Employment Tribunal Rules in favour of Disabled Employee’s Claims

OUTCOME: Allowed in [NAME] numbers; 2216635/2023 and 6005160/2024 v3 10.2.25 1

EMPLOYMENT [NAME]: [APPELLANT]

Respondent: [redacted]

[NAME] (Hybrid) On: 7, 8, 9, 10, 13, 14, and 15 October 2025 Before: Employment Judge [NAME] [NAME]:

[NAME]: [APPELLANT] Respondent: [redacted] The unanimous judgment of the Tribunal is as follows:

Indirect discrimination

1. The complaint of indirect disability discrimination is well-founded and succeeds.

Failure to make reasonable adjustments for disability

2. The complaint of failure to make reasonable adjustments for disability is well- founded and succeeds.

Victimisation

3. The complaint of victimisation is not well-founded and is dismissed.

[NAME] numbers; 2216635/2023 and 6005160/2024 v3 10.2.25 2

Reasons

Background

4. This claim was listed to be heard over six days, to determine liability only. As matters turned out, a further day had to be added to the hearing to include additional time for the Tribunal to consider its decision and to prepare its judgment.

5. The first day of the hearing consisted of Tribunal reading in and applications by the [NAME] to amend the list of issues which were substantively opposed by the respondent. In short, this claim results from two consolidated claims. The first claim was presented on 20 November 2023. On 7 February 2024, the [NAME] filed amended grounds of complaint and permission to amend was granted at a preliminary hearing on 14 February 2024. The respondent has filed various responses to this claim. The second claim was presented to the Tribunal on 4 July 2024 the claims were consolidated on 19 September 2024.

6. The [NAME] applied to clarify the list of issues. It was put by Mr [NAME] that this was to properly reflect the content within the [APPELLANT] pleadings, content that had been responded to by the respondent and therefore it could not be said that the respondent would be prejudiced by the amendments or clarifications sought. Specifically, issue 4.4 (the ‘particular disadvantage’) in order to add in words reflecting the fact that it was the [APPELLANT] position that he was placed at a higher risk of contracting COVID-19. It was explained that it was clear from the [APPELLANT] [NAME] that this was an issue or a matter that was highly relevant as to why he wanted to work from home. This was opposed by the respondent on the basis that it had not been specifically pleaded. The Tribunal granted the amendment on the basis that it appeared obvious that this was what the [APPELLANT] was alleging in his claim and, moreover, the respondent’s witnesses

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had understood this to be the [APPELLANT] [NAME] as they had addressed it in their witness statements and in the respondent’s responses.

7. Further amendments or clarifications in respect of 4.4(b) (‘particular disadvantage’, ‘[NAME]’) and 5.2 of the list of issues (‘substantial disadvantage’) were unopposed by the respondent and were granted by the Tribunal on the basis that they did not amount to a substantive amendment, rather clarification of the issues that will assist the Tribunal in reaching its decision in circumstances where the respondent was not prejudiced by the amendment.

8. In support of his claim, the [APPELLANT] gave evidence and had prepared a detailed witness statement setting out his claims. It was clear to the Tribunal that the evidence the [APPELLANT] provided reflected his perception that the respondent had conducted itself unfairly or unjustly towards him. While the Tribunal found him to be largely a credible and reliable witness, the Tribunal nonetheless found his evidence sometimes difficult to follow even when allowing for the fact that English is not his first language. At times, the [APPELLANT] was prone to answering his own questions and was unnecessarily combative. That said, there are also examples of where the [APPELLANT] evidence undermines his own [NAME], for example and as will be seen below, in respect of the allegation of victimisation concerning the failure to progress his loan application, it can be seen at the [APPELLANT] himself does not progress the loan despite his assertion that it was urgent and necessary for him. As an example of the Tribunal’s inability to understand the [NAME]’s [NAME] it is not clear why the [NAME] refused to engage with the respondent’s proposal made during the course of the meeting he had with Mrs [NAME] or why it was objectionable to him.

9. Mrs [NAME] is an HR advisor and was responsible for managing the [NAME]’s flexible working request. The Tribunal found her to be sometimes inconsistent and unreliable given that to a large number of questions around facts germane to the issues in the claim she was unable to recollect what had

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been said or done at key times. She was clear in her oral evidence that the decision to not offer the [NAME] the flexible working arrangement that he sought was Mr [NAME] and that the departure from its own policies particularly in respect of the processing of the [NAME]’s flexible working request were her responsibility. However, she was unable to provide a reason as to why the departures (not providing a response within time and not reporting to the [NAME] at all during the course of the process) occurred.

10. Mrs [NAME] is a senior HR officer whose evidence was accepted by the Tribunal as being reliable and honest.

11. Mrs [NAME] manages Mrs [NAME] and Mrs [NAME] in her role as HR manager. The Tribunal found her to be largely credible and reliable witness although it is clear from her cross-examination that on occasions she had to be pushed to provide the answer. An example of this could be seen within the response that she prepared in respect of the [NAME]’s grievance and specifically when addressing the issue of the delay of 16 months that occurred between the [NAME]’s submission office flexible working request and the outcome. For reasons that shall be set out in detail below, the Tribunal find that not only did Mrs [NAME] fail to provide full details of the reasons behind the delay in her response but sought to rely on the [NAME]’s absences from work as being the predominant reason for the delay when in fact there were other significant matters at play including the fact that Mrs [NAME] was not progressing the flexible working request.

12. Mr [APPELLANT[NAME] is the [NAME]’s line manager and the subject of criticism by the [NAME]. The Tribunal found him to be a consistent and reliable witness. It was clear from the evidence presented to the Tribunal that he was empathetic to the [NAME]’s personal needs as well as the demands placed upon the [NAME] of his health conditions. He applied a soft approach when deciding upon the [NAME]’s absences and the absences of his co-workers. At

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times in evidence he was prone to a literal interpretation of language and as such the Tribunal observed that he was prone to not observing nuance on occasion.

13. Mr [NAME] is the group Chief Financial Officer and the person responsible for its systems. He is Mr [NAME] line manager. The Tribunal found him to be a reliable, consistent and honest witness in his evidence was accepted in its entirety.

14. This is a claim where there are relatively few factual issues that are in dispute. Those issues that are in dispute and are material to the Tribunal’s findings are addressed in the Tribunal’s findings below.

15. The [NAME] commenced employment with the respondent on 3 March 2014 as an account supervisor. The respondent is part of the [RESPONDENT] and [COMPANY], a Saudi state backed publishing business with approximately 2700 employees globally. The [NAME]’s job involves establishing financial reports, supervising accounts assistance, monthly reporting, production of financial statements, developing and deploying accounts, payroll, monthly PAYE and VAT returns, monitoring cash flow and associated duties. At times material to this claim, he reported to Mr [RESPONDENT[NAME], the respondent’s Head of Finance and Administration and the [NAME]’s line manager.

16. In 2001, the [NAME] was diagnosed with irritable bowel syndrome and specifically [APPELLANT] disease. Initially, the [NAME] reports that his symptoms were mild and he was able to manage day-to-day activities with little or no impact.

17. At the start of his employment, the respondent was located in Holborn central London, moving to a location in [ADDRESS], West London. The consequent effect of this move meant that the [NAME] had to travel further to attend work. The [NAME] worked 9.30 to 6.30 Monday to Friday and it is not in dispute

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between the parties that the [NAME] was able to work in the office full-time or take sick leave or time off work in relation to his [APPELLANT] disease diagnosis.

18. In February 2017, the [NAME] informed the respondent that he suffered from [APPELLANT] disease after developing a gastro-intestinal ulcer that required hospitalisation. [NAME], senior HR adviser, arranged for an [NAME] assessment to be undertaken in respect of the [NAME] with the stated purpose of assessing the [NAME]’s medical condition and to see if any adjustments could be made to the [APPELLANT] mode of working. It is the [APPELLANT] [NAME] that he was not provided with the [NAME] report that resulted on 15 March 2017 produced by Dr [APPELLANT]. Dr [APPELLANT] advised the [NAME] had a chronic re-occurring condition with variable presentation. It was his view that the [NAME] was disabled within the meaning of the Equality Act 2010 (EQA). The report did not identify any reasonable adjustments that needed to be made in respect of the [APPELLANT] working at that time.

19. The [NAME] reports that over time his condition started to cause him increased difficulties, requiring him to take time off work when he was too unwell to work.

20. During the COVID-19 pandemic from March 2019 to January 2022, the [NAME] reports that he worked from home full-time and was able to do so and manage his condition. He reports that he took approximately seven days off with sickness in those two years as a result of his ability to better manage his health conditions whilst working from home.

21. On 14 January 2022, the respondent’s HR manager Mrs [APPELLANT] requested that the [NAME] attend the second [NAME] assessment, something the [NAME] felt was unnecessary in light of the report prepared in 2017 and given that to his mind there had been no change in his diagnosis.

[NAME] numbers; 2216635/2023 and 6005160/2024 v3 10.2.25 7

22. Shortly thereafter on 25 January 2022 and once the COVID-19 restrictions had eased, Mrs [NAME] sent a company-wide email to all staff directing all all staff to return to the office by 15 February. Until this point (and since the start of the national lockdown) all of the respondent’s employees had been working from home.

23. The [NAME] replied to this email on 31 January 2022 to request a continuation of his ability to work from home on the basis that his medical condition placed him n the high-risk category for contracting COVID-19. Mrs [NAME] discussed this response, along with some others which she had received with Mr [NAME]. Also at this time, she reviewed health and safety measures implemented by the respondent to ensure that they were compliant with the Government’s recommendations in force at that time. It is Mrs [NAME] unchallenged evidence that despite being satisfied that appropriate safety measures were in place, the respondent did not enforce a return to their offices by the date of 15 February 2022 as set out in her email of 25 January 2022. The [NAME] continued to work from home.

24. Mrs [APPELLANT] recalls that the [NAME] was often absent due to sickness in or around March 2022. On 6 June 2022, the [NAME] approached her informally seeking advice on how to request hybrid working. She explained to the [NAME] the respondent’s Flexible Working Request process and provided him with the relevant form to complete. On 22 June 2022 the [NAME] submitted a flexible working request on the basis that he wanted to work from the office on two days per week and work from home on the remaining days of the week. The [NAME] paused the request on 29 June and then resumed the application on 1 July 2022. Prior to this point, the [NAME] had not been aware that he could request flexible home working.

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25. On 8 June 2022 the [NAME] sent a copy of a letter he had received from his GP, Dr [APPELLANT] to the respondent confirming that the [NAME]’s medical conditions were such that he remained at high risk of serious illness if he were to contract COVID-19. Dr [APPELLANT] emphasised that the [NAME] would benefit from hybrid working as this would reduce the risk of him becoming infected with COVID-19.

26. Mrs [NAME] took over matters relating to the second [NAME] report instigated by her manager Mrs [NAME] and the flexible working request. She received the [NAME] report of Dr [RESPONDENT] on 28 June 2022. The respondent’s Employee Handbook states at paragraph 6.5 flexible working request should be considered within 28 days of receipt with the respondent providing its response in writing within 14 days. It is not in dispute that the respondent failed to comply with these obligations.

27. It is not disputed that shortly after the [NAME] commenced periods of intermittent, long-term sickness absence. The respondent relies on these absences as the reason why the outcome to the flexible working request was delayed (see more below). In cross examination, Mrs [NAME] went further and said that there were other contributory factors such as the fact that she had only recently returned to work for the respondent, was working part-time and had other things going on both personally and professionally that distracted her from the [NAME]’s request.

28. Mrs [APPELLANT] discussed he request to Mr [APPELLANT] but not the [NAME] and did this while aware of the policy’s requirement that this should happen. She explains that this is because, ‘we are conscious that the practicalities of any flexible working request need input from both the employee making the request and from their line manager. This is so that everyone is clear about how the arrangements might work on a day-to-day basis and about the practical implications if the request is agreed’. Having reviewed and considered the report and, thereafter

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discussing the report with Mr [NAME] and Mrs [NAME], Mrs [NAME] states that she considered it would be best to accommodate the request by way of an initial trial period of an arrangement whereby the [NAME] could work from home as and when he experienced a flare-up of his symptoms. Further, was Mr [APPELLANT] concerns were that it was not appropriate for the [NAME] to be working from home when he was unwell. It was his view that no team member should work from home when unwell.

29. The parties place reliance on different aspects of this second [NAME] report. The [NAME] says that the report confirms that the his condition is aggravated by stress, often leading to increased severity and frequency of flareups. Further, that the [NAME] receives injections for his condition at the beginning of each week and that they provide relief on the first two days of the week with symptoms increasinglyaffecting him on the last three days of the week. During the course of a flareup, the report identifies the adjustments of being close to the toilet, of allowing the [NAME] to work from home when a flareup is bad and otherwise being flexible as to the [NAME]’s needs.

30. On the other hand, the respondent places emphasis on the report’s observation that the [NAME] would benefit from working flexibly from home

31. As far as the [NAME] was concerned, he was of the view that there was no substantive reason why he could not carry out his role from home. In evidence, he points out that during the pandemic he worked successfully from home without attending the office. He points out that there were no difficulties during this time or issues raised with regards to his performance.

32. The respondent places emphasis on the following parts of the report:

“Summary of fitness to work/recommendations:

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Mr [APPELLANT] is fit to be in his role. He finds some aspects of the role quite stressful but can usually manage well. I would advise that the causes of his work-related stress be addressed. The nature of the condition would make an agreement for flexible working from home much easier, so that if he has a flareup, he can still work from home instead of going off sick. It is appreciated that any modifications or adjustments to his normal substantive role is a management decision based on feasibility and other business and operational considerations.”

33. [NAME] relies on the evidence of Mrs [NAME], Mrs [NAME] and Mrs [NAME] to make the point that it had identified the benefit of reaching agreement with the [NAME] regardingflexible working from home on the occasions that the [NAME] required this adjustment.

34. The [NAME] says in support of his proposed flexible working request that there are others in the office who work from home. However, it is not in dispute that none of the other people the [NAME] identifies as working from home on a hybrid basis worked within the same team as he did.

35. The [NAME] points out that within his home environment he is able to manage his condition as he has access to medication and to a toilet. He can also take rest breaks and move around as needed when sitting becomes painful. This is important because he describes that [NAME] disease causes sudden and uncontrollable bowel movements, severe abdominal pain and fatigue which can make it impossible to wait for scheduled breaks or follow rigid break patterns. The [NAME]’s evidence is that the position changes when he gets to the office. It is his disputed evidence that the nearest suitable toilet is located far from his desk which poses a consequential concern and challenge during flareups when urgency and speed are critical. The [APPELLANT] says that the toilets within the office is a standard facility and does not in his view meet the specific medical or hygiene requirements necessary for managing [NAME] disease. He says that there is only one disabled access toilet available on the entire floor and that the

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toilet is often occupied or unavailable when urgently needed. He describes that on occasion the toilet facilities were unclean, or otherwise inadequate for the management of his condition which sometimes requires the administration of medication including injections to manage bleeding episodes. The [NAME] says that the lack of suitable facilities and flexibility of work, ‘severely affects my ability to manage my condition with dignity and may risk triggering or worsening symptoms’.

36. The entirety of the [NAME]’s criticisms in relation to the toilet facilities available within the [NAME] are disputed. In evidence, Mrs [APPELLANT] and Mrs [APPELLANT] pointed out that the [APPELLANT] had not raised with them any issues that he had in relation to the toilet facilities at the [NAME]. It is also the [NAME] that the [APPELLANT] criticisms of the toilet facilities do not of themselves form part of the issues in this [NAME]. Understandably, therefore, the evidence of the respondent’s witnesses do not address what the [APPELLANT] has to say about them in his witness statement.

37. The [APPELLANT] continued to work whilst waiting for the outcome of his flexible working request. It is also the [NAME] that he had a number of periods of sickness absence.

38. On 1 July 2022, the [NAME] requested a meeting with HR and his line manager Mr [NAME] to discuss his role following the departure of a colleague and the [NAME]’s desire to discuss handover and other related matters.

39. On 12 July 2022, the [NAME] was invited to an investigation meeting from Mr [APPELLANT]. This was due to allegations of disrespectful behaviour and the failure to follow reasonable management instructions that Mr [APPELLANT] had raised against the [NAME]. The [APPELLANT] asserts that the allegations are baseless and the investigation remains ongoing. He asserts that they were an act of retaliation against him for raising concerns about his contracted duties in June 2022. Mr

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[NAME] says in his witness statement that there had been a number of occasions where in his view the [NAME]’s behaviour towards him was unacceptable. This included the claim of being at times confrontational, not following reasonable management requests and speaking disrespectfully. Mr [NAME] says that he made reports on 18 March 2022 and 22 June 2022 to the HR team on each occasion citing instances where he considered that his concerns about the [NAME] had been confirmed and indicating his desire to have the matter investigated.

40. An investigation meeting took place on 27 July 2022. During the course of that meeting Mrs [APPELLANT] presented emails and other information to the [NAME] that Mr [APPELLANT] had identified as supporting his concerns. Matters were left with the [NAME] so that he could consult with his union representative in order to answer written questions that had been presented to him.

41. The [NAME] then had a period of sickness absence returning to work in April 2023. He provided Mrs [NAME] answers to the questions she had asked of him on 22 May 2023.

42. At some point in May 2023 the [NAME] had an informal meeting with his line manager, Mr [APPELLANT]. The meeting is important insofar as the claim is concerned. The [NAME] says that during the course of this meeting he chased his request for flexible working which had been made the previous year and its status. Mr [NAME] has a different recollection and says the following was discussed:

“Around May 2023, when the [NAME] was back in work, the [NAME] again raised his personal circumstances with me in respect of his home life. At this time, I advised him that I would be as flexible as possible with any requests that the [NAME] had to work from home as long as he provided me with notice of this. For example, on 6 and 7th June 2023, the

[NAME] numbers; 2216635/2023 and 6005160/2024 v3 10.2.25 13

[APPELLANT] had requested to work from home due to a family matter and I was happy to agree his request. Around this time, many of the Company’s staff had returned to office-based working and all of the accounts team (including myself) were working from the office on a full-time basis.”

43. In evidence, [NAME] was clear that the reference to personal circumstances was not in relation to the [NAME]’s medical condition and anything to do with his request for flexible working. He was cross examined about his recollection of this meeting by Mr [APPELLANT], the [NAME]’s [APPELLANT]. He was clear in oral evidence as to the content of the discussion between the two men during the course of this meeting.

44. On 22 June 2023, the [NAME] messaged Mr [APPELLANT] to ask if he could work from home. In his witness statement, the [NAME] says that he did this because he was experiencing a flareup of his [NAME] disease. Mr [APPELLANT] position is that he had not understood the [NAME] was communicating around his [APPELLANT] disease. Based upon his understanding at the time, the [APPELLANT] request was refused because, contrary to the terms of an agreement reached between the two men during the course of the meeting in May 2023, the [NAME] was required to provide advance notice when he wanted to work from home and because Mr [APPELLANT] held the view that if the [NAME] was unwell he should not be working. The [NAME] accepted in the same exchange that the request he was making at this time did not reflect the agreement reached.

45. The [APPELLANT] [NAME] here is that it was obvious or clear that the purpose behind this request was related to his disability. Further, that the requirement to provide notice in advance of absences from the office due to his disability amount to the imposition of a practice, criterion or provision (PCP) which adversely affects the [APPELLANT] as a consequence of it imposing upon him a manifest disadvantage. At

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paragraph 33 of his witness statement, the [APPELLANT] says, ‘in addition [APPELLANT] flareups cannot be predicted or planned for, I can only notify my manager when I am experiencing one. Flareups involve a sudden onset, they can range from mild to severe, and can last from days to weeks. My symptoms include abdominal pain, bleeding which can result in fissures to the abdomen which is additional to the bleeding caused by [NAME] flareups, and fatigue. During a flareup I always require close access to a toilet and must manage my pain with medication’.

46. The [NAME] says that as a result of his request being denied he attended the office and that resulted in his symptoms being worsened.

47. On 8 September 2023, the [NAME] contacted ACAS and started early conciliation in relation to the first claim in these proceedings which relate to the claims of indirect discrimination on the basis of disability and failure to make reasonable adjustments. On 28 September 2023, the [NAME] lodged a formal grievance based on the same reasons. The allegation of a failure to make reasonable adjustments in respect of his disability was based upon what the [NAME] had identified that the [NAME] report had identified possible reasonable adjustments, .

48. On 9 October 2023, the [NAME] received a letter from Mrs [APPELLANT] concerning the disciplinary matters she had been tasked to investigate. The [APPELLANT] was invited to attend a disciplinary meeting to take place on 12 October 2023. Subsequently, the [NAME] asked for the meeting to be delayed to allow for the attendance of his union representative. It remains the [NAME] that the meeting has not been rescheduled.

49. The [NAME] received a letter from Mrs [APPELLANT] dated 18 October 2023 stating that his request for flexible working had been refused. Mrs [NAME] says that her decision to refuse the request was based upon her finding that the [NAME] report supported flexibility in managing the [APPELLANT] condition within the

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workplace, and took into account the view of his line manager as well as those of her line manager, Mrs [NAME], as the practical implications of the flexible working arrangement proposed by the [NAME]. The [NAME] appealed the outcome on 24 October 2023.

50. On 6 November 2023, the [APPELLANT] attended a grievance meeting with [APPELLANT] [NAME], an external independent investigator. Thereafter, the [NAME] presented his claim (claim one) to the employment Tribunal on the grounds of a failure to make reasonable adjustments and victimisation. Shortly after that, on 4 December 2023, the [NAME] received a report arising from his grievance upholding aspects of his grievance including a finding that the respondent had failed to follow up and review his [NAME] assessments, and had failed to consider reasonable adjustments for him. It also found that the respondent’s flexible working policy had not been adhered to.

51. Mrs [APPELLANT] met the [NAME] on 8 December 2023 in place of Mrs [APPELLANT] who was unavailable at that time. During this meeting, the [NAME] was offered a temporary arrangement to accommodate his request for flexible working. A transcript of this meeting is in the bundle before the Tribunal and it can be seen that the [NAME] did not agree with the proposal being put forward to him. He was not happy with the proposal that the arrangement that was to be put in place was not the one that he had requested, namely two days in the office and three days at home, and that the proposal was to be a temporary one with a review.

52. It is the [APPELLANT] [NAME] that this was the same arrangement that he had been offered in June 2022 which was not successful due to the fact that he finds it difficult or sometimes impossible to provide advance notice of symptoms related to his [RESPONDENT] disease. The respondent’s [NAME] is that the proposal put to the [NAME] by Mrs [APPELLANT] during this meeting did not require him to provide notice , did not require him to work from home 3 fixed days a week nd therefore was more advantageous than the arrangement that he was seeking. The [NAME]

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appealed against his grievance and against the outcome of his flexible working request on 15 December 2023.

Victimisation

53. The [APPELLANT] alleges two allegations of victimisation.

54. In the first allegation, the [APPELLANT] identifies the delay in communicating to him the outcome of an application for a loan that he made by his line manager. The detail of the allegations is addressed in the findings below and are not repeated here.

55. The [APPELLANT] makes a further allegation of victimisation arising out of what he considers to have been restricted access provided to him to a new accounting software package, Enterprise Resource Planning System (ERP). He identifies both in his evidence and in the course of his oral evidence that someone who he considered to be as subordinate had been provided with superior access rights to the software. Consequently, the [NAME] made enquiries of his manager as to why this had occurred and says that he received no response. He believes that he has been victimised as a result of raising a grievance and to bringing the claim of disability discrimination and a failure to make reasonable adjustments because he says that he could not carry out his role with limited level access to ERP.

56. The respondent’s [NAME] is that there has been a trial of a new accounting software, that the subordinate identified by the [NAME] is someone who is seen as a keen adopter of new software and was capable of championing the software internally within the accounts team. The respondent points out in any event the software has not been implemented and does not form part of the work of the accounting department and that the [NAME] has and has always had access to [NAME], the accounting system that the Respondent uses Further, the [NAME]

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accepted in evidence that he was not prevented from undertaking the ful extent of his role while ERP was being tested.

Issues

First ET1 1.1 Given the dates the first ET1 was presented (20 November 2023) and the dates of early conciliation (8 September 2023 to 20 October 2023), any complaint about something that happened before 10 July 2023/9 June 2023 may not have been brought in time. 1.1.1 The Respondent accepts that the victimisation claims identified within the first ET1 were presented in time. 1.1.2 It is not accepted that the complaint about the failure to make reasonable adjustments was presented in time.

1.2 Was the complaint of discrimination made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide: 1.3 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 1.4 If not, was there conduct extending over a period? 1.5 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.6 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:

1.6.1 Why were the complaints not made to the Tribunal in time? 1.6.2 In any event, is it just and equitable in all the circumstances to extend time? Second ET1

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1.7 The second ET1 was presented on 4th July 2024. The [NAME] contacted ACAS a second time and the dates of conciliation on that occasion were 3rd May 2024 to 14th June 2024. The Tribunal will decide:

1.7.1 Was the [NAME] required to obtain a second ACAS certificate in order to bring a second set of proceedings? 1.7.2 If not, how does that affect the calculation of the limitation period, taking into consideration the extension of time provisions at s.207B ERA 1996?

The Respondent shall submit that the second ACAS certificate was not necessary and therefore the extension of time provisions at s.207B ERA do not apply when calculating the limitation period.

1.7.3 If the second certificate was necessary, then any complaint about something that happened before 1 March 2024/4 February 2024 may not have been brought in time. 1.7.4 If the second certificate was not necessary, then any complaint about something that happened before 5 April 2024 may not have been brought in time.

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

1.8.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates? 1.8.2 If not, was there conduct extending over a period? 1.8.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period? 1.8.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:

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1.8.4.1 Why were the complaints not made to the Tribunal in time? 1.8.4.2 In any event, is it just and equitable in all the circumstances to extend time?

Indirect discrimination (Equality Act 2010 section 19) 3.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP: 3.1.1 Requiring all employees to routinely work full time from the office rather than from home? ([NAME]) 3.1.2 Requiring employees to give advance notice as a prerequisite before allowing them to work from home? ([NAME]) 3.2 Did the respondent apply the PCP to the [NAME]? 3.3 Did the respondent apply the PCP to persons with whom the [NAME] does not share the characteristic, or would it have done so? 3.4 Did the PCP put persons with whom the [NAME] shares the characteristic (his disability) at a particular disadvantage when compared with persons with whom the [NAME] does not share the characteristic in that:

3.4.1 - He was, on some occasions, uncomfortable at work and unable to properly manage his symptoms and, on other occasions, unable to come in to work (and would lose pay if this was over an extended period);

3.4.2 – He was placed at a higher risk of catching COVID-19 and at a higher risk of becoming seriously ill from such an infection; and

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3.4.3 – He was not able to provide advance notice of when he needed to work from home. The [NAME] could sometimes feel well enough to attend the office in the morning and then suffer a flare-up whilst in the office. 3.5 Did the PCP put the [NAME] at that disadvantage? 3.6 Was the PCP a proportionate means of achieving a legitimate aim? The respondent will say that the legitimate aim of any PCP (no such PCP being admitted) is: 3.6.1 the security of the Respondent’s financial information, and 3.6.2 the need to ensure work across the Accounts Department is appropriately planned and distributed. 3.7 The Tribunal will decide in particular: 3.7.1 was the PCP an appropriate and reasonably necessary way to achieve those aims; 3.7.2 could something less discriminatory have been done instead; 3.7.3 how should the needs of the [NAME] and the respondent be balanced? Reasonable Adjustments (Equality Act 2010 sections 20 & 21) 4.1 A “PCP” is a provision, criterion or practice. Did the respondent have the following [NAME]: 4.1.1 Requiring all employees to routinely work full time from the office rather than from home?

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4.1.2 Requiring employees to give advance notice as a prerequisite before allowing them to work from home? 4.2 Did the [NAME] put the [NAME] at a substantial disadvantage compared to someone without the [NAME]’s disability, in that he

4.2.1 Needed to be near a toilet, and 4.2.2 Needed to be at home sometimes, to properly manage his symptoms? 4.2.3 He was at a higher risk of catching COVID-19 and at a higher risk of becoming seriously ill from such an infection. 4.3 Did the respondent know or could it reasonably have been expected to know that the [NAME] was likely to be placed at the disadvantage? 4.4 What steps could have been taken to avoid the disadvantage? The [NAME] suggests: 4.4.1 The respondent could have allowed the [NAME] to routinely work from home for three days a week, without the need to give advanced notice, as per his flexible working request. 4.5 Was it reasonable for the respondent to have to take those steps? 4.6 Did the respondent fail to take those steps? 4.7 Did the respondent comply with any duty to make reasonable adjustments by permitting the [NAME] to work from home as and when he needed to, with or without a requirement to give advanced notice, by reason of his disability? If so, when was that adjustment first communicated to the [NAME]? Victimisation (Equality Act 2010 section 27)

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5.1 Did the [NAME] do a protected act as follows: 5.1.1 Submit a grievance on 28 September 2023? 5.1.2 Submit the ET1 in relation to these proceedings on or about 20 November 2023? 5.1.3 Start the ACAS early conciliation period 8 September – 20 October 2023? 5.2 Did the respondent do the following things: 5.2.1 Mr [APPELLANT] delay in responding to the [NAME]’s request for a loan made on 18 October 2023. Mr [APPELLANT] did not respond until 29 November 2023. 5.2.2 not providing the [NAME] with the necessary access to the respondent’s accounting system (ERP system)? 5.3 by doing so, did it subject the [NAME] to detriment? 5.4 if so, was it because the [NAME] did a protected act? 5.5 was it because the respondent believe the [NAME] had done, or might do a protected act? Law 57. There is little dispute between the parties as to the relevant law that applies to the issues before the Tribunal. The parties do rely on different authorities to make the points set out below are the legal principles of the Tribunal has addressed its mind to in reaching its decision on liability.

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Legal Principles on Limitation Section 123 [NAME] 123 of the [NAME], so far as relevant, provides:

“(1) ----------- 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. ------------------- (3) For the purposes of this section— ------------------------------- (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something— (a) when [NAME] does an act inconsistent with doing it, or (b) if [NAME] does no inconsistent act, on the expiry of the period in which [NAME] might reasonably have been expected to do it.”

Breach of the duty to make reasonable adjustments Section 20 Equality Act 2020 provides, so far as relevant: … (2) The duty comprises the following three requirements (3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage…

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‘PCP’ should be construed widely: it may include one-off decisions/actions as long as there is some indication that the same decision or action would be repeated if similar circumstances arose ([NAME] v [NAME] for London [2020] ICR 1204 (CA)).

It is necessary for a Tribunal to identify the nature and extent of any alleged disadvantage suffered and to determine whether that disadvantage is because of disability. In order to do so, the Tribunal should consider whether the employee was substantially disadvantaged in comparison with a non-disabled comparator. If the PCP would affect a [NAME] in the same way as a disabled person, then there is no comparative substantial disadvantage (Newcastle Upon Tyne Hospitals NHS Trust v Bagley (2012) UKEAT/0417/11/RN at para 72). However, it is important to identify the PCP correctly before carrying out that comparison ([NAME] v Secretary of State for Work and Pensions [2016] IRLR 216 (CA)).

To be a reasonable adjustment, a proposed step must actually remove or reduce the disadvantage: carrying out assessments, trial periods, and discussing, considering or offering adjustments are not adjustments in themselves and there is no duty on an employer to engage in them ([NAME] v Sainsbury Supermarkets Ltd [2006] IRLR 664 (EAT)).

Whether a particular step would be effective in avoiding the substantial disadvantage is relevant to the question whether it would be reasonable to have to take it. If its effectiveness is uncertain, that is one of the factors to be weighed in assessing reasonableness. Other matters to take into account include (EHRC Code of Practice on Employment (2011), para 6.28):

a. Practicability; b. Financial and other costs, and disruption to the employer, considered in the context of the financial and other resources available to the employer; c. The nature of the employer’s activities and the size of the undertaking.

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It is an objective question whether a proposed step is one that it would be reasonable for the employer to have to take.

Victimisation Section 27 of the [NAME] provides that- “(1) A person (A) victimises [NAME] (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) doing any other thing for the purposes of or in connection with this Act; (b) making an allegation (whether or not express) that A or [NAME] has contravened this Act.”

The test of victimisation is well established by the [NAME] in Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48 (paragraphs 23-30) where three relevant factors were identified:

a. The relevant circumstances must exist (i.e. discrimination); b. There is less favourable treatment (i.e. a detriment); c. “by reason that”, which is a factual question.

In [NAME] v Royal Ulster Constabulary [2003] UKHL 11 (paragraphs 33, 105) the [NAME] set out how a Tribunal should consider a detriment (per Lord [NAME]): “If the victim’s opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice”. Indirect discrimination The [NAME], s.19 defines indirect discrimination, in so far as material, in these terms:

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“(1) A person (A) discriminates against [NAME] (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a 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.

Findings of fact 59. The parties agree with the Tribunal that it is a matter for the Tribunal to find what PCP the respondent adopted and/or applied based on the evidence before the Tribunal. The [NAME] relies on the following two [NAME]:

a. Requiring all employees to routinely work full time from the office rather than from home (‘[NAME]’); and

b. Requiring employees to give advance notice as a prerequisite before allowing them to work from home (‘[NAME]’).

60. The Tribunal finds that the respondent operated [NAME] from 15 February 2022, the date Mrs [NAME] email requiring employees to return to work. This finding is based on the fact that it is not disputed between the parties that prior to the COVID-19 pandemic in March 2020, the respondents staff worked from the office. Nor is it disputed that during the COVID-19 pandemic (March 2019 to February 2022) the respondent’s staff were working from home.

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61. On 21 January 2022, once Government guidance changed at the end of the pandemic, Mrs [RESPONDENT] emailed the respondent’s staff collectively stating: “We will start returning to the offices on the 1st of February 2022, and we expect all employees to return fully to offices by 15th of February 2022.”. It is noted that Mr [NAME] and Ms [NAME] both refer to this being a “company-wide” email, and it was Mr [NAME] belief that a similar email was sent to other departments.

Accordingly, the Tribunal finds that the respondent expected all of its employees to return to the office by 15 February 2022 and therefore R adopted this PCP from that date.

62. While the Tribunal accepts the evidence of Mr [NAME] and Ms [NAME] suggesting that this was not ‘enforced’, the Tribunal notes that there was no subsequent follow-up email (either to staff generally or to the [APPELLANT] himself) stating that the order to return to the office would not be enforced and/or that staff could continue to work from home. Nor was there any reply to [APPELLANT] email of 31 October 2022 requesting to remain working from home. In those circumstances, the Tribunal has no difficulty in finding that it was perfectly reasonable for the [APPELLANT] to have understood that he was required to fully return to the office.

63. If the Tribunal was in any doubt about this, we note that the respondent’s flexible working policy specifically states that an applicant can apply to change the hours or days they work, the times that are required to work, and “to work from home”. This clearly demonstrates the default was permanent office working and that a flexible working request had to be submitted to work from home.

64. Further, the Tribunal notes that in his grievance investigation interview on 10 November 2023, [NAME] stated that: “no member of the accounts department works from home as the company have made the decision this is an office-based role due to the work content required to be carried out”.

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65. The Tribunal makes these observations in respect of the evidence because it appeared to the Tribunal that the respondent’s [NAME] in this regard is somewhat confused. During the course of the evidence presented during the hearing, it was said by a number of the respondent’s witnesses that the [NAME] had misunderstood what the respondent’s message was around return to work. However, it is our finding that if there is any confusion around this issue it is with the respondent’s witnesses and their written communication and not with the [NAME]. [NAME]’s behalf.

66. The Tribunal accepts the [APPELLANT] submission that had anyone from the respondent informed him at any time that he was able to work from home, he would have done so, that the relevant witnesses would have addressed this in their statements and interviews, and it would most likely have been contemporaneously recorded in writing. The respondents evolved position in this regard goes against all of the contemporaneous evidence in relation to this issue and consequently supports the Tribunal’s finding here.

67. With respect to [NAME] (requiring employees to give advance notice as a prerequisite before allowing them to work from home) the [NAME] submits that this was a PCP that the respondent operated from May 2023. In this respect, the [NAME] submits as follows:

a. In his witness statement, Mr [APPELLANT] says: “Around May 2023, when the [NAME] was back in work, the [NAME] again raised his personal circumstances with me in respect of his home life. At this time, I advised him that I would be as flexible as possible with any requests that the [NAME] had to work from home as long as he provided me with notice of this.”

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b. This is consistent with the WhatsApp messages of 22 June 2023 where Mr [NAME] stated: “I will not authorize working from home on this occasion” and “I have not agreed to authorize working from home on the day , I will do my be best to accommodate your requests and be flexible as long you inform me in advance”

c. The [NAME] submits that whilst this may appear to be a one-off discretionary decision specifically to the [NAME] it is noted that as part of the flexible working request appeal process, when interviewed, Mr [NAME] was asked: “[[NAME]] recalls that there was a discussion with you where between you and him, where you said that if he felt that he needed to work from home at any point, that he could send you a WhatsApp message and ask to request to work from home. That would, sort of, be considered that whilst his flexible working request was being reviewed by HR. Do you recall a discussion like that [NAME]?”. In response, Mr [NAME] stated: “Yes, correct. Again, you know, it would be with everyone, not with him. Again now, I will be flexible whenever I can.”. The [NAME] submits that is clear evidence that such a discretionary decision was indicative of a practice of more general application.

68. The [NAME]’s difficulty with regards to [NAME] is the evidence of Mr [NAME]. He was clear in his evidence that the matters for discussion during the course of the May 2023 meeting with him and the [NAME] were matters related to the [APPELLANT] personal life as distinct from matters relating to his health. The Tribunal finds that the evidence of the communications between the parties, principally the WhatsApp messages referred to above indicate that Mr [NAME] account of what was discussed between the two men is far more reliable and readily evidenced than that of the [NAME]. For example, a key message is one where Mr [APPELLANT] makes the point that what the [NAME] is requesting falls outside of the agreement that they had reached in relation to

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absences and requests. The [NAME] agrees with him. The Tribunal has no difficulty in finding that this PCP fails to be proven on the facts presented to it.

69. Lastly, the [NAME] submits whilst there are only two [NAME] outlined in the list of issues that a third, namely that the respondent does not allow employees to work from home when they are too ill to attend the office but are well enough to work from home. While it is correct that this was an issue explored during the course of cross-examination, the Tribunal considers that this is in fact part of [NAME] and therefore does not fall to be determined as a separate PCP.

Failure to Make Reasonable Adjustments

Failure to Make Reasonable Adjustments – Findings

70. In terms of whether [NAME] put the [NAME] at a substantial disadvantage, the [NAME] relies on the following matters (as per issue 4.2):

a. “He was at a higher risk of catching COVID-19 and at a higher risk of becoming seriously ill from such an infection” (issue 4.2.3); b. “Needed to be near a toilet” (issue 4.2.1); and c. “Needed to be at home sometimes, to properly manage his symptoms” (issue 4.2.2).

71. In terms of the COVID-19 related substantial disadvantage, the [NAME] highlights the relatively low legal threshold of ‘substantial’ and submits that this element of the claim is clearly made out based on the contemporaneous documents, and the contents of his witness statement. The [NAME] points to the following facts that the Tribunal finds is proven on the balance of probabilities:

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a. In his grievance letter of 14 January 2021, the [NAME] flagged that he was in the high-risk category for COVID-19 and at that time was shielding and could not leave his house.

b. A GP letter dated 11 May 2022 states: “Mr [APPELLANT] suffers from inflammatory Bowel disease and on immunosuppressant therapy for this. Both of these conditions are high risk for COVID-19 and becoming seriously ill. He would therefore benefit from hybrid working reducing the risk of becoming infected with COVID”. The [APPELLANT] submits that the Tribunal finds that this is sufficient to establish the substantial disadvantage.

c. The [NAME] did catch COVID-19 in July 2022 and describes in his grievance that he became seriously ill.

d. The fact that the [NAME] took a period of approximately 3 weeks of annual leave until 7 March 2022 to avoid going into the office at that time because he had significant concerns about attending the office.

e. Further, it is the Tribunal’s finding that the respondent was aware that the [NAME] was likely to be placed at a substantial advantage related to COVID-19 because the [NAME] told them in his grievance letter of 14 January 2021 that he was in the high-risk category for COVID-19 and at that time was shielding. He also reminded the respondent on 31 January 2022 in his email to Mrs [RESPONDENT] stating: “As you are aware of my ongoing conditions, I am part of the high risk for COVID and for that I would like to continue to work from home until at least the COVID cases are at lower rate”, and within the content of his GP letter that he provided to Mrs [NAME] on 8 June 2022.

72. Bearing in mind all of the above, it is the Tribunal’s finding that [NAME] placed the [NAME] at the COVID-19 related substantial disadvantage, and that the

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respondent was aware of this (or at least ought to have been aware of this) prior to 15 February 2022.

73. The [NAME] relies on one adjustment (issue 4.4.1), namely: “The respondent could have allowed the [NAME] to routinely work from home for three days a week, without the need to give advanced notice, as per his flexible working request.” This is a matter for the Tribunal to determine what steps were reasonable for the respondent to have taken to have avoided the disadvantage. It is the Tribunal’s finding that this was one of a number of measures that the respondent could have implemented. It is also our finding that the proposal put to the [NAME] by Mrs [APPELLANT] on 8 December 2023 was a better adjustment than the one the [NAME] relies upon. However, it is inescapably obvious that on the evidence presented to the Tribunal, the respondent and principally Mrs [RESPONDENT] failed to engage with the flexible working request and this in turn meant that there was no adjustment offered to the [NAME] for approximately 16 months.

74. The Tribunal accepts the [NAME]’s submission that had the respondent made the proposed adjustment, it would have reduced the amount of time the [NAME] would be required to spend in the office and commuting he would have to undertake on London’s busy public [NAME] system by 60% (i.e. 3 days out of 5) and his risk of infection from COVID-19, or in other words a greater chance of avoiding the disadvantage by way of a substantially reduced risk. The Tribunal finds that this would have been a reasonable step for the respondent to have taken at the time the [APPELLANT] initially raised his concern about returning to work in the office. The Tribunal makes this finding and expressly dismisses the concern raised by the respondent in terms of data security or team working as justifications to override the need to apply a reasonable adjustment.

Accordingly, the Tribunal finds that there was a failure by the respondent to make reasonable adjustments from 15 February 2022 to 8 December 2023 in respect of allowing the [APPELLANT] to work from home based purely on the COVID-19 related substantial disadvantage.

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75. The Tribunal finds that the [NAME] sustained a further disadvantage of a substantial nature caused by [NAME] namely in been required to attend the office towards the end of the week. This disadvantage is identified in the [NAME] report in the following way:

“The weekly injection that he gets for controlling the [NAME] disease is administered on Mondays. The first three days of the week often goes well, but towards the end of the week, as the blood levels of the medication wanes, he becomes more prone to flareup.”

76. Whilst the [NAME] report is dated 28 June 2022, it is the Tribunal’s finding that the [NAME] was suffering this disadvantage in a substantial way from the period preceding the return to work directive or in other words it arose at the time of the imposition of the PCP. Working from home was also a way of him combatting his symptoms. The Tribunal notes that the [NAME]’s sickness absence was significantly reduced during the height of the COVID-19 pandemic when he was working from home. Consequently, requiring him to attend the office would clearly put him a disadvantage.

77. The Tribunal finds that the respondent was aware of this disadvantage having been notified by way of the [NAME]’s concern raised in response to the return to work email and also by way of the second [NAME] report. The Tribunal notes that the [NAME]’s flexible working request was submitted on 22 June 2022 and specifically referred to him wanting to work from home due to his “condition getting worse”. If we are wrong about this, the Tribunal observes that the respondent took the decision to not engage with the [APPELLANT] specifically by failing to hold a return-to-work meeting(s) with the [APPELLANT], a flexible working request meeting with him contrary to its own flexible working

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policy and no meeting to discuss his [NAME] report, and had the Respondent done so, it would have had the necessary knowledge of the relevant substantial disadvantage.

78. Turning to the remaining disadvantage alleged, namely the need to be near a toilet, the Tribunal does not find this was evidenced on the facts presented to it. In this regard, the Tribunal accepts the evidence of the respondent’s witnesses who pointed out in oral evidence that the [NAME] had never raised with them the issues he now alleges in relation to the toilet in terms of its location, convenience, cleanliness and utility. The Tribunal notes that at no time prior to the instigation of these proceedings has the [APPELLANT] articulated his concerns.

79. The disadvantages identified and found by the Tribunal amount to a complete failure to engage with the need to consider adjustments for the [NAME] and therefore the possibility of alleviating the disadvantages experienced by the [NAME]. As the [NAME] report dated 26 June 2022 observes, the [NAME]’s productivity could be supported by working from home with the assistance of an agreement for flexible working and with such an agreement in place, ‘he should be able to render reliable service in the future’. This is something that the respondent was aware of as noted by the comments made by Mr [NAME] in his grievance appeal interview when he stated: “So, now, it's only during COVID which his sickness has dropped down, and I will be honest with you now. His sickness has dropped down because we were working remotely.”

80. Considering the above, the Tribunal finds that the respondent’s total failure to engage with the necessity to consider adjustments of the [NAME] to have continued until the meeting with Mrs [APPELLANT] on 8 December 2023.

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81. In submissions, Mr [NAME] appears to concede that the meeting in May 2023 resulted in an adjustment to [NAME]. However, this is not the Tribunal’s finding. As already set out above, the Tribunal has accepted the evidence of Mr [NAME] that this meeting covered matters unrelated to the [NAME]’s condition and therefore does not amount to an adjustment at all.

82. During the meeting between the [NAME] and Mrs [APPELLANT] on 8 December 2023, the respondent proposed the following arrangement: “What we want to suggest and hopefully we can come to some sort of an agreement as and when you have a flare up, just notify your line manager that you've got a flare up today and so you're going to be working from home.”

83. The [NAME] submits that this change should not be viewed as a separate PCP, but instead as an adjustment to [NAME]. And in doing so says that this new arrangement did not go far enough to alleviate the disadvantages. The Tribunal finds that the opposite is the [NAME]. The evidence presented to the Tribunal is clear in that the [NAME] was experiencing absences from work throughout the week and not just Wednesday, Thursday and Friday. What the respondent was proposing was an arrangement that would allow the [NAME] complete flexibility to avoid travelling to the office to work when he encountered difficulties with his symptoms. It is not clear to the Tribunal why the [NAME] was so opposed to this arrangement and it is also the Tribunal’s finding that the [NAME]’s perception of what the respondent was offering to him at this time was skewed by the difficult and mistrustful relationship that he had with his line manager generally and with HR as well. The Tribunal finds that the [NAME]’s opposition to this proposal to have been unreasonable given this finding.

84. Specifically, the Tribunal finds that had the [NAME] moved to this arrangement as suggested, he would not have been required to have provided notice in the way that he alleges (the Tribunal makes this finding on the basis of the evidence it has

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received from Mrs [NAME] and Mrs [NAME]), on days of his choosing in accordance to his own assessment as to visit his needs on a particular day and thereby avoiding the disadvantages alleged in this claim. It follows that the Tribunal makes the finding that the period of disadvantage ends on 8 December 2023.

Indirect Disability Discrimination

85. The findings and analysis that the Tribunal applied in respect of reasonable adjustments (see above) applies here. In other words, the Tribunal finds that issue 3.1.1. is made out but not 3.1.2. The Tribunal makes the same findings for the same reasons. This means that the Tribunal finds that the respondent applied a PCP of requiring all employees to routinely work full-time from the office rather than from home but not the PCP of requiring employees to give advance notice as a prerequisite before allowing them to work from home.

86. For the same reasons that the Tribunal has found in respect of the [NAME]’s reasonable adjustment claim, the Tribunal finds that the PCP (issue 3.1.1) was applied to the [NAME] and that the policy applied to everybody in the Department where the [NAME] worked. In this regard, the Tribunal relies on the evidence of Mr [NAME] who stipulated that he wanted the accounts team to work from the office for two primary reasons namely in relation to the digital security and team cohesion. For the same reasons as the reasonable adjustments claim, this PCP applied until 8 December 2023. With respect to issue 3.3, namely ‘did the respondent apply the PCP to persons with whom the [NAME] did not share the characteristic, or would it have done so?’, the Tribunal finds this to have been the [NAME] on the basis of the initial return to work email of 21 January 2022 sent to all staff requiring all employees to return to the office.

87. In terms of particular disadvantage, the Tribunal finds issues 3.4.1 and 3.4.2 are made out for the same reasons at and based upon the same facts that substantial

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disadvantage was found in respect of the reasonable adjustments claim. Issue 3.4.3 does not fall to be considered due to the Tribunal’s finding that PCP to has not been established on the facts.

88. It follows as a matter of logic that the Tribunal reaches the same finding that it reached in respect of reasonable adjustments as regards the [NAME]’s placement at a disadvantage as a result of [NAME].

89. The Tribunal accepts the [NAME] submission that the respondent does not seek to justify [NAME] and that the Tribunal has failed to identify one independently of the respondent’s submissions and evidence. Consequently, the Tribunal finds that the [NAME]’s claim of indirect discrimination in respect of [NAME] only is well- founded.

Victimisation 90. The [APPELLANT] relies on three protected acts; his grievance on 28 September 2023, contacting ACAS on 8 September 2023, and presenting claim 1 on 20 November 2023.

Delay in responding to Loan Request

91. The [NAME] applied to Mr [APPELLANT] for a loan on 18 October 2023. Mr [NAME] forwarded the application to [APPELLANT], Head Office, the same day. The [NAME] chased the application the following day. On 20 October 2023, Mr [NAME] replied and explained that he had forwarded his email to head office but that he had yet to receive a reply. Subsequently, Head Office informed Mr [NAME] that the loan would not be approved on 22 October 2023.

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92. Mr [APPELLANT] did not relay that decision to the [NAME] until 29 November 2023 and explained both in his witness statement and his oral evidence that he forgot to do so. The Tribunal accepts his evidence that he forgot. It is clear that Mr [NAME] had acted promptly in forwarding the application to Head Office. He had also urged them to approve the application. Significantly, these actions post- date the [NAME]’s protected acts.

93. Further, the Tribunal is unable to find that the reason to delay bad news was a deliberate, victimising act. The Tribunal finds it to have been an oversight. Accordingly, the allegation fails to be proven on the balance of probabilities.

Victimisation- restricted access to ERP 94. The Enterprise Resource Planning System or ERP was introduced during 2023. Its intended function was to consolidate the accounts functions of the Group and its subsidiary companies, and to simplify the reporting procedures for financial matters. Before implementing the ERP across all Group subsidiaries, it was trialled within subsidiaries that had limited financial requirements. It has yet to be fully implemented according to Mr [NAME] whose evidence the Tribunal accepts in its entirety.

95. On 18 March 2024 Mr [NAME] messaged Mr [NAME] and asked him to provide the email addresses of the Accounts team based in London so that they could be granted access to the ERP. That information was provided the following morning. Mr [NAME] then requested that various levels of access be provided to the four London based employees.

96. The [NAME] focuses his claim here on the decision to grant [NAME] “review” access, whilst the [NAME] was given “initiate” access. In practical terms, this meant that [NAME] would be authorised to review the data that other team members, including the [NAME], had processed onto the ERP. [APPELLANT] was also authorised to generate trial balances, and reports.

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97. Mr [NAME] was responsible for allocating the levels of access to the team, and that is reflected within the email evidence and confirmed by Mr [NAME] in cross- examination and not Mr [APPELLANT] as alleged by the [NAME]. Mr [APPELLANT] decision to grant access in the way that he did was based on a number of factors. First, [NAME] was proactive and interested in the ERP. Mr [APPELLANT] was familiar with the ERP in contrast to the [NAME] who required training. In those circumstances, it was reasonable for Mr [NAME] to have reached the conclusion that he did namely that [NAME] was the more appropriate candidate to “champion” the new system.

98. Second, He had worked with [NAME] on internal and external audit matters by providing information and financial results. He was therefore aware that [NAME] [NAME] currently worked with internal and external auditors and provided them with trial balances and reports, which meant that this aspect of his work was already closely aligned with the reporting tasks needed for the ERP.

99. While it is asserted by the [NAME] that he would no longer be able to produce the trial balance, which he describes as essential to fulfilling his duties the reality is that the system has been trialled and not implemented and therefore this a misleading assertion to have made and the principal functions of the [NAME]’s role were unaffected. The Tribunal has no difficulty in determining that this allegation fails to be proven because the [NAME] has failed to establish a connection between any of the asserted protected acts and the decisions complained of by the [NAME]. Further, the Tribunal accepts Mr [APPELLANT] evidence that it is clear that the [NAME] is yet to suffer any detriment as he continues to carry out his normal duties through the existing accounting system, [NAME].

Accordingly, the victimisation claim is unfounded and is dismissed.

[NAME] numbers; 2216635/2023 and 6005160/2024 v3 10.2.25 40

100. In respect of first claim (or claim 1), the Respondent invites the Tribunal to find that any complaint about something that happened before 10 July 2023 was not brought in time. That date is identified for the following reasons:

A. The ET1 was presented on 20 November 2023. B. The ACAS conciliation period lasted for 6 weeks (8 September 2023 to 20 October 2023). C. If the limitation period (3 months minus 1 day) and the ACAS period (6 weeks) are subtracted from the date the claim was issued (20 November 2023), that provides a cut-off date of 10 July 2023.

101. The [NAME] submits that in respect of claim 1, the [NAME] presented his ET1 within a month of obtaining the ACAS certificate, the early conciliation period ‘bites’ with respect to impacting time limits. Consequently, working back 3- months less a day prior to the [NAME] contacting ACAS, the time limit cut-off is 9 June 2023. Given this and based on the Tribunal’s finding that the respondent first grappled with the flexible working request on 8 December 2023, it follows as a matter of logic that the claims of failure to make reasonable adjustments and indirect discrimination are in time. No issue is raised in respect of the timeliness of the victimisation claim arising from claim 1.

102. The [NAME] submits that claim 2 was clearly a distinct and separate claim against a different [NAME] relating only to his limited access to ERP (a matter that had not arisen or was otherwise ongoing at the time he presented claim 1). Consequently, it is submitted that this was a different matter and therefore the second early conciliation certificate bites.

103. With respect to claim 2, the [NAME] contacted ACAS on 3 May 2024 and the early conciliation certificate was issued on 14 June 2024. Claim 2 was presented on 4 July 2024. Working backwards 3 months less a day prior to would equate to a time limit cut-off date of 4 February 2024 and a claim that is in time.

[NAME] numbers; 2216635/2023 and 6005160/2024 v3 10.2.25 41

The respondent says that the relevant act is dated 19 March 2024 and that the claim is out of time. The respondent says the cut-off date is 5 April 2024 meaning that the claim is out of time by 2 weeks and 3 days.

104. The Tribunal agrees with the respondent as to the computation of the time limits and finds that the claim is not only out of time but that it would not be just and equitable to extend time due mainly to the fact that the Tribunal has evaluated the merits of this head of claim and concluded that it lacks sufficient merit to justify an extension of time. In other words, it would be inequitable to the respondent to extend time in respect of a claim that would not succeed. It must also follow that there can be no prejudice to the [NAME] in failing to extend time given the finding on merits.

Approved by: Employment Judge Forde 6 November 2025

Judgment sent to the parties on:

21 November 2025 …………………………………… For the Tribunal:

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