Claimant v Secretary of State for Justice

The tribunal found that the claimant had not established a link between his protected disclosures and the alleged detriments. The tribunal concluded that the actions taken by the respondents (performance management, suspension, shift changes) were justified management responses to the claimant's conduct, including his refusal to follow lawful instructions, failure to follow procedures (night state), and the tone of his communications with managers. The tribunal found these were the real reasons for the treatment, not the protected disclosures.

The claim that the claimant suffered a detriment for taking time off for family and domestic reasons failed. The tribunal found that the claimant had advance knowledge of the meeting on 5 September 2022 and therefore time to arrange childcare. He did not provide evidence of an unexpected disruption or failure of arrangements as required by s.57A(1)(d) ERA 1996. The claimant did not inform his line manager in advance of childcare difficulties, only mentioning it during the meeting to someone who was not his manager.

The tribunal found that the second respondent did not perceive the claimant to have a mental impairment or disability. The comments about the claimant being 'erratic and irrational' and concerns about his mental health were expressions of genuine concern resulting from the claimant's refusal to engage with Occupational Health and the confrontational tone of his emails to managers. The OH referral was standard practice for night workers and a supportive measure, not evidence of perceived disability. There was no less favourable treatment.

The tribunal found there was no provision, criterion or practice preventing employees on suspension from using the multifaith chaplaincy. The claimant had misrepresented his conversation with Mr Girling on 6 January 2023. The claimant did not make an express request to use the chaplaincy that day. Mr Girling's response was general and indicated any decision would depend on the terms of suspension and would be for prison management. The Deputy Governor confirmed there was no such practice at the prison.

The tribunal found the second respondent did not perceive the claimant to have a disability, so the communications could not relate to perceived disability. The expressions of concern on 7 October 2021 and 29 November 2022 and the OH referral request were supportive measures and did not objectively or reasonably have the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The OH referral was standard practice.

The tribunal found that: (1) Mr Girling did not refuse chapel access on 6 January 2023 - the claimant misrepresented their conversation; (2) the body-worn cameras activated by Mr Johnson and Mr Claydon were used because the claimant had misrepresented previous interactions and they were concerned about escalation, not related to religion; (3) while an offensive Christmas card was sent referencing Christmas, the tribunal could not establish on balance that it was sent by a first respondent employee (could equally have been sent at direction of a prisoner), so the burden did not shift to the respondent.

The tribunal found the claimant had done protected acts but failed to establish any link beyond chronology between the protected acts and the alleged treatment. The tribunal concluded the claimant had not shifted the burden of proof. In any event, examining the mental processes of the decision-makers, the tribunal found the real reasons for each alleged detriment were: legitimate performance concerns, the claimant's refusal to follow lawful management instructions to transfer to day shifts, his failure to engage with OH, the tone of his emails, and his failure to comply with suspension terms. None of the treatment was because of the protected acts.

The claim was founded on the claimant's misconception that he was employed on a 38.5 hour contract. The tribunal found his contract was for 37 hours per week and had not been amended. Hours worked in excess of 37 were remunerated as paid overtime or TOIL. The first respondent had not made any unlawful deductions from wages.

The tribunal found the claimant's hourly pay under his 37 hour contract exceeded the National Minimum Wage. The claim was based on a misunderstanding of his contractual hours. The respondent had complied with NMW requirements.