J Parnell v Royal Mail Group Ltd

This appeal concerns claims of disability discrimination brought under sections 15, 20 and 21 Equality Act 2010 (“EqA”) and of unfair dismissal, considered by an Employment Tribunal (“ET”) in circumstances in which earlier claims of disability discrimination involving the same parties, but relating to prior events, had previously been determined by a different ET. The relevance of the first ET’s findings is a question at the heart of this appeal, albeit that it is also said that the second ET’s decision reveals errors of approach in relation to the claim under section 15 EqA and the complaint of unfair dismissal.

In giving this judgment I refer to the parties as the claimant and respondent, as below. This is my ruling on the claimant’s appeal against the decision of the ET sitting at Liverpool: Employment Judge Shotter, sitting with Ms Pennie and Mr Partington, over some eight days in February and March 2022; “the Shotter ET”. The Shotter ET was concerned with ten claims filed by the claimant between May and November 2020; by its decision (“the Shotter decision”), sent to the parties on 16 May 2022, it dismissed all the claims before it. The claimant had previously presented some 21 earlier claims, which were heard by the ET sitting at Manchester (Employment Judge Johnson, sitting with Mrs Clover and Mrs Ramsden, over nine days in October 2020, with a further two days in chambers in November and December 2020; “the Johnson ET”). The reasoned judgment in respect of those claims was sent out on 28 July 2021 (“the Johnson liability decision”).

Initially considering this matter on the papers, Judge Keith was unable to see that it raised any arguable question of law; subsequently, after a hearing under rule 3(10) EAT Rules 1993, at which Mr Sheehan appeared for the claimant under ELAAS, Her Honour Judge Tucker permitted the appeal to proceed on amended grounds, subsequently permitting a further amendment to be made on the claimant’s application.

The claimant previously acted in person but has had the benefit of advice and representation from Mr Sheehan, acting pro bono, since the rule 3(10) hearing. The respondent has been legally represented throughout, albeit Mr Milsom did not appear below.

The claimant was employed by the respondent as a postman/driver, from 7 June 1999 until his dismissal on 12 June 2020. From at least January 2012, the claimant suffered anxiety and depression, which had a significant impact on his ability to carry out normal day-to-day activities.

On 17 May 2017, the claimant made a bullying and harassment complaint relating to his then manager, Ms Baillie, going back some three years. The complaint was investigated by a Ms Nevins but not upheld. Acknowledging that the claimant had suffered episodes of anxiety and stress, Ms Nevins nevertheless concluded he had made his allegations in bad faith, and recommended that conduct proceedings should be pursued. That decision was upheld on appeal.

From 3 January 2018, the claimant was off work on sick leave; he did not return.

Following the dismissal of his appeal, and given the finding that the claimant had made allegations of bullying and harassment in bad faith, misconduct proceedings were pursued; after a meeting on 17 April 2018, the claimant was issued with a two-year serious warning; that decision was also upheld on appeal.

On 14 August 2018, the claimant lodged his first ET claim; he would go on to lodge a total of 31 claims.

In October 2018, a performance coach, Mr Kelly, sought to work with the claimant, explaining that his continued absence was untenable and inviting him to a meeting to discuss whether he intended to return to work. The claimant, however, was resistant to Mr Kelly’s overtures as the removal of the two-year warning (outside Mr Kelly’s remit) was a sticking point for him in terms of his return to work.

The claimant went on to raise a grievance in respect of the management of his sickness absence (including against Mr Kelly). Although the claimant’s grievance included an issue about the two-year warning that was not something that was addressed by the respondent under this process (the outcome letter being sent to the claimant on 25 April 2019), or in the subsequent appeal (determined in or about September 2019).

After the claimant had raised his grievance, and while that process was underway, the management of the claimant’s sickness absence was taken over by others. On 17 June 2019, the claimant was invited to an interview to discuss his continuing absence but his focus was on the on-going grievance appeal, and he did not want to engage with a parallel process.

On 2 January 2020, the claimant raised a second bullying and harassment complaint. That was investigated by an independent casework manager, Mr Walker, but dismissed on 17 March 2020. The claimant’s subsequent appeal, considered by an independent case manager, Ms Tebbutt, was also dismissed, in April 2020.

Meanwhile, on 16 March 2020, the respondent had organised a meeting for the claimant to attend with another manager, Mr Smith, referred to as a “SOSR [some other substantial reason] meeting”. At that meeting, Mr Smith offered that the claimant could return to “work in any office, any role and any shift”, pointing out that the claimant’s two-year warning would expire on or around 24 April 2020; the claimant was concerned, however, that the warning should be withdrawn, identifying this as a barrier to his return.

On 15 April 2020, a quality and customer business partner, Mr Briggs, wrote to the claimant, stating that the position was untenable, and raising the question whether the claimant would return to work, saying that consideration was being given to his continued employment. The claimant was invited to a meeting to discuss possible adjustments to support his return, but he declined to attend, emailing an eight-page response in which he accused Mr Briggs of harassment. Acknowledging that the respondent did not know when he might return to work, the claimant said he intended to do so once the barrier of the false allegation against him had been removed. Although Mr Briggs agreed that their meeting might take place on a later date, the claimant continued to decline to meet until (as he put it) the respondent had completed all internal procedures.

Ultimately, by a letter sent to the claimant on 12 June 2020, Mr Briggs referred to the claimant’s failure to attend two meetings he had tried to organise, and said he had reached the decision that the claimant should be dismissed. Mr Briggs explained that the claimant’s absence for over two years was “unsustainable”, that the respondent could have no confidence that he had any intention of returning to work or of co-operating with management in the future, and that he (Mr Briggs) had concluded there had been an irretrievable breakdown of trust and confidence, and there was nothing the respondent could do to facilitate a return to work.

The claimant appealed against that decision, and attended an appeal hearing before an independent case work manager, Ms Rees, on 28 July 2020. Having allowed the claimant to add to his grounds of appeal, and having carried out an investigation of her own, Ms Rees ultimately communicated her decision to the claimant on 21 October 2020 in a 68-page report, which explained why the appeal was unsuccessful.

The Johnson ET was concerned with claims relating to events during the course of the claimant’s employment from 2015 to early 2020; these included allegations of bullying and harassment relating to Ms Baillie and complaints regarding the misconduct proceedings leading to the two-year serious warning. It was the claimant’s case that these matters gave rise to acts of direct disability discrimination (section 13 Equality Act 2010 (“EqA”)), unfavourable treatment because of something arising in consequence of disability (section 15 EqA), a failure to comply with a duty to make reasonable adjustments (sections 20 and 21 EqA), harassment (section 26 EqA), and victimisation (section 27 EqA).

At the outset of the Johnson decision, reference was made to the further ET claims the claimant had filed (ultimately determined by the Shotter ET), noting as follows:

In its liability decision, the Johnson ET determined that the respondent was (or should have been) aware that the claimant was disabled by reason of anxiety and depression from January 2012. It went on to find there had been a failure to make reasonable adjustments in respect of the respondent’s failure to remove the two-year serious warning from the claimant’s record and to review Ms Nevins’ misconduct investigation; it otherwise dismissed the claimant’s claims.

A remedy hearing took place before the Johnson ET on 30 June 2021. By its decision, promulgated on 28 July 2021 (“the Johnson remedy decision”), the claimant was awarded compensation for loss of earnings from 5 July 2018 until 4 January 2020, and a sum of £22,000 for injury to feelings, including £2,000 by way of aggravated damages due to what the Johnson ET found to be behaviour by the respondent that “made the situation worse due to inactivity and insensitivity” (Johnson ET, remedy decision paragraph 28).

There have been no appeals against the Johnson ET decisions.

The claims before the Shotter ET also raised complaints under the EqA, relating to the claimant’s second complaint of bullying and harassment, the absence management process that led to his dismissal, his dismissal and the subsequent appeal. In general terms, it was the claimant’s case that these matters gave rise to acts of direct discrimination (section 13), discrimination because of something arising in consequence of disability (section 15), indirect discrimination (section 19), failure to make reasonable adjustments (sections 20 and 21), harassment (section 26) and victimisation (section 27). In addition, the claimant complained of unfair dismissal under the Employment Rights Act 1996 (“ERA”). The claimant’s appeal against the Shotter decision relates to his claims under sections 15, and 20 and 21 EqA and to his complaint of unfair dismissal.

Descending into the way the claimant’s case was put before the Shotter ET in more detail, it is relevant to note that, within his pleadings, the claimant had stated that he was seeking to complain of the respondent’s refusal to make the reasonable adjustment of removing the two-year serious warning, explaining that his disability meant that he would be unable to live with the warning in the same way as “a normal person” (see paragraph 60 of the details attached to the form ET1 in case no. 2403561/2020, and paragraphs 10 and 18 of the details attached to the form ET1 in case no. 2409041/2020). The respondent’s pleadings demonstrate that it understood that the two-year warning featured as an issue in the case, although it addressed that issue in its response to the claim under section 15 EqA, rather than as part of the reasonable adjustments complaint. This was, however, not a matter that subsequently featured in the list of issues, initially drawn up at a preliminary hearing on 16 November 2020, when the parties were directed to consider the list carefully to make sure of its accuracy (and, if not, to promptly notify the ET). Moreover, at a later preliminary hearing, on 17 December 2021, it seems that both parties confirmed that the list included all relevant issues.

On 25 November 2021, the claimant applied to the ET for the respondent’s response to be struck out, on the basis that he had succeeded (before the Johnson ET) in his claim that the respondent had failed in its duty to make reasonable adjustments to remove the two-year warning, asserting that, had it done so:

The Shotter decision makes clear that it understood that what the claimant had said in his application for a strike out encapsulated his position at trial, observing that this was:

As for the claimant’s claim under section 15 EqA, the list of issues recorded that the “something arising” in consequence of the claimant’s disability was that “he made complaints about his treatment as a disabled person”.

Also within the preliminary paragraphs of the Shotter decision, it was recorded that it was common ground that it was bound by the judgment and findings of fact of the Johnson ET:

For reasons set out in its reserved judgment (see further, below), the Shotter ET went on to dismiss all the claimant’s claims before it.

The Johnson ET upheld the claimant’s complaint of discrimination due to a failure by the respondent to comply with its duty to make reasonable adjustments in two respects: (1) in failing to remove the two-year serious warning from the claimant’s record, and (2) in failing to review Ms Nevin’s investigation. In support of his appeal against the Shotter decision, the claimant places particular reliance on the following findings of the Johnson ET:

It was unreasonable to conclude that the claimant had raised his May 2017 bullying and harassment complaint in bad faith, warranting a two-year serious warning (paragraph 66); the claimant felt that he was being punished for something he had been encouraged to do (paragraph 157 c).

When the claimant continued to challenge the warning, the respondent considered it was unable to investigate the matter further, which the Johnson ET found was “all very process driven”, did not “explore what the real issue was” (paragraph 82), and “no doubt exacerbated the claimant’s anxiety and belief that management were closing ranks” (paragraph 93), such that he had developed a heightened sense of grievance as a result (paragraphs 155 c and 157 c)

There was a provision, criterion or practice (“PCP”) in place whereby the respondent failed to re-open the claimant’s complaint; the respondent had a practice of treating each procedure as being self-contained, and the claimant could not bring a grievance to have this process re-opened (paragraph 153 f ).

There was also a PCP in place whereby the two-year serious warning imposed during the conduct process would be maintained without review (paragraph 153 g).

These PCPs placed the claimant at a substantial disadvantage as they increased his anxiety and depression (paragraph 155 b); the two-year serious warning put him at a substantial disadvantage as:

The respondent ought to have known that these PCPs placed the claimant at a substantial disadvantage because he articulated them in his grievance and as part of the SOSR process (paragraph 156).

It would have been a reasonable adjustment to remove the two-year warning, and to have reviewed Ms Nevin’s investigation; but for that warning, the claimant would have returned to work; reviewing the investigation and removing the warning would have enabled the respondent to manage the claimant back into the workplace (paragraphs 157 c, e and i); it was on that basis that the Johnson ET went on to award the claimant compensation for loss of earnings to 4 January 2020.

In the early part of its decision, the Shotter ET recorded a number of findings made by the Johnson ET (see paragraphs 22-27, Shotter decision), going on to observe:

The Shotter ET then set out the following findings (in mis-numbered paragraphs) relating to the claimant’s approach to his employment in light of the on-going litigation:

Referring to the claimant’s second bullying and harassment complaint, of 2 January 2020, the Shotter ET noted that this had been raised in the knowledge that his claim involving the managers in question had been listed for trial in October 2020; it found that:

In considering the investigation undertaken by Mr Walker in relation to this complaint, the Shotter ET further concluded that:

As for the SOSR meeting with Mr Smith on 16 March 2020, the Shotter ET found there had been an impasse: notwithstanding Mr Smith’s assurance that the two-year warning would shortly expire and would no longer be on his record or taken into account, and his offer to make any reasonable adjustments, inviting the claimant to return to work in any office, any role and any shift (Shotter decision, paragraph 31):

The Shotter ET further noted that, although Ms Tebbutt’s decision (dismissing his appeal against the rejection of his second bullying and harassment complaint) had referred to her concern that the claimant’s relationship with the respondent had broken down:

Similarly, when declining to meet with Mr Briggs in April 2020, the Shotter ET considered that, by his insistence that the two-year warning be removed before he could return to work, the claimant was continuing to litigate by correspondence:

The Shotter ET concluded that the claimant rejected Mr Briggs’ genuine efforts to have an open dialogue with him because (as it found):

Turning to the decision to dismiss the claimant, the Shotter ET found that Mr Briggs:

Similarly, in relation to the claimant’s appeal against dismissal, the Shotter ET concluded that:

Considering first the claimant’s claim of unfair dismissal, the Shotter ET found that the principal reason for the dismissal was “a breakdown in employment relations/trust and confidence”, which amounted to some other substantial reason such as to justify the claimant’s dismissal. In reaching that conclusion, the Shotter ET was satisfied that the dismissal (and the refusal of the appeal against that dismissal) was:

The Shotter ET considered whether the two-year warning played any part in the respondent’s decision, either in respect of the claimant’s dismissal or in the rejection of his appeal, concluding that it had not:

In considering whether the respondent’s conduct had prevented the claimant from returning to work, the Shotter ET was clear that it had not:

The Shotter ET further found that the respondent had acted reasonably in dismissing the claimant given the clear evidence of an unsurmountable breakdown in the working relationship:

Although not the subject of this appeal, it is relevant to note the Shotter ET’s conclusions on the claimant’s complaint of direct disability discrimination in relation to his dismissal and the rejection of his appeal. The Shotter ET accepted these were detriments, but was not persuaded the claimant was thereby treated less favourably (finding any hypothetical comparator in his position, save for his disability, would have been treated in the same way), or that (in the alternative) the reason for his treatment was the claimant’s disability:

Addressing the claim brought under section 15 EqA, the Shotter ET first considered whether the claimant’s dismissal, and the rejection of his appeal against dismissal, amounted to unfavourable treatment, stating its conclusion on this question somewhat ambiguously as follows:

In any event, the Shotter ET went on to consider whether the claimant had established that “there was something that arises in consequence of his disability”, concluding that he had failed to do so:

In any event, the Shotter ET would also have found that the required causal link was not made out, reasoning:

If wrong in its analysis of these questions, the Shotter ET nevertheless went on to consider the question of justification for the purposes of section 15(1)(b) EqA. Concluding that the respondent had demonstrated that the claimant’s dismissal, and rejection of his appeal, had been proportionate means of achieving a legitimate aim, it explained:

The Shotter ET did not accept the claimant’s case in respect of the PCPs that he said placed him at substantial disadvantage but was in any event clear that there were no reasonable steps that would have been effective in preventing any such disadvantage in any event; as it explained:

Both the Johnson and the Shotter ETs were concerned (relevantly) with claims brought under section 15, and sections 20 and 21 Equality Act 2010. An issue arises on this appeal as to the ET’s approach to section 15 EqA and it is therefore necessary to consider the constituent elements of that provision at this stage. The issue relating to the reasonable adjustments claim concerns the ET’s approach to the way the claimant’s case was advanced rather than its analysis of sections 20 and 21 EqA; accordingly, the consideration of those provisions is far shorter.

Thus first addressing section 15(1) EqA, this provides:

In a claim under section 15, the ET must identify: (i) what (if anything) was the unfavourable treatment; (ii) what was the reason for that unfavourable treatment; (iii) whether that was something arising in consequence of the claimant’s disability; and (iv) whether the alleged discriminator has been able to demonstrate that the unfavourable treatment is a proportionate means of achieving a legitimate aim. Guidance on the proper approach to such a claim was provided by Simler J (as she then was) in Pnaiser v NHS England and anor [2016] IRLR 170 EAT, as follows:

Considering what was meant by “unfavourable” treatment, in Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65, [2019] 2 All ER 1031, Lord Carnwath (with whom the other Justices agreed) held that:

The Supreme Court in Williams approved the approach of the Court of Appeal in this regard ([2018] ICR 233); specifically, the observation of Bean LJ, as follows:

Whether or not treatment is “unfavourable” will be a question of fact for the ET to determine. Although a low threshold, by analogy with the approach to “detriment”, it will not simply be established because the complainant considers that they should have been treated better (per Bean LJ at paragraph 43 Williams). On the other hand, whether or not treatment is unfavourable is a matter to be judged taking into account the relevant circumstances of the complainant (see, by analogy, Keane v Investigo and ors UKEAT/0389/09, Berry v Recruitment Revolution UKEAT/0190/10, and Garcia v The Leadership Factor [2022] EAT 22). In the normal course, however, a dismissal will meet the relevant test; as His Honour Judge David Richardson observed in T-Systems Ltd v Lewis UKEAT/0042/15:

As for the question of causation under section 15 EqA, in Sheikholeslami v University of Edinburgh [2018] IRLR 1090, the EAT held that this requires investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) something? and (ii) did that something arise in consequence of B’s disability? The first involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found; if the “something” was a more than trivial part of the reason for the unfavourable treatment, then stage (i) is satisfied: the actual disability does not need to be the cause of the unfavourable treatment but it needs to be “a significant (or more than trivial) influence” so as to amount to “an effective cause of the unfavourable treatment” (Pnaiser paragraph 31(b)). The second issue is a question of objective fact for an ET to decide in light of the evidence: “arising in consequence” can describe a range of causal links, albeit the more links in the chain between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection (Pnaiser paragraph 31(d) and (e)).

Where a claimant has established the constituent elements required under section 15(1)(a) EqA, the onus is on the employer to demonstrate that the treatment in question is not to be treated as amounting to discrimination because it was a proportionate means of achieving a legitimate aim (per section 15(1)(b)). This is sometimes referred to as showing “objective justification”, because, in assessing whether an employer is able to justify its unfavourable treatment of the claimant, the ET is required to apply an objective test (see Hensman v Ministry of Defence UKEAT/0067/14, adopting the approach to justification laid down in Hardy and Hansons plc v Lax [2005] EWCA Civ 846, [2005] ICR 1565, and City of York Council v Grosset [2018] EWCA Civ 1105, [2018] IRLR 746), albeit that it must assess the proportionality of the impugned treatment at the time it takes place.

Turning to the claim of disability discrimination due to a failure to make reasonable adjustments, the duty to make such adjustments arises under section 20 EqA, which (relevantly) provides that there is a requirement:

Section 21(1) EqA then provides that a failure to comply with a section 20 requirement is a failure to comply with a duty to make reasonable adjustments.

As Lord Toulson observed at paragraph 83 FirstGroup Ltd v Paulley [2017] UKSC 4; [2017] IRLR 258, the concept of “reasonable adjustments” for these purposes is “intensely practical”, requiring an objective assessment of how the step(s) proposed would have been effective to enable the disabled person to work, albeit that it will suffice if there was a prospect of the disadvantage being alleviated even if the adjustment in question would not have been completely effective (Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 CA).

By section 94 Employment Rights Act 1996, it is provided that an employee has the right not to be unfairly dismissed. Section 98(1) ERA makes clear that it is for the employer to show the reason (or principal reason) for the dismissal, and that this is a potentially fair reason for section 98 purposes. In this regard, by section 98(1)(b), a dismissal may be fair if it is for:

If the employer is able to demonstrate such a potentially fair reason, it is for the ET (applying neutral burden of proof) to determine whether, for the purposes of section 98(4), the employer acted reasonably in dismissing for that reason. In carrying out the assessment required under section 98(4), that the reason for dismissal related to something originally caused by the employer does not necessarily mean that the dismissal was unfair, albeit that this fact might justify the ET to require the employer to demonstrate extra concern (to “go the extra mile”) before implementing the decision to dismiss; see (in the context of a capability dismissal) McAdie v Royal Bank of Scotland [2007] EWCA Civ 806, [2007] IRLR 895, at paragraph 37, approving the decision of the EAT (Underhill P presiding) in that case (UKEAT/0268/06), and Iwuchukwu v City Hospitals Sunderland [2019] EWCA Civ 498, [2019] IRLR 1022. Ultimately, however, this will always require a fact-specific assessment for the ET. Thus, in Rochford v WNS Global Services (UK) Ltd and ors [2017] EWCA Civ 2205, the Court of Appeal rejected an argument that it had been wrong in law for the ET to find it had been reasonable for the employer to dismiss the claimant for his refusal to return to work when that would have required him to return to a different role, a requirement that the ET had found to constitute unlawful discrimination; as Underhill LJ observed:

Although ET proceedings do not involve formal “pleadings” as such, in defining the issues to be determined, the claim and the response will always provide the starting point and must set out the essence of the parties’ respective cases (Chandhok v Tirkey [2015] ICR 527 EAT). In case managing the proceedings, the ET is afforded broad powers pursuant to rule 29 schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“ET Rules”), which provides:

In exercising its powers under rule 29, the ET must have regard to the overriding objective of the ET Rules, as provided by rule 2:

Consistent with the overriding objective, as part of its case management of the proceedings, at (what should be) an early stage, the ET will generally seek to create a list of issues (preferably agreed by the parties), which will be intended to set the agenda for the trial; as Mummery LJ observed in Parekh v Brent London Borough Council [2012] EWCA Civ 1630:

Consistent, however, with the requirement to deal with a case fairly and justly, in Parekh, Mummery LJ went on to emphasise that:

In determining whether to depart from an earlier case management order setting out the issues to be determined in the proceedings, pursuant to rule 29, the question for the ET is whether it is “necessary in the interests of justice” to do so. In Mervyn v BW Controls Ltd [2020] ICR 1363 CA, Bean LJ provided guidance in this regard, as follows:

In allowing the claimant’s appeal in Mervyn, it was ruled that, even where the claimant had expressly stated (during case management discussions) that she had not resigned but had been dismissed, the ET ought to have considered her case as encompassing an allegation of constructive dismissal, that being the claim that “shouted out” from the pleadings. In this regard, the Court of Appeal approved the approach of His Honour Judge Auerbach in McLeary v One Housing Group Ltd UKEAT/0124/18, in which it was found that the particulars of claim ought properly to have been treated as including a complaint of discriminatory dismissal; HHJ Auerbach observing that:

Similarly, when Mervyn was before the EAT ([2019] UKEAT/0140/18) Laing J (as she then was), stated:

The EAT’s jurisdiction to determine an appeal from a decision of the ET lies only on “a question of law”, see section 21(1) Employment Tribunals Act 1996. A challenge to findings of fact made by the ET will only give rise to a question of law in very limited circumstances; as Ralph Gibson LJ observed in BT plc v Sheridan [1990] IRLR 27 CA:

An appeal to the EAT does not, therefore, provide a means of re-litigating the facts; as such, a perversity challenge:

The limits to the EAT’s jurisdiction are not confined to conclusions of primary fact; there is a similar need for appellate caution where the challenge is to the ET’s evaluation of the facts, where respect is to be afforded to the entity that presided over the trial (and see the observations of Singh LJ in London Borough of Lambeth v Agoreyo [2019] ICR 1572 CA). More specifically, where Parliament has vested power in the ET to undertake an assessment of the primary facts it has found to determine whether a legal test has been satisfied, it is right that the EAT defer to the conclusion reached at first instance unless satisfied that the ET applied the wrong legal principle, failed to have regard to relevant factors or took into account something that was irrelevant, or reached a decision that is properly to be characterised as perverse.

As for the approach to be adopted to the reasoning of the ET, I remind myself of the guidance provided by Popplewell LJ at paragraphs 57-58 DPP Law Ltd v Greenberg [2021] EWCA Civ 672, [2021] IRLR 1016, to summarise: (1) the ET’s decision is to be read fairly and as a whole, without focusing on individual phrases or passages in isolation, and without being hypercritical (an ET is not sitting an examination; see per Singh LJ paragraph 42 Sullivan v Bury Street Capital Ltd [2021] EWCA Civ 1694, [2021] IRLR 159); (2) the ET is not required to identify all the evidence relied on in reaching its conclusions of fact, nor express every step of its reasoning in any greater degree of detail than that necessary to be Meek-compliant (Meek v Birmingham City Council [1987] EWCA Civ 7, [1987] IRLR 250); (3) it should not be inferred that a failure to refer to evidence means that it did not exist, or was not taken into account: what is out of sight in the language of the decision is not to be presumed to be out of mind; (4) when an ET has correctly stated the legal principles, an appellate court should be slow to conclude that it has not applied those principles, and should generally only do so when it is clear from the language used that a different principle has been applied to the facts found.

The claimant’s appeal raises seven grounds: grounds 1, 2, 3, 4 and 7 relate to his claim under section 15 EqA; ground 5 to his claim of unfair dismissal; ground 6 to the failure to make reasonable adjustments claim. More generally, it is the claimant’s case that the Shotter decision reveals a number of inconsistencies with that of the Johnson ET; his objections in this regard underpin grounds 2, 4, 5 and 6, which Mr Sheehan addressed at the outset of his submissions, before turning to grounds 1, 3 and 7.

Considering what are said to be inconsistencies between the two ET decisions, the claimant makes the point that the Shotter ET was required to give effect to the principle of res judicata (Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2014] AC 160); where an issue forming a necessary ingredient of a cause of action has been decided in previous litigation between the same parties, the doctrine of issue estoppel applies (Virgin Atlantic at paragraphs 17 and 22; Arnold v NatWest Bank Plc [1991] 2 AC 93 at p 105E). In the present case, it was agreed that the Shotter ET was bound by the “judgment and findings of fact made in relation to [the] earlier claims”, so it had been unnecessary to discuss what points the respondent could re-open (Shotter decision, paragraph 6); notwithstanding this agreed position, the only references to the Johnson liability decision were at paragraphs 23-28, and there are no references to the Johnson remedy decision.

By ground 2, it is said that, after agreeing to be bound by the Johnson ET findings, the Shotter ET reached a decision that was perverse/irrational by failing to apply those findings in the identification of the “something arising in consequence of the claimant’s disability” and in relation to the respondent’s justification defence. Applying the Johnson ET findings, the Shotter ET: (i) should have concluded that the “something” arose in consequence of the claimant’s disability; (ii) could not have found that removing the warning would have made no difference (that was inconsistent with the finding that the claimant would have returned to work but for the warning; Johnson liability decision paragraph 157 c.); and (iii) similarly, could not have concluded there were no less discriminatory means that would have achieved the respondent’s legitimate aim. Relatedly, by ground 4, the claimant says the Shotter ET erred by failing to consider the possibility of the respondent achieving its legitimate aim by removing the warning in accordance with the findings made by the Johnson ET that: (a) but for the warning, he would have returned to work, and (b) by imposing a wrongful sanction on the claimant, failing to properly investigate his complaints, and failing to make a reasonable adjustment that would have ameliorated the claimant’s anxiety, the respondent brought about a position whereby mutual trust and confidence was destroyed; the respondent could not have the benefit of a justification defence when its defaults - as identified by the Johnson ET - deprived it of the opportunity to take steps to remedy the situation.

Ground 5 relates to the Shotter ET’s conclusion that the claimant’s dismissal was within the range of reasonable responses open to the respondent; the claimant says that was perverse and arose from a failure to properly consider the findings made by the Johnson ET. Specifically, the claimant says his dismissal must fall outside the range given that the Johnson ET had found he would have been able to return to work had the two-year warning been removed. By ground 6, the claimant contends that the Shotter ET erred by failing to address the Johnson ET’s finding that there was a failure to make a reasonable adjustment by removing the two-year warning.

Separately, by ground 1, it is the claimant’s case that the Shotter ET erred in law by failing properly to apply the test for whether the “something” arose in consequence of the claimant’s disability. “Arising in consequence of” denotes a looser causal test than “because of”, and the “something” may “arise in consequence” of a disability by a series of causal links (Sheikholeslami at paragraph 66; Pnaiser v NHS England [2016] IRLR 170 at paragraph 31). Referring to the Shotter ET’s finding at paragraph 165, that:

In the alternative, by ground 3, the claimant says the conclusion that his dismissal was not “because of” the “something arising” was (i) perverse, given the finding at paragraph 165, and (ii) based on an overly precise and technical reading of the list of issues. The “something arising” identified at paragraph 3(a) of the list of issues was “having made complaints about his treatment as a disabled person”; but the Shotter ET’s finding that the claimant’s behaviour was “part of [the respondent’s] decision making process ... and it is this that prompted the dismissal” (paragraph 166) was sufficient to demonstrate it was more than a trivial part of the reason for dismissal (per Sheikholeslami). Although a useful tool for case management, an ET is not required to adhere to the list of issues where “to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence” (Parekh, paragraph 31); it should not be elevated to the status of a pleading (Z v Y [2024] EAT 63 at paragraph 55); it does not require exceptional circumstances for an ET to depart from the list of issues even if agreed (Mervyn v BW Controls, at paragraph 38), and it does not amount to stepping into the arena for an ET to suggest there was an issue before it that it ought to decide (Mervyn, paragraph 45). Adopting this approach, the Shotter ET had made findings of fact that should have led to the conclusion that the breakdown of trust and confidence (which it found was the cause of the dismissal) arose in consequence of the claimant’s depression and anxiety; in such circumstances, it would be contrary to the ET’s core duty to dismiss a claim that should succeed purely because the precise wording of the list of issues did not marry with the facts it had found.

It is the claimant’s primary case that the Shotter decision ought to be read as including a finding that his dismissal was unfavourable treatment; if that was not the case, by ground 7, the claimant contends (in the alternative) that the ET’s finding that his dismissal/the dismissal of his appeal did not amount to “unfavourable treatment” was wrong and/or perverse and/or inadequately explained. In this regard, the claimant observes that the Shotter ET had found that his dismissal and the dismissal of his appeal were detriments; although the concepts of “unfavourable treatment” and “detriment” were not identical, little was to be gained by drawing narrow distinctions between them (Williams, paragraph 27). Moreover, dismissal is almost always unfavourable treatment (T-Systems, paragraph 23, and Equality Act 2010 Code of Practice at section 5.7); it would only be in a truly exceptional case that it was not. Even if the Shotter ET had concluded that the claimant had not wished to return to work, that did not mean he did not wish to remain employed. To the extent it reached opposite conclusions to those it had reached for “detriment”, the Shotter ET failed to apply the correct test for “unfavourable treatment”, alternatively to explain why it had reached such apparently inconsistent conclusions.

Before turning to the specific grounds of appeal, the respondent makes the following observations: (1) the Johnson ET proceeded on the express footing that its findings did not relate to any complaints outside the claim before it and reached no conclusions as to the legitimacy of the claimant’s dismissal; (2) the Johnson ET rejected all 42 allegations of direct discrimination, which included the allegations at the heart of the first bullying and harassment complaint of 17 May 2017; (3) moreover, save for her finding of bad faith, Ms Nevins had been entitled to reach her decision, which was the same as the Johnson ET; (4) the Johnson ET similarly dismissed all other claims, save for two complaints of a failure to make reasonable adjustments, namely (i) the failure to remove the two-year warning and (ii) the failure to review Ms Nevins’ investigation findings; (5) while the Johnson ET determined (and dismissed) complaints pursuant to section 15 EqA, it was not asked to decide whether the warning was “something” which arose in consequence of disability and did not do so; (6) given the diffuse nature of the claims before it, the Shotter ET was entitled to rely upon the earlier case management as clarifying the scope of the hearing; (7) the list of issues was agreed on 16 November 2020 (some five months after the claimant’s dismissal), at the 17 December 2020 preliminary hearing the claimant sought to add three new issues, but not to allege continuing discrimination arising from the two-year warning, and he took no steps to amend the list of issues following the receipt of the Johnson liability decision.

Addressing ground 1, the respondent says the Shotter ET directed itself impeccably as to the law; as such the EAT should be slow to conclude there was any error in its application (DPP v Greenberg); particularly as “something arising” was a question of fact and evaluation for the ET. Moreover, the Shotter ET reached unimpeachable findings of fact: the “sole” and “only effective reason” for decisions taken by the respondent was the claimant’s loss of trust; this manifested itself in the claimant’s approach to the litigation and the “all-consuming distrust” was the reason why no return to work could be contemplated. By the time of the claimant’s dismissal, the Shotter ET was entitled to conclude that the two-year warning (long since expired) was a matter of background: it was one aspect of a wide-ranging claim, which gained retrospective significance because it was the sole claim which succeeded. The claimant’s argument elided separate aspects of the causal test: even if the warning arose in consequence of disability, it played no part whatsoever in the respondent’s decisions (Basildon and Thurrock v Weerasinghe [2016] ICR 305; York City Council v Grosset [2018] ICR 1492): the claimant’s dismissal was in no meaningful sense because of the expired warning but because he had no desire to return to the workplace following over two years continuous absence.

As for ground 2, the respondent says it was incumbent on the Shotter ET to consider whether something arising from disability was an operative cause of dismissal; its conclusions on causation were in no way incompatible with, or fettered by, the Johnson ET, which was silent on issues pertaining to dismissal. Having proceeded on the express basis that it was bound by the findings of the Johnson ET, the Shotter ET was not precluded from reaching the conclusions it did. Specifically, the Shotter ET was able to consider how, with the passage of time, “the claimant’s position had become more entrenched” (paragraph 109, Shotter decision), with: (i) the claimant being unable to accept the Johnson ET’s adverse findings; (ii) there being no demonstrable impact arising from steps taken to review Ms Nevin’s investigation; (iii) the expiration of the two-year warning on 24 April 2020 having done nothing to improve prospects of a return to work. The Shotter ET was also faced with reasons to question the claimant’s credibility (his unsustainable divergence from agreed notes of meetings; the taking of covert recordings; the unsustainable evidence that he did not understand the effect of the expiry of the warning). Ground 2 was essentially a perversity challenge, falling short of the necessary threshold. The Johnson ET expressly refrained from reaching any decision as to the impact of the two-year warning at the point of dismissal; it did not consider any facet of the decision to dismiss, still less did it determine whether dismissal was justified at the time the decision was reached (and the ET’s focus must be upon proportionality at the time of the alleged discrimination (Jones v Post Office [2001] ICR 805)). The Shotter ET was in no sense precluded from finding that, at the time of dismissal, there was no basis on which to conclude that the warning had any operative role; were it otherwise, an employer would be forever prevented from dismissing notwithstanding the guidance in Royal Bank of Scotland v McAdie [2008] ICR 1087.

In respect of ground 3, the respondent objects that the claimant did not seek to amend the list of issues as regards the two-year warning and the Shotter ET was entitled to conclude that unlimited shifting of the case mid-evidence was not in accordance with the overriding objective. Moreover, in view of its findings of fact, any such amendment would have had no material effect on its decision: “it would have made no difference to the prospects of returning had the respondent removed the 2-year serious warning from the claimant’s record” (paragraphs 15 and 150-152, Shotter decision) notwithstanding the claimant had been offered “reasonable adjustments that one rarely sees ..., namely any job, anywhere, and any shift throughout the organisation ...” (paragraph 77); as such, there could be no room for concluding that dismissal was disproportionate.

Turning to ground 4, the respondent says this reveals a fundamental misunderstanding of the Shotter decision: the aim in question was management of absence with a view to a return to work, and this was to be considered at the time the decision to dismiss was taken, by which point the Shotter ET was entitled to conclude that the claimant had no desire to return to work and consequently there was no less intrusive means of achieving the legitimate aim.

As for ground 5, the respondent says this is unsustainable in view of, inter alia, McAdie and DPP v Greenberg: the Shotter ET was plainly entitled to conclude that dismissal was fair following two years of absence, the claimant’s elaborate efforts to avoid meeting Mr Briggs, his unequivocal desire to avoid a return to work and (it follows) the absence of any prospect of a return in the foreseeable future.

Addressing ground 6: it is the respondent’s case that it is unclear what more it is said the Shotter ET could or should have done.

As for ground 7, the Shotter ET had found that the claimant had a single-minded obsession with the litigation and lacked any willingness to even discuss a return to work; in these circumstances, it was entitled to conclude that dismissal was not unfavourable treatment (by analogy with Keane, Berry and Garcia).

The large number of claims that had been lodged by the claimant, and the (understandable) case management decision that these should be divided and considered by two separate ETs, required both the Johnson and the Shotter ETs to maintain focus on the particular claims they were each tasked with deciding; something it is apparent that both were careful to do. Relevantly, the Johnson ET was clear in limiting its findings to the matters before it, avoiding making any findings of fact in respect of the process leading to the claimant’s ultimate dismissal. While the Johnson ET thus made findings in respect of the intervention in the claimant’s case by Mr Kelly (in the autumn of 2018), and in relation to the management of his sickness absence going into 2019, it did not address any issues relating to that process involving either Mr Smith or Mr Briggs, and did not make any findings regarding the decision to dismiss or as to the subsequent rejection of the claimant’s appeal against that decision. Equally, for its part, the Shotter ET was careful not to re-visit the earlier incidents dealt with by the Johnson ET, expressly limiting its findings to the period post-dating January 2020 (Shotter ET, paragraph 155).

The criticism made by the claimant is, however, that the Shotter ET failed to do that which all concerned had agreed it should do; namely, to treat itself as bound by the findings of the Johnson ET and to proceed on that basis. Specifically, the claimant relies on the Johnson ET’s finding that the respondent’s failure to review Ms Nevin’s decision, and to remove the two-year warning, had exacerbated his anxiety and distrust of management and, given his disability, had placed him at a substantial disadvantage. As the Johnson ET had found that, as at the time of Mr Kelly’s involvement, he was close to returning to work and would have done so had it not been for the failure to review the basis for the two-year warning, and had gone on to award loss of earnings up to 4 January 2020 by way of compensation for the respondent’s continuing failure to comply with its reasonable adjustments duty in this regard, the claimant says it was inconsistent for the Shotter ET to fail to find the necessary links between his disability and his dismissal, and to go on to uphold the respondent’s defence of justification.

The difficulty with the claimant’s case in this regard is that it effectively requires the consideration of his claims to be frozen in time: for the respondent’s decision-making process to be viewed, on a continuing basis, as bound not only by the Johnson ET’s findings of fact in respect of the events that that ET had to consider but by its conclusions in relation to those matters projected forward for the future, even in respect of events about which it had received no evidence and had reached no conclusions. Such an approach would have improperly restricted the ability of the Shotter ET to carry out its function, and to make relevant findings on the issues it was required to determine, on the evidence presented before it. Accepting that the Johnson ET had found that the respondent’s refusal to review Ms Nevin’s investigation, or remove the two-year warning, had placed the claimant at a substantial disadvantage up to the start of 2020, and that, up to that time, but for those failings the claimant would have returned to work, the Shotter ET was required to consider whether that was still the case in the months that followed, in particular, after the warning had expired in April 2020. In this regard, the Shotter ET was entitled to consider the evidence before it as to how the claimant had conducted himself in preparing for the trial before the Johnson ET, and how his behaviour impacted upon his dealings with managers, notwithstanding the various assurances he had been given both as to the expiration of the warning and as to the range of adjustments that could be made to facilitate his return to work. I do not accept that the Shotter ET was required to put to one side any view it might have reached as to events post-dating January 2020, and to treat itself as bound to hold that there was a continuing link between the earlier failure to review the two-year warning and the treatment of the claimant in relation to the decision to dismiss and the subsequent refusal of his appeal.

As for how the issues before the Shotter ET had been defined, there is force in the claimant’s point that he had always linked his inability to return to work to the respondent’s failure to remove the two-year warning. That was apparent from his pleaded case (in which he argued that, because of his disability, he was unable to live with the warning in the same way as “a normal person”), from his application for strike out (made in late November 2021, after receiving the Johnson liability decision), and from how he in fact ran his case before the Shotter ET (Shotter decision, paragraphs 8 and 10). To some extent, therefore, this was an issue that “shouted out” from various iterations of the claimant’s case (per McLeary), but this was not how the claimant had sought to define his case when asked to contribute to the list of issues that the ET was to determine: the removal of the warning was not identified as an adjustment under the claim under sections 20 and 21 EqA (as detailed below, the adjustments particularised in the list of issues were focused on the respondent’s procedures), and no link to the claimant’s disability, and consequential inability to live with the warning, had been made in defining the “something arising in consequence” for the purposes of section 15 EqA .

As the respondent observes, given the complexity of the proceedings, it was not wrong for the Shotter ET, at the outset of the full merits hearing, to take the case management decision that the list of issues should not be further amended. To the extent that meant that it might disregard the claimant’s case as to the link between his disability and the two-year warning, however, that would inevitably mean that the Shotter ET would fail to address a significant issue in dispute in the case before it (and see Mervyn). Ultimately I consider that the Shotter ET did in fact address this issue (it did not “stick slavishly to the list of issues”, per Parekh), and that its reasoning is not undermined by a failure to recognize a key point of dispute in the case; I can see, however, that it might have been more helpful for this point to have been articulated within the list of issues: the Shotter ET would not have been stepping into the arena by proactively adding an issue that was plainly a key part of the claimant’s case (Mervyn, paragraph 45), and the respondent would not have been prejudiced by this recognition of a point that it had already identified for itself in its pleadings.

Turning to the specific claims the Shotter ET had to determine, it is convenient to first consider the claimant’s complaint of a failure to make reasonable adjustments, brought under sections 20 and 21 EqA: if the ET’s decision on this claim has to be set aside, that is likely to impact upon its reasoning on both the claims of unfair dismissal and as brought under section 15 EqA.

In formulating the list of issues, the adjustments identified by the claimant did not include the removal of the two-year warning, but were more focused on the respondent’s procedures; thus, the proposed adjustments correlated to the PCPs he complained of, as follows: (i) senior managers ought to have engaged directly with the claimant about his complaint; (ii) the absence management procedure ought to have been used prior to instigation of the conduct procedure; (iii) the claimant ought to have been afforded a supportive return to work; (iv) the claimant should have been referred to occupational health; (v) the claimant’s appeal ought to have been allowed. To the extent that the claimant had established any PCP (and the ET considered the only PCP was (i), the policy of senior managers not directly engaging with individual complaints), the ET did not accept that he had shown he had been put at a substantial disadvantage in comparison with persons who were not disabled, or that any adjustments would have resulted in his return to work. In reaching this conclusion, the Shotter ET did not limit itself to the adjustments identified in the list of issues, but expressly had regard to the claimant’s complaint that the two-year warning ought to have been removed; even had this been done, the Shotter ET was clear: “there was no real prospect whatsoever of the claimant ever returning to his duties, whatever adjustment was made (including expunging the 2-year serious warning)” (Shotter decision, paragraph 183).

Whilst acknowledging that the Shotter ET thus referred to the two-year warning, the claimant contends this was not sufficient: first, it did not take into account the earlier finding of the Johnson ET; second, it failed to consider this as part of a staged approach to the question of reasonable adjustments that was required. I do not consider, however, that these objections withstand scrutiny. Having expressly referred to the relevant findings of the Johnson ET at the outset of its decision (in particular, to the Johnson ET finding that the warning had “placed the claimant at a substantial disadvantage in that he was unable or unwilling to take a pragmatic view of its implications ... His disability meant that this warning became the focus of his sense of grievance ... and this exacerbated his impairments”, and that the re-examination of Ms Nevin’s decision “was a reasonable adjustment that should have been made”), I would not readily infer that the Shotter ET then failed to recall those findings when approaching its decision (per DPP v Greenberg). It was, however, considering the position at a different point in time, by which stage - as it permissibly found - there was no efficacy to expunging the two-year warning (which had, in any event, already expired), as that would have had no effect in securing the claimant’s return to work. The duty to make reasonable adjustments is practical in nature (FirstGroup v Paulley); on the Shotter ET’s permissible findings, there was no prospect of any adjustment - even the removal of the (by then expired) two-year warning - securing the claimant’s return to work. No error of law arises from this aspect of the Shotter decision, and I duly dismiss ground 6.

Turning then to the claimant’s claim under section 15 EqA, the first question that needs to be addressed is whether the Shotter ET made a finding that the respondent had treated the claimant “unfavourably”. As I have already observed, the reasoning provided in this regard is somewhat ambiguous: stating that the claimant’s dismissal (and the subsequent rejection of his appeal) “theoretically amounted to unfavourable treatment, but in the specific circumstances of the claimant’s case the dismissal did not constitute unfavourable treatment” (Shotter decision, paragraph 163). For the respondent, it is contended that this should be taken to be a finding of no unfavourable treatment on the specific facts of the claimant’s case; by analogy with the cases of Keane, Berry, and Garcia (all involving claimants who were complaining of discrimination in relation to applications for jobs they had never wanted), the Shotter ET had found that the claimant “showed no inclination for a return sometime in the foreseeable future” (Shotter ET, paragraph 165) and was entitled to hold that dismissal, in those circumstances, was not unfavourable.

As HHJ David Richardson observed in T-Systems, save in very rare cases, a dismissal will inevitably amount to unfavourable treatment for the purposes of section 15 EqA. The position of someone who is in employment is very different to the putative applicant who makes claims of discrimination in relation to jobs for which they never wished to be appointed; I do not see the present case as analogous to Keane, Berry and Garcia. Moreover, even if an employee has no desire to actually return to the workplace, that does not mean to say that they would consider dismissal to be a neutral act: taking into account that employee’s circumstances, it may well be that continuing in employment (even if unable or unwilling to return to work) would reasonably be viewed as more favourable treatment than having that employment brought to an end by dismissal.

In the present case, in its findings on the claim of direct discrimination, the Shotter ET had accepted that both the claimant’s dismissal, and the rejection of his appeal, amounted to detriments. Even allowing for the possibility that a distinction might be drawn between being subjected to a “detriment” and being treated “unfavourably” (albeit that the Supreme Court in Williams considered it was unhelpful to seek to draw such narrow distinctions), if that was what the Shotter ET intended, it might reasonably be expected that it would have explained the relevant difference between the application of these concepts on the facts of this case. To the extent, therefore, that the Shotter ET held that the claimant’s dismissal did not amount to unfavourable treatment, I would allow the appeal on ground 7: the Shotter decision does not provide an adequate explanation for why the detriment it found the claimant suffered by being dismissed (and in the rejection of his appeal against dismissal) should not also be considered to amount to unfavourable treatment for the purposes of section 15 EqA.

The next question is whether the ET also erred in its approach to defining “the something arising in consequence” of the claimant’s disability. There is a degree of overlap in the claimant’s arguments under grounds 1, 2 and 3 in this regard; it is the claimant’s case that “arising in consequence” connotes a looser causal test than “because of”, and, allowing that the “something” may “arise in consequence of disability” by a series of causal links (per Sheikholeslami, paragraph 66; Pnaiser, paragraph 31), the Shotter ET ought to have found the requisite causal nexus: (i) because that necessarily followed once it was accepted that it was bound by the findings of the Johnson ET (ground 2), and/or (ii) because that was the conclusion that followed from the Shotter ET’s own findings at paragraph 165 (ground 1). The claimant further contends (ground 3) that, given its findings at paragraph 166 of its decision, the Shotter ET ought to have found that his treatment was because of the “something” and only avoided that conclusion by its overly precise and technical application of the list of issues.

Proceeding on the (alternative) basis that the claimant’s dismissal (and rejection of his appeal) amounted to unfavourable treatment, in asking what was the reason for that treatment (the first of the questions identified in Sheikholeslami, and see Pnaiser paragraph 31(b)-(c)), the Shotter ET found that it was due to the breakdown in the working relationship, which was such that the claimant would never return to work (paragraph 147, Shotter decision), and that it was a consequence of the respondent’s response to his actions and behaviour (paragraph 161), which were underpinned by his distrust in managers and culminated in his refusal to agree a way forward, to discuss a return to work, or to have any trust in the respondent (paragraphs 165-166). Given those findings, the issue the Shotter ET had to determine (the second question identified in Sheikholeslami, and see Pnaiser paragraph 31(d)-(f)) was whether the “something” that had caused the respondent to act as it had - in summary, the breakdown in the working relationship arising from the claimant’s lack of trust - had arisen in consequence of the claimant’s disability (his anxiety and depression).

Although the Shotter ET concluded that there was “no satisfactory evidence that this was something which arises in consequence of the claimant’s disability” (paragraph 165), it is unclear how it arrived at that conclusion. In particular, I note that the Shotter ET stated that it accepted that aspects of the claimant’s behaviour might have been connected to his anxiety, and that such behaviour had a significant influence on his actions, including his lack of trust in managers, and culminating in his refusal to discuss a return to work (again, paragraph 165). Allowing that the causal nexus between the “something” and the particular disability might be established by more than one link (Pnaiser paragraph 31(d)), and that the “something” need not be the sole or main reason for the unfavourable treatment but simply needed to be a more than trivial influence (Pnaiser paragraph 31(b)), I consider there is force in the claimant’s contention (essentially, ground 1) that the Shotter ET erred in its approach to this part of its determination.

In reaching this view, contrary to the claimant’s assertion by ground 2, I do not accept that the findings of the Johnson ET necessarily meant that the Shotter ET had been bound to find the relevant causal link: as I have previously observed, it was considering events at a different time and in a different context. Although the Johnson ET had found that the procedural response at the time of the events before it had “no doubt exacerbated the claimant’s anxiety and belief that management were closing ranks” (Johnson liability decision, paragraph 93) and that, at that stage, his “disability meant that [the two year warning] became the focus of his sense of grievance with the respondent and this exacerbated his impairments arising from this disability” (paragraph 155 c), the Shotter ET was considering the position at a different time, when the warning had expired and when management had been entirely open to considering any possible adjustments that would permit the claimant to return to work.

I am equally not persuaded that the Shotter ET restricted its consideration by slavishly sticking to the list of issues (the claimant’s contention by ground 3). Although referring to the “something” as set out within that list (within the last sentence of paragraph 166), it is apparent from paragraphs 165-166 (and from the Shotter decision taken as a whole) that regard was had to what the Shotter ET had itself found to be the reasons for the impugned treatment. Its error lay in failing to allow for the possibility that the requisite causal nexus might be established by a series of links between the “something” and the claimant’s disability, and/or in failing to consider whether this might have had a more than trivial influence on the relevant decisions; it did not err by limiting its consideration to the single matter the claimant had identified in the list of issues.

Having accepted that the Shotter ET fell into error in its approach to the issues of causation under section 15 EqA, I do not consider that adopting the correct approach would necessarily have meant that it would have found for the claimant on this point. As the decision makes clear, it is apparent that the Shotter ET did not accept that the claimant’s relevant conduct was entirely explained by his disability. In particular, the Shotter ET had been able to see how the claimant had behaved in relation to the on-going proceedings, and it plainly saw his behaviour in his dealings with the respondent as explicable as a result of his obsession with the litigation (as distinct from any anxiety connected with that litigation); see, for example, the Shotter decision, at paragraphs 15, 29, 16 (mis-numbered, appearing at page 16 of the Shotter Decision), 32, 46, 56, 68, 147, 151, 154, 155, 161 and 165. Accepting that the distinction might not be entirely clear-cut, I am not persuaded that the Shotter ET’s findings must mean that its rejection of a causal connection was perverse. If the Shotter decision had stopped at this point, my inclination would have been to remit the section 15 claim for reconsideration on this issue. Ultimately, however, given the conclusion I have reached on the question of justification, I am satisfied that this is unnecessary.

I turn therefore to the claimant’s challenge to the Shotter ET’s finding on the question of objective justification (ground 4), by which it is contended that the respondent’s “legitimate aim defence” could not succeed given that the claimant’s dismissal resulted from the failure to make reasonable adjustments that would otherwise have enabled his return to work. In this regard, the claimant again places reliance on the findings of the Johnson ET, in particular to the effect that the removal of the two-year warning would have been “a discrete and effective act” (Johnson liability decision, paragraph 157 e) and that, but for the existence of that warning, the claimant would have returned to work (paragraph 157 c). It is his case that the existence of the two-year warning remained an issue for him during the entirety of the period being considered by the Shotter ET, which it had to address taking into account the earlier finding of the Johnson ET.

Assuming that the claimant was to be taken to have established that his dismissal (and rejection of his appeal) amounted to unfavourable treatment because of something arising in consequence of his disability, the question for the Shotter ET was whether the respondent had shown that that treatment was a proportionate means of achieving a legitimate aim. Having identified the legitimate aim as being the respondent’s requirement “for regular and reliable staff attendance, and employees who are on long-term sickness absence to do all they can to meet with managers with a view to discussing reasonable adjustments leading to a return to work ...” (Shotter decision, paragraph 167), the Shotter ET went on to consider whether the claimant’s dismissal was a proportionate means of achieving that aim. In so doing, it permissibly had regard to the fact that the claimant had been continuously absent from work since 3 January 2018, with no foreseeable return, during which period the respondent had had to employ someone else to cover his role (with the additional cost that incurred). As for the two-year warning, the Shotter ET found that:

In the light of the Shotter ET’s findings, it cannot be said that it erred in concluding that removal of the two-year warning would have remained the “discrete and effective act” that the Johnson ET had found, or that such an act would then have resulted in the claimant’s return to work. As I have already explained (see above, under “reasonable adjustments”), the Shotter ET was considering the position at a different point in time to the Johnson ET, and had reached the entirely permissible conclusion that, by the stage of the decisions with which it was concerned, there was no longer any efficacy in expunging the two-year warning (which had by then already expired), as that would have had no effect in securing the claimant’s return to work. Having considered whether the respondent might have taken any other step, so as to reduce or mitigate the impact on the claimant, the Shotter ET was clear that none of the lesser measures identified by the claimant would have achieved the legitimate aim (Shotter decision, paragraph 170). Carrying out the requisite balancing exercise (per Hardy and Hansons v Lax), and assessing the proportionality of the impugned treatment at the time of the decisions in issue, the Shotter ET’s conclusion on justification cannot be faulted. Ground 4 of the claimant’s appeal must therefore be dismissed, which is fatal to his challenge to the Shotter decision on his claim under section 15 EqA.

I turn finally to the appeal against the Shotter ET’s rejection of the claim of unfair dismissal. By ground 5, the claimant argues that the finding that his dismissal was within the range of reasonable responses open to the respondent was perverse and arose from a failure to properly engage with the findings of the Johnson ET.

For the reasons I have already explained, I do not accept the premise of the claimant’s argument in this regard: the Shotter ET had to determine the question of reasonableness as at the time of the decision to dismiss, which was some months after the last events considered by the Johnson ET. During the course of 2020, subsequent to the period with which the Johnson ET was concerned, the two-year warning had expired and the respondent had made clear to the claimant that this would no longer be on his record or be taken into account (something which the Shotter ET was satisfied that the claimant understood). The respondent’s managers (Mr Smith and Mr Briggs) had also made clear that any reasonable adjustments would be considered to enable the claimant to return to work. As the Shotter ET found, however, the claimant no longer placed any value in his relationship with the respondent, refused to engage with any discussions regarding his return to work, and had become subsumed by his litigation. The position that faced Mr Briggs when making the decision to dismiss the claimant was not the same as that being considered by the Jones ET; the Shotter ET did not err in assessing the question of reasonableness as at the time the decision was taken.

I am equally not persuaded by the further point made by the claimant, to the effect that the Shotter ET ought to have had regard to the fact that the reason for the claimant’s dismissal related to the respondent’s earlier failings (as found by the Johnson ET). Allowing that it is arguable that “equity and the substantial merits of the case” might require an ET to have regard to an earlier failure to make a reasonable adjustment, which then impacted upon an employee’s behaviour in a way relevant to a subsequent decision to dismiss (by analogy with the commentary in McAdie, and Iwuchukwu), I do not consider any error is demonstrated by the Shotter decision in the present case. As in Rochford v WNS Global Services, the situation the Johnson ET was considering in its finding of a failure to make a reasonable adjustment had “shifted away”, and the Shotter ET was entitled to reach the conclusion it did when considering the position at the time of the decision in issue.

For the reasons provided, the claimant’s appeal is dismissed.