48]; nor that was the reason why she was transferred across to [NAME_47]. Whereas the Claimant disputes that there was a TUPE transfer due to the absence of documents, it remains the case that [NAME_39]’s salary upon transfer to [NAME_47] had been set by her previous employer; [NAME_39] did transfer across to work on the organisational design which she had been undertaking previously at [NAME_48]; and in any event I accepted the evidence of [NAME_28] firstly that [NAME_39] had been at a Level 3 with her previous employer ([NAME_48]) and that this was a TUPE transfer.

458. The Claimant was matched to the [NAME_55] role which was at Level 4, and the same level as the HRBP role. The increase in [NAME_39]’s salary was due to the appointment to the permanent Level 3 role, and subsequently the increase in responsibilities to take on the [NAME_90] role (as a temporary promotion allowance).

459. I agree with the Respondent that the above factors explain the difference in pay and further the roles, as the Respondent argues, were “qualitatively and quantitively” different with [NAME_39]’s terms having been maintained upon transfer to [NAME_47], and that [NAME_39] was identified as a strong performer and was part of the succession plan whereas the Claimant’s work had been regarded as deteriorating.

460. The Claimant was given the opportunity to explain in his evidence,

98 and again in his closing submissions, why he said the matters relied upon in the [NAME_38] were tainted by sex discrimination. The Claimant did not do so, therefore there is nothing for the Respondent to rebut and moreover no facts have been established from which I could have drawn an inference of discrimination in any event.

461. Accordingly, even if the Claimant had been engaged in like work or work rated as equivalent, I would in any event find that the Respondent has established a [NAME_38] and dismissed the claim on that basis.

462. I therefore dismiss the claim for equal pay. This treatment did not amount to a breach of the implied duty of mutual trust and confidence.

463. With respect to issue 3.2.1, the factual premise of the complaint within the list of issues is not made out as it presupposes that the Claimant sought to appeal the capability outcome in February 2023, and it was either refused or not dealt with. The reality is that the Claimant was not told about his entitlement to appeal the outcome however he knew that he could do so, but did not ask to appeal the outcome.

464. Leaving that aside, the Claimant has not established a prima facie complaint of direct discrimination as there are no facts from which I could conclude, absent an explanation from the Respondent, that the Claimant had been treated less favourably than a hypothetical [NAME_32] on grounds of his disability. The mere fact that he notified the Respondent of his long covid symptoms the month before, is not sufficient to establish any inference that his disability was the reason for not advising him of his entitlement to appeal.

465. Even if the burden of proof had shifted onto the Respondent to provide an explanation, the reason for the treatment was clear. [NAME_26] in his witness statement opined that he made a cut and paste error from a template letter, his oral evidence was that the policy provided for an appeal at stage five – at the end of the process – and he was simply re-using a letter he had issued to other people previously.

466. The fact that [NAME_26] was following what the policy provided (whether that policy was right or wrong), and the fact that he was using a letter sent to other people in receipt of earlier capability warnings, is indicative to me that the Claimant was not singled out nor treated differently, rather the Claimant was treated consistently with the policy and with other colleagues who had gone through the initial capability process.

467. The Claimant’s disability was not the reason for the treatment, therefore I dismiss this complaint.

468. As regards issue 3.2.2, the Claimant was issued the lower performance score of 2-3-2 in March 2023. A true [NAME_32] for this complaint would be someone without the Claimant’s disability with the same performance concerns as the Claimant – namely issues as to visability and ownership of the work. The Claimant has not established a prima facie complaint of direct

99 discrimination as there are no facts from which I could conclude, absent an explanation from the Respondent, that the Claimant had been treated less favourably than a hypothetical [NAME_32] on grounds of his disability. The mere fact that he notified the Respondent of his long covid symptoms two months before, is not sufficient to establish any inference that his disability was the reason for the score.

469. Even if the burden had passed to the Respondent to provide an explanation for the scores, it was clear to me that the Respondent discharged that burden. The Respondent clearly had performance concerns about the Claimant for some time and pointed to identifiable areas where it considered his performance was lacking, in particular with visibility and ownership of his work. The failure to attend the Big Picture event was not the only example of perceived underperformance, however it was the clearest example of the Respondent’s concerns about the Claimant’s failure to demonstrate visibility and to take ownership at an event which was meant to showcase [NAME_55] – the Claimant was absent due to rehoming his dogs which had nothing whatsoever to do with his disability. Numerous other examples of lack of visibility and taking ownership had been identified (such as not attending meetings with seniors and updating them), and I find that these were the true reasons.

470. The Claimant’s disability was not the reason for the treatment, therefore I dismiss this complaint.

471. As regards issue 3.2.3, the Claimant was paid a lower bonus in July 2023, it has been agreed that the amount of the Claimant's 2023 bonus was determined by his performance score of 2-3-2. I have already found that the performance score issued to the Claimant was not due to his disability, it therefore follows that the bonus payment which was determined by that score was also not due to his disability.

472. As the Claimant’s disability was not the reason for the treatment, therefore I dismiss this complaint.

473. As regards issue 3.2.4, the Claimant was not given the opportunity to apply for the Business Partner Leads role December 2023/January 2024. The Claimant has not established a prima facie case of direct discrimination because no one was given the opportunity to apply for that role – no one else in HR was permitted to apply. There are no facts from which I could have concluded that the Claimant was treated less favourably on grounds of his disability.

474. Even if the burden of proof had shifted to the Respondent to provide an explanation for the treatment, it is clear to me that the Respondent had discharged that burden as [NAME_39] arrived at [NAME_47] in a senior capacity; her knowledge and experience was well known to [NAME_28] who had worked with her previously; [NAME_28] required someone to take over at very short notice and [NAME_39] was identified as being sufficiently senior and experienced to take on the role, and she was already viewed as a the natural successor as part of the Respondent’s unwritten succession plans. This had absolutely nothing whatsoever to do with the Claimant’s disability, and it was a non- disability related reason for selecting [NAME_39] over the Claimant and anyone else. Moreover at this time the Claimant was not even a member of that team and

100 his performance had been in decline with concerns over his visibility and ownership of his work, and accordingly the Claimant did not have a realistic prospect of being appointed to that role in any event.

475. The Claimant’s disability was not the reason for the treatment, therefore I dismiss this complaint. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. None of these matters were calculated nor likely to have breached that implied duty. Even if there was any breach of that term, the Claimant did not resign at the material time, therefore affirming any breach.

476. It is not disputed that the things said to arise in consequence of the Claimant’s disability of Long Covid included fatigue, difficulty concentrating and remembering information (brain fog) and that he needed to perform work slower as a result. The Respondent accepts that it had knowledge of this from 23 January 2023.

477. I do not find that the Claimant was paid a reduced salary as a result of performing less well in his PDP in 2022/2023. That did not happen, and the Claimant’s salary remained the same. The only way to increase salary (beyond inflationary pay increments) is to go for promotion. The Claimant’s PDP result meant that he was ineligible to apply for promotion that year, but there was no guarantee that had a suitable role become available that the Claimant would have been successful.

Accordingly, I do not find that the factual premise of this part of the complaint has been made out.

478. It is not disputed however that the Claimant received a reduced bonus as a result of that PDP marking. This is unfavourable treatment – it is akin to a detriment and someone who receives a reduced bonus payment would inevitably feel that they have experienced a detriment and would have preferred to have been treated differently and I will now examine the reason why and the issue of causation.

479. I am not persuaded that the unfavourable treatment was because of the things said to arise in consequence of the Claimant’s disability. I looked closely at the PDP and listened carefully to witness evidence of [NAME_26], and of the Claimant. There had been a decline in the Claimant’s performance by the end of year PDP for the year before. The issues being highlighted were the Claimant’s visibility and taking ownership of his [NAME_57], much of it appearing (in the view of [NAME_26]) to have been delivered though others, such as the networks. These concerns persisted and it was noted that others in HR were undertaking some of the Claimant’s tasks.

480. Looking at the PDP for 2022/2023, it was very clear that the Claimant’s failure to attend the Big Picture event, whilst not the only reason for the marking, lay at the heart of what was going on and played a large part in the Respondent’s performance concerns. The Claimant in the hearing, honestly and candidly accepted it was a mistake not to have gone to that event, the reason he did not do so was because he was rehoming his dogs, and this had nothing to do with his disability. However there was more to the matter than simply that. The Claimant had left it incredibly late to say

101 he was not coming which was one further matter of concern and which suggested to the Respondent that he had a lack of ownership as well, but in addition to that the Claimant had not even attempted to make alternative arrangements or to try and demonstrate his ownership and visibility in any other way. Rather all that the Claimant did was to decline the invite at the last moment.

481. The Big Picture event was a critical event for the Respondent, it was the first time it had come together as an organisation since it had been newly created. It was abundantly clear to me that the Respondent wanted the [NAME_57] to play a key role in that event, and the failure of the person in charge of [NAME_57] to attend was of enormous disappointment to the networks and also to the Claimant’s line managers. The event still proceeded and the networks were still in attendance, but the person charged with leading the [NAME_55] agenda was absent at the last minute and had not made alternative provision.

482. It appeared to me that this failure to attend, to be visible, and to take ownership, on the part of the Claimant played into other concerns the Respondent had about the Claimant’s performance, specifically his perceived willingness to deliver through others.

483. The Claimant was also not attending the senior leadership meetings. Leaving aside where the blame lay – the Claimant says he was never invited, and the Respondent says he was senior enough and should have invited himself, the fact is that the Claimant was not attending and this played into concerns about his visibility again. This also had nothing whatsoever to do with the Claimant’s disability – the symptoms of Long Covid played no part at all in the failure to join those meetings.

484. These were not the only reasons for the PDP marking, but they played a major part in that outcome. There were other areas of concern with the Claimant’s performance which contributed to the score, including his draft [NAME_55] strategy having to be rewritten by [NAME_30]. Again I am not persuaded that the Claimant’s disability symptoms played a part in that matter either – those symptoms would explain why the Claimant may require more time to produce a piece of work but they do not, in my view, explain the quality of the work produced. It was not [NAME_8] at the time by the Claimant that he needed more time to produce the document – rather it appeared to me that [NAME_30] viewed the document as not fit for purpose and she had to rewrite it herself. The Claimant’s explanation at the time was that he had never written a board paper before – and whereas that may be a plausible and a genuine explanation for the quality of that document, it had nothing whatsoever to do with his disability – it was an issue over experience and competence but not disability.

485. In addition it did not appear that even at the material time the Claimant himself believed or even considered that his disability was impacting his performance. The Claimant said at the time that he had met or was meeting his objectives and he went as far as to indicate where, how, and why, he said he should have been scored higher than he was. This suggested to me that the Claimant did not consider that there was any impact upon his performance due to disability.

102 486. I therefore dismiss the complaint as I am not persuaded that the unfavourable treatment was because of the things arising in consequence of disability. I therefore do not need to go further to examine the issue of whether the Respondent’s approach was a proportionate means of achieving a legitimate aim. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. I find that this conduct was neither calculated nor likely to breach that duty, as the Respondent had reasonable and proper cause for addressing performance concerns. Even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

487. The factual premise of this complaint is made out only in part. Whereas the Respondent did have a performance development review process connecting with bonus payments, I do not find that salary increases were connected with the process. As I have already determined, the Claimant’s salary was not connected directly with that process. If someone received the scores of 2 or below then they would be ineligible to apply for a promotion which could have provided a salary increase, but there was no direct link between the PDP process and salary increase.

488. Leaving that aside, I move on to consider whether [NAME_44] then put the Claimant to a substantial disadvantage compared to those without his disability. Whereas I accept that the Claimant was experiencing some level of fatigue from the effects of Long Covid, I am not persuaded that this was at the severe level as the evidence before me falls short of that. Nevertheless I find that the Claimant was experiencing fatigue. I also find that this would have made it more difficult to work longer hours than someone without his disability. That does not appear to be a matter in dispute and it is a matter of common sense that someone with fatigue (at whatever level) would find it harder to work long hours in addition to their contractual hours.

489. However, I am not persuaded that staff would have needed to work long hours beyond their contractual hours in order to receive the higher scores in their PDPs. The evidence before me does not support such a conclusion. I accepted the evidence of Mrs [NAME_197] and [NAME_26] which I found to be particularly convincing that not only was there not a culture of working long hours, they also role modelled ensuring that staff did not do so.

490. Whereas I have looked closely at the staff survey results where there were a small number of comments about working long hours, these were anonymous, and I have no evidence before me who said them, what they were referring to, nor whether it was one person or more than one person. The evidence of [NAME_30] was that there may be busy periods, and in my industrial experience, that is true, in a professional work environment such as this inevitably there will be peaks and there will be troughs, but there was insufficient evidence before me that there was a culture of working long hours or some correlation between the hours and PDP marking.

103 491. Moving on from that, in the Claimant’s case, the reason for the Claimant’s PDP score in 2022/2023 had nothing to do with not having worked long hours or going beyond contractual hours. The reason for those scores was clearly due to his perceived lack of visibility and lack of ownership, the failure to attend the Big Picture event played a major part in those scores, but it was not the only reason. The other reasons were because he was not making himself seen, he was not engaging with senior leaders by not attending meetings with them, and he was seen to be delivering through others, whether the network leads or leaving things for colleagues in HR to do, and [NAME_30] had to rewrite the Claimant’s [NAME_55] strategy document. These things had nothing at all to do with the Claimant’s disability or an inability to work beyond contractual hours. The failure to attend the Big Picture event was due to the Claimant rehoming his dog(s) and part of the Respondent’s concern was not merely the failure to attend but also the lack of notice and lack of any attempt to make alternative arrangements from the Claimant – clearly this was not remotely related to his disability or having to work long hours.

492. I would further record for completeness that the Claimant already had some, if not all, of the adjustments proposed by [NAME_41], essentially the ability to manage his own time, and the only deadlines I was presented with former part of the performance improvement process and the Claimant was given in the region of a month to complete those tasks which he did not appear to have struggled with. Moreover within the PDP the Claimant suggested he had not only met or was meeting his objectives, but that he should be scored higher between a 3 and 5 on some of them – this suggested to me that even at the material time the Claimant himself did not consider that he was put to a substantial disadvantage.

493.

I therefore find that [NAME_44] was only made out in part but in any event there was no substantial disadvantage to the Claimant in the application of that PCP, and I dismiss this complaint. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. I find that the conduct was neither calculated nor likely to breach that duty as the Respondent had reasonable and proper cause for addressing performance concerns by way of PDP scoring. Even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

494. The Claimant’s article for [NAME_43] concerned the mental health of him and his family and included their feelings following the Palestine/Israel conflict. The Claimant submitted the article after he had been told that there would not be an organisation statement on the conflict because of the higher departmental position on not making statements on that conflict. The Claimant would have been aware at the time of submitting his article what the likely response from the Respondent was going to be. As it transpired the Respondent did refuse to publish the earlier drafts which mentioned the conflict, it did however agree to publish the version with that reference removed. I find that the refusal to publish the article was unwanted conduct as the Claimant would have preferred for his article to have been published in full.

104

495. However, the refusal to publish the article was not unwanted conduct related to disability. Whereas the article referred to the Claimant’s and his family’s mental health, the refusal related to the prohibition on making statement about that conflict which the Claimant was fully aware at the time of submitting his article. The Respondent was keen for the article about mental health to be published, but it could not allow the article to be published where it referenced the conflict because of the position of [NAME_49]. The trigger for the refusal was that prohibition; it was not connected to anything about mental health or disability. It is the unwanted conduct which must relate to the protected characteristic, and in this case, that connection was not present.

496. I therefore dismiss this complaint at Issue 6.1.1 as it was not unwanted conduct related to disability.

497. As regards Issues 6.1.2, 6.1.3, and 6.1.4, these all relate to the same matter which is the appointment of [NAME_39] to the Business Partner Leads role between December 2023 and January 2024. [NAME_36], like all of his other colleagues, was not consulted about the appointment; they were not included in the recruitment process; and they were not appointed to the role – it was given to [NAME_39]. The Respondent concedes that all three complaints were unwanted conduct.

498. Again, it is the unwanted conduct which must relate to the protected characteristic, and here it is disability. In this case there was no relationship at all between the Claimant’s disability of Long Covid and the decision taken to appoint [NAME_39] to that role and not to run a promotion or recruitment campaign. The Claimant’s disability had nothing whatsoever to do with that decision, and I therefore dismiss the complaints at Issues 6.1.2, 6.1.3 and 6.1.4.

499. As regards Issue 6.1.5, the complaint is about the content of the email dated 21 August 2023 from [NAME_27] where she wrote “the appeal hearing for DJ is on Wednesday (yes, we have had to make reasonable adjustments for that!).” It is not the disclosure of the email under a subject access response on 30 August 2024 which is said to be the act of harassment, it is the contents contained within the disclosure.

500. The email from [NAME_27] was an update to [NAME_26] upon his return to work as [NAME_27] reported to him at the time. The email is about a number of work matters, not just about the Claimant. Within the email [NAME_27] was clearly expressing how busy she is with a lot of demands upon her time.

501. The Respondent concedes that contents of the email is unwanted conduct, and also that it relates to disability. That much is obvious as it mentions the Claimant by name as well as referencing that reasonable adjustments have been made for him. That part of the email clearly related to disability.

502. I now move on to consider the purpose or the effect of the conduct. I do not find that the purpose of the email was to violate the Claimant’s dignity, nor to create the proscribed environment for him, as this was a private email

105 between [NAME_27] and [NAME_26], and whereas [NAME_27] has some understanding of data protection, I am not persuaded that she wrote that email in the knowledge or expectation that the Claimant would ever see it. I did not draw an inference from [NAME_27]’ other comments that the Claimant was a “lazy so and so” as that was not disability related, and concerned her views of the Claimant delivering through others and not attending the office during the Pandemic. I must therefore go on to perform the subjective and objective assessment about whether it had that effect upon the Claimant.

503. I have found the Claimant to be an honest and a generally reliable witness, and whereas I have not accepted the credibility of a small number of his arguments to me, I have no reason to doubt the Claimant’s honesty in any way. The Claimant has told me that he found the email to be offensive because he considered that it was “framed in a sarcastic and dismissive tone, trivialises the importance and legal necessity of making reasonable adjustments for myself. The use of brackets and the exclamation [NAME_15] conveys frustration or burden, as if accommodating my disability was excessive or inconvenient.” I believe the Claimant that is how he felt, firstly because he is an honest witness, secondly because he has been consistent about this complaint, and thirdly because he went off sick shortly thereafter. Accordingly the Claimant has persuaded me that the subjective element of the test has been made out, and I am satisfied that subjectively the Claimant felt harassed by that comment.

504. I must now perform that objective part of the assessment and I ask the question of whether it was reasonable for the comment to have had that effect? I find that it was not. The full email was about [NAME_27]’ workload, and it is fair to say she was expressing some level of frustration about how busy she had been during [NAME_26]’s absence and she was running off a list of the things she was currently involved in, one of which was arranging the Claimant’s hearing and that she had made adjustments for it. This was one of many tasks referred to in that email – it was not the only one.

505. The Claimant has referred to the use of brackets and the exclamation [NAME_15], and I can appreciate why the Claimant feels that the use of those should generate an inference that [NAME_27] was sarcastically seeking to downplay the need to make adjustments for the Claimant. Had the email only contained a reference to the Claimant and making adjustments for his hearing, then my conclusion may have been different, however in the context of what was actually written, it is clear to me that [NAME_27] was not downplaying or trivialising the importance of making adjustments for the Claimant, nor was she expressing that his adjustments were a burden, rather she was expressing to [NAME_26] how busy she was.

506. The words used within the legislation as to the type of conduct which amounts to harassment are strong words. When read in context, I do not consider that objectively it would have been reasonable for [NAME_27]’ comments to have violated the Claimant’s dignity, nor for it to have had the proscribed effect because [NAME_27] was clearly listing all of her current tasks and expressing how busy she was.

507. I therefore dismiss the complaint at Issue 6.1.5. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and

106 confidence, either in isolation or cumulatively with any other matter in this case as I find it was neither calculated nor likely to breach that duty. Even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

508. As regards Issue 7.1 the Respondent concedes that that its performance review process was a PCP and that it connected to bonus payments. I have already made a finding that salary increases were not connected to the PDP process, therefore that part of the complaint is not made out.

509. Turning to group disadvantage, I am not satisfied that the PDP put people with Long Covid to a particular disadvantage as there has been inadequate evidence put before me to demonstrate that. The Claimant argues that the people suffering severe levels of fatigue cannot work such long hours (including beyond contractual hours) and are likely to receive lower scores on the PDP process, however I have already found that there was no requirement nor expectation of working longer hours, and I was not provided with evidence of a link between the hours worked and the performance scores. The anonymous staff survey comments were limited and were insufficient to persuade me of any such link, and I preferred the evidence of [NAME_30] and [NAME_26] that there was no such need to work routine long hours, and further there was no link between the number of hours and the PDP scores.

510. I would therefore dismiss the complaint on the basis that group disadvantage had not been established, however I will go further and record that in the Claimant’s case I did not find that he experienced the personal disadvantage either, again because there was no requirement nor expectation to work long hours above contractual hours, and I was not provided with evidence of a link between the two (save for the survey results which were insufficient). The reason for the Claimant receiving the scores he did were due to his perceived lack of visibility and ownership, and this included his failure to attend the Big Picture event, his late cancellation, and his failure to make alternative arrangements – this had nothing to do with his Long Covid. Similarly the Claimant was also perceived to be delivering through others (the network leads and colleagues in HR) and the Respondent formed the view that this demonstrated a lack of ownership form the Claimant – again this delivering through others was not due to the Claimant’s disability.

511. Moreover, at the material time the Claimant’s own contemporaneous account was that he had met or was meeting objectives, as he recorded this in his comments, and he further argued that he should have been marked between a 3 and a 5 (the top score). This does not suggest to me that the Claimant even at the material time considered that he was put to some sort of disadvantage due to his disability – the Claimant’s own account appeared to be that he was not at a disadvantage at all as he met or was meeting the objectives.

512. I therefore dismiss the complaint at Issue 7.1. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and

107 confidence, either in isolation or cumulatively with any other matter in this case. I find that it was not calculated nor likely to breach that duty as the Respondent had reasonable and proper cause for addressing performance concerns. Even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

513. The Respondent had an organisational policy which prohibited posts about the Palestine/Israel conflict. The policy was directed from [NAME_49], but nevertheless it was applied by the Respondent, and as such I find that there was a PCP. This PCP was applied to all staff – it applied to the Claimant, and it applied to those without partners who were Muslim.

514. Any assessment as to indirect discrimination involves a comparative exercise to be undertaken – in this case in the first place there will need to be a comparison between Muslim staff and others, and I am required to determine whether Muslim staff experienced a particular disadvantage in connection with that PCP. Then, if that is made out, I am required to determine whether the Claimant then suffered the same personal disadvantage, not due to him being Muslim, but due to his association with a Muslim person – his partner.

515. I do not find that [NAME_44] caused the group disadvantage in the first place as there was no evidence before me that Muslim staff were any more likely than staff from any other religious group (or those without a religion) to want to comment about the conflict in a post or for a post or a communication to be made.

516. The Claimant was honest before me and agreed that he had no evidence, rather it was an assumption on his part, and that he had no evidence of statistics, complaints or grievances, or any requests from staff to make a post.

517. The Claimant’s case was based upon a bare assumption, and as the Respondent reminds me, this is not a matter from which I can take some form of judicial notice unlike the childcare disparity for example. There is no such equivalence for a matter like this.

518. I am therefore not satisfied that the Claimant has established in the first instance any form of group disadvantage as there was an absence of any evidence, therefore I do not need to go further to look at the issue of personal or same disadvantage through the Claimant’s association with his partner who is Muslim.

519. I have not drawn a negative inference from the Respondent’s decision not to call the CEO to give evidence as the steer from the [NAME_49] was clear from the contemporaneous documents, and the CEO was not the decision maker.

520. I therefore dismiss the complaint at Issue 8.1. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this

108 case. I do not find that the conduct was calculated nor likely to breach that duty, however even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

521. As set out above, the Respondent had an organisational policy which prohibited posts about the Palestine/Israel conflict. The policy was directed from [NAME_49], but nevertheless it was applied by the Respondent, and as such I find that there was a PCP. This PCP was applied to all staff – it applied to the Claimant, and it applied to those without partners who were Palestinian.

522. Again, any assessment as to indirect discrimination involves a comparative exercise to be undertaken – in this case in the first place there will need to be a comparison between Palestinian staff and others, and I am required to determine whether Palestinian staff experienced a particular disadvantage in connection with that PCP. Then, if that is made out, I am required to determine whether the Claimant then suffered the same personal disadvantage, not due to him being Palestinian, but due to his association with a Palestinian person – his partner.

523. Again, I do not find that [NAME_44] caused the group disadvantage in the first place as there was no evidence before me that Palestinian staff were any more likely than staff from any other national group (or those without a religion) to want to comment about the conflict in a post.

524. As I have already indicated, the Claimant was honest before me and agreed that he had no evidence, rather it was an assumption on his part, and that he had no evidence of statistics, complaints or grievances, or any requests from staff to make a post.

525. Again, the Claimant’s case was based upon a bare assumption, and as the Respondent reminds me, this is not a matter from which I can take some form of judicial notice unlike the childcare disparity for example. There is no such equivalence for a matter like this.

526. I am therefore not satisfied that the Claimant has established in the first instance any form of group disadvantage, therefore I do not need to go further to look at the issue of personal or same disadvantage through the Claimant’s association with his partner who is Palestinian.

527. I therefore dismiss the complaint at Issue 9.1. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. As set out above, I do not find that the conduct was calculated nor likely to breach that duty, however even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

10 Direct age discrimination (Equality Act 2010 section 13)

528. At the material time, the Claimant was 33 and he compares his treatment with [NAME_39] who is older than the Claimant. The Respondent accepts

109 that it did not give the Claimant an opportunity to apply for the interim Business Partner Lead role of which [NAME_39] was asked to fill in December 2023/January 2024 and it failed to appoint him to that role in January 2024. As [NAME_39] was appointed to the role, and the Claimant was not, this was less favourable treatment.

529. The Claimant has failed to establish a prima facie case of direct age discrimination so as to shift the burden of proof over to the Respondent to provide an explanation. At its very highest this is a bare assertion about a difference in treatment without the something more needed to conclude that it was due to age. I have formed this view because none of the other staff working in HR (save for [NAME_39]) were considered for that role – the Claimant was not singled out in any way, moreover he was not even in that team at that time. Leaving aside that the Claimant was treated the same as everyone else, there was no evidence to suggest that it was anyone’s age which was the reason for the treatment.

530. I would therefore have dismissed the complaint on the above basis but I have gone further and assumed that the burden had shifted, and I have asked the reason why this occurred.

531. I have accepted the Respondent’s explanation that [NAME_39] was the most senior member of the HR team and deemed the most suitable to be appointed to that role urgently due to [NAME_28]’s increasing workload which meant that she needed to hand over line management duties temporarily. I have accepted that [NAME_39] was a high performer and that she was viewed as being the natural successor to [NAME_28]. Whereas I have not been provided a copy of any succession plan, I accepted the Respondent’s evidence that [NAME_39] was viewed as the natural successor to [NAME_28].

532. I have been referred to the Respondent’s policy which permits appointment to a temporary promotion if there is an obvious candidate, however where there are a number of suitable candidates then a competition should be run. I did not draw any form of negative inference from this as I have accepted the Respondent’s evidence that this was an urgent requirement and [NAME_39] was viewed as being the obvious candidate for the role due to her knowledge and experience and her level of performance. In such circumstances the Respondent’s policy permitted an appointment without a competition.

533. Therefore, even if the burden of proof had shifted to the Respondent, I would have accepted that explanation which had nothing whatsoever to do with age. The decision was based solely on experience and [NAME_39] being a high performer.

534. I dismiss the complaint at Issue 10.1. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The conduct was not calculated nor likely to be breach that duty, but even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

110 535. As set out above, the Respondent accepts that it did not give the Claimant an opportunity to apply for the interim Business Partner Lead role which [NAME_39] was asked to fill in December 2023/January 2024 and it failed to appoint him to that role in January 2024. As [NAME_39] was appointed to the role and the Claimant was not this was less favourable treatment. The Claimant was the only mixed race member of the HR team at that time.

536. The Claimant has failed to establish a prima facie case of direct race discrimination so as to shift the burden of proof over to the Respondent to provide an explanation. At its very highest this is a bare assertion about a difference in treatment without the something more needed to conclude that it was due to race. I have formed this view because none of the other staff working in HR (save for [NAME_39]) were considered for that role – the Claimant was not singled out in any way., and he was not even within that team at the time. Leaving aside that the Claimant was treated the same as everyone else, there was no evidence to suggest that it was anyone’s race which was the reason for the treatment.

537. I would therefore have dismissed the complaint for the above reason, but as set out above, I have gone further and assumed that the burden had shifted, and I have asked the reason why this occurred.

538. I accepted the Respondent’s explanation that [NAME_39] was the most senior member of the HR team and deemed the most suitable to be appointed to that role urgently due to [NAME_28]’s increasing workload which meant that she needed to hand over line management duties temporarily. I have accepted that [NAME_39] was a high performer and that she was viewed as being the natural successor to [NAME_28]. Whereas I have not been provided a copy of any succession plan, I accepted the Respondent’s evidence that [NAME_39] was viewed as the natural successor to [NAME_28].

539. I have been referred to the Respondent’s policy which permits appointment to a temporary promotion if there is an obvious candidate, however where there are a number of suitable candidates then a competition should be run. I did not draw any form of negative inference from this as I have accepted the Respondent’s evidence that this was an urgent requirement and [NAME_39] was viewed as being the obvious candidate for the role due to her knowledge and experience and her level of performance. In such circumstances the Respondent’s policy permitted an appointment without a competition.

540. Therefore, even if the burden of proof had shifted to the Respondent, I would have accepted that explanation which had nothing whatsoever to do with race. The decision was based solely on experience and [NAME_39] being a high performer.

541. I therefore dismiss the complaints at issue 11. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. This conduct was not calculated nor likely to breach that duty, and even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

12 Direct sex discrimination (Equality Act 2010 section 13)

111

542. Again, and as set out above, the Respondent accepts that it did not give the Claimant an opportunity to apply for the interim Business Partner Lead role which [NAME_39] was asked to fill in December 2023/January 2024 and it failed to appoint him to that role in January 2024. As [NAME_39] was appointed to the role and the Claimant was not, this was less favourable treatment. The Claimant is male, and [NAME_39] is female.

543. The Claimant has failed to establish a prima facie case of direct sex discrimination so as to shift the burden of proof over to the Respondent to provide an explanation. At its very highest this is a bare assertion about a difference in treatment without the something more needed to conclude that it was due to sex. I have formed this view because none of the other staff working in HR (save for [NAME_39]) were considered for that role – the Claimant was not singled out in any way, and he was not even a member of the team at that time. Leaving aside that the Claimant was treated the same as everyone else, there was no evidence to suggest that it was anyone’s sex which was the reason for the treatment.

544. I would therefore have dismissed the complaint for the above reason, but as set out above, I have gone further and assumed that the burden had shifted, and I have asked the reason why this occurred.

545. I accepted the Respondent’s explanation that [NAME_39] was the most senior member of the HR team and deemed the most suitable to be appointed to that role urgently due to [NAME_28]’s increasing workload which meant that she needed to hand over line management duties temporarily. I have accepted that [NAME_39] was a high performer and that she was viewed as being the natural successor to [NAME_28]. Whereas I have not been provided a copy of any succession plan, I accepted the Respondent’s evidence that [NAME_39] was viewed as the natural successor to [NAME_28].

546. I have been referred to the Respondent’s policy which permits appointment to a temporary promotion if there is an obvious candidate, however where there are a number of suitable candidates then a competition should be run. I did not draw any form of negative inference from this as I have accepted the Respondent’s evidence that this was an urgent requirement and [NAME_39] was viewed as being the obvious candidate for the role due to her knowledge and experience and her level of performance. In such circumstances the Respondent’s policy permitted an appointment without a competition.

547. Therefore, even if the burden of proof had shifted to the Respondent, I would have accepted that explanation which had nothing whatsoever to do with sex. The decision was based solely on experience and [NAME_39] being a high performer.

548. I therefore dismiss the complaints at issue 12. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The conduct was not calculated nor likely to breach that term, and even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

112 13 Direct associative religious discrimination (Equality Act 2010 section 13)

549. The factual premise of the complaint has been made out. On 8 November 2023, the Respondent, through its Chief [NAME_30], refused to issue an organisation-wide communication addressing the Palestine/Israel conflict, despite the Claimant's request that the Respondent issue a communication substantially similar to the Ukraine/Russia communication issued in 2022. The Claimant accepted that anyone who had asked for a communication to be issued about that matter would also have been refused.

550. However, the Claimant has failed to establish a prima facie case of direct religious discrimination as he not established facts from which I could have concluded, absent an explanation from the Respondent, that the refusal was due to the Claimant’s association with his Muslim partner. There was no evidence at all to support such an assertion.

551. Had the burden of proof shifted to the Respondent to provide an explanation for the treatment, I would have accepted the Respondent’s explanation that it was required to comply with the directive from [NAME_49] not to comment publicly on that conflict. The Respondent was simply complying with and applying that directive – this had nothing whatsoever to do with the Claimant’s association with his Muslim partner, and it was not the reason for the treatment.

552. I therefore dismiss the complaint at Issue 13. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The conduct was not calculated nor likely to breach that duty, and even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

553. The factual premise of the complaint has been made out. On 8 November 2023, the Respondent, through its Chief [NAME_30], refused to issue an organisation-wide communication addressing the Palestine/Israel conflict, despite the Claimant's request that the Respondent issue a communication substantially similar to the Ukraine/Russia communication issued in 2022. As set out above, the Claimant accepted in his evidence that anyone who asked for a communication to issued about that matter would also have been refused.

554. However, the Claimant has failed to establish a prima facie case of direct race discrimination as he not established facts from which I could have concluded, absent an explanation from the Respondent, that the refusal was due to the Claimant’s association with his Palestinian partner. There was no evidence at all to support such an assertion.

555. Had the burden of proof shifted to the Respondent to provide an explanation for the treatment, I would have accepted the Respondent’s explanation that it was required to comply with the directive from [NAME_49] not to comment publicly on that conflict. The Respondent was simply

113 complying with and applying that directive – this had nothing whatsoever to do with the Claimant’s association with his Palestinian partner.

556. I therefore dismiss the complaint at Issue 14. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The conduct was not calculated nor likely to breach that duty, and even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

557. The factual premise of both complaints have been made out. Firstly, on 8 November 2023, the Respondent, through its Chief [NAME_30], refused to issue an organisation-wide communication addressing the Palestine/Israel conflict, despite the Claimant's request that the Respondent issue a communication substantially similar to the Ukraine/Russia communication issued in 2022. Secondly, on 16 November 2023 [NAME_31] refused to publish the Claimant’s [NAME_43] publication on mental health issues related to the Palestine/Israel conflict.

558. This was unwanted conduct as the Claimant would have preferred the organisation wide communication to be made, and he would also have preferred the original version of his article to have been published as well.

559. Neither of these things related to the Claimant’s association with his Muslim partner. In both cases the conduct related to the directive from [NAME_49] not to comment publicly on the conflict as the UK Government position was to remain neutral. It is the conduct which must relate to the protected characteristic, and here it is religion, however in these two cases, the decisions taken by the Respondent were due to the higher directive and nothing whatsoever to do the Claimant’s association with his partner. I do not therefore need to go further and to examine the purpose or the effect of the unwanted conduct.

560. I therefore dismiss the complaints at Issue 15. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The conduct was not calculated, nor likely, to breach that duty, and even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

561. The factual premise of both complaints have been made out. Firstly, on 8 November 2023, the Respondent, through its Chief [NAME_30], refused to issue an organisation-wide communication addressing the Palestine/Israel conflict, despite the Claimant's request that the Respondent issue a communication substantially similar to the Ukraine/Russia communication issued in 2022. Secondly, on 16 November 2023 [NAME_31] refused to publish the Claimant’s [NAME_43] publication on mental health issues related to the Palestine/Israel conflict.

114 562. This was unwanted conduct as the Claimant would have preferred the organisation wide communication to be made, and he would also have preferred the original version of his article to have been published as well.

563. Neither of these things related to the Claimant’s association with his Palestinian partner. In both cases the conduct related to the directive from [NAME_49] not to comment publicly on the conflict as the UK Government position was to remain neutral. It is the conduct which must relate to the protected characteristic, and here it is race, however in these two cases, the decisions taken by the Respondent were due to the higher directive and nothing whatsoever to do the Claimant’s association with his partner. I do not therefore need to go further and to examine the purpose or the effect of the unwanted conduct.

564. I therefore dismiss the complaints at Issue 16. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The conduct was not calculated nor likely to breach that term, and even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

565. The Respondent accepts that the following matters occurred and that they were all unwanted conduct:

566. I will start with the email of 4 April 2023 at 13:50 (Issue 17.2.1). Within that email [NAME_27] is recording that in her view the Claimant’s language was at times focussed on racism. When viewed in context of the full exchange, [NAME_27] is clearly responding to the Claimant’s challenge to

115 his PDP from [NAME_26] and she is setting out her view of the Claimant’s performance and his approach to his work.

567. [NAME_27] could not recall during the hearing what she had in mind when she referenced racism, although she opined it was something due to the Claimant referring to the Police arresting more young black males, and possibly something to do with those from minorities being more susceptible to Covid. Neither of those things were mentioned in the email, and I remind myself that it is the unwanted conduct which must relate to the protected characteristic of race. [NAME_27] is stating that the Claimant’s language was focussed on racism, she is not making any derogatory or negative comments about anyone’s race; and she does not mention anyone’s race at all.

568. As there is no relationship to race whatsoever in the email of 4 April 2023 at 13:50, and I would therefore dismiss the complaint on that basis. However I would further observe that as set out earlier, [NAME_27] did not intend or expect the Claimant ever to see the email therefore I do not find that the purpose of the was to violate his dignity nor to create the proscribed environment.

569. As to whether the conduct did have that effect – I will apply the subjective part of the test first. I find the Claimant to be an honest witness and most of his evidence has been credible. The Claimant tells me that he found the comment deeply demeaning. I accept that evidence from the Claimant, as I have no reason to doubt that is how he felt upon reading that email when it was disclosed to him in August 2024.

570. However, as indicated earlier, I must also apply the objective part of the test and to ask the question of whether it was objectively reasonable for the conduct to have violated the Claimant’s dignity or to have created the proscribed environment for him. I do not find that it would have been reasonable. The Claimant had referenced [NAME_27] in his PDP as one of the people he had assisted. This was shared with [NAME_27] and she gave her view about the Claimant’s performance and his approach to his work. Whereas the Claimant may disagree with her view, I do not find that the language used by [NAME_27] would reasonably cause someone to feel that their dignity had been violated, nor to have created an intimidating, hostile, degrading, humiliating or offensive environment for them. The words in the statute are strong words, and I do not find those words used by [NAME_27] were of a type or at a level which could reasonably violate someone’s dignity nor to create the proscribed environment. I therefore would have dismissed this complaint in any event.

571. With respect to the email of 4 April 2023 at 08:46 (Issue 17.2.2), [NAME_27] referred to the Claimant’s threat to bring a tribunal claim as aggressive and an unnecessary approach. Whereas the Claimant alleges that the comment “perpetuated harmful racial stereotypes about my conduct and motivations”, and was racially charged, and “perpetuated a harmful and longstanding stereotype of Black individuals as threatening or hostile when simply asserting their rights or engaging in advocacy” I do not agree that it did any of those things.

116 572. It is important to read the words used by [NAME_27] and to look at the whole context. I remind myself I am not looking at the reason why (as I would for direct discrimination) rather I am looking at whether the conduct was related to race. The Claimant had been sent his PDP from [NAME_26] on 3 April, and by 4 April 2023 the Claimant replied challenging the contents, and said he had already taken legal advice, and whereas he said he would prefer to resolve the matter informally, he did threaten to bring legal proceedings. [NAME_27] did not accuse the Claimant of being aggressive, [NAME_27] said that the Claimant’s approach was aggressive and unnecessary. At no point did anyone ever accuse the Claimant of being an aggressive person.

573. [NAME_27]’ language did not make any reference, explicit or implied, to the Claimant’s race. It was clear that the trigger for the words used by [NAME_27] was the sudden threat to bring legal proceedings, rather than anything to do with the Claimant’s race. Again, as I have indicated above, it is the unwanted conduct which must relate to the protected characteristic, here it is race. The conduct does not do that – there is no relationship at all to the Claimant’s race in that email and I would therefore have dismissed the complaint on that basis alone.

574. However, I have gone further and addressed the rest of the legal test for harassment. The email did not have the purpose of violating the Claimant’s dignity nor to have the proscribed effect as [NAME_27] did not expect nor anticipate that the email would be released to the Claimant. I then move on to consider whether the email had the effect, and whether it was reasonable for it to have done so.

575. Again, I have no reason to doubt the Claimant’s honesty, and he tells me that the he feels that the comment violated his dignity by drawing on negative racialised tropes. I accept that is how the Claimant felt as I have no reason to doubt him.

576. However, I am not persuaded that it was reasonable for the comment to have had that effect upon the Claimant who was an experienced HR professional, with many years of experience, who had just threatened to sue his employer within 24 hours of receiving his annual appraisal. The comment made by [NAME_27] was expressing surprise and dismay at the Claimant’s sudden approach. As previously noted, the legislation refers to violating dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment, and these are strong words. I do not find that in those circumstances the comment that his approach had been aggressive and unnecessary, was sufficiently serious to have reasonably violated someone’s dignity nor to have created the proscribed environment. I therefore dismiss the complaint at Issue 17.2.2.

577. As regards the complaints at Issues 17.2.3, 17.2.4, and 17.2.5, these all concern the appointment of [NAME_39] to the Business Partner Leads role which no one else in the team, including the Claimant, were considered for.

578. The test for harassment is different to the test for direct discrimination. With direct discrimination the Tribunal is looking at the reason for the treatment. With harassment the Tribunal is looking at whether the treatment related to the protected characteristic, here race. None of these matters,

117 comprising the lack of consultation, the non-inclusion in the recruitment process, and the decision to appoint [NAME_39], had anything whatsoever to do with the Claimant’s race, or anyone else’s race either.

579. There was nothing said, or done, in the appointment of [NAME_39] to the role of Business Partner Leads, which had any relationship at all to race. The Claimant was in precisely the same situation as everyone else in HR who was not consulted, included, or appointed to that role.

580. I therefore dismiss the complaints at Issues 17.2.3, 17.2.4, and 17.2.5 on the basis that the unwanted conduct did not relate to race. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. Whereas the Claimant takes issue with the description of his comments as aggressive and a threat, as well as the reference to having a personal agenda and a focus on racism, this was not conduct which was calculated to breach that duty. I also do not find that it was sufficiently serious to have breached that duty. Moreover, I find that [NAME_27] had reasonable and proper cause for responding as she did as she had been referred to in the PDP by the Claimant and she was giving her opinion from an employee relations perspective which was her role. Even if there was any breach of the implied duty, the Claimant did not resign at the time the historic comments were disclosed to him, thereby affirming any breach.

18 Harassment related to age (Equality Act 2010 section 26)

581. The same three matters as above are relied upon for this complaint – namely the failure to consult the Claimant, the failure to include the Claimant in the recruitment, and the failure to appoint the Claimant to the role of Business Partner Lead.

582. Whereas it is not disputed that these amount to unwanted conduct, none of these matters had any relationship at all to the Claimant’s age. The fact that [NAME_39] is older than the Claimant is not sufficient to meet the test of whether the conduct related to the protected characteristic. I remind myself that I am looking at the issue of whether the conduct related to age (as opposed to the reason why test for direct discrimination).

583. The Claimant was in precisely the same situation as everyone else in the HR team who was not appointed to the role, he was not singled out, and no words or conduct were used which would suggest that this treatment related in any way to anybody’s age.

584. I therefore dismiss the complaints at Issues 18.1.1, 18.1.2, and 18.1.3 as the conduct did not relate to age. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The conduct was not calculated nor likely to breach that implied duty, and even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

19 Harassment related to sex (Equality Act 2010 section 26)

118 585. The same three matters as above are relied upon for this complaint – namely the failure to consult the Claimant, the failure to include the Claimant in the recruitment, and the failure to appoint the Claimant to the role of Business Partner Lead.

586. Whereas it is not disputed that these amount to unwanted conduct, none of these matters had any relationship at all to the Claimant’s sex. The fact that [NAME_39] is female and he is male is not sufficient to meet the test of whether the conduct related to the protected characteristic. I remind myself that I am looking at the issue of whether the conduct related to sex (as opposed to the reason why test for direct discrimination).

587. The Claimant was in precisely the same situation as everyone else in the HR team who was not appointed to the role, he was not singled out, and no words or conduct were used which would suggest that this treatment related in any way to anybody’s sex.

588. I therefore dismiss the complaints at Issues 19.1.1, 19.1.2, and 19.1.3 as the conduct did not relate to age. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The conduct was not calculated nor likely to breach that implied duty, and even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

20 Victimisation (Equality Act 2010 section 27)

589. The Respondent accepts that on 13 March 2024, the Claimant sent the Respondent an email raising issues of pay disparity and that this was a protected act.

590. Part of the factual premise of this allegation has not been made out. It is [NAME_8] that 8 May 2024 [NAME_29] told the Claimant that he was no longer a Senior Business Partner and was HR Business Partner, however this is not entirely accurate. The Claimant had been performing the role of [NAME_55] and he asked to move back to his old role. That role in the former organisation had ceased to exist for some time, and the Claimant was informed that he would be a Business Partner. The job was the same role as the Claimant had originally been employed to perform, save that the organisation was now much larger. None of the Claimant’s terms and conditions or pay changed, all that changed from that original position was that the word senior was absent from the job title.

591. The removal of the word senior, without any other reduction in terms and conditions, is nevertheless something which a reasonable person might consider to be a detriment as it might be construed as a reduction in status and seniority. I therefore find that there was some detriment to the Claimant, albeit a rather limited one.

592. The reason for the treatment is quite clear. The role of [NAME_45] for [NAME_47] ceased to exist when the HR department was the first to undergo the organisational design process. This was something communicated to staff at the time at the [NAME_64] away day in May 2022 two years earlier, and it was something which impacted everyone who was then

119 employed as a [NAME_45]. The Claimant did not challenge it at the time as he was moving to the [NAME_55] role. [NAME_39] and [NAME_105] were then appointed to the roles of [NAME_45] in the new organisation, these were brand new roles in a brand new organisation, and the Claimant had never performed that role for the Respondent.

593. The decision to remove the word senior from the job title was taken years earlier in May 2022, and the Claimant knew about it at the time. Had the Claimant remained in the post at that time he would have lost the word senior from the job title then.

594. There was considerable confusion within the HR department at the time of appointing the Claimant to the [NAME_55] role, with [NAME_28] matching the Claimant to the role permanently and [NAME_30] undertaking a temporary secondment for the same role at the same time. There was no consideration of what would happen to the Claimant at the end of the proposed secondment given that his original role had ceased to exist.

595. The conversation of where to post the Claimant only occurred later because the Claimant had asked to leave his [NAME_55] role and to revert to business partnering. That discussion was triggered because of the Claimant’s request to move roles. It was not brought about because of the Claimant’s protected act where he sent an email about pay disparity.

596. As regards the decision to post the Claimant to the HRBP role, as opposed to a [NAME_45] role, this was because of the decision taken during the organisational design phase (circa May 2022) where those roles within [NAME_47] ceased to exist and the word senior was removed from everyone performing those roles. The discussions between [NAME_29] and [NAME_31], as evidenced in the Teams discussions, demonstrate that the discussion was necessary because there had been no earlier consideration of what would happen when the secondment ended. Those Teams messages do not suggest that the Claimant’s email about pay had anything whatsoever to do with the decision as to what role to appoint the Claimant to.

597. The fact that the decision was taken around the time of the Claimant’s protected act, does not generate any inference that the decision was taken because of that email. The decision was necessary because of the earlier organisational transformation upon the creation of the Respondent, and because there had been no formally recorded decision of what would happen to the Claimant if the [NAME_55] secondment ended. It was clear from the away day at [NAME_64] that the former roles and job titles had ceased to exist, and I find that the decision was because of that organisational redesign – it was not due in any way to the Claimant’s email about pay.

598. I have taken into consideration the email from [NAME_30] where she indicated that the Claimant’s substantive role was [NAME_45]. I am not persuaded that this should draw an inference that the Claimant’s protected act was the reason he was appointed to the HRBP role. It is clear to me that [NAME_30] was referring to the last role the Claimant had been performing prior to the organisational redesign where he took on the [NAME_55] role on secondment. There was nothing more to it than that. I have

120 not drawn a negative inference from the decision not to call [NAME_106] to give evidence as it did not appear to me that it would have taken things any further – clearly there was confusion and inadequate communications in the HR department at the time of the organisational redesign process got underway, and all of this was clear from her investigation report.

599. The decision had nothing whatsoever to do with the Claimant’s protected act, and I therefore dismiss the complaint of victimisation at Issue 20. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. The removal of the word senior from the job title was not calculated nor likely to breach that implied duty, and it flowed from the earlier reorganisation which the Respondent had reasonable and proper cause for undertaking. The only detriment to the Claimant was with respect to the job title, none of his terms and conditions changed. Even if there was any breach of that term, the Claimant did not resign at the material time, thereby affirming any breach.

22 Schedule 5 Employment Act 2002 cases

600. The Respondent has accepted that when these proceedings were begun, the Respondent had been in breach of its duty to give the Claimant an updated statement of employment particulars which reflected that his job title had changed to HRBP from [NAME_45].

601. This complaint succeeds, however I do not find that it was a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with the other matters relied upon by the Claimant.

23 Failure to make reasonable adjustments

602. This complaint has been withdrawn.

24 Victimisation

603. The Respondent agrees that the Claimant did a protected act by bringing claims 3309679/2023 and 3300250/2025. The Claimant alleges that the Respondent failed to mediate workplace relationships and that this was a detriment because he had done a protected act.

604. It is clear that a mediation did not take place. [NAME_41] had advised that resolving workplace difficulties would beneficial for the Claimant to help him return to work, although the report was heavily reliant on things that the Claimant had told them. Both parties took steps to agree a mediation however agreement was not reached.

605. It was clear that the Claimant wanted those he had complained about to take part in the mediation, even though he would not be working directly with them on his return to work. The Claimant appeared to want to go over historic matters, many of which formed the basis of these legal proceedings.

606. The Respondent for its part sought to pursue a forward looking approach whereby the parties would discuss facilitating the Claimant’s return to work. The Respondent was unwilling to involve those the Claimant

121 had complained about, rather it wanted to limit the discussions to getting the Claimant back into work.

607. The Respondent was willing to consider resolving the historic matters, and it indicated that [NAME_198] would need to attend if that is what the Claimant wished to do, and it agree that its lawyer would not take part if it was a discussion about a return to work.

608. There were delays in arranging the mediation. The Respondent did not always respond promptly to some of the Claimant’s emails about the mediation and had to be chased by him on occasion. Similarly, the Claimant also contributed to the delays as his position appeared to change as to what he would agree to. By way of example at the start of the discussions the Claimant was made aware that [NAME_198] would be asked to tael part, and he did not challenge this at the time. Once the Respondent had agreed to some of the Claimant’s preconditions, the Claimant then challenged the attendance of [NAME_198] – this is not something he had raised before.

609. I am however not satisfied that it was the Respondent which failed to mediate to resolve workplace relationships. The Respondent indicated that it was willing to do so but it could not agree to the Claimant’s terms.

610. However, even if the reason the mediation did not take place was due to the Respondent, I am not satisfied that the Claimant was subjected to a detriment as there was no entitlement to a mediation in any event. Whereas mediation is in many cases a good way of resolving disputes, it is entirely voluntary and there was no entitlement for the mediation to take place as per terms preferred by the employee.

611. Moreover, many of the matters the Claimant wished to discuss at the mediation were subject to legal proceedings which the Claimant had chosen to bring. It is entirely reasonable for [NAME_126] to decline to mediate those matters and to allow the legal process commenced by that employee to run its course. There was no obligation upon the Respondent to mediate historic complaints which have since become the subject of legal proceedings, particularly so where the internal grievance process has been exhausted – at least with some of the matters complained of.

612. I would therefore dismiss this complaint because the factual premise of the complaint has not been made out as it was not the Respondent who failed to mediate. However, even if the Respondent had failed to mediate, I am not persuaded that the Claimant was subjected to a detriment as there was no entitlement to do so. Furthermore, the Respondent was entitled to await the outcome of the legal proceedings the Claimant had chosen to bring. In any event, the reason the mediation did not take place was not because the Claimant had brought legal proceedings, it was because the parties had been unable to reach agreement on the scope of the mediation.

613. I therefore dismiss the complaint of victimisation at Issue 24. I further record that this treatment did not amount to a breach of the implied duty of mutual trust and confidence, either in isolation or cumulatively with any other matter in this case. This was conduct aimed at getting the Claimant back to work, and it was not calculated nor likely to breach that duty.

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25 Constructive dismissal

614. As set out above, I do not find that any of the matters at Issues 2-24 were breaches of the implied duty of mutual trust and confidence in isolation.

615. I furthermore do not find that the above matters cumulatively amounted to a breach of that term either. In many of those matters, either the factual premise of the allegation was not made out, or the Respondent had reasonable and proper cause for acting as it did.

616. There were a small number of matters where the Claimant read things written about him which upset him, for example the comments about having made reasonable adjustments for him, and also the comments that his response to the PDP had been aggressive and unnecessary, and that his communications had been focussed on racism. Whereas I do not find that any of them individually or cumulatively amounted to a breach of the implied term, but even if these had been, the Claimant has affirmed that breach by delaying his resignation from August 2024 when these were disclosed to him, until March 2025.

617. Similarly with respect to the change to the job title, this is a matter the Claimant knew about from the away day in May 2022. This did not impact the Claimant until he asked to move from the [NAME_55] role in May 2024, two years later, however he did not resign at that time, instead he waited another 10 months before resigning. Even looking at these matters cumulatively, I do not find that they amounted to a breach of the implied term, but even if they had, it is clear that the Claimant affirmed the [NAME_8] breach by not resigning for many months.

618. Finally, I do not consider that the [NAME_8] failure to mediate could amount to a last straw. Whereas a last straw does not have to amount to a fundamental breach, it must add something to earlier breaches. In this case there were no earlier breaches of the implied term, but even if there had been, the Respondent’s position on mediation did not add anything so as to amount to a last straw. The Respondent had reasonable and proper cause for acting as it did – it attempted to mediate to facilitate a return to work, the parties could not reach agreement on the scope of the mediation, and therefore it did not take place – there was no more to it than that.

619. I do not find that the Claimant was constructively dismissed, and I therefore dismiss the complaint at Issue 25.

620. All of the complaints fail are dismissed.

Time

621. As all of the complaints have failed I do not intend to deal with time points to any great degree.

622. I did not identify any conduct extending over a period (or a discriminatory state of affairs) as the complaints were dismissed on their merits. The

123 Claimant did not address me on the issue of why he says I should grant any extension of time nor to explain any delaying in bringing his claim.

623. Claim 3309679/2023 was brought on 10 August 2023 and raises the complaints at Issues 3.2.1, 3.2.2, 3.2.3, 4.1.1, 5.2.1, and 7.1.1. Anything occurring before 17 March 2023 referenced in that claim was not brought within time.

624. I have found that Issue 3.2.1 was brought more than three months after the acts complained of (together the extension of time for ACAS Early Conciliation), and the remainder of those issues were brought within time. It would not be just and equitable for me to have extended time in any event to have considered the complaint at Issue 3.2.1.

625. Claim 3300250/2025 was brought on 23 July 2024 and raises the complaints at Issue 2, 3.2.4, 3.2.5, 6.1.1, 6.1.2, 6.1.3, 6.1.4, 8.1.1, 9.1.1, 10.2.1, 10.2.2, 11.2.1, 11.2.2, 12.2.1, 12.2.2, 13.2.1, 14.2.1, 15.1.1, 16.1.1, 16.1.2, 17.2.3, 17.2.4, 17.2.5, 18.1.1, 18.1.2, 18.1.3, 19.1.1, 19.1.2, 19.1.3, and 20.1.1. Anything occurring before 1 March 2024 referenced in that claim was not brought within time.

626. I have found that Issues 2 and 20 were brought within time, and the remainder of the Issues identified in the paragraph above were brought more than three months after the act complained, and as such have been brought out of time. It would not have been just and equitable for me to have extended time for those complaints in any event.

627. The matters complained of at Issues 17.2.1 and 17.2.2 did not come to the Claimant’s attention until 30 August 2024 when he received the results of his subject access request. The Claimant raised these matters with the Tribunal at the time of the first preliminary hearing on 25 September 2024, and I find that they were raised in time although they were not fully clarified at that time.

628. The Claimant was granted permission on 16 July 2025 to add complaints about constructive unfair dismissal (Issue 25) and victimisation (Issue 24). The Claimant’s employment ended on 25 March 2025. The decision granting permission does not indicate if time limits were considered. I have not been addressed on these matters, and in any event those complaints failed and have been dismissed, I therefore do not address those matters further.

Remedy

629. Whereas the complaint of a failure to provide the Claimant an updated statement of employment particulars succeeded, no award is due to the Claimant because he has not succeeded with respect to any claim listed within Schedule 5 of the Employment Act 2002.

630. I thank [NAME_199], for the manner in which they cooperated and conducted themselves before me during this hearing, and the respect shown to the Tribunal, as well as the very high quality of their work.

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Approved by:

Employment Judge Graham 18 May 2026

JUDGMENT SENT TO THE PARTIES ON 27 May 2026

FOR THE TRIBUNAL OFFICE

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found here:

www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation- practice-directions/