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Justify This 2006 - 2007

 

Copyright 2016 by Nostaple Limited

 

All Rights Reserved.

 

Disclaimer: This is not a work of fiction. As such, the publisher has made every effort to ensure the accuracy of the information within this book was correct at time of publication. The publisher does not assume and hereby disclaims any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from accident, negligence, or any other cause. The publisher will be pleased to make good any omissions or rectify any mistakes brought to the publisher’s attention at the earliest opportunity. Any views and opinions expressed herein are fully endorsed by the publisher. The publisher will, at the publisher’s own expense, defend any claim based upon any lawsuit brought against any content contained within this book.

 

Licensing Note: No part of this book may be reproduced in any manner without the express written consent of the publisher, except in the case of brief excerpts in critical reviews or articles. All inquiries should be addressed to Nostaple Limited, website click here.

 

First Edition (Distributed by Shakespir)

 

Other books by Nostaple Limited:

 

The Justify This series:

 

Justify This 2006 – 2007

Justify This 2007 – 2008

Justify This 2008 – 2010

Justify This 2010 – 2011

Justify This 2011 – 2015

 

The Justify This series of books is a blow by blow account of one person’s true story of alleged discrimination in the workplace, leading to legal cases against a multinational employer and international countries, through local courts, national courts, international courts, and the United Nations.

 

Contents

 

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Chapter 12

Chapter 13

Chapter 14

Chapter 15

[]Chapter 1

 

“Prejudice, not being founded on reason, cannot be removed by argument”

Samuel Johnson, 1709-1784.

 

The story that is about to unfold is purely based on fact. It is a factual account of one person’s struggle against a multinational software company, a multinational legal company and the legal system itself. It is the type of struggle which reveals who your real friends are, what families are for, and how alone life can be.

 

My name is Kenneth Robert McAlpine, and I was born on 12 August 1964 to a working class family in a village called Uddingston in Scotland. In the early years, up until I was aged five, we lived in the top flat of a three-storey tenement building, which had an outside toilet.

 

When I was aged eighteen months, I contracted mumps that caused my immune system to attack and shut down my pancreas, resulting in my pancreas not producing any insulin. This meant that I had contracted Type 1 diabetes, and had to take insulin via injections every day for the rest of my life.

 

Although I had type 1 diabetes, I lived a very normal childhood, only having to stop for five minutes every day to take insulin. In fact, if I was out running about a lot, playing, I would be burning up energy and sugar, and my blood sugar level would drop, so I would have to get some extra sweets to bring my blood sugar level back up to normal levels. What child didn’t enjoy getting some extra sweets?

 

My school years were also very normal, but I probably had more intelligence than I realised, but simply played myself out of contention for a University place, and barely made the grade for College.

 

When I was eighteen, I managed to get a place at College studying for a Higher National Diploma in Mechanical Engineering. This was a three-year course, and I played and studied myself through this course, and eventually graduated with a Higher National Diploma in Mechanical Engineering.

 

After graduating, I managed to obtain work placement in a large engineering company for a few months before applying for a place at University to study production engineering and management. This was a whole different league, and there was to be a lot less playing and an excessive amount of studying. At the end of my studies, I managed to obtain an honours degree in production engineering and management.

 

I then spent five years working for a company in heavy engineering, producing very large, very heavy components for a wide range of industries, including nuclear power stations.

 

During this time, I settled down and married. We set up home in Ayrshire, where my wife had lived all her years. At the end of our first year of marriage I was made redundant from heavy engineering, but managed to obtain employment in a small electronics company within six months, and worked there for two years before deciding to go back to University to study for a masters degree in business computing, which I obtained a year later.

 

I then obtained work, again in the electronics sector, but this time as a database administrator rather than an engineer. It was at this time that I was introduced to Oracle Corporation and their software. I spent the next few years becoming a better and more experienced Oracle database administrator, which ultimately resulted in vacancies becoming available in Oracle Corporation UK Limited, one of which I ultimately filled in 1998.

 

In order to set the scene of what transpires over the next few years, I have to describe my career in Oracle.

 

I started working for Oracle Corporation UK Limited on 12 August 1998, my birthday, aged thirty-four, not much of a birthday, away from home on induction training. I was a Consultant, working in Oracle Consulting, and was expected to know everything about Oracle, it’s software and any computer it was running on. In order to succeed as a Consultant, you had to talk as if you knew it all, but in reality, it was down to a team effort.

 

I spent many weeks away from home, working on contracts, mainly myself, and initially enjoyed working out of a suitcase, but when my wife got pregnant with our first child, I knew that my wife would find it difficult to cope herself.

 

Early in 1999, my manager phoned me and explained that there was a six-month secondment with Oracle Support to set up a small business to remotely support Oracle customers via the Internet. Both myself and another Oracle Consultant were to provide the online expertise to look after the customer’s database and software, and this business would be called ExpertOnline.

 

At the end of this secondment, I was given the choice to stay with ExpertOnline that was beginning to take off and gain more customers, or go back to Oracle Consulting. For me, there was no choice, ExpertOnline allowed me to mainly work from home and see my newborn daughter every day while Oracle Consulting would mean travel and long periods away from home.

 

By April 2002, ExpertOnline had grown from around five to around twenty employees in the United Kingdom, was also taking off in various continents around the world, and had changed its name to Oracle Outsourcing.

 

Over the next two years, I had the opportunity to work in two different areas of what had been renamed Oracle On Demand. The last job was as a Project Manager, but this started to involve much more travel to new customers anywhere in Europe, the Middle East and Africa. Many of the Project Managers who I knew had either no family or their family had grown up and flown the nest. My wife at this time was pregnant with our second child, so travel and long periods away from home were not on my list of preferences at all.

 

I always remember my team leader in Oracle Consulting during a performance review stating that you should expect to be promoted once every two years in Oracle, the basis of that statement being if you survived another two years in Oracle you would have another two years experience. By this time, I had worked for Oracle for six years but was still the same grade as when I started.

 

In the middle of 2004, I had various meetings and telephone calls with my manager regarding a move out of the Project Management group. To cut a long story short, my manager threatened me with redundancy unless I stayed on as a Project Manager, however at this time a vacancy for an On Demand Service Delivery Manager became available, and I applied and filled the vacancy. Funnily enough, a few Project Managers left the group around about this time as well, I wonder whether it was the travel or the management, but I will never know.

As an On Demand Service Delivery Manager I was thrown straight in at the deep end, working with another On Demand Service Delivery Manager, Julie McFarlane, on the largest contract in On Demand in the United Kingdom, and one of the largest in Europe, Middle East and Africa.

 

This contract was so busy, that Julie and myself recognised that we needed another On Demand Service Delivery Manager about ten weeks after I had started, so Richard Marsden was brought in to take some of the work away from Julie and mainly myself.

 

The next year and a half flew by, and in November 2005, Julie McFarlane contacted me and said she was leaving On Demand to work in another group within Oracle. Towards the end of November my manager, Philip Snowden during my performance review mentioned that I would be allocated to help on a newly signed large contract, General Electric.

 

Little did I know at the time, but the General Electric account would be two to three times as busy as the Environment Agency account, and I would be working on the General Electric account with just one other On Demand Service Delivery Manager, Fran Winters.

 

Over the next three weeks working on the Environment Agency and General Electric accounts simultaneously, the workload and work conflicts were causing stress, and I realised that the status quo could not continue, as my health was beginning to suffer, and the service to both the Environment Agency and General Electric accounts was also beginning to suffer. This came to a head in the middle of December, when I was expected to attend the Environment Agency monthly meeting on 21 December 2005, the same day that I was due to stop for the Christmas break. Because this was going to be the last day before a two-week break, I had to make sure that both the Environment Agency and General Electric accounts had no outstanding work that would cause problems over the two-week break. I stated to Julie McFarlane and Richard Marsden that I would be unable to make the Environment Agency monthly meeting on 21 December 2005 because I could not afford to devote a full day to travel and meetings with the Environment Agency because that was the last day before my Christmas break, and I would have to devote a large part of that day to General Electric work. I didn’t see this as a problem, as Julie McFarlane and Richard Marsden only worked on the Environment Agency account, and regularly attended the Environment Agency monthly meetings.

 

A conference call was hastily arranged on 16 December 2005 between me, Julie McFarlane, Richard Marsden and our manager Philip Snowden, who was due to go on his Christmas break that day. I learned that Julie McFarlane and Richard Marsden had reported me to Philip Snowden for not wanting to attend the Environment Agency monthly meeting. All three sit within a ten-metre radius of each other in the same office. An argumentative exchange took place, primarily it was three against one, and towards the end of the ten-minute call Philip Snowden said that I had to attend the Environment Agency monthly meeting. At the end of the call, I asked Philip Snowden to stay on the line, and had a private chat with him concerning my workload, work conflicts, stress and the impact that this was having on myself and informed Philip Snowden about my diabetes. I also informed Philip Snowden that the number of problems on a daily basis between both accounts, made it impossible to work the problems on both accounts simultaneously on a daily basis, and I gave him a simple choice, was I to work the Environment Agency problems or work the General Electric problems.

 

On 21 Dec 2005, I had an early start and travelled up to the Airport to fly down to the Environment Agency monthly meeting for a nine-thirty start. Before the meeting, Richard Marsden informed me that Nicholas Cooper, my Senior Director and Philip Snowden’s manager, wanted to see me after the Environment Agency monthly meeting.

 

After the Environment Agency monthly meeting and some lunch, I went to Reception and asked them to book me a taxi to come as soon as possible for the Airport, when I bumped into Nicholas Cooper, and we both went to Mr Cooper’s office. I informed Mr Cooper about the problems working on both accounts simultaneously, the impact that this was having on my diabetes and myself. Mr Cooper preceded to analyse my day in his eyes, and, as a result, convinced himself that there was not an excessive workload, there were no work conflicts, and, as a result, no stress. At this point I received a phone call from Reception to inform me that my taxi had arrived, so I informed Mr Cooper and the meeting quickly ended with me informing Mr Cooper that as the status quo had to continue, I had to leave the role of On Demand Service Delivery Manager and look for another role within Oracle after the Christmas break.

 

What really bothered me, and it had been touched upon at the meetings with both Nicholas Cooper and Philip Snowden, was the fact that there were around fourteen On Demand Service Delivery Managers, many of whom worked on small accounts that had around three to five hundred problems a year. The Environment Agency had around two and a half thousand problems a year, and the General Electric account was heading for around six thousand problems a year. Even although there was more than one On Demand Service Delivery Manager working with both the Environment Agency and the General Electric accounts, the workload was not evenly split between all On Demand Service Delivery Managers in the whole team, and in my case, it was simply unworkable.

 

The start of the New Year, 2006, did not bring any relief from the work conflicts, as I was still expected to collate and write the Environment Agency monthly report whilst working on the General Electric account, and I was not getting much time, if any, to look for another role within Oracle, to get me out of this vicious circle. This continued for the next few months.

 

On 25 May 2006, I received a short phone call from Philip Snowden, informing me that I had to travel through to the Edinburgh office and speak with a William Gemmell, I had never met a William Gemmell before, and Philip Snowden did not give any further details.

 

I travelled through to the Edinburgh office on 30 May 2006, and after a short wait, William Gemmell introduced himself, and we proceeded to his office. Mr Gemmell introduced himself as the most Senior Director in the Edinburgh office and informed me that I had been provisionally selected for redundancy, handing me a letter dated 30 May 2006 informing me I had been provisionally selected for redundancy.

 

At the meeting with William Gemmell, I asked a few questions regarding why I had been provisionally selected for redundancy, but Mr Gemmell stated that he could not answer any questions as he was not my manager or director, and was not involved in my line of business. He informed me that I should contact a Catherine Temple in Human Resources. So I returned home and contacted Catherine Temple who informed me the next day that she was going to post my leaver’s checklist and compromise agreement out to me that day, and outlined the procedure on how to return my phone and laptop computer.

 

I continued working as normal for the next ten days, and then felt that I was coming down with something, so arranged to see one of my local doctors on 13 June 2006. At the appointment with the doctor, the doctor noted that I felt shivery and unwell, and had vomited. The doctor also noted that I looked unwell, and took my temperature, which was 102.2oF, well beyond the minimum temperature that is regarded as a severe fever. I also had a blood sugar level of seventeen, the normal blood sugar level is around six and a half. The doctor informed me that she was calling an ambulance, as I was to be admitted straight to Accident and Emergency.

 

I spent the next four days in the hospital, receiving many pints of fluid intravenously as well as antibiotics. After being discharged I went back to work and learned that my redundancy had been moved from 27 June to 10 July 2006. I returned my equipment on 2 July 2006, as I was in the area of the nearest office, and was officially notified that I was redundant on 10 July 2006.

 

I spent the next month or so updating my CV and registering with job sites on the internet, as well as signing on for the government’s jobseeker’s allowance benefit.

 

It was now mid-August, and my parents were urging me to raise a case against Oracle for unfair dismissal and discrimination. I knew that if I did raise a case against Oracle, then my career would be over, and the career that I had worked for over the past ten years would disappear almost overnight. Whether you are working for Oracle or one of their customers, you cannot escape having to contact, and work with Oracle. It is a very Oracle-centric career.

 

However, I knew just how unfair my redundancy had been, and because of this, I strongly suspected discrimination based on my diabetes.

 

There was, however, one massive problem, I had no proof, and I also knew that Oracle, with its limitless resources, would hire the best lawyers to defend any case.

 

On 25 August 2006, I decided to raise a Tribunal case of unfair dismissal and disability discrimination. The ET1 Form is the main Employment Tribunal form that starts the whole case off. Without one of these forms, the Employment Tribunal does not have a case to process.

 

The ET1 form is split into thirteen sections, and the first section requests the usual information such as title, first name, surname, date of birth, address, phone number and email address of the claimant. The second section requests information for the respondent such as employer’s name, and employer’s address and phone number.

 

“3.1 Are you, or were you, an employee of the Respondent?”, to which I answered “Yes”.

 

“3.3 Is your claim, or part of it, about a dismissal by the respondent?”, to which I answered “Yes”.

 

“3.5 Have you put your complaint(s) in writing to the respondent?”, to which I answered “Yes” and stated that I had done so on 2 June 2006.

 

“3.6 Did you allow at least 28 days between the date you put your complaint in writing to the respondent and the date you sent us this claim?”, to which I answered “Yes”.

 

In section 4 I answered questions on when my employment with the respondent started and ended, and whether my employment was continuing, to which I answered “No”. The form then asked the following question “Please say what job you do or did”, to which I answered “Service Delivery Manager”. This section then ended by asking questions on the number of hours worked, and pay before and after tax.

Section 5 dealt with unfair dismissal or constructive dismissal and stated that if you think your dismissal was unfair, or you feel that you had been constructively dismissed, then you should explain what happened. In the blank space provided, I typed the following:

 

“Failure to follow dismissal and redundancy procedures. No consultation with myself what so ever. Telephone call to advise me to attend a meeting with a Manager (not my Manager) on 30th May 2006, no reason given. At that meeting, given a provisionally selected for redundancy letter dated 30th May 2006. Dismissal from a team of people performing very similar work, I was the 7th longest serving team member, in a team of around 14 people, the latest recruit to the team started on 1st June 2006.”

 

This section then requested information on any further benefits that you received from your employer, and whether or not you have since gained other employment since your dismissal. it ended by requesting whether you wanted to be re-employed by your old employer, or just wanted compensation, and I indicated that I just wanted compensation.

 

Discrimination was dealt with in Section 6:

 

“6.1 Please tick the box or boxes to indicate what discrimination you are complaining about”, to which I ticked “Disability”

 

“6.2 Please describe the incidents which you believe amounted to discrimination, the dates of these incidents and the people involved”

 

“Phonecall with Phil Snowden 16th December 2005, raised my concerns over my workload, stress levels and diabetes.

 

Meeting on 21st December 2005 with Nick Cooper, again, raised my concerns over my workload, stress levels and diabetes.

 

The approximate value of normal contracts for our team was normally less that £0.5m, most team members worked on two or three of these contracts simultaneously. I was working on two contracts simultaneously with a value of approximately £15m and £20m, although there was one additional team member assigned to work on each contract, but whatever way you split the contract value, I had the largest value.

 

No reduction in workload until I was selected for redundancy on 30th May 2006.

 

Loss of diabetic control over subsequent months.

 

After 30th May 2006, handover of some work (email from Phil Snowden on 5th June 2006) to Mark Jones, who was recruited to the team on 1st June 2006 (email from Phil Snowden 20th April 2006).

 

During June, I was admitted to Accident and Emergency Department of local hospital for 4 days, with a temperature in excess of 100F. My GP had diagnosed that I had keytones due to my diabetes, and because I was so run down, I had contracted a viral infection and a fever.

 

After my selection for redundancy period had expired, I was made redundant on 28th June 2006.”

 

The rest of the form mainly dealt with other information that was not required in my case, and I also did not complete the section regarding representative, as I did not have anyone representing my interests at that time.

 

That same day, 25 August 2006, I received an email from the Glasgow Employment Tribunal Service.

 

Thank you. Your claim form has been received at 05:24 on Friday, August 25, 2006 and has been forwarded to the relevant tribunal office.

 

Please make a note of your receipt number: 50539

 

Receipt of your claim will be confirmed by the tribunal office dealing with your case. If you do not receive an acknowledgement of your submitted claim within one working day, please telephone the relevant office.

 

You should print off a copy of your claim form for your records.

 

Ref. No.: 50539

 

The law on disability discrimination, the Disability Discrimination Act, allows employees who feel that they have been discriminated against, to question their employer on the alleged discrimination. On 21 September 2006, I sent the Disability Discrimination Act questionnaire to the managing director of Oracle Corporation UK Limited, the respondent. The important parts of the questionnaire were as follows:

 

“What happens if the respondent does not reply or replies evasively

 

7. The respondent cannot be compelled to reply to the complainant’s questions. However, if the respondent deliberately, and without reasonable excuse, does not reply within eight weeks, or replies in an evasive or ambiguous way, his or her position may be adversely affected should the complainant bring proceedings. The respondent’s attention is drawn to these possible consequences in the note at the end of the questionnaire.”

 

2. {Give details including a factual description of the treatment received, the effect of the treatment received (if the complaint relates to harassment), or the failure complained of. Describe any relevant circumstances leading up to this and include any relevant dates or approximate dates (see paragraph 11 of this guidance).}

 

Phonecall with Phil Snowden 16th December 2005, raised my concerns over my workload, stress levels and diabetes.

 

Meeting on 21st December 2005 with Nick Cooper, again, raised my concerns over my workload, stress levels and diabetes.

 

The approximate value of normal contracts for our team was normally less than £0.5m, most of the team members worked on a maximum of two or three of these contracts simultaneously. I was working on two contracts simultaneously with a combined value of approximately £35.0m.

 

No reduction in workload until I was selected for redundancy on 30th May 2006.

 

3. I consider this treatment or failure on your part may have been unlawful.

 

4. Do you agree that the statement in paragraph 2 above is an accurate description of what happened? If not, in what respect do you disagree or what is your version of what happened?

{This is the first of your questions to the respondent. You are advised not to alter it.}

 

5. Do you accept that your treatment of me or any failure complained of was unlawful? If not, why not?

{This is the second of your questions to the respondent. You are advised not to alter it.}

 

6. {Any other questions you wish to ask (see paragraph 17 of the guidance).}

 

6.1 Full details of why there were redundancies?

 

6.2 Full details of why you were made redundant?

 

6.3 What pool of people was considered for redundancy and why?

 

6.4 What reasons were used to decide who was made redundant?

 

6.5 Full details of notes and scoring sheets for each worker considered?

 

6.6 Full details of all people who joined the oSDM Team after Kenneth McAlpine, including dates?

 

Notes

(1) Under 56(3) of the Act (as amended by the Disability Discrimination Act 1995 (amendment) Regulations 2003), this questionnaire and any reply are admissible in evidence in employment tribunal proceedings brought under Part 2 of the Act or – in cases concerning employment services – under Part 3.

(2) Section 56(3)(b) allows a tribunal to draw any inference it considers is just and equitable from:

a failure, without reasonable excuse, to reply to the questions within eight weeks, or

an evasive or equivocal reply.

 

The Respondents Managing Director received the questionnaire on 22 September 2006.

 

 

[]Chapter 2

 

The Tribunal Office received a faxed response to my ET1 form on 25 September 2006.

 

The ET3 Form is the main response form to the Employment Tribunal from the respondent. It is the respondent’s defence against the allegations made by the claimant in the ET1 form.

 

The ET3 form is split into seven sections, and the first section requests the usual information from the respondent such as the name of organisation, address, phone number and email address of the respondent.

 

Section 2 is entitled “Action before a claim”, and requests that the respondent completes the following questions:

 

“2.1 Is, or was, the claimant an employee? If ‘Yes’, please now go straight to section 2.3.”, to which the respondent answered “Yes”.

 

“2.3 If the claim, or part of it, is about dismissal, do you agree that the claimant was dismissed? If ‘Yes’, please now go straight to section 2.6.”, to which the respondent answered “Yes”.

 

“2.4 If the claim includes something other than dismissal, does it relate to an action you took on grounds of the claimant’s conduct or capability?”, to which the respondent answered “No”.

 

“2.5 Has the substance of this claim been raised by the claimant in writing under a grievance procedure?”, to which the respondent answered “No”.

 

“2.6 If ‘Yes’, please explain below what stage you have reached in the dismissal and disciplinary procedure or grievance procedure (whichever is applicable).

 

2.6

Contrary to the Claimant’s assertion, he has neither raised the matters of which he now complains as a grievance, an appeal or at all with the Respondent.

 

Apart from confirming the return of company property to the Respondent by email on 27 July 2006, the last verbal contact which the Respondent had from the Claimant prior to his redundancy was on 5 June 2006 with his manager, Mr P Snowden when the Claimant said that he was “ok with the redundancy situation”.

 

Contrary to the Claimant’s assertion in his Tribunal Claim, the Claimant’s communication of 2 June 2006 does not complain at his selection as being “at risk” of redundancy or otherwise raise any of the matters of which he now complains.

In the circumstances, it is the Respondent’s belief that the Claimant’s claim is inadmissible and/or that he is otherwise in breach of the statutory disputes resolution procedures.

 

In section 3, entitled “Employment details”, the respondent answered the following questions:

 

“3.1 Are the dates of employment given by the claimant correct?”, to which the respondent answered “No”.

 

“3.2 If ‘No’, please give dates and say why you disagree with the dates given by the claimant.”, to which the respondent answered against employment ended “10 July 2006”. The respondent also answered, “Is their employment continuing?” with “No”.

 

3.2

The Claimant’s employment was terminated with effect from 10 July 2006. The Claimant was paid normal salary and benefits until the termination date.

 

“3.3 Is the claimant’s description of their job or job title correct? If ‘Yes’, please now go straight to section 3.5,”, to which the respondent answered “Yes”.

 

“3.5 Is the information given by the claimant correct about being paid for, or working, a period of notice? If ‘Yes’, please now go straight to section 3.7.”, to which the respondent answered “Yes”.

 

The remaining parts of this section dealt with hours worked and earnings, and the Respondent agreed that the details given by the claimant were correct.

 

Section 4 dealt with unfair dismissal or constructive dismissal, and asked the respondent whether they agreed with the claimant’s pension and benefits figures, to which the respondent stated “Yes”.

 

The respondent’s main response was dealt with in Section 5:

 

“5.1 Do you resist the claim?”, to which the respondent ticked “Yes”.

 

“5.2 If ‘Yes’, please set out in full the grounds on which you resist the claim.”

 

5.2

Termination of the Claimant’s employment by the Respondent was solely on grounds of redundancy. The Respondent will say that it carried out a fair selection and fair consultation including search for alternative employment for the Claimant.

 

It is denied that the Claimant was unfairly dismissed on the grounds set out in the Claimant’s Tribunal Claim or at all.

 

It is admitted that the Claimant was asked to, and did, attend a meeting on 30 May 2006. This meeting was an initial announcement meeting in order to convey to the Claimant the proposal to delete the Claimant’s post due to a reduced need for such a function and the fact, therefore, that the Claimant was “at risk of redundancy” if the proposal was confirmed and in the absence of alternative employment for him.

 

It is denied that the Respondent failed to follow relevant dismissal and/or redundancy procedures and/or carry out consultation with the Claimant. The Respondent will say that it followed all applicable procedures, including that the Claimant was accorded an “at risk of redundancy” consultation period, during which he was also encouraged to seek alternative employment with the Respondent (as further described below), of approximately 37 days. During this period, the Respondent, through its Human Resources Department, made reasonable efforts to meet with the Claimant and consult over his proposed redundancy. The Claimant refused face-to-face consultation and insisted on only email communication with the Respondent.

 

The Respondent will say that the Claimant has failed to comply with his obligations under the statutory dispute resolution procedures and/or that such failures render his Tribunal claim inadmissible.

 

Since July 2004, the Claimant performed the only non customer-facing and home-based SDM role within the Respondent. Prior to this, he had performed the role of OnDemand Project Manager which involved substantial travel. The Claimant informed the Respondent that, as he lived a considerable distance from the Respondent’s Edinburgh office, he would prefer to move into a home-based and non-customer facing role.

 

For the future, all SDM roles within the Respondent are to be customer-facing, and the Claimant had confirmed his wish, on a number of occasions, to remain in a non-customer facing, technical role based from his home, and that he did not wish to perform a customer-facing SDM role.

 

During the consultation period, the Claimant was encouraged to apply for alternative employment within the Respondent and counselling within the Respondent as well as outplacement services were also offered. Further, since December 2005, the Respondent understands that the Claimant has been searching for another role (both internally within the Respondent and externally).

 

Despite being invited to raise any queries he may have regarding his selection as being “at risk” of redundancy, the only queries raised by the Claimant were by email of 2 June 2006 in which he asked questions about the financial package available on redundancy, the continuing benefits then available and any implications of taking alternative employment post-redundancy on either.

 

Contrary to the Claimant’s assertion in his Tribunal Claim that he raised a complaint with the Respondent as to the matters of which he now complains, in fact, the Claimant’s final comment made to his manager, Mr Snowden, on 5 June 2006 was that he was “OK with the redundancy situation”. No appeal or grievance concerned with the matters of which he now complains were ever raised by the Claimant with the Respondent.

 

It is not admitted that the Claimant is disabled within the meaning of Section 1 of the Disability Discrimination Act 1995 (as amended). The Respondent has no evidence, and the Claimant has not provided any evidence, from which to determine whether the Claimant suffers from a disability within the meaning of the Act.

 

If, contrary to the Respondent’s above assertion, the Claimant is disabled within the meaning of the Act, then Respondent will say that it was aware of no fact or circumstance from which it should reasonably have been aware that the Claimant was so disabled.

 

If, contrary to the Respondent’s above assertion, the Claimant is disabled within the meaning of the Act, then the Respondent denies that the Claimant was discriminated against contrary to the Disability Discrimination Act as alleged by the Claimant or at all, howsoever (including but not limited to that if the Tribunal were to find less favourable treatment for a reason related to disability, then the Respondent will say that, in all the circumstances, such treatment was justified and/or that, in all the circumstances, no duty to make reasonable adjustment arose and/or could be made).

 

It is admitted that the Claimant mentioned to the Respondent on 16 December 2005 that he suffers from diabetes. It is denied that prior to that date the Respondent had any knowledge of this matter. Nor were there were any facts or circumstances from which the Respondent should reasonably have known or suspected that the Claimant suffered from diabetes, nor, at any time during his employment, were there were any facts or circumstances from which the Respondent should reasonably have known or suspected any effect that having that condition might have on the Claimant. It is further denied that there is or was any causal connection between the Claimant’s condition, the duties assigned to him, his selection for redundancy and/or otherwise his treatment by the Respondent, howsoever.

 

The Respondent will say that the Claimant was not overworked as appears to be suggested by the Claimant, and nor was the Claimant's workload greater or more onerous than it was reasonable in all the circumstances for the Respondent to assign to him. The Respondent will further say that the Claimant's assignment to assist on one further contract in November 2005 was due to a tailing off in the requirements of his role on the sole contract on which he had worked since July 2004 and on which he assisted two other, customer-facing, SDMs. The Claimant assisted another, customer -facing UK based, SDM on this second contract, as well as other such SDMs based in the US.

 

The telephone call with the Claimant’s manager on 16 December 2005 to which the Claimant alludes in his Tribunal Claim was initiated not by the Claimant but by his manager in light of complaints made against the Claimant and his refusal to attend a monthly client meeting (his sole, “customer-facing” duty). During this conversation, the Claimant mentioned for the first time that he suffered from diabetes. At no stage has the Claimant indicated what (if any) effect he claims this had or may have on his ability to carry out normal day to day activities or the duties comprised in his role and nor were there any facts or circumstances at any stage of the Claimant’s employment from which the Respondent should reasonably have been aware of these matters. Further, according to its records, during the period July 2004 to June 2005, the Claimant took just two days’ sick leave (in October 2005).

 

It is admitted that a meeting with the Claimant took place on 21 December 2005, with Mr Nick Cooper (in Mr Snowden’s absence on holiday). At that meeting, the Claimant referred to the fact that other SDMs were customer-facing and would be required to be so for the future. The Claimant emphasised his wish to continue to be home-based and non-customer facing. The Claimant said that he did not wish to be customer-facing and stated his intention to search for another job both internally within the Respondent as well as externally. It is denied the Claimant made any mention of concerns as to overwork, stress or diabetes at this meeting as alluded to by the Claimant in his Tribunal Claim.

 

In accordance with the Respondent’s managerial practice, further conversations were had between the Claimant and Mr Snowden at no less than three weekly intervals, and some at more frequent intervals than this. On 2 February 2006) the Claimant said, as regards his workload on the original contract, that this was “not bad”, that stress levels had “settled down” and, when offered support from Cigna (the Respondent’s retained occupational health providers), that he did “not want this at the present time” but would “keep it in mind”. The Claimant said that his general health had “improved slightly” and that he was monitoring his blood sugar levels “due to a recent viral infection”, The Claimant said that he continued to look at the Respondent’s internal jobs pages for alternative opportunities. At no stage did the Claimant indicate any concern as to his diabetes or any effect that he claimed that it may have either On his ability to perform normal day to day activities or the duties comprised in his role, and nor were there any facts or circumstances from which the Respondent should reasonably have been aware of these matters.

 

In practice, and contrary to the apparent suggestion made by the Claimant in his Tribunal Claim, the Claimant’s duties contracted in early 2006 as the Respondent no longer required his attendance at monthly “report” meetings, Further, and again, contrary to the Claimant’s assertion, once the redundancy consultation had commenced in early June 2006, the Respondent, at the Claimant’s instigation, asked another employee to undertake the Claimant’s report (May 2006) function.

 

At none of the Claimant’s meetings/discussions with his manager from 17 February to 5 June 2006 (some six in total) did the Claimant mention his health.

 

The Respondent does not admit that the Claimant “[lost] diabetic control over subsequent months” as he claims, and has no evidence or information from which to draw any such conclusion.

 

As stated above, the only questions raised by the Claimant with the Respondent's HR officer concerned the financial package available on redundancy, the implications of redundancy on continuing employment benefits, as well as the implications of taking up an external role with effect from mid August 2006 on these financial arrangements. All of these matters were raised by the Claimant by email on 2 June 2006- Further, on 5 June 2006, following the announcement meeting on 30 May 2006 and the first consultation, the Claimant commented to his manager that he was "ok with the redundancy situation". At no stage prior to his Tribunal Claim has the Claimant ever raised any of the complaints that he now raises.

 

It is accepted that the Respondent was notified by the Claimant’s wife on 18 June 2006 that the Claimant had been “admitted to hospital and was therefore unavailable for work”. The Respondent is not aware of any farther details regarding this sickness and therefore makes no admission regarding the relevant paragraph contained in the Claimant’s Tribunal Claim. However, the Respondent would add that, in deference to his sickness during the redundancy consultation period, that period was extended.

 

The Claimant was made redundant by the Respondent with effect from 10 July 2006.

 

Save insofar as specifically admitted or not admitted by the Respondent herein, each and every allegation made by the Claimant in his Tribunal Claim is hereby denied and, save insofar as admitted by the Respondent herein, the Respondent denies that the details completed by the Claimant in his Tribunal Claim accurately reflect matters.

 

Section 6 dealt with “Other information” and asked the respondent to add any extra information here, and the respondent left this entire section blank.

 

The ET3 form finished with Section 7 “Your representative”, to which the respondent answered:

 

“7.1 Representative’s name:”, to which the respondent answered “Simeon Spencer”.

 

“7.2 Name of representative’s organisation:”, to which the respondent answered “Morgan Lewis & Bockius MNP

 

“7.3 Address:”, to which the respondent answered “2 Gresham Street, London, EC2V 7PE”

 

Phone number, reference number and postal communication were completed by the respondent, and the ET3 form was signed “Morgan Lewis” and dated “25 September 2006”.

 

One week later, I received the following letter from the Tribunal:

 

NOTICE OF CASE MANAGEMENT DISCUSSION (attendance required)

 

A chairman Ms L Crone has directed that a case management discussion (CMD) is to take place in the above case. The CMD will be held in private.

 

The CMD will take place during week commencing 16 October 2006 at the Employment Tribunal office in Glasgow. The Chairman has indicated that the CMD will take 1/2 hour. You are required to advise this office no later than 10 October 2006 of your availability in that week between the hours of 9.30 am and 4.30 pm each day on the tear off at the bottom of this letter. You will be advised of the date and time of the CMD in due course.

 

Only the parties or their representatives need attend although represented parties are welcome to attend if they wish to do so. The following matters will be discussed at the CMD:

 

1. Whether there are any issues arising in this case which would make it appropriate for a Prehearing Review (PHR) to take place.

 

2. In the event of it being decided that a PHR should be fixed, the length of any such hearing and the date(s) upon which it will take place.

 

3. In cases in which no PHR is required, the length of the Hearing required to deal with the merits of the claim and the date(s) upon which it will take place.

 

4. The nature of the claim which is being made, the statutory provisions upon which the claimant relies and the essential matters which must be capable of being proved at the Hearing if the claim is to have a reasonable prospect of success.

 

5. The identity of the witnesses whom each party intends to call and the relevance of the evidence which those witnesses are being called to give to the issues before the tribunal.

 

6. The documentary evidence likely to be produced by each party and any directions required in relation to its production and exchange.

 

7. What facts may be capable of being agreed between the parties in advance of the hearing and any directions required in relation to the production of an Agreed Statement of Facts.

 

8. Whether the Chairman considers any Orders are necessary at this stage in order to deal with the proceedings efficiently and fairly, and if so, the nature and scope of these Orders.

 

9. The nature and scope of any Orders sought by either party and why it is considered such orders would assist the tribunal to deal with proceedings efficiently and fairly.

 

10. Any other matter which the Chairman considers can be usefully discussed with a view to ensuring the effective management of the claim.

 

In the event that a party wishes to apply for an Order at the CMD that party must notify this office in writing (copying the correspondence to the other party/parties) of the Orders which will be sought at the CMD at least 10 days before the CMD unless it is not reasonably practicable to do so in which case the notification must be given as soon as possible thereafter.

 

The case will be listed for Hearing during December 2006 / January 2007.

 

Parties/representatives must come to the CMD with up to date information on their availability and that of their witnesses during this period so that dates can be set during the course of the CMD. If you fail to do so dates will normally be set without taking account of your availability, unless there are exceptional circumstances which explain your failure.

 

Two days later, I received the following letter from the respondent:

 

Dear Sir/Madam

 

As you may already be aware if you have been served with our client’s Notice of Appearance in this matter, we are instructed to represent Oracle Corporation UK Limited in your Tribunal claim. It is a requirement of the Tribunal’s Rules of Procedure that any applications made by us (or by you) to the Tribunal are copied to you (or where you make an application, copied to us). Please therefore find enclosed a copy of our application to the Tribunal, of even date, requesting that the Case Management Discussion due to be held during the week commencing 16 October 2006 be conducted by way of a telephone conference in order to save all parties the cost of attending the Tribunal in person.

 

You will note from our application that we have made a commitment to provide you with prior written details of any applications we may need to make during the Case Management Discussion. We hope you will regard this as a sensible way forward.

 

On 10 October 2006, the Respondent sent the following cover letter with proposed Orders enclosed:

 

Dear Sir,

 

We refer to our letter of 5 October, and as indicated in that letter, set out in the attached document the Orders which we are likely to seek on our client’s behalf at the forthcoming Case Management Discussion. It would assist us, and also the Tribunal, if you would reply to us, indicating if you agree to these Orders, and whether you intend to apply for additional Orders to those we have set out, and if so, giving details of what they are. We look forward to hearing from you.

 

About seven days after I received this letter, I sent the following reply to the Respondents proposed Orders:

 

The Parties hereby agree to the following Orders:

 

1. Within 14 days of the Case Management Discussion, the Claimant shall fully particularise all of his claims against the Respondent, including but not limited to full particulars of his claim to have been discriminated on grounds of his alleged disability; giving full particulars of the alleged less favourable or other discriminatory treatment of which he complains; identifying who is alleged to have treated him less favourably/otherwise in a discriminatory way; the date(s) of each such alleged treatment/discrimination and to whom, and how, if at all, he complained of such treatment/discrimination.

 

The Claimant does not agree to the above timescale, as the Respondent has had the ET1 form for some time now. The Claimant shall, via the Claimant’s bundle of documents, provide this to the Respondent 7 days prior to the full Tribunal Hearing.

 

2. The Respondent may amend/add to its Grounds of Resistance in light of the above Full Particulars of Claim, and shall do so within 14 days of receipt of Full Particulars as required under (1) above.

 

The Claimant does not agree to the above amendments/additions as the Respondent has had the ET1 form for some time now, and has entered their response in the ET3 form.

 

3. In light of the Claimant’s Full Particulars, the Respondent may apply for a Preliminary Hearing to consider jurisdictional issues (if any) and/or admissibility issues (i.e. compliance with the Statutory Grievance Procedure).

 

The Claimant wishes to proceed to the full Employment Tribunal as quickly as possible, and does not agree that there are any ‘admissibility issues’.

 

4. Within 14 days of the Case Management Discussion, the Claimant shall fully particularise his alleged disability and the effect that he claims such disability has on his ability to carry out normal day to day activities.

 

Diabetes is not an ‘alleged’ disability, and information on Diabetes is widely available, therefore the Claimant does not feel it necessary to provide any such information.

 

5. Within [ ] days of the Case Management Discussion, the Claimant shall consent to, and shall take such steps as are necessary to ensure such disclosure to the Respondent/its solicitors/a retained medical expert, the disclosure to each of the aforesaid of his medical records (including his GP records), such disclosure to take place by no later than [ ].

 

Medical records are extremely private matters, and as such the Claimant does not wish to disclose any more information than he has to, regarding this case. The Claimant has contacted the Diabetic Clinic he attends, and also his local Surgery and has obtained a copy of a letter sent from the hospital to his local GP regarding his diabetes over the previous 10 months, and the effect this has had on his long-term blood sugar levels. This will be contained in the Claimant’s bundle of documents to be shared with the Respondent. It will be up to the Respondent to refute these facts.

 

6. The Claimant shall be examined by an independent medical consultant jointly appointed and instructed by the Claimant and Respondent as to whether, in the opinion of such consultant, the Claimant is/was “disabled” within the meaning of the Disability Discrimination Act, such examination to take place as soon as possible and the Claimant to cooperate in attending such examination.

 

Diabetes is not an ‘alleged’ disability, and the fact that the Claimant will obtain information outlined in 5 will prove that the Claimant is Diabetic, so no such examination will be required at all.

 

7. Within [ ] days of the Case Management Discussion, the Claimant shall disclose to the Respondent all documents and other materials (including, but not limited to electronic materials), relating to his search since December 2005 for alternative employment both internally within the Respondent and externally, and the outcome of that search, including all job offers made.

 

This will be done within 7 days of the full Tribunal Hearing, and will be contained in the Claimant’s bundle of documents.

 

8. The Claimant shall within 14 days of the Case Management Discussion provide to the Respondent a Schedule of Alleged Loss.

 

This will be done 7 days prior to the full Tribunal Hearing.

 

9. The case shall be listed for a 3 (consecutive) day hearing for full disposal of the case with the first day of which reserved for medical evidence (if appropriate). The Listing Office to provide a listing stencil as the Respondent may have more than two witnesses in this case – depending on the details of the Claimant’s claims (which he is required fully to Particularise above), and in light of ascertaining the availability of a jointly appointed medical expert.

 

The Claimant will only require one half of a day, and as such the Respondent does not require 3 days, which would be a waste of the Tribunals time and expenses.

 

The Claimant would therefore like to request 1 day for the full Tribunal Hearing.

 

10. The Parties shall exchange Lists of all relevant Documents by no later than six weeks prior to the commencement of the hearing. Thereafter, each Party shall promptly provide disclosure of Documents to the other Party by way of photocopy.

 

The Claimant and Respondent shall produce their own bundle of documents, which will be exchanged 7 days prior to the full Tribunal Hearing.

 

11. The Parties shall agree a single bundle of documents for use at the Tribunal hearing by no later than four weeks prior to the commencement of the hearing.

 

The Claimant and Respondent shall produce their own bundle of documents, which will be exchanged 7 days prior to the full Tribunal Hearing.

 

12. The Parties shall exchange witness statements by no later than two weeks before the commencement of the hearing.

 

Any witness statements to be exchanged 7 days before the full Tribunal Hearing.

 

13. The Claimant shall update his Schedule of alleged loss one week before the commencement of the hearing.

 

This will be done 7 days prior to the full Tribunal Hearing, as outlined in (8).

 

14. The Respondent shall bear the cost of producing copies of bundle and statements for use by the Tribunal Members.

 

The Claimant shall produce his own ‘copies of bundle and statements’ for use by the Tribunal Members. The Respondent can do likewise.

 

15. The Parties shall endeavour to agree one factual and unbiased chronology (the first draft of which the Respondent shall produce for the Claimant’s comment) for use at the hearing with sufficient copes for the Tribunal Members.

 

The Claimant shall produce his own ‘copies of bundle and statements’ for use by the Tribunal Members. The Respondent can do likewise.

 

As instructed by the Disability Discrimination Questionnaire, I sent a reminder letter to the Managing Director of Oracle Corporation UK Limited regarding the questionnaire, stating that if I did not receive a response by 17 November 2006, I would ask the Tribunal to issue a default judgment in my favour.

 

 

[]Chapter 3

 

At 11:00am on the morning of 20 October 2006 a Case Management Discussion by way of a telephone conference call was arranged, and the following note and order was issued one week later:

 

Chairman: Ms L J Crone (sitting alone)

Mr Kenneth McAlpine

Claimant In Person

 

Oracle Corporation UK Limited

Respondent Represented by: Mr Spencer – Solicitor

 

NOTE FOLLOWING CASE MANAGEMENT DISCUSSION

 

1. The claimant presented a claim to the Employment Tribunals Service on the 25 August 2006, claiming unfair dismissal and disability discrimination. The claimant alleged his dismissal for reasons of redundancy had been unfair, and in particular he referred to a failure to follow dismissal and redundancy procedures, a lack of consultation and unfair selection. The claimant further alleged disability discrimination and referred to a request to reduce his workload.

 

2. The respondent entered a response admitting the claimant had been dismissed for reasons of redundancy but denying the dismissal had been unfair. The respondent denied the claimant was a disabled person for the purposes of the Disability Discrimination Act (the DDA) and denied they had discriminated against him.

 

3. A Case Management Discussion was arranged by way of telephone conference call to discuss the points set out in the Notice issued to parties. Both parties had, prior to the conference call, sent in particulars of points they wished to discuss.

 

4. Present for the conference call were the Chairman, Ms Crone; the claimant, Mr McAlpine and the respondent’s representative, Mr Spencer.

 

(1) The claimant confirmed he intended to pursue a claim of unfair dismissal and disability discrimination. Mr McAlpine referred to the DDA 1995 and confirmed his claim would be pursued under Sections 3A(1), (3), (4) and (5) and to Section 4(2)(d).

 

Mr McAlpine confirmed he is a diabetic, and that he-had met with his manager on 16 and 21 December to discuss his workload and stress levels. Mr McAlpine had been working full time on one contract, and had also been assigned (in November 2005) to produce a report once a month on a second contract. The respondent did not respond to or address his concerns.

 

Mr McAlpine believed the respondent should have made a reasonable adjustment to his workload to address his concerns and reduce the stress.

 

Mr McAlpine believed .the respondent had taken on three new members of staff in February, May and June and in those circumstances he could not understand why he had been selected for redundancy. He believed his disability and/or his request to reduce his workload had been the reason, or a factor in the decision, to select him for redundancy.

 

The respondent’s representative, Mr Spencer, acknowledged the clarification provided.

 

It was agreed further clarification would be provided by the claimant, following which the respondent would be permitted time to adjust their response if required. The Chairman considered it would be appropriate to set out an outline of the claim, and thereafter set out questions for the claimant to answer which would particularise the claim.

 

(2) Mr Spencer sought clarification from the claimant whether a grievance had been raised regarding the alleged discrimination. Mr McAlpine confirmed that he had written to Cathy Temple, Senior HR Manager, with the respondent following his selection for redundancy, to query why his role had been made redundant and how many employees had been provisionally selected for redundancy.

 

The Chairman clarified with the claimant that following his meeting with his manager on 16 and 21 December, he had not subsequently raised a grievance regarding his complaint or their failure to take any action.

 

Mr Spencer confirmed he would consider this information and clarify if the respondent intended to seek a pre hearing review on the Tribunal’s jurisdiction to deal with the claim of disability discrimination.

 

(3) Mr McAlpine confirmed he attends the Diabetes Clinic at the Glasgow Royal Infirmary, and he was happy for a report to be obtained from them. The Chairman explained Mr Spencer would forward a consent form which he would be required to complete prior to any report being requested.

 

Mr Spencer agreed he would take the above action prior to seeking a report from the Diabetes Clinic. He will also set out a number of questions to be addressed which, it was hoped, may avoid the need for the claimant to be examined prior to the hearing.

 

(4) The Chairman explained to the claimant the process for disclosure of documents. It was agreed that once the particulars of the claim have been provided and any adjustments made by the respondent to the response, parties will have 28 days to prepare a list of documents they intend to rely upon at the hearing. Disclosure of documents on the lists will be voluntary, at the request of a party.

 

(5) The claimant will, 21 days prior to the Hearing of this case, prepare a list of the jobs for which he has applied and the responses he has received.

 

(6) The claimant will not prepare a witness statement. The respondent’s witness will prepare witness statements, and these will be disclosed to the claimant 14 days prior to the Hearing.

 

(7) Mr McAlpine sought clarification of the respondent’s position of the date when he ceased to have customer interface, as he considered this had continued until January 2006. The Chairman explained the most appropriate way to approach this was for him to ask a direct question of the respondent, thereby ascertaining their position in this matter. Thereafter the claimant would require to decide whether he would need to call a witness to speak to something different.

 

5. Mr Spencer’s participation in the conference call was terminated unexpectedly at this stage. The Chairman accordingly brought the Case Management Discussion to a close and confirmed a note would be issued.

 

My overriding impression of the Case Management Discussion was the respondent’s lawyer hanging up when I asked him a difficult question concerning the respondent alleging that I had been non-customer facing since July 2004. Of course, the lawyer could have dialled back into the conference call within a minute, but the Chairman had no choice but to wrap up the conference call a few minutes later.

 

I was also beginning to become concerned with the ability of the Chairman to take accurate notes that would provide an accurate reflection on events, one example being “and had also been assigned (in November 2005) to produce a report once a month on a second contract”, which was completely wrong, as I had been assigned to the Environment Agency account in July 2004, and a part of the Environment Agency duties had been to produce a monthly report, the General Electric contract I had been assigned to in November 2005 had no monthly report, and I had to work on the many, many problems generated on a daily basis for that account.

 

On 3 November 2006 I received the following letter from the respondent’s lawyers:

 

Dear Mr McAlpine

 

Please find attached a copy of our letter of today’s date to the Tribunal, regarding the Case Management Discussion (“CMD”) and the Disability Discrimination Act Questionnaire that you have served on Oracle.

 

As you will see from our letter to the Tribunal, we suggest that, in the circumstances described in that letter, you may prefer to withdraw your Questionnaire. As you know, the Questionnaire contains identical details of complaint to those originally filed with the Tribunal (and to which the Respondent responded in its Notice of Appearance), and which you must now, following the CMD, fully detail, as well as raising some additional questions regarding your redundancy.

 

If you decide now to withdraw your current Questionnaire and there remain issues to which you wish to have responses once full Particulars of Claim and Defence (as contemplated by the CMD Orders) have been given by both parties, we confirm that we will not object to your raising such issues at that stage.

 

If, however, you prefer to continue at this stage with the Questions raised in your current Questionnaire, then of course you may do so and Oracle will respond within the 17 November 2006 time limit.

 

Given that you are unrepresented and that we had intended to raise this at the (foreshortened) CMD, you will see that we have suggested to the Tribunal that this may be a matter in respect of which you would prefer the Tribunal to be involved and if that is the case, or if the Tribunal Chairman him or herself wishes to convene a call to discuss this matter further, we are very happy to participate. Please let us know your wishes in this regard.

 

Given the proximity of 17 November 2006, we should be grateful to hear from you with your views as soon as possible. Please copy your response also to the Tribunal.

 

Two days later, on 5 November 2006, I sent a letter regarding consent to approach my diabetes consultant to the respondent’s lawyers:

 

Dear Sir,

 

It was my interpretation of the Case Management Discussion held on 20 October 2006 that you would write to me with a list of questions that you would like to ask the Claimants Diabetic Consultant, and the Claimant would give signed permission, after reviewing the list of questions.

 

I will not be signing either the “AMRA” or “DPA” consent forms, as this would give you an ‘open license’ to ask and obtain any medical data on the Claimant, rather than just details pertaining to this particular tribunal case number.

 

Also, you stated “we need the report in order to make an initial assessment of whether we consider the effects of your condition to constitute a “disability under the Disability Discrimination Act 1995 (“DDA”).”. It will not be up to “we” to decide on whether Diabetes is covered by the Disability Discrimination Act 1995, it will be up to the Law to decide. With regards to this matter, please refer to ‘BAILII case number [2005] UKEAT 0347_04_0508’ and also the Department of Works and Pensions website, to name but a few. Also please find attached a document from my Diabetic Consultant to my GP, confirming my Diabetes and type. As the Government and Law both recognise that Diabetes (Type 1) is covered by the Disability Discrimination Act 1995, I do not believe that the Respondent is required to ‘bother’ a busy Diabetic Consultant with such matters.

 

If you do require ‘specific’ information on my Diabetes, please send me a list of specific questions which relate only to this tribunal case number and I will review and give consent to specific questions where agreed between both parties.

 

Three days later I received a letter attached to an email from the respondent’s lawyers regarding the Disability Discrimination questionnaire:

 

Dear Mr McAlpine

 

We refer to our letter of 3 November 2006 sent to you by e-mail requesting your response as soon as possible. We note we have not yet received a response and should be grateful to hear from you by close of business tomorrow 9 November.

 

In response to this letter, I sent the following reply, as I had not received any email:

 

The Claimant has received no such ‘letter of 3 November 2006 sent to you by e-mail’, can you send via post, proof of this email, the date sent, the email address, etc.

 

The next day, I received a rather official looking document from the Tribunal, printed on blue paper that ordered me to answer the following questions regarding my case, and I provided the following answers:

 

1. The claimant, during the course of the Case Management Discussion, explained he had met with his manager/s on 16 and 21 December 2005, to raise concerns regarding his workload and stress levels. The claimant will allege his requests to reduce workload were ignored and will assert this failure amounted to less favourable treatment for a reason which relates to the claimant’s (alleged) disability in terms of Section 3A(1) of the Disability Discrimination Act.

 

The claimant is to provide the following additional information:-

 

(a) At the meeting on 16 December what concerns did you raise with your manager.

 

The claimant raised the following concerns:

 

As the claimant was working on two large contracts simultaneously this was creating a problem in the first ten days of each month, as one of the contracts (Environment Agency) required a large monthly report collated, written, internally reviewed and sent before the monthly review meeting on the 9th or 10th of each month, in order to meet this deadline, the claimant had to work full time on this report for this large contract. The other large contract (General Electric) required the claimant to be available for work throughout each day of each month.

 

The claimant explained to his manager at this meeting that, due to this conflict of workload, this was having a detrimental effect on his health due to stress and diabetes.

 

(b) Did you make a specific request of your manager to take action.

 

Yes.

 

© If so, what action did you request he take.

 

Either take me off the Environment Agency contract (producing large monthly report for Environment Agency), or take me off the General Electric contract, and allocate another team member to perform this work.

 

(d) What was the purpose of your request.

 

To reduce the stress and conflict of workload resulting from working on two of the largest contracts simultaneously, which was having an adverse effect on my diabetes, and as a result, my health.

 

(e) Please answer questions (a) to (d) in respect of the meeting on 21 December.

 

(a) At the meeting on 21 December what concerns did you raise with your Director (Nick Cooper).

 

This meeting was not scheduled, I was informed by another member of my team, just before the Environment Agency monthly meeting on 21 December 2005 at 09:30, that Nick Cooper ‘wanted to see me after this meeting’, so I did not have any chance to have a 3rd Party or HR present at this meeting with Nick Cooper.

 

Again, as this meeting was only 5 days after the first meeting with my manager, the claimant raised the point that working on two large contracts simultaneously was creating a problem in the first ten days of each month, as one of the contracts (Environment Agency) required a large monthly report collated, written, internally reviewed and sent before the monthly review meeting on the 9th or 10th of each month, in order to meet this deadline, the claimant had to work full time on this report for this large contract. The other large contract (General Electric) required the claimant to be available for work throughout each day of each month.

 

The claimant explained to his director at this meeting that, due to this conflict of workload, this was having a detrimental effect on his health due to stress and diabetes.

 

(b) Did you make a specific request of your Director (Nick Cooper) to take action.

 

Yes.

 

© If so, what action did you request he take.

 

Either take me off the Environment Agency contract (producing large monthly report for Environment Agency), or take me off the General Electric contract.

 

(d) What was the purpose of your request.

 

To reduce the stress and conflict of workload resulting from working on two of the largest contracts simultaneously, which was having an adverse effect on my diabetes, and as a result, my health.

 

(f) Did the respondent take any action as requested.

 

No.

 

(g) Did you raise your concerns with anyone else in the respondent company – if so, (i) with whom (ii) what action did you ask them to take and (iii) was such action taken.

 

At the end of the meeting on 21 December 2005, I had requested from my manager (meeting on 16 December 2005), and also my director (meeting on 21 December 2005) to be taken off one of the large contracts, both requests had been ignored, so I felt that I had no choice but to inform my director that I would have to look for another role within the company on health reasons.

 

(h) Did you complain to your employer (raise a grievance) when no action was taken following your meetings on 16 and 21 December.

 

As outlined in (g), the claimant’s requests for reducing workload were ignored, and due to health reasons (stress and diabetes) the claimant was left with no option but to look for another role within the company.

2. You referred during the course of the Case Management Discussion, to Section 3A(5) of the Disability Discrimination Act, as being a section under which you brought your claim.

 

Please clarify whether the same claim (as set out above) is brought under this section, or whether you argue something different.

 

No, I argue something different, and this will be a major part of my claim.

 

If it is a different claim, please set out full details of it.

 

Section 3A(5) of the Disability Discrimination Act is termed as ‘direct’ discrimination “(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability (diabetes), he treats the disabled person less favourably (selection for redundancy then redundancy) than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person (other oSDM team members).”

 

Section 4, sub-section (2)(d) of the Disability Discrimination Act is termed as ‘unlawful’ discrimination “(2) It is unlawful for an employer to discriminate against a disabled person whom he employs, (d) by dismissing him, or subjecting him to any other detriment (selection for redundancy then redundancy).”

 

Section 3A(1) of the Disability Discrimination Act is termed as ‘disability related’ discrimination “(1) For the purposes of this Part, a person discriminates against a disabled person if, (a) for a reason which relates to the disabled person’s disability (stress and diabetes), he treats him less favourably (selection for redundancy then redundancy) than he treats or would treat others to whom that reason does not or would not apply (other oSDM team members), and (b) he cannot show that the treatment in question is justified.”

 

I may have been discriminated against on one or all of the above sections of the Disability Discrimination Act, and this will be based on why I was selected for redundancy, and subsequently made redundant (see 4 for reasons).

 

3. You referred, during the course of the Case Management Discussion, to an (alleged) failure on the part of the employer, to make reasonable adjustments and you identified the reasonable adjustment as being a reduction in your workload.

 

Please confirm if this is the basis of your claim and if you allege the employer should have made other adjustments, please specify.

 

This is not the ‘basis’ of my claim, it is a part of my claim. The employer was asked to make adjustments, and did not (see 2 for more reasons which will form my claim).

 

4. You referred during the course of the Case Management Discussion, to your belief that you were selected for redundancy either because of your disability, or because of your request to reduce your workload.

 

Please clarify whether you intend to argue one or both of these reasons, and if one, which one.

 

Both. It will be up to the respondent to prove that my selection for redundancy was not on the grounds of ‘direct’ discrimination (Section 3A (5)), ‘unlawful’ discrimination (Section 4 (2)(d)) or on the grounds of ‘disability related’ discrimination (Section 3A (1)), and if the respondent cannot prove this, it will be up to the Tribunal to determine whether it was ‘direct’, ‘unlawful’ and/or ‘disability related’ discrimination.

 

Please provide details why you believe the reason/s influenced your selection for redundancy.

 

Why was I selected for redundancy, when:

 

Team of 14 employees (oSDM’s).

 

All employees in the team were performing the same job role ‘oSDM’ (pool of comparators?).

 

I was around the 7th longest serving employee in the team (not LIFO?)

 

My attendance record was well above average (not attendance?)

 

My skills and experience as an ‘oSDM’ were better than, for example, the employee who started on 1st June 2006 (not skills and experience?).

 

My performance, I worked on one of the largest contracts for 2 years, then was assigned to another of the largest contracts, so performance must have been acceptable to the respondent, otherwise why risk an employee on two of your largest contracts (not performance?).

 

No disciplinary problems (not discipline?).

 

The team I worked for were short of 3 employees (headcount “-3” in a presentation given by management for Financial Year 2006, quarter 2 (the total number of employees required in the team was projected to be 18, and was currently 14, with one new employee yet to start).

5. You have stated you are diabetic:-

 

(a) How long have you had this condition.

 

Type 1 Diabetes Mellitus, I have had this disability for approximately 40 years, since aged 18 months old.

 

(b) What medication do you take.

 

Insulin.

 

© Does your condition affect your disability to carry out any of the following activities, and if so please specify in what way:-

 

If very well controlled, it should not affect any of the following activities, however, if not well controlled, it could affect all of the following activities (worst case scenario would be a diabetic coma).

 

(a) Mobility

 

(b) Manual dexterity

 

© Physical co-ordination

 

(d) Continence

 

(e) Ability to lift, carry or otherwise move everyday objects

 

(f) Speech, hearing or eyesight

 

(g) Memory or ability to concentrate, learn or understand, or

 

(h) Perception of the risk of physical danger.

 

 

(d) If you ceased taking medication would your ability to carry out the above listed activities be affected and if so, in what way.

 

Yes, I would fall into diabetic coma, then eventually die.

 

In Summary, the basis of my claim will be as follows:

 

Failure by the Respondent to make reasonable adjustments, after requests from the claimant to do so.

 

Unfair dismissal.

 

Failure by the Respondent to follow Statutory Dismissal Procedure (if less than 20 people made redundant), by presenting the Claimant with a letter dated 30 May 2006, at a meeting held on 30 May 2006, indicating that the Claimant had been provisionally selected for redundancy. This was the first indication that the Claimant had of any redundancy situation.

 

or

 

Failure by the Respondent to follow proper Redundancy Procedure (if more than 20 people made redundant), by not using objective selection criteria applied across a pool of employees performing the same role to ascertain who should be provisionally selected for redundancy.

 

Disability Discrimination.

 

Direct discrimination (Section 3A(5) of the Disability Discrimination Act) by the Respondent in selecting and making the Claimant redundant from a pool of employees performing the same role.

 

and/or

 

Unlawful discrimination (Section 4, sub-section (2)(d) of the Disability Discrimination Act) by the Respondent in selecting and making the Claimant redundant from a pool of employees performing the same role.

 

and/or

 

Disability related discrimination (Section 3A(1) of the Disability Discrimination Act) by the Respondent in selecting and making the Claimant redundant from a pool of employees performing the same role.

 

The failure to make reasonable adjustments, unfair dismissal and disability discrimination could all be linked, hence the Claimant would wish to bring all under the same claim.

 

On 13 November 2006, I was surprised and at the same time angered to receive the following letter:

 

Dear Mr McAlpine

 

We refer to our telephone message of today requesting that you call the writer, Mrs Gill.

 

This is to confirm that we are instructed by our client, without any admission of liability, to offer the sum of £12,000 (twelve thousand pounds) in full and final settlement of all employment related/ its termination claims, including those made in the above Tribunal case and as otherwise to be stated fully in a formal settlement agreement, and subject further to such terms as to confidentiality, non-disparagement and non-repetition of claims as our client requires, any such settlement to be concluded under the auspices of ACAS and to be incorporated into a statutory Form COT3.

 

This offer is open for acceptance until close of business on Thursday 16 November 2006 and we should be grateful therefore to receive your early response. If you would like to discuss this matter, please contact the writer, Mrs Gill, on the above direct dial number.

The reason why this letter angered me, was that the respondent was admitting liability, otherwise, why offer any money as a settlement. The figure offered was utterly insulting, amounting to less than three months salary, to discriminate someone out of a job that had twenty plus years before retirement.

 

Finally, on 15 November 2006, I received the following reply to the Disability Discrimination questionnaire:

 

6.1 Full details of why there were redundancies?

Please see response to 6.2 below.

 

6.2 Full details of why I was made redundant?

During the spring of 2006 a number of initiatives were introduced by the Respondent in order to achieve greater efficiency and accountability with regard to the progressing of customer incidents and the establishment of greater customer affinity. These initiatives included the introduction of new globally operated services comprising OnDemand Service Desk, the Customer Incident manager role and a Time Based Escalation Process. These changes were initially announced to the Claimant and his colleagues by email communication in January 2006 and a detailed presentation of these initiatives were made at a team meeting on 14 March 2006 which the Claimant attended.

 

These combined initiatives greatly reduced the need for a non-customer facing Service Delivery manager role (the unique role occupied by the Claimant). Moreover the actual requirements and composition of the Claimant’s unique role was itself already diminishing – certainly from December 2005 onwards. From December 2005, the Claimant’s role with regard to client EA (with which the Claimant’s role had been exclusively concerned up until Autumn 2005) was restricted purely to producing a monthly report and attendance at such meetings. He was no longer required to progress the customer incident reports for EA and this aspect of his role was allocated to a customer facing service delivery manager. The reason for this reallocation was a combination of the Claimant’s expressed concerns regarding his duties, as well as the fact that, as this account became more mature it became more stable and therefore there were fewer such incidents to progress. From February 2006 onwards the Claimant was not required to attend the EA monthly meetings. From May 2006 onwards, at his request, the Claimant was not required to perform the monthly reporting aspect of his role. As regards client GE, the duties comprised in this aspect of the Claimant’s role were concerned only with background incident monitoring. With the introduction of the Customer Incident Manager role on a global basis, in addition to other dedicated resources allocated to this client due to the importance of the success of the GE project, the Claimant’s role was further reduced.

 

There was therefore a reduced need for the non-customer facing SDM role performed by the Claimant. His role was unique. For the future, the SDM role was to be customer facing.

 

The changes to the Claimant’s role with regard to customer EA were discussed and agreed with him in December 2005. The only other role that the Respondent could offer to the Claimant within the SDM department was as a customer facing SDM. The Claimant was adamant that he did not wish to perform a customer facing role, preferring to work from home on more technically focused activities. The Respondent understood from the Claimant that, from December 2005 onwards he intended to apply for other work both internally within the Respondent and externally, and that he was regularly checking job vacancies within the Respondent with a view to finding a technical, non-customer facing home based role.

 

Since the Claimant’s redundancy, further organisational changes have been made including a move towards defining a more strategic client/customer manager SDM role, further emphasising the Respondent’s need for all SDMs to be customer facing.

 

For the avoidance of doubt, the Claimant was notified formally that his role was at risk of redundancy on 30 May 2006 and following a period of consultation and an unsuccessful search for alternative employment for him, the Respondent had, unfortunately, no other alternative but to confirm the Claimant’s redundancy on 10 July 2006. Importantly, and as stated in the Response Form, the Claimant confirmed his wish, on a number of occasions, to remain in a non-customer facing, technical role based from home, and that he did not wish to perform a customer-facing SDM role. The result was that the Claimant was effectively self-selecting as his role was the only non-customer facing SDM role. The Claimant further confirmed to his manager, Mr Snowden, in early June 2006 that he was “OK with the redundancy situation”. The only questions raised by the Claimant during the redundancy consultation process related to the severance payments payable, and the effect of taking up alternative employment in August 2006 on continuing benefits provided by the Respondent. There is no longer a non-customer facing SDM role.

 

6.3 What pool of people were considered for redundancy and why?

The Claimant was employed in a unique role as a SDM who was non-customer facing. The Claimant’s role was therefore self-selecting for redundancy.

 

6.4 What reasons were used to decide who was made redundant?

Please refer to the response to supplementary questions 6.2 and 6.3.

 

6.5 Full details of notes and scoring sheets for each worker considered?

The Respondent assumes that the request is for notes of redundancy meetings and scoring sheets in relation to other employees within a pool for selection from which the Claimant was selected for redundancy. For the reason outlined in the response to supplementary questions 6.2 and 6.3, there are no such notes and scoring sheets.

 

6.6 Full details of all people who joined the OSDM Team after Kenneth McAlpine, including dates?

The Respondent assumes that the Claimant’s question is for details of team members who joined the Service Delivery Managers’ Team after he joined that team in July 2004. It is recognised however that the Claimant joined the Respondent, in a different role, in August 1998.

 

Name, Date of joining SDM Team

 

Margaret Shawcross, 1 September 2004

Noel McGovern, 1 January 2005

Gina Houghton, 1 December 2005

Wendy Murray, 24 April 2006

Amanda Frisoli, 15 May 2006

Mark Jones, 1 June 2006

 

All of the above individuals perform customer facing SDM roles.

 

Given the Respondent’s increased demand for such roles (and reduced demand for non customer facing roles), the Respondent has recruited the following additional employees (some by internal transfer) since the Claimant’s redundancy:

 

Name, Date of joining SDM Team

 

Andrew Lewis, 10 July 2006

Neil Pasmore, 24 July 2006

Anil Gaur, 1 August 2006

Martin Silk, 29 August 2006

James Stevenson, 18 September 2006

 

I knew that I had not attended any On Demand Service Delivery Manager meetings in 2006, so the statement “and a detailed presentation of these initiatives were made at a team meeting on 14 March 2006 which the Claimant attended.”, was, I will kindly state, wrong. So I decided to obtain hard factual evidence from the respondent’s travel agent that I had not travelled at all in 2006:

 

Hi Kenneth,

 

The only reservation I have found was for Glasgow Birmingham 21st Dec.

Nothing for 2006.

 

I decided to write to the Tribunal on 18 November 2006, as I was not prepared to accept that the respondent could provide the Tribunal with untrue documents, without any reply setting the record straight:

 

Dear Sir/Madam,

 

Please find enclosed the Respondent’s reply to Disability Discrimination Act 1995, and the Claimant’s comments.

 

The Claimant is writing to request that the Tribunal draw an adverse inference under section 56(3)(b), as the Respondent’s reply is at best evasive, at worst untrue.

 

(3) Where the complainant questions the respondent in accordance with forms prescribed by an order under subsection (2)

 

(a) the question, and any reply by the respondent (whether in accordance with such an order or not), shall be admissible as evidence in any proceedings under Part II or, to the extent that it relates to the provision of employment services, Part 3;

 

(b) if it appears to the tribunal in any such proceedings

 

(i) that the respondent deliberately, and without reasonable excuse, omitted to reply within [the period of eight weeks beginning with the day on which the question was served on him], or

 

(ii) that the respondent’s reply is evasive or equivocal, it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent has contravened a provision of Part II or, to the extent that it relates to the provision of employment services, Part 3.

 

The Claimant would also draw the Tribunal’s attention to section 57(4)

 

(4) A person who knowingly or recklessly makes such a statement which is false or misleading in a material respect is guilty of an offence.

 

The Claimant would wish to draw to the Tribunal’s attention the attached documents, particularly the Claimant’s notes (text in red with reference number to proof in the Appendix) which relates to section 56(3)(b) and 57(4), and the Respondent’s original reply.

 

The Claimant may also wish to pursue these matters further with the Respondent in a Court of Law.

 

One thing that was really beginning to annoy me now, was the numerous times that the respondent was able to change and refine their version of events. There is only one true version of history, so why was the Tribunal allowing the respondent to change and refine that one true version, without any punishment. On this topic, I received the following letter from the respondent’s lawyers on 21 November 2006:

 

Dear Sir/Madam

 

We refer to your letter dated 16 November 2006 which confirmed that the Chairman of the Tribunals (Ms L Crone) has no objection to extending the time limit for the Respondent to submit a response to the Claimant’s DDA questionnaire. The Claimant had in fact indicated separately to us by e-mail dated 13 November 2006, that he wished to receive a response to the DDA questionnaire by 17 November 2006. In light of this, we sent the Respondent’s DDA response to the Claimant on 15 November 2006. For the avoidance of doubt and as was made clear in the Respondent’s response to the DDA questionnaire, as we did not receive the Claimant’s Further Particulars of Claim until 13 November 2006, the Respondent’s DDA response dealt with those points raised by the Claimant in the Claim Form and not any subsequent points raised by him in the Further Particulars of Claim. We reserved the Respondent’s right to supplement its response in light of those Further Particulars.

 

As requested in your 16 November letter, and as stipulated in the Respondent’s response to the DDA questionnaire, we do intend to amend the ET3 Form in light of the Claimant’s Further Particulars of Claim. We confirm that, in accordance with our understanding of your letter, we will submit this amended Response to the Tribunal no later than close of business on Thursday 30th November 2006. Please be advised that the Respondent intends that its response to the DDA questionnaire, the original ET3 Form and the amended ET3 Form will form the Respondent’s response to the DDA questionnaire.

 

Finally, we confirm that we are very likely to require a Pre-Hearing Review in this case to consider one or more jurisdictional points.

 

To further annoy me, and waste more Tribunal time by not drawing an adverse inference that would end the case now, I received a letter from the Tribunal a couple of days later:

 

Dear Sir

 

I acknowledge your email of 21st November.

 

We have still not received any document with a date of 20th November on the cover letter. However, we have received your letter and documents dated 18th November.

 

The Chairman (Ms Crone) has instructed me to say that the issue of drawing an adverse inference is one for the Tribunal hearing the case. Your comments on the response have been noted and copied to the respondent for information.

 

 

[]Chapter 4

 

It was now late November, and on 29 November 2006 I received a copy of the following letter sent from the respondent to the Tribunal:

 

Dear Sir/Madam

 

As required by the Employment Tribunal, we set out below the issues to be considered by the Tribunal at a pre-hearing review. These are as follows:

 

1. Subject to our consideration of a medical expert’s report into Mr McAlpine’s diabetes, a determination by the Tribunal of whether the effects of Mr McAlpine’s diabetes constitute a “disability” for the purposes of the Disability Discrimination Act;

 

2. If so, a determination by the Tribunal of whether the Claimant’s claim that the Respondent failed to make a reasonable adjustment to his workload in December 2005 is out of time, and if so, whether it is just and equitable to extend time for making such a claim, and

 

3. If the Tribunal determines that, contrary to the Respondent’s position, the Tribunal has jurisdiction to consider the Claimant’s claims for failure to make a reasonable adjustment in December 2005, a determination by the Tribunal as to whether such a claim by the Claimant is admissible since the Claimant has admitted that he failed to raise a grievance in relation to this alleged failure by the Respondent at any time during his employment or thereafter. The Respondent considers that the Claimant has therefore failed to comply with his obligations under the Statutory Dispute Resolution Procedures and that this failure makes this claim inadmissible by the Tribunal.

 

On the last day of November 2006, I sent the following reply to the Tribunal and copied the respondent:

 

Dear Sir/Madam,

 

Please find enclosed my responses to the Tribunal with regards to the letter from the Respondent dated 29th November 2006.

 

1. Subject to our consideration of a medical expert’s report into Mr McAlpine’s diabetes, a determination by the Tribunal of whether the effects of Mr McAlpine’s diabetes constitutes a “disability” for the purposes of the Disability Discrimination Act;

 

The Claimant, as outlined in previous correspondence, has had Type 1 Diabetes for just over 40 years. Type 1 Diabetes is where the body stops producing insulin at all, and is treated by insulin injections (the Claimant has to take two insulin injections daily). Type 1 Diabetes is covered by the Disability Discrimination Act.

 

“The effects of medical treatment are disregarded when assessing the effects of an impairment unless they are likely to cure it. If treatment, eg for diabetes or epilepsy, simply delays or prevents recurrence, the adverse effects of the impairment should be regarded as likely to recur.”

 

“What are the symptoms of Type 1 diabetes?

 

The symptoms that usually occur when you first develop Type 1 diabetes are:

 

  • you are very thirsty a lot of the time.

  • you pass a lot of urine.

  • tiredness, weight loss, and feeling generally unwell.

 

The above symptoms tend to develop quite quickly, over a few days or weeks. After treatment is started the symptoms soon settle and go. However, without treatment, the blood glucose level becomes very high and acids form in the bloodstream (‘ketosis’). If this persists you will become dehydrated, and are likely to lapse into a coma and die. (The reason you make a lot of urine and become thirsty is because glucose leaks into your urine which ‘pulls out’ extra water through the kidneys.)”

 

In summary, you either have Type 1 Diabetes, or you do not. If you have Type 1 Diabetes, this is covered by the Disability Discrimination Act.

 

Type 2 Diabetes is not covered by the Disability Discrimination Act, as it is a much more milder form of Diabetes, where the body produces less insulin than needed, and this type of Diabetes is treated with tablets.

 

2. If so, a determination by the Tribunal of whether the Claimant’s claim that the Respondent failed to make reasonable adjustment to his workload in December 2005 is out of time, and if so, whether it is just and equitable to extend time for making such a claim, and

 

Refer to explanation in 3, namely:

 

“However, as the Claimant failed to obtain another role internally within the Respondent up to his redundancy on 10th July 2006, and the Respondent did not alter the Claimants workload until he was made redundant on 10th July 2006, the claim for failure to make ‘reasonable adjustments’ still stands, as it is within the scope of the three months prior to the ET1 form being submitted to the Tribunal.”

 

3. If the Tribunal determines that, contrary to the Respondent’s position, the Tribunal has jurisdiction to consider the Claimant’s claims for failure to make a reasonable adjustment in December 2005, a determination by the Tribunal as to whether such a claim by the Claimant is admissable since the Claimant has admitted that he failed to raise a grievance in relation to this alleged failure by the Respondent at any time during his employment or thereafter. The Respondent considers that the Claimant has therefore failed to comply with his obligations under the Statutory Dispute Resolution Procedures and that this failure makes this claim inadmissible by the Tribunal.

 

The Claimant raised the problem of stress and overwork, and the effect this was having on his Diabetes at a meeting with his manager, Phil Snowden, on 16th December 2005. No reasonable adjustments were suggested, or made at, or after this meeting.

 

The Claimant was attending a customer meeting on 21st December 2005 at the Respondents Birmingham Offices, when the Claimant was informed by a fellow employee, prior to the start of the customer meeting, that Senior Director, Nick Cooper (Phil Snowden’s manager), would like to see the Claimant straight after the customer meeting had ended.

 

The Claimant attended this meeting with Nick Cooper (only the Claimant and Nick Cooper were present at this meeting), and the Claimant raised the concern of stress and overwork, and the effect this was having on his Diabetes at this meeting. No reasonable adjustments were suggested, or made at, or after this meeting. The Claimant also felt that this was harassment, as why did the Claimant have to meet, unarranged, a Senior Director, in a meeting where no third party was present? Under the circumstances, the Claimant felt that the Claimant had no choice but to inform Nick Cooper that the Claimant would have to leave the role by looking for another role within Respondent, as this was the only option where the stress and overwork would stop having an effect on his Diabetes and health, this was how the meeting ended. This meant that the Claimant had to take it upon himself to ‘make reasonable adjustments’, and applied for three roles internally within the Respondent between February 2006 and April 2006, otherwise the Claimants health would have further deteriorated in his existing role. The Claimant hoped that the Claimant would obtain another role internally within the Respondent fairly quickly, which would result in less stress and overwork, and result in better Diabetes control and better health. The Claimant also expected that the Respondent would start to transfer some of the Claimants work over to some of the recent employees that had joined the Claimants team.

 

Due to the Claimant having to take it upon himself to ‘make reasonable adjustments’, and not the Respondent, by stating that the Claimant would have to leave the role, the ‘Statutory Dispute Resolution Procedures’ do not apply in ‘December 2005’.

 

However, as the Claimant failed to obtain another role internally within the Respondent up to his redundancy on 10th July 2006, and the Respondent did not alter the Claimants workload until he was made redundant on 10th July 2006, the claim for failure to make ‘reasonable adjustments’ still stands, as it is within the scope of the three months prior to the ET1 form being submitted to the Tribunal.

 

The respondent sent a further refined version of history and events to the Tribunal on 30 November 2006, which read:

 

Dear Sir/Madam,

 

Further to our letter of 21 November 2006, please find attached the Respondent’s Further Particulars of Defence plus e-mail exchange referred to therein.

 

We have noted the Claimant’s comments on the Respondent’s initial response to his Disability Discrimination Act Questionnaire (his letter to the Tribunal dated 18 November 2006). We deny that that response is in anyway evasive or untrue, and the enclosed Further and Better Particulars, inter alia, confirm the Respondent’s position and respond to the points that he makes. We would point out that the e-mail of l3th January 2006 attached by the Claimant to his letter is not that to which the Respondent referred in its initial DDA Questionnaire response. We acknowledge that the Claimant says that he did not attend the meeting on 14 March 2006. The Respondent is investigating this further, but in any event the Respondent will say that a copy of the relevant presentation was available on the Respondent’s intranet.

 

VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY THE CLAIMANT

 

These voluntary Further Particulars of Defence supplement those Particulars included in the ET3 filed on behalf of the Respondent in this case, and supplement also the Respondent’s response to the Claimant’s Disability Discrimination Act Questionnaire.

 

Summary: The constituent parts of the Claimant’s SDM role as compared with those of the standard such role within the Respondent.

 

The standard role

 

  • primary point of contact for assigned customers;

  • ensure all activities to take customer through OnDemand Lifecycle (*) are completed successfully;

  • conduct customer kick-off meeting;

  • conduct regular customer progress review meetings – including any preparation (e.g. report) and follow-up;

  • during the implementation phase, work closely with the customer and implementer, to ensure all activities are planned and executed as required;

  • work with the required internal teams to ensure that all activities are performed;

  • liaise with the renewals team to ensure that renewal activity is planned and executed;

  • work with the customer towards becoming a reference site;

  • update required internal systems (e.g. OLM, CMS, PA etc.);

  • deal with any customer escalations as required, including attendance at daily ‘situation room’ if appropriate;

  • ensure priority customer issues are being progressed.

 

(*) Lifecycle phases: initialisation, implementation, production assessment, transition, stabalisation, production.

 

The Claimant’s SDM role when he transferred into the department in July 2004:

 

In relation to the EA account only (which was the sole account to which the Claimant was assigned at the time):

 

  • ensure any customer incidents were being progressed and to add his knowledge of the customer environment, where appropriate;

  • produce the monthly service review report (“the monthly report”), attend the monthly meeting, and produce the minutes from that meeting.

 

Comment

 

Reason for the difference between the Claimant's and the standard SDM role- the Claimant's expressed wish reduce travel as compared with his former role, and to move into a home-based role. (Please see Respondent's ET3). Due to the size and complexity of the EA account, there were already two other, customer facing, SDMs working on the account, in addition to the Executive Sponsor. This enabled a division of tasks which matched the requirements of the Claimant.

 

The Claimant’s SDM role in November 2005:

 

On the EA account:

 

  • ensure any customer incidents were being progressed, and to add his knowledge of the customer environment, where appropriate;

  • produce the monthly report,

  • attend the monthly meeting, and produce the minutes from the meeting.

 

On the GE account:

 

  • ensure customer incidents identified on a report were being progressed.

 

Comment:

 

Reason for change: EA account becoming more stable as it matured, with a consequent tailing off in requirements for someone to manage customer incidents. Accordingly the Claimant was also given the task described above in relation to the GE account which it was felt he would now have capacity to perform.

 

The Claimant’s SDM role from 16 December 2005 onwards:

 

  • produce EA monthly report;

  • attend EA monthly meeting and produce minutes;

  • GE customer incident management.

 

Comment.

 

Reason for change: made at the Respondent’s instigation when the Claimant had declined to attend December 2005 ‘s EA monthly meeting. Accordingly the residual EA customer incident management role was allocated to another SDM.

 

The Claimant’s role from 21 December 2005 onwards:

 

  • EA monthly report;

  • EA monthly meeting and minutes;

  • GE customer incident management.

 

Comment.

 

Analysis of workload – Claimant agreed with Mr Cooper that it was not unreasonable. No change in duties was therefore made, but the Claimant expressed an intention to seek a different, more technical, non-customer-facing role, still to be home-based, both within and outside the Respondent.

 

The Claimant’s role from approximately mid January 2006 onwards:

 

  • EA monthly report;

  • EA monthly meeting and minutes.

  • GE customer incident management (but not in the period during the first two weeks of each month when preparing EA monthly report).

 

The Claimant’s role from approximately mid February 2006 onwards.

 

  • EA monthly report;

  • GE customer incident management (but not in the period during the first two weeks of each month when preparing EA monthly report).

 

Comment:

 

Reason for change; Customer comment that the Claimant was not adding value to these meetings and accordingly he was not then required to attend them.

 

The following numbering reflects that used by the Claimant.

 

1.(a) The Claimant had declined to attend a monthly client meeting at which he was to present the monthly report, completed by him, for client Environment Agency (“EA”). This meeting was scheduled for 21 December 2005. His colleagues on the account expressed concern about this to his manager, Mr. Snowden, which led Mr. Snowden to convene a 4-way conference call, including the Claimant to discuss the matter.

 

Mr. Snowden maintains a daily record of meetings. This record comprises contemporaneous notes of significant points of each meeting/discussion.

 

The outcome of this, very amicable, conference call was that a list of duties which the Claimant would perform going forward was agreed, and this included that, whilst the Claimant would compile the monthly report for client EA, and present it at the monthly meeting, he would no longer perform the customer incident management role for that client. As a result of this agreed list of duties, it was anticipated that the Claimant would spend 50% of his time working on each of the two clients to which he was allocated. It was also agreed that his workload would be monitored going forward.

 

At the end of the 4-way conference call, Mr. Snowden spoke to the Claimant separately as he was concerned that the Claimant was refusing to perform work which he had previously undertaken. During that part of the call, the Claimant informed Mr. Snowden that he had been feeling stressed, that his blood pressure level had increased, and that he had diabetes.

 

Following this meeting, Mr. Snowden was due to go on holiday. An email confirming the revised duties list was sent to team members. Mr. Snowden also contacted Nick Cooper, Director of Ondemand Delivery for the UK, to whom Mr. Snowden’s line reports would be reporting during Mr. Snowden’s absence, and asked him to continue the dialogue as regards workload with the Claimant. As Mr. Cooper was to be in the Respondent’s Birmingham office on 21 December, and as this was the date and venue for the EA client meeting, Mr. Snowden mentioned to the Claimant that this would be an opportunity to continue the dialogue about workload and that Mr. Cooper would probably wish to talk to him then.

 

The Respondent denies the Claimant’s allegations made in paragraph 1(a) of his Further Information of Claims, and in particular will say that the Claimant’s allegations regarding workload and time allocation between the two clients on which he then worked is inaccurate, and further, is contradicted by the Claimant’s own assertions in this regard recorded in Mr. Snowden’s and/or Mr. Cooper’s contemporaneous records of meetings/discussions.

 

1.(b) It is denied that the Claimant made any request that the Respondent should take specific action as regards his workload as alleged by the Claimant or at all and/or that he initiated any conversation with Mr. Snowden or with Mr. Cooper regarding workload. The revisions to his workload made on 16 December 2005 were made at Mr. Snowden’s instigation and with the Claimant’s agreement.

 

1.(c) It is denied that the Claimant asked either Mr. Snowden or Mr. Cooper “ro take [him] off the Environment Agency contract….or off the GE contract and allocate another team member to perform this work”, as alleged by the Claimant.

 

Mr. Snowden and Mr. Cooper both keep contemporaneous daily records of meetings/discussions and their significant points, and had such a request been made it would have been recorded. An accurate reflection of events is as set out above.

 

1.(d) It is denied that the Claimant made any specific request that the Respondent should change his workload, as alleged or at all. The changes to his workload that were agreed with the Claimant arose from a dialogue with Mr. Snowden on 16 December 2005 in the circumstances described above. Further changes were made, again with the agreement of the Claimant but at the instigation of Mr Snowden, in the circumstances described below.

 

1.(e) On 16 December 2005, Mr. Snowden had informed the Claimant that Mr. Cooper would be in the Birmingham office on 21 December and that it would be an opportunity for the Claimant to get together with Mr. Cooper to continue the ongoing dialogue about the Claimant’s workload. No time for such a discussion was agreed.

 

This was neither a grievance nor a disciplinary meeting and no right of accompaniment at such a discussion therefore arose.

 

Mr. Cooper also makes contemporaneous notes of significant points of meetings/discussions in his day book. During the 21 December discussion, Mr. Cooper asked the Claimant about his workload. The Claimant made no reference to diabetes or other health issues. The Claimant said that the EA monthly report took approximately 2 to 2.5 days to complete during the first 1.5 to 2 weeks of each month and that his GE incident management function took approximately one half of each day of the month. He was no longer undertaking the EA incident management function.

 

The Claimant stated that he was looking for a more technical, non-customer facing role, still to be home-based. The Claimant said to Mr. Cooper that, with his permission, he would now look for another job to fulfil these career aspirations, both internally within the Respondent and externally. All job vacancies within the Respondent are posted on a web page known to all of the Respondent’s employees. Mr. Cooper responded that if that was what the Claimant wished to do he had his permission to do so but should be professional about it (i.e. not pursue other job opportunities at the expense of neglecting his existing role).

 

No further request for any change to the duties that had been agreed on 16 December was made by the Claimant at the 21 December 2005 meeting. Moreover, as part of the 21 December 2005 discussion, Mr Cooper recalls that, having analysed it with Mr. Cooper, the Claimant agreed that his workload was not unreasonable.

 

1.(f) The discussion on 21 December 2005 was very amicable, and the Claimant made no request to be accompanied and nor was he entitled to do so. Moreover, as part of that discussion Mr Cooper recalls that the Claimant agreed that his workload was not unreasonable, having analysed it at the 21 December 2005 meeting. Mr Cooper recalls that the Claimant then discussed with Mr. Cooper his career aspirations. It was in this context that the Claimant indicated his intention to look for alternative employment as described above. It is denied that the Claimant made any request to take action of Mr. Cooper with regard to his workload as alleged or at all. Further, the Respondent through Mr. Snowden, had already agreed with the Claimant changes to his workload and these changes were effective as of 16 December 2005.

 

1.(g) It is denied that the Claimant’s decision to look for another role was prompted by health reasons or by any failure on the Respondent’s part to make changes to his role (which had been agreed with the Claimant and made). Mr Cooper recalls that the Claimant told him that the reason for his wish to seek a new role, both within and outside the Respondent, was due to his aspirations to pursue a technical, non-customer facing and home based opportunity.

 

The Respondent will further say that in January 2006, it was agreed that, whilst working on the EA Monthly Report (i.e as described in 1(e) above), the Claimant need not undertake GE incident management as well.

 

During January 2006, Mr. Snowden spoke to HR regarding the Claimant and Mr. Snowden understands that they in turn had spoken to the Claimant who had confirmed to them that he was not interested in a customer-facing SDM role, but that as his current role did not fit his career aspirations, he would be pursing alternative job applications both within and outside the Respondent.

 

In February 2006 again as part of Mr. Snowden’s regular contact points with his team, he spoke to the Claimant. As a result of EA client feedback (that it felt that the Claimant did not add to the monthly client meeting), it was agreed with the Claimant that he was no longer required to attend the monthly client meeting. During this discussion (of which Mr. Snowden made notes), the Claimant said that his GE workload was “not too bad”, that his stress levels had “settled down” and that he had “got slightly better”. Mr. Snowden offered to the Claimant the Respondent’s occupational health service, CIGNA, and the Claimant responded that he would “keep it in mind”.

 

For the sake of completeness the Respondent would add that in early June 2006, having been notified that he was at risk of redundancy, the Claimant was not required to complete the May 2006 EA Monthly Report and a copy of the relevant complete email exchange is attached. It is true that the Claimant was initially asked to undertake this part of his role, but the Claimant was then informed by the Respondent that this was not required.

 

The Respondent does not admit that the Claimant is or was disabled within the meaning of the Disability Discrimination Act, but if, which is not admitted, the Claimant is so disabled, the Respondent will say that changes to the Claimant’s workload were made with his agreement; that he made no complaint regarding these agreed changes and further that the Claimant’s claim, based on the Respondent’s having allegedly ignored his requests for an adjustment to his role in December 2005 (which allegation is denied), is out of time and that it is not just and equitable to extend time, and further that any such claim is inadmissible, the Claimant having admitted that he raised no grievance in respect of any such issue.

 

2. For the sake of completeness, it is denied that the Claimant was discriminated against on grounds of his alleged disability, as alleged or at all.

 

Further, in relation to the Claimant’s claim that his dismissal was discriminatory, the Respondent does not admit that the Claimant is or was disabled within the meaning of the Disability Discrimination Act but that if, which is not admitted, he is found to be so disabled, the Respondent will say that its treatment of the Claimant was not discriminatory and was, in all the circumstances, fair.

 

The reason for the Claimant’s selection for redundancy has fully been particularised by the Respondent both in its ET3 and in response to the Claimant’s Disability Discrimination Act Questionnaire. The reason for the Claimant’s redundancy was the fact that the Respondent’s need for employees to perform the unique role performed by the Claimant within the SDM team had ceased or diminished. The basis for the Claimant’s selection was purely the uniqueness of his role and the Respondent’s diminished need for that role within that department. Further, the Claimant had stated a wish no longer to perform his existing role, but instead to seek a more technical, non customer-facing, home-based role. From December 2005 onwards, the Respondent understood from the Claimant that he was seeking such a role both internally within the Respondent and externally.

 

3. The Claimant’s allegations are denied. An accurate reflection of events is set out in the Respondent’s ET3 and Further Grounds of Defence (above).

 

4. It is not admitted that the Claimant is disabled within the meaning of the Disability Discrimination Act. However, if the Claimant is found to be so disabled, then the Respondent denies any discrimination on grounds of disability against the Claimant as alleged by him or at all. An accurate statement of the circumstances of the Claimant’s redundancy is set out in the Respondent’s ET3, its response to the Claimant’s Disability Discrimination Act Questionnaire and in its Further Grounds of Defence (above). In summary, as the Respondent has asserted, its need for employees to perform the unique role performed by the Claimant within the SDM team had ceased or diminished or was expected to cease or diminish. Contrary to the Claimant’s assertion, the Claimant’s role was unique amongst the SDM team and the Claimant had refused an offer of a customer-facing SDM role for the future. He had asserted on more than one occasion (including on 21 December 2005) his wish to seek an alternative, technical, non customer-facing, home-based role whether within the Respondent or externally, and, from December 2005 onwards, the Respondent understood that he was seeking such a role.

 

5. The Respondent does not admit that the Claimant is disabled within the meaning of the Disability Discrimination Act.

 

General

 

Save as specifically admitted, each and every allegation made by the Claimant in his Particulars of Claim, Further Particulars of Claim and Disability Discrimination Act Questionnaire is denied.

 

On 4 December 2006 I received a copy of the following letter sent from the Tribunal to the respondent:

 

Dear Sir

 

I refer to the above named proceedings and acknowledge your email of 30 November 2006. Enclosed herewith for your information please find correspondence dated 29 November 2006 and 30 November 2006 received from the Respondent’s representative.

 

The Chairman of the Tribunals (Ms Crone) has instructed me to advise you that a Pre Hearing Review will now be arranged to determine;

 

i) whether the Claimant is a disabled person within the terms of the Disability Discrimination Act

ii) if so, whether the Disability Discrimination Act claim is out of time

iii) whether the Claimant complied with the statutory procedure to raise a grievance.

 

We shall revert to you in due course.

 

The day after I received the following proposed letter from the respondent to my diabetes consultant:

 

Dear Sir

 

We are writing to you in your capacity as diabetes consultant to Mr Kenneth McAlpine.

 

We are instructed by Oracle Corporation UK Limited (“Oracle”) in relation to an Employment Tribunal Claim issued against it by Mr Kenneth McAlpine, a former employee of Oracle. One of Mr McAlpine’s claims is that Oracle discriminated against him pursuant to the Disability Discrimination Act 1995 (“DDA”). In order to succeed with this claim, Mr McAlpine must first demonstrate to the Tribunal that by reason of the condition from which he suffers, namely Type 1 diabetes, that he is a “disabled” person for the purposes of the DDA.

 

A Case Management Discussion in relation to this matter took place on 20th October 2006, during which it was agreed that Oracle could seek a medical report from yourself in order to assist determining the question of whether Mr McAlpine is a “disabled” person pursuant to the DDA. Mr McAlpine has very helpfully already provided us with some detailed information regarding his condition, however, there are still two questions relating to the effects of his diabetes that we would like you to consider (as set out below).

 

In accordance with the Access to Medical Reports Act 1988 and the Data Protection Act 1998, we have asked for Mr McAlpine’s consent to our contacting you to ask these questions. We enclose a copy of his consent with this letter. We have also informed Mr McAlpine of his rights under the Access to Medical Reports Act 1988 and Mr McAlpine has indicated that he wishes to see your report before it is supplied to us. We have advised him to contact you directly within 21 days of the date of this letter to you in order to view the report. We are also copying this letter to Mr McAlpine to notify him that our request for a report has now been made.

 

The only questions that we would like you to consider are:

 

1) Please would you confirm our understanding that provided Mr McAlpine takes the prescribed medical treatment for his Type 1 diabetes, namely Insulin, there should be no adverse effects on his ability to carry out “normal day to day activities”?

 

“Normal day to day activities” for these purposes are:

 

  • Mobility

  • Manual dexterity

  • Physical co-ordination

  • Continence

  • Ability to lift, carry or otherwise move everyday objects

  • Speech, hearing or eyesight

  • Memory or ability to concentrate, learn or understand

  • Perception of the risk of physical danger.

 

2) In your opinion, what would be the likely effect (i.e. more likely than not) on Mr McAlpine’s ability to perform “normal day to day activities” (as set out above) if he failed to take the prescribed treatment for his Type 1 diabetes?

 

Please notify us of any fee which you will require in order to process this request and of the likely timescale within which you will respond.

 

Please do not hesitate to contact us if you require any further information or clarification of this request.

 

The next day I received the following letter from the Tribunal:

 

NOTICE OF HEARING

Pre-hearing review

Employment Tribunals Rules of Procedure

 

1. A chairman (Ms Crone) has directed that a pre-hearing review is to be held. The specific preliminary issue to be considered at the hearing is as follows: the issues detailed in our letter dated 4th December 2006

 

2. The pre-hearing review will be heard by a chairman at 10:00 am on Friday 12th day of January 2007 at COET (Scotland), 3rd Floor, The Eagle Building, 215 Bothwell St, Glasgow, G2 7TS or as soon after that time as the Chairman can hear it. It has been given a time allocation of 3 hours. If you feel that this is insufficient, please inform us in writing within 5 days of the date of this letter.

 

3. The parties are responsible for ensuring that any witnesses they wish to call can attend the hearing.

 

4. Representatives are required to inform those they represent of the place, date, time and duration of the hearing.

 

In reply to this letter from the Tribunal, I sent the following letter the next day to both the Tribunal and the respondent:

 

Dear Sir/Madam,

 

Referring to the Tribunal’s letter dated 04 December 2006, the Claimant would wish to request that the pre-hearing review be conducted by a tribunal instead of a chairman, as the following substantive issues of fact are likely to be determined at the pre-hearing review:

 

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

 

(3) Pre-hearing reviews shall be conducted by a tribunal composed in accordance with section 4(1) and (2) of the Employment Tribunals Act if -

 

(a) a party has made a request in writing not less than 10 days before the date on which the pre-hearing review is due to take place that the pre-hearing review be conducted by a tribunal instead of a chairman; and

 

This document.

 

(b) a chairman considers that one or more substantive issues of fact are likely to be determined at the pre-hearing review, that it would be desirable for the pre-hearing review to be conducted by a tribunal and he has issued an order that the pre-hearing review be conducted by a tribunal.

 

The Respondent breached the Disability Discrimination Act 1995, as stated in the Claimant’s letter dated 18 November 2006 to the Tribunal:

 

The Claimant is writing to request that the Tribunal consider drawing an adverse inference under section 56(3)(b)(ii), as the Respondent’s reply is at best evasive, at worst untrue.

 

(3) Where the complainant questions the respondent in accordance with forms prescribed by an order under subsection (2)

 

(b) if it appears to the tribunal in any such proceedings

 

(ii) that the respondent’s reply is evasive or equivocal, it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent has contravened a provision of Part II or, to the extent that it relates to the provision of employment services, Part 3.

 

The Claimant would also draw the Tribunal’s attention to section 57(4)

 

(4) A person who knowingly or recklessly makes such a statement which is false or misleading in a material respect is guilty of an offence.

 

The Respondent, in their reply dated 30 November 2006, has still not answered the following points, as outlined in the Claimant’s letter dated 18 November 2006:

 

“These changes were initially announced to the Claimant and his colleagues by email communication in January 2006 [1] “, and

The “email communication in January 2006” is at best vague, as there is no date, time, or proof that this email exists at all, especially when the Respondent has listed other emails at the end of their reply dated 30 November 2006. Even if this email does exist, it is still a vague statement, as the Claimant received some 413 e-mails in January 2006.

 

“team meeting on 14 March 2006 which the Claimant attended [2].”

The Claimant did not attend any such meeting.

 

“non-customer facing Service Delivery manager role [3]”

The Claimant has sent proof to the Tribunal that he was not “non-customer facing” and attended the EA monthly meetings on a regular basis.

 

“(the unique role occupied by the Claimant) [4]”

The Claimant certainly did not have a unique role, and worked within a team of employees all performing the same role.

 

The Claimant believes that there is more than enough evidence contained within the Respondent’s reply to the DDA Questionnaire for a tribunal to draw an adverse inference, and, as such, “that one or more substantive issues of fact are likely to be determined at the pre-hearing review, that it would be desirable for the pre-hearing review to be conducted by a tribunal”.

 

The Claimant would further like to suggest that a logical sequence of determinations would be:

 

i) Whether the Claimant is a disabled person within the terms of the Disability Discrimination Act

ii) If so, whether the tribunal finds that it can draw an adverse inference

iii) If not, whether the Disability Discrimination Act claim is out of time

iv) Whether the Claimant complied with the statutory procedure to raise a grievance.

 

The logic behind this sequence of determinations is as follows, determination (i) must come first, as all other determinations follow on from (i). Determination (ii) is a major point in law “guilty of an offence”, and as such, should be determined before (iii) and (iv), as this could end all further proceedings.

 

Determination (iii) and (iv) are more trivial matters, requiring considerations on when discriminatory acts took place, for how long, whether they were ongoing, and when they ended, and whether the statutory procedures applied at certain points in time.

 

The Respondent should have no objections to determination (ii) if they have complied fully with the Disability Discrimination Act Questionnaire.

 

 

[]Chapter 5

 

On 8 December 2006, I sent the following email to the Tribunal:

 

Dear Sir/Madam,

 

The Claimant would like to seek clarification on the proposed end date for disclosure of documents in section (4) of the ‘NOTE FOLLOWING CASE MANAGEMENT DISCUSSION’:

 

(4) The Chairman explained to the claimant the process for disclosure of documents. It was agreed that once the particulars of the claim have been provided and any adjustments made by the respondent to the response, parties will have 28 days to prepare a list of documents they intend to rely upon at the hearing.

 

Is this date calculated as follows:

 

Date of order for additional information: 27th October 2006.

 

“The additional information should be provided within 14 days”.

 

End date for additional information (particulars of the claim): 10th November 2006.

 

“parties will have 28 days to prepare a list of documents”

 

End date for disclosure of documents to parties: 8th December 2006.

 

Is this the correct date, or is it another date?

 

I was copied on a letter from the respondent to the Tribunal the same day, which stated:

 

Dear Sir/Madam

 

Thank you for your letter of 6 December 2006 notifying us that a Pre-Hearing Review in this case has been listed for hearing on 12 January 2007. We are writing to request a postponement of this hearing until mid/end February (we give a list of proposed alternative dates at the end of this letter) on the following grounds.

 

1. Having now obtained the Claimant’s consent to instruct his diabetes consultant in relation to the provision of a (limited) report as to the effects of his condition (with and without insulin) on his ability to perform “normal day to day activities”, the medical consultant in this matter has only just been instructed.

 

2. We do not know the consultant’s proposed timetable for dealing with the request for a medical report and, taking into account the intervening Christmas and New Year period, are unsure whether he will have an opportunity to provide this report so as to give both parties a proper opportunity, prior to the proposed hearing date, to consider it.

 

3. In the above connection, the Claimant has exercised his right of prior review of the report, and has 21 days from the date of its completion in order to exercise that right. With a proposed hearing date of 12 January 2007, this may not allow the Claimant a fair opportunity to comment on the report. Whilst we should emphasise that the scope of the report requested is limited, we thought it appropriate nonetheless (particularly as the Claimant is not legally represented) to make this point.

 

4. The other issues for determination at the Pre-Hearing Review are jurisdictional and admissibility issues. The former issue is likely to require the provision of live evidence by our witness, the Claimant’s former Manager, Mr Snowden. Again, with the intervening holiday period, this gives little time in which to prepare, and provide to the Claimant, a formal witness statement.

 

In all the circumstances, we therefore request a postponement of this preliminary hearing until mid/end February 2007. We would suggest one of the following dates:

 

20,21,23, 26 or 27 February 2007.

 

As the respondent had lodged another document stating that I had a unique role within Oracle, I had to write another reply to set the record straight. When someone lies about you, the choice is to ignore it and take the consequences or squash it straight away. On 12 December 2006 I sent the following letter to the Tribunal:

 

Dear Sir/Madam,

 

Please find enclosed the Claimant’s voluntary further particulars of claim, in reply to Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’ received by Claimant on 30th November 2006.

 

The Claimant will split these voluntary further particulars of claim into five distinct sections, the first section will provide a factual description of the Claimant’s role, with supporting evidence, to refute the “uniqueness” of the Claimant’s role, as ‘particularised’ by the Respondent in the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’ received by Claimant on 30th November 2006. The second section will confirm, with supporting evidence, the Claimant’s ‘FURTHER PARTICULARS OF CLAIM’. The third section will highlight the ‘reasonable adjustments’ as an on going, unresolved act. The fourth section will discuss the statutory grievance procedure, and the fifth section will list matters that are still unresolved.

 

Section 1 – The Claimant’s role

 

The Claimant has the following qualifications:

 

B.Eng (hons) in Production Engineering and Management Strathclyde University, 4 July 1988

 

M.Sc in Business Computing Paisley University, 1996

 

Foundation Certificate in IT Service Management British Computer Society, 14 September 2005.

 

The Claimant also noticed from the Respondent’s website, that the ‘Preferred Qualifications: bachelors degree’ is a requirement for the position of On Demand Service Delivery Management, so, can the Respondent indicate to the Claimant, how many oSDM employee’s, currently in Mr Snowden’s team, are qualified to bachelors degree level, stating places and dates, and how many are ITIL (IT Infrastructure Library) qualified, including all six oSDM’s who have started in Mr Snowden’s team since the Claimant was selected for redundancy on 30 May 2006?

 

In the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’ received by Claimant on 30th November 2006, it states:

 

“The reason for the Claimant’s redundancy was the fact that the Respondent’s need for employees to perform the unique role performed by the Claimant within the SDM team had ceased or diminished. The basis for the Claimant’s selection was purely the uniqueness of his role and the Respondent’s diminished need for that role within that department.”

 

In the email contained in Appendix 2, it is obvious that the Claimant is being introduced to Environment Agency staff, and Oracle internal staff, as an oSDM (On Demand Service Delivery Manager), and, not only is the Claimant being introduced as an oSDM to this very high value customer, but the Claimant is clearly going to be working as a sole oSDM between the hours of 8:30am and 10:00am, and then as one of two oSDM from 10:00am to 04:30pm.

 

The Respondent states many times in the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’ received by Claimant on 30th November 2006, that the Claimant had a ‘unique’ role. The Claimant has indicated that he was more than qualified to perform the oSDM role, and that the Respondent had spent thousands of pounds on training and certification courses, not only on the Claimant, but also the other oSDM’s, in order that all the oSDM’s meet the requirements of the oSDM role.

 

Appendix 3 is another example of another training course the Claimant was sent on, not only with many of the other oSDM’s, but also the Claimant’s manager and senior director also attended this training course.

 

There are a number of notable facts in Appendix 3, namely that the ‘Target Audience’ was ‘SDM Managers, oSDMs’, and that the Claimant attended this three day course.

 

In Appendix 4, there are again some notable facts, namely, that Kenneth McAlpine (the Claimant, and one of three oSDM for Environment Agency), and Richard Marsden (one of three oSDM for Environment Agency), could not attend the same certification course, as this would ‘cause a problem with account cover’.

 

Why would this cause a problem with account cover, when, ‘particularised’ by the Respondent, the Claimant had such a ‘unique’ role. If this was true, no one could ‘cover’ for the Claimant, and, likewise, the Claimant could not ‘cover’ for anyone else?

 

The Respondent states many times in the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’ received by Claimant on 30th November 2006, that the Claimant had a ‘unique’ role. The Claimant has indicated that he was more than qualified to perform the oSDM role, and that the Respondent had spent thousands of pounds to train the Claimant to perform the role of oSDM. The Claimant would also wish to point out that in Appendix 6, the Respondent (Nick Cooper and Phil Snowden presentation) clearly identifies that ‘OD Service Delivery Managers = 12’, and the Claimant estimates this presentation was written on 30 November 2005, and that the Aria People Search clearly identifies that there were 12 employees in Phil Snowden’s team on 25 April 2005, and according to the Respondent’s ‘The Disability Discrimination Act 1995 s56(2)(b) – Respondent’s reply’, the Respondent states that no employees joined Phil Snowden’s oSDM team from 25 April 2005 until 1 December 2005, the Claimant must have been classed as ‘OD Service Delivery Manager’.

 

The Claimant will also maintain that the Claimant performed the oSDM Duty Phone two days a month, as did all the other oSDM’s in the Claimant’s team, and that this procedure/function was a gateway for any customer to contact and speak to an oSDM concerning any matter, if the customer could not contact their assigned oSDM, and that how could the Claimant perform such a duty, when the Respondent alleges that the Claimant had such a ‘unique’ role.

 

Section 2 – Voluntary further particulars of claim, with supporting evidence

 

To show how busy the Environment Agency contract was over the previous year to July 2005, EA had raised approximately 2500 service requests, the total of all customers served by the 12 oSDM’s in the Claimant’s team was some 7233 service requests, resulting in 35% of all service requests covered by 25% (3 out of 12) of the oSDM’s. This was not uncommon for the very large contracts, as these types of customers tended to have more users and larger systems. The reason why the Claimant brings up these statistics is simply this, during the discussions the Claimant had with the Respondent regarding ‘reasonable adjustments’, the Respondent stated, and this will live with the Claimant for the rest of his days, some along the lines of ‘do you believe that there is any difference between the large contracts and the small contracts?’, to which the Claimant replied along the lines of ‘why are the large contracts paying around ten times the price of the smaller contracts’.

 

As highlighted in the last paragraph, the EA contract was extremely busy, and to compound issues, one of the oSDM’s (Julie McFarlane) obtained another role within the Respondent around November 2005, and left the Respondent’s oSDM team early in 2006.

 

In the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’, the Respondent seems to suggest that the Claimant did not attend the EA Monthly Meeting on 21 December 2005, not only did the Claimant attend the EA Monthly Meeting on 21 December 2005 as highlighted in Appendix 7, but the Claimant also took minutes at that meeting, had actions assigned to him at that meeting, and distributed those minutes internally within the Respondent, and externally to EA.

 

The Respondent states in ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’:

 

“The outcome of this, very amicable, conference call was that a list of duties which the Claimant would perform going forward was agreed, and this included that, whilst the Claimant would compile the monthly report for client EA, and present it at the monthly meeting, he would no longer perform the customer incident management role for that client. As a result of this agreed list of duties, it was anticipated that the Claimant would spend 50% of his time working on each of the two clients to which he was allocated. It was also agreed that his workload would be monitored going forward.”

 

This is the Respondent’s story, now the Claimant will provide a factual account of what happened.

 

This conference call was far from amicable. The reason why the Claimant did not want to attend this particular EA Monthly Meeting was as follows:

 

  • The Claimant now had commitments to working on the GE contract, and could not spend a full day on EA, especially travelling to/from the meeting in Birmingham, for a 2 hour meeting, at the expense of the GE duties.

 

  • The day of the EA Monthly Meeting, 21 December 2005, was the last day that the Claimant was due to work, before going off on a 10-day vacation over the Christmas/New Year period, in order that the Claimant could spend this day making sure that all work was completed on both contracts.

 

  • This was explained to the other two oSDM’s who worked on the EA contract, and who had covered for the Claimant at the EA Monthly Meeting before, when the Claimant was on summer vacation (see Appendix 7), but the other two oSDM’s deemed it necessary to report the Claimant to his manager.

 

There was nothing ‘agreed’ between the Claimant and Mr. Snowden during this conference call. If you review the wording used in Appendix 8, this agreement was between Mr. Snowden and the other two oSDM’s working on EA, that the work that the Claimant had to perform on EA would take 50% or less of the Claimant’s time.

 

Also, the statement by the Respondent “the Claimant would spend 50% of his time working on each of the two clients”, is also untrue, as it is stated in Appendix 8 ‘50% or less’, less giving the Claimant more time to work on the GE contract, which was in essence what this whole conference call was about, as the two EA oSDM’s expected the Claimant on EA 100% of the time, but this was simply not possible, as the Claimant had to devote time to GE.

 

The Respondent also states, “It was also agreed that his workload would be monitored going forward.” which again indicates that no ‘reasonable adjustments’ were considered, and that this situation was ongoing.

 

The e-mail in Appendix 9 really speaks for itself, and the Claimant feels that no comment is necessary, other than Mr. Winters did request work from the Claimant, on numerous occasions, in the first week to ten days of each month, and that the Claimant did not mention the diabetes part of any conversation, as this was a strictly private matter between the Claimant and managers.

 

Section 3 – On going act of discrimination

 

In Summary, the Claimant is Type 1 diabetes, and has suffered from this disability for over 40 years. Type 1 diabetes is covered by the Disability Discrimination Act 1995. The Respondent failed to act on the Claimant’s request for ‘reasonable adjustments’, and as such, the Claimant suffered an act of discrimination extending over a period, as explicitly particularised in the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’ received by Claimant on 30th November 2006:

 

“The Claimant’s role from approximately mid February 2006 onwards

 

  • EA Monthly Report

 

  • GE customer incident management”

 

The Respondent, as explicitly particularised in the Respondent’s ET3 form stated:

 

“In accordance with the Respondent’s managerial practice, further conversations were had between the Claimant and Mr Snowden”

 

and

 

“Claimant’s meetings/discussions with his manager from 17 February to 5 June 2006 (some six in total)”

 

This obviously indicates that the Respondent not only admits that the alleged act extended over the period December 2005 to June 2006, but that the Respondent did nothing about the alleged act, otherwise, why have continuous meetings/discussions. The Claimant also recalls that the Respondent was phoning to check that the Claimant was performing the EA Monthly Report each month (some 5 in total, February, March, April, May and June (see email, Re: Phonecall on 5th June 2006 contained in Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’ received by Claimant on 30th November 2006)), and the sixth phone call was to ask the Claimant to cover the SDM duty phone.

 

As such, the ‘reasonable adjustments’ part of the claim, brought under Disability Discrimination Act 1995, section 3A(1), which is a part of the Claimant’s claim, was an act extending over a period, which is covered by Disability Discrimination Act 1995, Sch.3 para 3(3)(b), and as such “any act extending over a period shall be treated as done at the end of that period”, the end period being my redundancy on 10th July 2006.

 

(3) For the purpose of sub-paragraph (1)—

 

(b) any act extending over a period shall be treated as done at the end of that period;

 

Section 4 – Statutory Grievance Procedure

 

With regards to the Claimant not following the Statutory Grievance Procedure, the only point at which the Claimant had any ‘grievance’ was when the Claimant was selected for redundancy. The Claimant’s decision to look for another role within the Respondent from 21 December 2005 were influenced by the factors listed below:

 

4.1. The Claimant’s concerns over his immediate health.

4.2. The Respondent’s failure to consider making ‘reasonable adjustments’ at the 16 December 2005 meeting.

4.3. The Respondent’s failure to consider making ‘reasonable adjustments’ at the 21 December 2005 meeting.

4.4. One of the existing oSDM’s leaving the EA account (further increased workload for Claimant?).

4.5. Pressure and harassment from the two oSDM’s working on the EA account for the Claimant to continue his existing workload on this account, and reporting the Claimant to his manager for trying to balance workload between EA and GE accounts.

4.6. Pressure and harassment from the oSDM working on the GE account for the Claimant to continue his existing workload on this account (Appendix 9 is an example).

 

This resulted in the Claimant having to, through no fault of his own, look for another position within the Respondent from 21 December 2005 through until the Claimant was made redundant. If the Claimant had obtained another role within the Respondent, the Claimant would have made ‘reasonable adjustments’ himself, by removing himself from the role.

 

The Respondent had the following options of ‘reasonable adjustments’ that the Respondent could have at least considered making, but is not strictly limited to making, these were:

 

  • Allocating some of the Claimant’s duties to another person (for example, the EA Monthly Report to new starter on 1 December 2005).

 

  • Transferring the Claimant to fill an existing vacancy.

 

If the Respondent had made one of these ‘reasonable adjustments’ we would not all be in this situation today.

 

Section 5 – Matters unresolved

 

5.1 The Respondent alleged in ‘The Disability Discrimination Act 1995 s56(2)(b) – Respondent’s reply’ that the Claimant attended a team meeting on 14 March 2006:

 

“these three initiatives were made at a team meeting on 14 March 2006 which the Claimant attended.”

 

The Claimant did not attend any team meeting on 14 March 2006, and when the Respondent was further pressed on this matter, stated in the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’:

 

“We acknowledge that the Claimant says that he did not attend the meeting on 14 March 2006. The Respondent is investigating this further…”

 

What, exactly, is the Respondent’s position in this matter, is it that the Claimant did attend the team meeting on 14 March 2006, or that the Claimant did not attend the team meeting on 14 March 2006, a simple yes or no answer will suffice?

 

5.2 The Respondent alleged in ‘The Disability Discrimination Act 1995 s56(2)(b) – Respondent’s reply’ that the Claimant received an email in January 2006:

 

“These changes were initially announced to the Claimant and his colleagues by email communication in January 2006…”

 

When the Respondent was further pressed on this matter, stated in the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’:

 

“We would point out that the e-mail of 13th January 2006 attached by the Claimant to his letter is not that to which the Respondent referred in its initial DDA Questionnaire response.”

 

Can the Respondent provide this exact email?

 

5.3 The Respondent has continually alleged in multiple documents that the Claimant was ‘non-customer facing’.

 

If the Respondent does not retract these allegations, the Claimant will have no choice but to approach the Tribunal, and ask that orders for witness statements be issued to relevant Environment Agency employees regarding the amount of direct contact, including meetings and phone calls, that happened between the Claimant and the Respondent’s customer.

 

A simple, yes the Claimant was customer facing, or no the Claimant was non-customer facing would suffice?

 

5.4 The Respondent has continually alleged throughout ‘The Disability Discrimination Act 1995 s56(2)(b) – Respondent’s reply’ that the Claimant was:

 

“non-customer facing SDM role” and that this made the Claimant’s role “unique”

 

But, in the Respondent’s ‘VOLUNTARY FURTHER PARTICULARS OF DEFENCE IN LIGHT OF FURTHER PARTICULARS OF CLAIM FILED BY CLAIMANT’ the Respondent’s position seems to have changed to:

 

“unique role” and “uniqueness of the role”

 

What is the Respondent’s defence, is it:

 

5.4.1 The Claimant was employed in a non-customer facing role?

 

5.4.2 The Claimant was employed in a unique role?

 

5.4.3 The Claimant was employed in a unique, non-customer facing role?

 

That same day, I received the following letter from the Tribunal, asking me to comment on the letter from the respondent requesting that the Pre-Hearing Review, scheduled for 12 January 2007, be cancelled:

Dear Sir

 

I refer to a letter we have received from the respondent’s representative dated 8 December 2006, which we understand has been copied to you.

 

The Chairman has instructed me write to you, and invite any objections or comments you may have on its contents.

 

You should reply by 19 December 2006.

 

I also received another letter from the Tribunal on 12 December 2006:

Dear Sir

 

I acknowledge your e-mail of 8 December 2006.

 

The Chairman of the Tribunals (Ms L Crone) has advised that no date was fixed and believes that parties should be able to agree the date.

 

Six days passed before I sent the following email to the Tribunal on 18 December 2006:

 

Dear Sir/Madam,

 

In light of a pre-hearing review being held, and the Respondent raising three preliminary issues, the Claimant would like to add the following four issues to be determined at this pre-hearing review:

 

1: With reference to the “Disability Discrimination Act 1995 section 56(2)(a) Complainant’s questionnaire” served by the Claimant on the Respondent, and the Respondent’s reply in “Disability Discrimination Act 1995 section 56(2)(b) Respondent’s reply”, that the Respondent falsely stated “team meeting on 14 March 2006 which the Claimant attended.”, and that this contravenes the Disability Discrimination Act 1995, Part VII, section 56 (3)(b)(ii), and invite the tribunal to draw an adverse inference if the Respondent cannot disprove this issue;

 

2: With reference to the “Disability Discrimination Act 1995 section 56(2)(a) Complainant’s questionnaire” served by the Claimant on the Respondent, and the Respondent’s reply in “Disability Discrimination Act 1995 section 56(2)(b) Respondent’s reply”, that the Respondent was equivocal in stating “These changes were initially announced to the Claimant and his colleagues by email communication in January 2006”, and that this contravenes the Disability Discrimination Act 1995, Part VII, section 56 (3)(b)(ii), and invite the tribunal to draw an adverse inference if the Respondent cannot disprove this issue;

 

3: With reference to the “Disability Discrimination Act 1995 section 56(2)(a) Complainant’s questionnaire” served by the Claimant on the Respondent, and the Respondent’s reply in “Disability Discrimination Act 1995 section 56(2)(b) Respondent’s reply”, that the Respondent falsely stated “non-customer facing Service Delivery manager role”, and that this contravenes the Disability Discrimination Act 1995, Part VII, section 56 (3)(b)(ii), and invite the tribunal to draw an adverse inference if the Respondent cannot disprove this issue;

 

4: With reference to the “Disability Discrimination Act 1995 section 56(2)(a) Complainant’s questionnaire” served by the Claimant on the Respondent, and the Respondent’s reply in “Disability Discrimination Act 1995 section 56(2)(b) Respondent’s reply”, that the Respondent falsely stated “His role was unique.”, and that this contravenes the Disability Discrimination Act 1995, Part VII, section 56 (3)(b)(ii), and invite the tribunal to draw an adverse inference if the Respondent cannot disprove this issue;

 

The Claimant would also like to request that these four issues are discussed at the pre-hearing review after the Respondent’s issue “1. Subject to our consideration of a medical expert’s report into Mr McAlpine’s diabetes, a determination by the Tribunal of whether the effects of Mr McAlpine’s diabetes constitutes a ‘disability’ for the purposes of the Disability Discrimination Act;”

 

Two days later, I sent the Tribunal the following letter:

Dear Sir/Madam,

 

Can the Claimant ask for clarification on the following 4 points:

 

1: Can the Tribunal indicate to the Claimant, who will be sitting at this Pre-Hearing Review, will it be:

 

(a) The Chairman alone.

(b) The full tribunal (Chairman and 2 lay members).

© Other (please provide an explanation).

 

2: With regards to “4. A postponement of a hearing will only be granted by a Chairman IN EXCEPTIONAL CIRCUMSTANCES. If it is necessary for a postponement to be sought you should apply for such in writing to this office as soon as you become aware of the difficulty giving rise to the request, setting out in writing the reasons for the request. If you have failed to return this form, and thereafter apply for a postponement on the ground that the date is inconvenient to a party or witness, your failure will be taken into account by the Chairman who is deciding whether to grant the postponement request.”

 

Can the Chairman provide the “EXCEPTIONAL CIRCUMSTANCES” in which this Pre-Hearing Review was postponed.

 

The Claimant assumes that the Chairman has noted the failure on the part of the Respondent has been taken into account, and that this will be held against the Respondent, as the Claimant was prepared to attend the Pre-Hearing Review scheduled for 12 January 2007.

 

3: Regarding witnesses, the Claimant believes that the Chairman pointed out to the Respondent at the Case Management Discussion, that as the Claimant was representing himself, that the Respondent could not call any witnesses, and would therefore have to rely on witness statements. Can the Chairman clarify exactly what is the position of the Tribunal regarding the Respondent and the Respondents witnesses: Is it:

 

(a) The Respondent can call any witnesses the Respondent chooses.

(b) The Respondent cannot call any witnesses, and must only rely on witness statements.

© The Respondent can call certain witnesses.

(d) Other (please provide an explanation).

 

4: The Chairman indicated to the Claimant that the full tribunal (Chairman and 2 lay members) would be sitting at the Pre-Hearing Review which was scheduled for 12 January 2007, so is the following option available to the Claimant at this time:

 

As the full tribunal (Chairman and 2 lay members) were booked to be sitting for 3 hours on 12 January 2007, can the Claimant invite the full tribunal (Chairman and 2 lay members) to sit and consider drawing an adverse inference against the Respondent on this date, due to the lies and vagueness of the the Respondent’s response to the Disability Discrimination Act 1995 Response that the Respondent provided.

 

The Respondent can be invited to provide evidence to substantiate the claims that the Respondent has made in the Disability Discrimination Act 1995 Response by 11 January 2007, and if they cannot (the Respondent should have this evidence to hand if the allegations are true, as they would have had to use this evidence to complete the Disability Discrimination Act 1995 Response), and if they cannot provide this evidence, the adverse inference must be drawn.

 

Are there any other rules or procedures by which the Claimant can invite the full tribunal (Chairman and 2 lay members) to consider drawing an adverse inference, so that this case can be decided sooner rather than later?

 

On 21 December 2006, I received a letter and folder of documents from the respondent:

 

Dear Sir,

 

We refer to the note following Case Management Discussion provided by Mrs Crone, paragraph (4) on page 3.

 

We agreed that once Particulars of Claim had been provided (as contemplated at the Case Management Discussion) and any adjustments made by us to our Response, then within a further 28 days, Lists of Documents should be prepared and exchanged.

 

You have now served further Voluntary Particulars of Claim, and our client is accordingly considering them. Should any further adjustment to our Response/Further Particulars be required in light of your Further Particulars, we confirm that we will provide them by the end of the first working week in January (i.e. by close of business on 5 January 2007).

 

Given that you have served Further Particulars of Claim, Lists of Documents cannot be finalised at this stage. Nonetheless, in order to assist you, we are prepared to provide you with a preliminary List, disclosing the documents supplied to us so far by our client and showing the categories of documents for which we are continuing to search, with a final List to be provided within 28 days of the final date of close of pleadings (i.e. 28 days from 5 January 2007). For your convenience, we enclose copies of all of those items specifically included in the preliminary List.

 

Within the folder of documents supplied by the respondent, were handwritten notes from the daybook of my manager, which discussed my diabetes as well as making me redundant, but nothing in writing that linked the two.

 

One of the tasks that had to be completed before the full tribunal hearing was for me to quantify my claim. In discrimination cases, the sum awarded is unlimited, and can comprise of loss of career or future earnings, loss of pension and benefits, personal injury, as well as others. The loss of career or future earnings and pension and benefits awards can add a significant value to a discrimination claim, and in my case could amount to a yearly loss multiplied by twenty-two years. However, it is up to any claimant to prove this loss, and then up to the tribunal to decide on the loss.

 

That same day, I sent the following letter to the respondent:

 

Dear Sir/Madam,

 

This is to confirm that Mr K R McAlpine would be willing to reach full and final settlement for the sum of £723,000 of all employment related termination claims, including those made in the above Tribunal case, and as otherwise to be stated fully in a formal settlement agreement, and subject further to such terms as to confidentiality, non-disparagement and non-repetition of claims as Oracle Corporation UK Limited requires, any such settlement to be concluded under the auspices of ACAS and to be incorporated into a statutory Form COT3.

 

The Claimant will be claiming, but will not be expressly limited to claiming, the following damages:

 

Basic award for unfair dismissal, Loss of statutory rights, Loss of basic salary (including car allowance) to date of tribunal, Loss of commission, Loss of Pension Benefits, Injury to feelings, Aggravated damages, Injury to health, Interest on injury to feelings, Interest on financial loss, Future loss of earnings, Miscellaneous expenses, as well as preparation time for case.

 

This offer would cease any of the following actions:

 

1. All employment related termination claims, including:

 

a. ‘Disability Discrimination’ against ‘Oracle’ brand

b. No involvement of Environment Agency in ‘Disability Discrimination’ case, and possible adverse effects.

c. No involvement of Lloyds Register in ‘Disability Discrimination’ case, and possible adverse effects.

d. No involvement of any other customers that the Claimant may wish to call for ‘non-customer facing’ allegations.

 

2. No further legal action with regards to DDA 1995 s56 and s57 against, but not expressly limited to:

 

a. ‘Oracle’ for DDA Response

b. Phil Snowden

c. Nick Cooper

d. Sue Scates

e. William Gemmell

f. Catherine Temple

 

3. No further legal action with regards to DDA 1995 s56 and s57 against, but not expressly limited to:

 

a. Morgan, Lewis & Bockius

 

Mr K R McAlpine intends to seek legal counsel on all of the above matters.

This offer is open for acceptance until close of business on Thursday 4 January 2007 and Mr K R McAlpine would be grateful therefore to receive your early response. If you would like to discuss this matter, please contact the Mr K R McAlpine via email only.

 

 

[]Chapter 6

 

It was now four days before Christmas, and exactly one year to the date since my meeting with my Senior Director, Nicholas Cooper, when I received the following letter from the respondent:

 

Dear Sir,

 

We refer to your correspondence with the Tribunal dated 17 December 2006 which sets out your objections to our request to the postponement of the Preliminary Hearing in this matter. We refer in particular to the second and third pages of this correspondence where you set out the list of witnesses that you would request give “live” witness statements at the Preliminary Hearing if Mr Snowden were to be present as a witness on behalf of the Respondent.

 

We note your reasoning for requiring the presence of the named clients of the Respondent as being to “substantiate customer facing role.”

 

For the avoidance of doubt our client does not deny (as particularised in its Further Particulars of Response) that you had some customer facing responsibilities, albeit that they were extremely limited. However, importantly your role did not comprise the following constituent (customer-facing) parts, that a standard SDM role contained:

 

  • primary point of contact for assigned customers;

  • ensure all activities to take customer through OnDemand Lifecycle are completed successfully;

  • conduct customer kick-off meeting;

  • conduct regular customer progress review meetings – including any preparation and follow-up;

  • during the implementation phase, work closely with the customer and implementer to ensure all activities are planned and executed as required;

  • work with the required internal teams to ensure that all activities are performed;

  • liaise with the renewals team to ensure that renewal activity is planned and executed;

  • work with the customer towards becoming a reference site;

  • deal with any customer escalations as required, including attendance at daily “situation room” if appropriate; and

  • ensure priority customer issues are being progressed.

 

Our client is fully prepared and able to provide substantive evidence to show that these duties were not required of you and as such that your role differed considerably from the standard role, notably in terms of your contact with customers. At the same time, our client will also fully set out those limited aspects of your role that involved facing customers. Accordingly, there is absolutely no merit in contacting the individual customers to provide the same evidence. Further, the nature of your role is not an issue to be determined at the Preliminary Hearing which as you are aware is solely to deal with the issues of:

 

1) Whether in light of the diabetes consultant’s report, that you are considered “disabled” for the purposes of the Disability Discrimination Act 1995 (“DDA”); and

 

2) If you are considered to be disabled pursuant to the DDA, whether your claim that the Respondent failed to make a reasonable adjustment to your working conditions is out of time and whether (if it is) it is just and equitable to extend time for bringing your claim; and

 

3) If your “reasonable adjustment” claim is “within time”, whether it is nonetheless inadmissible as you failed to raise any grievance in respect of this matter whilst employed or which in 28 days thereafter.

 

For the above reasons we re-iterate our request that you should not contact the Respondent’s customers for this purpose. We would also suggest that you provide us with a full list of what you believe your customer facing responsibilities were. If the Respondent agrees with your list, then there will be no need to contact the Respondent’s customers.

 

I fully expected this response from the respondent, but it was not for the reason that no organisation would wish their customers to be involved in any legal proceedings against that organisation.

 

It was simply for the reason that I had been one of the most customer facing On Demand Service Delivery Managers in the whole of the team when working on the Environment Agency account. The respondent knew this and was also aware that I had phone bills that showed a four hundred percent increase in calls received since starting work on the Environment Agency account.

 

I also knew that the respondent would have to try and convince the Tribunal that I was performing a unique role, which no one else performed, as I was the seventh longest serving On Demand Service Delivery Manager, so there were seven On Demand Service Delivery Managers that should have been made redundant before me.

 

So I was not too concerned about that letter, as I knew I had hard factual evidence to show that I was an On Demand Service Delivery Manager, that I performed the most important parts of that role, and that some of the other duties that I did not perform were time dependent on when an On Demand Service Delivery Manager joins a contract, and only amounted to a very small part of the role, for example conducting a customer kick-off meeting would only ever be performed for one day during the many years that the customer had an account.

 

That same day, I received the following letter from the Tribunal:

 

Dear Sir

 

I refer to your letter of 20 December 2006. The Chairman (Ms L Crone), to whom it was referred has intimated below your points.

 

1) Chairman alone

 

2) The circumstances in which the postponement was granted are those set out in the correspondences from the Respondent. The Chairman took into account this information and the claimant’s response before deciding to grant the request.

 

3) The Respondent is entitled to call witnesses, but are likely to prepare a witness statement. This means the witness will be present and their evidence will comprise the witness statement and their responses to any points you raise in cross examination.

 

You are not being asked to prepare a witness statement and will give all your evidence orally.

 

4) The PHR will be heard by a Chairman Sitting Alone. The hearing on merits will be heard by a full Tribunal. The hearing arranged for 12 January has been postponed. The Chairman, in considering whether to grant the postponement, took into account the fact of the delay it would cause, but considered it important to have the medical information available.

 

On the last day of 2006, I sent the following email to the respondent:

 

Dear Sir/Madam,

 

With reference to your email and letter dated 21 December 2006, as a Claimant, I will reserve my right to call any witnesses that i require during this case, as and when I think it is necessary to do so.

 

With regards to point 2 of your Pre Hearing issues, and witnesses during the Pre Hearing Review, I will be calling EA witnesses as I will require the EA witnesses to confirm that the EA Monthly Report was part of an ‘ongoing’ act between December 2005 to June 2006.

 

After the new-year break, I received a letter sent by the Tribunal to the respondent and myself:

 

1. A chairman has directed that on the application of the respondent a pre-hearing review is to be held. The specific preliminary issue to be considered at the hearing is as follows: to determine whether the Claimant is a Disabled Person within the Terms of DDA, if so, whether the DDA claim is Out of Time and whether the Claimant complied with the Statutory Procedure to raise grievance.

 

2. The pre-hearing review will be heard by a chairman at 10:00 am on Friday 9th day of March 2007 at COET (Scotland), 3rd Floor, The Eagle Building, 215 Bothwell St, Glasgow, G2 7TS or as soon after that time as the Chairman can hear it. It has been given a time allocation of 1 day. If you feel that this is insufficient, please inform us in writing within 5 days of the date of this letter.

 

3. The parties are responsible for ensuring that any witnesses they wish to call can attend the hearing.

 

4. Representatives are required to inform those they represent of the place, date, time and duration of the hearing.

 

On 10 January 2007, the respondent copied me on the following letter to the Tribunal:

 

Dear Mr. McAlpine

 

We refer to your letter to the Tribunal of 12 December 2006 enclosing Further Voluntary Particulars of Claim. As promised in subsequent correspondence, we set out our client’s response below.

 

The Respondent’s case with regard to the matters highlighted in the Claimant’s Voluntary Further Particulars of Claim has been fully pleaded. With respect to the matters of evidence which the Claimant includes in his latest Particulars, the Respondent’s witnesses will deal with them in their evidence at the relevant Tribunal hearing.

 

In relation to the various questions posed by the Claimant in section 5, the Respondent responds as follows:

 

5.1

It is agreed that the Claimant did not attend the team meeting on 14 March 2006.

 

5.2

Copy e-mails and presentation available from the Respondent’s intranet following the 14 March 2006 team meeting attached.

 

Paragraphs 5.3 and 5.4

In order to assist the Claimant, the Respondent lists below the Claimant’s role as variously constituted from November 2005 onwards and sets out beside each constituent element of that role whether the Respondent considers that element to be customer-facing or non customer-facing.

 

Role as constituted in November 2005

 

Duty: Ensure any EA customer incidents were being progressed and to add his knowledge of the customer environment, where appropriate;

Non-customer-facing: Predominately non-customer-facing;

 

Duty: Produce the EA monthly service review report (“the monthly report”);

Non-customer-facing: Predominately non-customer-facing;

 

Duty: Attend the EA monthly meeting;

Customer-facing: Customer-facing;

 

Duty: Produce the minutes from that meeting;

Non-customer-facing: Predominately non-customer-facing;

 

Duty: Ensure GE customer incidents identified on a report were being progressed;

Non-customer-facing: Non-customer-facing;

 

Role as constituted after 16 December 2005

 

Duty: Produce the EA monthly report;

Non-customer-facing: Predominately non-customer-facing;

 

Duty: Attend the EA monthly meeting;

Customer-facing: Customer-facing;

 

Duty: Produce the minutes from that meeting;

Non-customer-facing: Predominately non-customer-facing;

 

Duty: Ensure GE customer incidents identified on a report were being progressed;

Non-customer-facing: Non-customer-facing; 

 

Role as constituted after 21 December 2005

 

Duty: Produce the EA monthly report;

Non-customer-facing: Predominately non-customer-facing;

 

Duty: Attend the EA monthly meeting,

Customer-facing: Customer-facing

 

Duty: Produce the minutes from that meeting

Non-customer-facing: Predominately non-customer-facing

 

Duty: Ensure GE customer incidents identified on a report were being progressed

Non-customer-facing: Non-customer-facing

 

Role as constituted from approx. mid Jan 2006 onwards

 

Duty: Produce the EA monthly report,

Non-customer-facing: Predominately non-customer-facing

 

Duty: Attend the EA monthly meeting,

Customer-facing

 

Duty: Produce the minutes from that meeting

Non-customer-facing: Predominately non-customer-facing

 

Duty: Ensure GE customer incidents identified on a report were being progressed (but not in the period during the first two weeks of each month when preparing EA report)

Non-customer-facing: Non-customer-facing

 

Role as constituted from approx. mid Feb 2006 onwards

 

Duty: Produce the EA monthly report,

Non-customer-facing: Predominately non-customer-facing

 

Duty: Ensure GE customer incidents identified on a report were being progressed (but not in period during the first two weeks of each month when preparing EA monthly report).

Non-customer-facing: Non-customer-facing

 

The Claimant is asked to confirm in the relevant columns whether he agrees that the duty was an element of his role during the relevant period and whether he agrees with the Respondent’s categorisation of each particular duty. If the Claimant contends that his role included additional duties, he is asked to provide details of those duties and what he claims was their customer-facing/non-customer-facing status.

 

In order to clarify the Claimant’s various claims, the Claimant is requested to answer the following questions:

 

1. As regards the Claimant’s claim that the Respondent failed to act on his request for a “reasonable adjustment” and that the Claimant thereby suffered an act of discrimination extending over a period:

 

1.1 It is noted that the Claimant claims to have made the request on 16 and 21 December 2005. Does the Claimant allege:

 

a. that he was told by Mr Snowden on 16 December 2005 that no such adjustment would be made?

 

b. that he was told by Mr Cooper on 21 December 2005 that no such adjustment would be made?

 

1.2 Is it claimed that the request for reasonable adjustments was specifically made on any other occasion? If it is, the Claimant is asked to answer the following questions:

 

a. What was the date of the request?

 

b. Who was the request made to?

 

c. What request was made?

 

d. What response was received?

 

e. Who was the response received from?

 

f. When was the response received?

 

2. In relation to the Claimant’s claim that he was made redundant for a reason connected to his alleged disability:

 

2.1. Does the Claimant allege that he was made redundant simply because he suffers from diabetes?

 

2.2. If the Claimant suggests that he was made redundant for any other reason connected to his diabetes, the Claimant is requested to provide details of that reason.

 

2.3. Does the Claimant allege that his redundancy was due to his alleged disability and was unconnected to any change that had been made to his role?

 

3. In relation to the Claimant’s claim to have complied with the statutory grievance procedure:

 

3.1. Is it claimed that the Claimant’s e-mail of 2 June 2006 constituted a grievance in relation to the Respondent’s alleged failure to act on the Claimant’s alleged request to make a reasonable adjustment to his workload?

 

3.2. If not, please give full details of what the Claimant claims constituted his grievance in this respect?

 

3.3. If it is alleged that the Claimant raised no grievance in respect of this matter, please give full details of why no such grievance was raised?

 

The Claimant is requested to respond to these questions within 14 days of today’s date (i.e. by no later than close of business on 24 January 2007).

 

Two days later, I sent a reply to the respondent:

 

Dear Sir/Madam,

 

The Claimant will not be answering any of the Respondents questions contained in the document dated 10th January 2007, as the Claimant feels that these questions would compromise the Claimant’s case at a Pre-Hearing review.

 

The Claimant would also like to request a typed version of Mr Snowden’s hand written notes (and any subsequent hand written notes), as hand written notes are sometimes very hard to read.

 

I was beginning to get annoyed as these documents and questionnaires were time wasting and pointless simply because the respondent had agreed in the initial ET3 form that I was an On Demand Service Delivery Manager, and there were lots of hard factual evidence to prove this, including two printouts from the respondents organisational system listing me as an On Demand Service Delivery Manager, as well as emails.

 

Six days later, the respondent sent me the following letter:

 

Dear Mr. McAlpine

 

We refer to your e-mail of 12 January 2007 in which you declined to answer any of the questions posed in our letter of 10 January 2007 on the following ground:

 

“As the Claimant feels that these questions would compromise the Claimant’s case at a Pre-Hearing Review”

 

As you are aware, the purpose of our 10 January 2007 letter was to respond to your Voluntary Further and Better Particulars of Claim (dated 12 December 2006), as well as to clarify the issues between the parties so that only extant matters of dispute need be considered by the Tribunal. This course assists both parties as well as ensuring that (valuable) Tribunal time is not wasted on hearing argument on matters which can be clarified in advance of the hearing.

 

In the circumstances, we do not believe that it is a sufficient justification, on your part, to refuse to answer properly asked questions on the grounds

 

“As the Claimant feels that these questions would compromise the Claimant’s case at a Pre-Hearing Review”

 

Please note therefore that we have written to the Tribunal requesting an Order that you supply answers to the questions that we have posed in our 10 January 2007 letter (both in terms of completing the relevant columns in the table set out on pages 2 to 4 of that letter, and responding fully to the questions posed on pages 4 and 5). A copy of our application to the Tribunal is attached. You have the right to write to the Tribunal stating any objections you may have to the Order we have requested and when doing so, we should ask that you copy us in on your letter.

 

On 29 January 2007, I sent the following email to the respondent:

 

Dear Sir/Madam,

 

I have now received a letter from the Claimant’s Diabetic Consultant which answers the questions in the Respondent’s letter dated 5 December 2006. Please find the copy that the Claimant received attached.

 

I will now write to the Diabetic Consultant and give my permission to send this letter to you as soon as possible.

 

With reference to Disability Discrimination Act 1995, Schedule 1, 6(1) and 6(2), which states:

 

SCHEDULE 1

PROVISIONS SUPPLEMENTING SECTION 1

 

Effect of medical treatment

6.-

(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

 

(2) In sub-paragraph (1) “measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

 

With reference to the answer to ‘Question 2’, I will now expect the Respondent to agree that Type 1 Diabetes is a ‘disability’ as defined in DDA 1995, and as such, is covered by DDA 1995.

 

 

DEPARTMENT OF DIABETIC MEDICINE

 

Dr K R Patarson

25 January 2007

 

For the attention of Angela Gill

 

Dear Sirs

 

Kenneth McAlpine

 

Thank you for your letter of 5 December 2006 and subsequent follow-up letter. I apologise for the delay in replying, but obviously had to get hold of this gentleman’s case records in order to inform my response.

 

Mr McAlpine has had Type I diabetes mellitus for over 40 years, well controlled on two daily injections of insulin. His diabetes caused him problems with diabetic retinopathy and he underwent panretinal laser photocoagulation to good effect and I am pleased to say that his visual acuity is 6/9 in both eyes.

 

In response to your specific questions, I would answer as follows:

 

Question 1 At the present time, there is no limitation on Mr McAlpine’s ability to undertake normal day-to-day activities as described in your letter. Although it is not possible for me to tell whether there may be difficulties in the future, but at the present time, there are no active issues which interfere with his ability to carry out normal day-to-day activities and there are no signs that such difficulties will arise in the future.

 

Question 2 If Mr McAlpine failed to take any insulin treatment for his Type 1 diabetes mellitus, then he would, of course, become acutely unwell in a matter of days and require hospital admission. This would clearly completely undermine his ability to perform normal day-to-day activities. Were he to continue to take some insulin and fail to undertake appropriate diabetes monitoring, this could lead to recurrent episodes of hypoglycaemia which would affect his ability lo concentrate, learn or understand, be aware of physical danger and could even cause episodes of altered conscious level such as to make the performance of day-to-day activities impossible. Given that Mr McAlpine has been looking after his diabetes for over 40 years, I think it highly unlikely that he would now choose to fail to undertake appropriate self-care.

 

I hope these comments are helpful and I would be happy to expand upon any of them at your request.

 

That same day, I received a letter from my insurance company:

 

Dear Mr Mcalpine,

 

Matter : Your dispute

 

Thank you for your letter. We regret to hear of the problem you are experiencing. Before proceeding further we do require full details of exactly what has happened to date, together with copies of all documents and letter which relate to the matter.

 

We enclose an Incident Report Form. We ask that you kindly complete this, sign and return it within 21 days.

 

Once we receive the form we will then consider whether or not we can assist. We must point out that we will not be responsible for any legal costs unless and until we confirm after receiving the report form that we can agree to indemnify you.

 

Any indemnity will not be retrospective. If you require to take action before we have considered your report form, please contact us before undertaking this.

 

We look forward to hearing from you.

 

On 10 February 2007 I received the respondent’s further list of documents sent to counsel, within this folder of documents were two emails that would prove absolutely crucial to everything that would transpire from now on. As soon as I read these two emails I realised their importance.

 

I immediately phoned the Citizens Advice Bureau and had my first meeting with them. I met with the manager of the office, Steve Butler, and informed him of my case, that I was not legally represented and a multi-national legal team and barrister represented the respondent. I also showed him the emails that discussed my diabetes and future sickness absence.

 

We also touched on me owning my own home and my savings. Mr Butler stated that because I owned my own house, and had savings beyond a low threshold, that I probably would not be entitled to free legal representation.

 

Very brief notes were taken on a pre-printed form, and I was provided with a copy of those notes that simply stated unfair dismissal, disability discrimination and reasonable adjustments. I left the Citizens Advice Bureau feeling a little bemused and helpless.

 

I spent the next couple of days going through the folder of documents I had received from the respondent, and on 16 February 2007 I sent the following letter to the Tribunal:

 

Dear Sir/Madam,

 

The Claimant is writing to request that the Tribunal draw an adverse inference at the earliest opportunity, as new evidence has been produced by the Respondent that proves beyond any reasonable doubt that the Respondent lied in the Disability Discrimination Act Questionnaire Response, and that the Claimant was directly discriminated against in light of the information provided in Appendix 7 and 8.

 

The Claimant’s reason for requesting that the Tribunal draw an adverse inference is as follows:

 

In Appendix 1, “The Respondent therefore concedes that Mr McAlpine is disabled for the purposes of the Disability Discrimination Act”.

 

In Appendix 2, The Disability Discrimination Act 1995 s56(3)(b)(ii) states:

 

(3) Where the complainant questions the respondent in accordance with forms prescribed by an order under subsection (2)—

 

(b) if it appears to the tribunal in any such proceedings—

 

(ii) that the respondent’s reply is evasive or equivocal, it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent has contravened a provision of Part II or, to the extent that it relates to the provision of employment services, Part 3.

 

In the Respondents reply to the Disability Discrimination Act Questionnaire in Appendix 3, the Respondent stated:

 

“team meeting on 14 March 2006 which the Claimant attended.”

 

With reference to Appendix 4, the Respondent concedes (note: this was only sent to the Claimant, not the Tribunal) in 5.1 that the Claimant did not attend the meeting on 14 March 2006.

 

“These changes were initially announced to the Claimant and his colleagues by email communication in January 2006”

With reference to Appendix 4, the Respondent states (note: this was only sent to the Claimant, not the Tribunal) in 5.2 that the e-mails and presentation available from the Respondent’s intranet following the 14 March 2006 team meeting. If these were made available after 14 March 2006, how could the Claimant have received them as early as January 2006?

 

“non-customer facing Service Delivery manager role (the unique role occupied by the Claimant)”

 

Appendix 5 is a witness statement from Mr Andrew Hammett, who worked at the Environment Agency when the Claimant was working on this contract. This totally contradicts the “non-customer facing” and “unique role” allegations made by the Respondent. Mr Hammett has agreed to provide a signed and dated copy of this witness statement on request.

 

This concludes the Claimants argument as to why an adverse inference should be drawn.

 

The next argument will tackle the issue of discrimination, and what type of discrimination.

 

The Claimant has very recently received the following documents, namely two emails, included in Appendix 7 and 8.

 

The Disability Discrimination Act 1995 states:

 

PART II

[THE EMPLOYMENT FIELD]

Meaning of “discrimination” and “harassment

[3A Meaning of “discrimination”

 

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

 

The Claimant would like to create his own paragraph on the above law, using the information contained within Appendix 7 and 8, namely:

 

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability (diabetes), he treats the disabled person less favourably (selection for redundancy, redundancy) than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person (other team members, especially new starts, one in December 2005 and six in 2006).

 

In Appendix 7 the Respondent states:

 

“- to allocate Kenneth to a new customer account. It has been some time since Kenneth attended the OnDemand Lifecycle training, and he has not been involved, due to his current engagement with EA and GE, in the initialisation process, which is vital to establish the initial customer environments. This would be quite a risk to the account at an early stage. It would also take a lot of support from another SDM during this phase.

 

- to allocate Kenneth to an existing customer account to replace an existing SDM. This is probably the least risk option, but would involve a prolonged handover so that Kenneth could get an good understanding of the account and the services that are being delivered to the customer. Any capability process could probably only commence once Kenneth was fully delivering to the customer following the extended handover.”

 

Both of these arguments would apply to any new starts within the team, a team in which the Claimant had worked for 2 years, on the two largest accounts, and had attended the Lifecycle training. So why would the Respondent start any new starts in the team, never mind five new starts since the Claimant was made redundant, if the same criteria were applied?

 

In Appendix 7, this only now leaves the question:

 

“With either option, there is the possibility of Kenneth raising the health/stress issue that he discussed with me in December – the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness.

 

Simone/Cathy – given the above, are there any other options to exit Kenneth from the organisation prior to the end of FY06? If a meeting to discuss this is the best option to move this forward, then please let me know, and I will organise such a meeting.”

 

Disability should never have been brought up in this conversation at all, especially as the Respondent states in Appendix 6:

 

“Further, according to its records, during the period July 2004 to June 2005, the Claimant took just two days’ sick leave (in October 2005).”

 

“At no stage did the Claimant indicate any concern as to his diabetes or any effect that he claimed that it may have either on his ability to perform normal day to day activities or the duties comprised in his role, and nor were there any facts or circumstances from which the Respondent should reasonably have been aware of these matters.”

 

The Claimant would also like to point out that the respondent also stated in Appendix 6 (Respondents ET3 Response Form):

 

“It is further denied that there is or was any causal connection between the Claimant’s condition, the duties assigned to him, his selection for redundancy and/or otherwise his treatment by the Respondent, howsoever.”

 

The Claimant feels that there is no comment required to be made on Appendix 8, as it speaks for itself:

 

“As Kenneth is on the RIF list, I want to make sure we are not making matters more complicated by trying to bring him back into a customer facing role, which might lead him to go offsick again.

 

It might be more appropriate to action redundancy from the role he is currently doing (ie: no requirement for back office in the OSDM team). I have no timescales for when redundancies will be actioned at the moment, but assume it will be anytime around end FY06/beginning FY07.”

 

Note: RIF = Reduction in Force

 

“Offsick again”

Due to my disability? Why does the Respondent reach that conclusion when it has stated in the Respondent’s ET3 Form, “Further, according to its records, during the period July 2004 to June 2005, the Claimant took just two days’ sick leave (in October 2005).”

“It might be more appropriate to action redundancy from the role he is currently doing (ie: no requirement for back office in the OSDM team).”

 

With reference to Appendix 5,

“I recall Kenneth attending these meetings.”

and

“Yes, Kenneth was one of 3 named contacts within Oracle for this purpose.”

and

“I always thought of you as part of the Service Delivery Team.”

and

“Certainly the service (contact for SR issues and misc guidance and advise) was common to each of you.”

 

This concludes the Claimants argument as to why the Respondent discriminated against the Claimant, on the Claimant’s disability, and why it is direct discrimination.

The Claimant would again reiterate that there is more than enough evidence for the Tribunal to draw an adverse inference under the Disability Discrimination Act 1995 at the earliest opportunity, and that if the Tribunal feels that it cannot draw an adverse inference, the Claimant would like to request that the question of drawing an adverse inference is referred to the Employment Appeals Tribunal, on the basis:

 

“An appeal must be on a point of law – that is, it must identify flaws in the legal reasoning of the original decision.”

 

“The EAT has an over-riding objective (contained in Rule 2A of the EAT Rules) to deal with cases justly. This means: ensuring that the parties are on an equal footing; dealing with cases in ways which are proportionate to the importance and complexity of the issues; ensuring that cases are dealt with expeditiously and fairly; and saving expense. Parties are required to assist the EAT to achieve this objective.”

 

The Claimant would wish that this case is “dealt with expeditiously and fairly, and saving expense”, as the Claimant is representing himself, the Respondent has requested a Pre-Hearing Review, but this has already been cancelled once, and the Respondent has requested that it be cancelled a second time, which is causing further stress to the Claimant and his family.

 

On 23 February 2007, I received a copy of the letter that the respondent sent to the Tribunal:

 

SENT BY ANGELA GILL’S SECRETARY ON HER BEHALF

 

Urgent

 

Dear Sir or Madam

 

Please find attached, for the Tribunal’s urgent attention, the Respondent’s response to the Claimant’s letter to the Tribunal dated 16 February 2007. We understand that case officer, Mr David Donnelley has been assigned to this case as has Tribunal Chairman, Mrs L Crone, and we should be grateful if you could ensure that the attached letter is brought to their urgent attention as soon as possible.

 

URGENT

 

FAO: Mr David Donnelly February 23, 2007

 

Dear Sir

 

As you know, we act for the Respondent in this case.

 

We write with respect to Mr McAlpine’s letter to the Tribunal dated 16 February 2007 and sent by Mr McAlpine, via email, at 4:22 pm that day.

 

Mr McAlpine’s letter invites the Tribunal to draw adverse inferences against the Respondent based on what he claims is evidence that shows that the Respondent “lied in the Disability Discrimination Act Questionnaire Response” and discriminated directly against him.

 

The Respondent resists these applications and denies the allegations made by Mr McAlpine.

 

In relation to Mr McAlpine’s point regarding the Respondent’s Response to the DDA Questionnaire, the Respondent has already made clear that it simply made an innocent mistake in believing originally that Mr McAlpine had attended the 14 March 2006 team meeting.

 

The Respondent has disclosed e-mails sent in January and February 2006 in which the new Global Service Desk was announced, as well as having disclosed a presentation which was delivered at the 14 March meeting. After the 14 March meeting, an e-mail was sent alerting team members to the fact that the presentation was available on the Respondent’s intranet, as well as, we understand, copies of the e-mails sent in January and February 2006. Full evidence on this matter will be given at the substantive hearing.

 

As regards the nature of Mr McAlpine’s role, it is central to the dispute between the parties whether Mr McAlpine was in fact performing a unique role within the Respondent’s On-Demand Service Delivery Management team. Again this is obviously a matter on which the Tribunal will need to hear full evidence from the parties. Therefore, again, as above, the earliest time at which the Tribunal could draw any inference at all is at the full hearing after hearing all of the evidence.

 

In respect of Mr McAlpine’s submission regarding alleged evidence of direct disability discrimination, the Respondent denies any such discrimination (and any discrimination at all). Further, we are unsure of the nature of the application Mr McAlpine makes in this regard. Nonetheless, it appears that the submission made by Mr McAlpine goes to the issue of whether he was directly discriminated against. If so, this is, again, a matter which can only be dealt with at a full hearing, in light of all the evidence from the parties.

 

None of the above matters is relevant to, or could be dealt with at, a Pre-Hearing Review (in respect of which we have made an application in any event), convened to consider preliminary issues only.

 

Mr McAlpine appears keen to raise issues which require a full consideration of all of the issues by the Tribunal. We consider that this supports our application (letter of 12 February 2007) for the currently listed Pre-Hearing Review to be vacated and for all matters now to be considered at a full hearing, listed for 3 days, to be convened as soon as possible.

 

 

[]Chapter 7

 

The Employment Tribunal sent the following letter to the claimant on 26 February 2007.

 

The Chairman of the Tribunals (Ms L Crone) has instructed me to advise you that any arguments regarding draining adverse inferences should be raised at the Hearing.

 

The Hearing on 9 March 2007 will proceed as a Case Management Discussion to clarify the issues in the case, the arguments raised by the Respondent regarding time bar and grievances and any concessions given by either party. The Pre-Hearing Review will consider the Respondent’s request to strike out part of the claim (that is, the claim relating to reasonable adjustments on the basis that the Respondents will argue that no grievance was raised regarding this matter).

 

On 28 February 2007, the claimant sent the following email to the Employment Tribunal.

 

Dear Sir/Madam,

 

Can the Chairman provide the following clarification?

 

1. “The Hearing on 9 March 2007 will proceed as a Case Management Discussion”

 

Will this be in the form of a telephone conference call?

 

2. “the arguments raised by the Respondent regarding time bar and grievances and any concessions given by either party. The Pre-Hearing Review will consider the Respondent’s request to strike out part of the claim (that is, the claim relating to reasonable adjustments on the basis that the Respondents will argue that no grievance was raised regarding this matter).”

 

I assume that ‘Pre-Hearing Review’ should be Case Management Discussion, is this correct?

 

By the term ‘strike out’, does this just mean that the reasonable adjustments part of the claim may be struck out, or does it mean that the whole disability related claim (including direct and indirect disability discrimination) is struck out?

 

3. The Claimant will now argue the following, as new evidence has come to the attention of the Claimant:

 

The Claimant felt extremely aggrieved when he was selected for redundancy in May 2006, and then made redundant in July 2006.

 

The Claimant did not feel aggrieved enough in December 2005, as there was a solution to the problem of conflict of workload, stress and diabetes (reasonable adjustments claim), either the Respondent makes a reasonable adjustment (ie: take me off either EA or GE contract, move the Claimant to a new role, etc), or the Claimant would have to look for a new role. As the Claimant’s concerns and suggestion for reasonable adjustments were not acted upon on both occasions (note, no yes, or no, answer was given, the status quo continued, see email ‘Confirmation of outcome’ dated 16 December 2005), the Claimant indicated at the second meeting on 21 December 2005 that he would have to try and look for a new role within the Respondent on health reasons.

 

It is up to the Claimant to determine when the Claimant feels aggrieved enough to raise a grievance.

 

The Claimant, in December 2005, could have had no possible idea that this would lead to his selection for redundancy in May 2006 and redundancy in July 2006 on the grounds of “Kenneth raising the health/stress issue that he discussed with me in December – the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness. Simone/Cathy (HR) – given the above, are there any other options to exit Kenneth from the organisation…” (email, from Phil Snowden, 12 April 2006). The Claimant was first made aware of this email on 9 February 2007.

 

The Claimant discussed reasonable adjustments with the Respondent in December 2005. The Respondent used these discussions (making specific reference to ‘December’) in the Claimant’s selection for redundancy in May 2006, and subsequent redundancy in July 2006. The Claimant produced a step 1 grievance email in June 2006 concerning his redundancy. The discussions on the Claimant’s selection for redundancy, directly link the request for reasonable adjustments in December 2005 to the Claimant’s selection for redundancy in May 2006, and subsequent redundancy in July 2006. As the reasonable adjustments claim is an act extending over a period of time, namely December 2005 through to June 2006, and is documented as such by the Respondent, and is now inextricably linked to the Claimant’s redundancy, the reasonable adjustments claim should not be time barred (act extending over a period), and because of the now inextricable link between reasonable adjustments and redundancy, something which the Claimant suspected at the time of his redundancy, but was only made aware of on 9 February 2007, the step 1 grievance email in June 2006 must now cover the reasonable adjustments claim, as it is now inextricably linked to the Claimant’s redundancy. How was the Claimant possibly meant to know that a request for reasonable adjustments in December 2005 would result in his redundancy in July 2006?

 

4: The Claimant would also agree with the Respondent, that perhaps it is better that the ‘time bar and grievances’ points are argued by the Respondent/Claimant at the full hearing, as more than minor evidence would have to be considered on both points by both parties.

 

5: The Claimant would also like to seek an Order from the Tribunal for the Respondent to provide the following information:

 

5.1: Full email trail (first to last email), subject “Kenneth McAlpine”, various dates, early April 2006.

 

5.2: Full email trail (first to last email), subject “Sue Scates – Support RIF”, various dates, mid May 2006.

 

5.3: Full email trail (first to last email), subject “Confidential”, various dates, mid May 2006.

 

5.4: Full email trail (first to last email), subject “Kenneth McAlpine”, various dates, late May 2006.

 

The claimant received the following answers on 1 March 2007 from the Employment Tribunal.

 

(1) The Hearing on 9 March 2007 will proceed as a Case Management Discussion followed by the Pre-Hearing Review. The Case Management Discussion will accordingly be in person.

 

(2) The Case Management Discussion will take place and will be followed by the Pre-Hearing Review. The purpose of the Pre-Hearing Review will be to consider the Respondent’s motion to strike out part of the claim.

 

(3) This information has been accepted as Further Particulars of the claim.

 

(4) This point is noted and can be discussed at the Case Management Discussion.

 

(5) The request has been copied to the Respondent for comments and will be considered at the Case Management Discussion.

 

On 7 March 2007, the claimant received the following letter from the Employment Tribunal.

 

The Chairman of the Tribunals (Ms L Crone) has instructed me to advise you that you may rely on the signed witness statement but the weight to be attached to this evidence will be reduced given the fact that the Respondent will be unable to cross examine the witness and challenge what is said in the statement.

 

On 8 March 2007, I travelled up to my mother’s house to stay overnight in order to beat the rush hour morning traffic the next day. I sat with my mother that night and we had a couple of drinks and chatted about what to expect the next day. At around 9 pm my mother went to bed, and I must have gone to bed around 10 pm, but didn’t get to sleep until much later, as there was a lot going through my mind.

 

The next morning we were up and out sharp to catch the bus at 8:20 am, and arrived in the centre of Glasgow around 9 am. We decided to grab a coffee and sit outside in a covered section of the coffee house and chatted about how I was feeling. I was actually feeling not too bad, a little tired and apprehensive, but nothing more that anyone would feel going into a situation unknown to them. We finished our coffee and hailed a cab for the five-minute ride to the Employment Tribunal offices.

 

Upon arrival at the Employment Tribunal offices, we were directed to the claimant’s waiting room, where we sat with other claimant’s and their lawyers who were all awaiting the start of their cases. After being in the claimant’s waiting room for around 10 minutes, a tall, dark, thin, well-dressed man aged in his late twenties opened the door of the claimant’s room and asked for a Mr McAlpine. I indicated that was me, and this man confidently walked over and introduced himself as Mr Neil Davy, Counsel for the Respondent. Without so much as an invitation to sit, or any invitation to have a chat, Mr Davy proceeded to sit down next to me and talk briefly about certain specific aspects of the hearing and handed me a couple of small judgments of cases he would be referring to during the hearing. Mr Davy then exited the claimant’s waiting room as quickly as he had entered, and within five minutes we had been called into one of around eight of the Employment Tribunal Courtrooms.

 

Upon entering the Employment Tribunal Courtroom, my overriding impression was that this Courtroom was much bigger than I expected. It could easily have accommodated one hundred people, but probably only had seating for around thirty. There were two long desks, one for the claimant and one for the respondent, each desk had two seats, which were both located in front of the public seating, and one smaller desk and a single seat to the right for a witness, and a slightly raised stage with one long bench and three seats behind for the Tribunal panel.

 

Mr Davy was already in the Courtroom unpacking and setting up all his materials, and I proceeded to unpack my material, which was considerably less. Quality, not quantity was my first thought, but I also thought that if this is the amount of material to just try and prove one small point, what a waste of paper, time and effort.

 

After twiddling thumbs for around one minute, the Clerk announced “All rise”, and a single door to the left of the Courtroom marked “Private” swung open, and a tall, thin, ever so slightly punkish mid thirties woman swiftly walked through the door with a bundle of documents clutched to her chest, paused and proceeded to sit down in the middle seat behind the long bench on the raised stage. The respondent and I then sat down. It had started.

 

The Chairman outlined that a Case Management Discussion would take place followed immediately by a Pre-Hearing review at which the reasonable adjustments part of the case could be thrown out.

 

The Case Management Discussion proceeded, and the Chairman and Barrister quickly flew through around ten points, sort of like a slow machine gun, and without really knowing what I was agreeing to, I had no choice but to agree. It was therefore agreed that I would provide the respondent with a schedule of alleged loss, that the case would be sisted, or put on hold, for around seven weeks, starting tomorrow, to enable both parties to take part in mediation to try and resolve matters. It was also agreed that both parties would produce a single bundle of evidence four weeks prior to the main hearing, and that witness statements would be used and exchanged two weeks prior to the hearing.

 

During the Case Management Discussion it was also agreed that the main hearing would take place on 2, 3 and 4 July 2007, and that I would lead my evidence and witnesses first. Both parties would try to agree a factual and unbiased chronology of events.

 

The Case Management Discussion continued with both parties arguing that there was presently outstanding requests for information which had not been provided as yet, so it was agreed that I would provide my medical records from July 2004 onwards, which I had suggested, as the respondent had no right to full disclosure of all my medical records going back forty plus years. I stated to the Chairman that there was presently an outstanding request for ‘missing’ emails, and Mr Davy confirmed that the respondent was ‘currently checking the position’ and that the respondent would ‘disclose all relevant material’. My immediate thought was the brown stuff that emanates from a bull’s behind, going by that answer they had either ‘lost’ or destroyed any further evidence, or there was not a snowballs chance in hell that I was going to get any of the ‘missing’ emails. I also couldn’t believe that the Chairman could let the respondent decide what ‘missing’ information was relevant to my case.

 

The Case Management Discussion then concluded with me asking the Chairman why the respondent had failed to provide me with information regarding the number of employees selected as being at risk of redundancy in my group. The Chairman directed that question to Mr Davy, who quietly replied that as far as he was aware it was only Mr McAlpine. Perfect, not only did I have the discriminatory emails for the main hearing, but I also had the evidence that I was the only person made redundant in my group, and I now had the information straight from the horses mouth that I had been the only person in my group selected for redundancy. Was there any point in even having the main hearing. At the end of the Case Management Discussion, I sought clarification from the Chairman as to how I get the Tribunal to draw an adverse inference, which I believed they should have drawn as soon as possible, but the Chairman outlined that this would have to be done at the main hearing in July.

 

The Pre-Hearing Review had been arranged to consider three preliminary issues, whether I was a disabled person according to the Disability Discrimination Act, time bar and whether there had been any compliance with the statutory grievance procedure.

 

Mr Davy started the Pre-Hearing Review by outlining at length that I had not lodged a grievance with the respondent in December 2005 or January 2006 and that because I had not lodged a grievance, the Tribunal could not hear this part of the case. I rebutted that argument by stating that at the time, the respondent had not been willing to make any reasonable adjustments, so I had no choice but to apply for another role within the respondent. I accepted that I had not lodged a grievance, but that my request for reasonable adjustments was linked to my subsequent dismissal in July 2006 by the email in which Philip Snowden states diabetes, discussions in December, diabetes, prolonged periods of time off due to illness, exit him from the organisation.

 

Now, any of the discrimination laws in the United Kingdom recognises that discrimination can happen over a prolonged period, and because of this, it is deemed as an ongoing act, which allows claimants who have been subjected to discrimination to include all discrimination, rather than just the last discriminatory act. This also stops employer’s legal teams from getting the earlier discrimination thrown out due to the time constraints on lodging a grievance or Tribunal case.

 

After hearing both arguments, the Tribunal Judge wrapped up the hearing by stating that a written judgment would be issued in the next six weeks.

 

Mr Davy came over to me as I was exiting the Tribunal, and with the confidence of a best friend started chatting about the mediation, and that someone from Morgan Lewis would be in touch with me shortly to arrange a date for mediation, and also confirmed with me that I would be arguing that my redundancy was direct disability discrimination due to the mention of my disability. I confirmed that it was direct discrimination and that I would expect an email from Morgan Lewis regarding the mediation.

 

I left the Tribunal building and went back to my mother’s house for some lunch and a discussion on the mornings hearing.

 

The details of the full discrimination hearing were sent by the Employment Tribunal to the claimant on 9 March 2007 and outlined that the full discrimination hearing would take place on 2, 3 and 4 July 2007 at the Employment Tribunal in Glasgow.

 

The respondent sent the claimant a letter stating that they had received the claimant’s composite list of documents that had been emailed. The respondent had reviewed the list of documents and sent the claimant a smaller list of documents that they did not have in their possession.

 

On 15 March 2007, six days after the Case Management Discussion and Pre-Hearing Review, I received the following judgment of the Tribunal:

 

Mr Kenneth McAlpine

Claimant In Person

 

Oracle Corporation UK Ltd

Respondent Represented by: Mr N Davy – Counsel

 

JUDGMENT OF THE-EMPLOYMENT TRIBUNAL

 

REASONS

 

1. The claimant presented a complaint to the Employment Tribunals Service on 25 August 2006, claiming his dismissal had been unfair, and that he had been discriminated against contrary to the Disability Discrimination Act (the DDA).

 

2. The respondent entered a response admitting dismissal of the claimant for reasons of redundancy, but denying the dismissal had been unfair. The respondent denied the claims of discrimination, and disputed the claimant was a disabled person for the purposes of the DDA.

 

3. A Case Management Discussion took place on 20 October 2006 at which the claimant confirmed the claim of disability discrimination was advanced on two grounds: firstly, that there had been a failure to comply with a request to make reasonable adjustments and secondly, that his selection for redundancy had been because of his disability or because of his request to make reasonable adjustments.

 

4. The parties have, in the intervening period, each requested and disclosed a considerable amount of information and documentation.

 

5. It was agreed a Pre-Hearing Review would be arranged to consider three preliminary issues: (i) whether the claimant was a disabled person within the meaning of the DDA; (ii) time bar and (iii) whether there had been compliance with the statutory grievance procedure in respect of the claims of disability discrimination.

 

6. The respondent subsequently confirmed to the Tribunal (and claimant) that, following receipt of information from the claimant regarding his diabetes, they conceded he was a disabled person within the meaning of the DDA. The respondent further confirmed they, and the claimant, were in agreement that the issue of time bar should be reserved to the hearing on merits. The respondent requested that any determination of the issue of compliance with the statutory grievance procedure, be dealt with by way of written submission.

 

7. The Chairman decided to (a) arrange a Case Management Discussion to clarify the issues and future management of this case and (b) arrange a Pre-Hearing Review (on the same day) to determine whether the claimant had complied with the statutory grievance procedure in respect of the claim of reasonable adjustments.

 

Case Management Discussion

 

8. It was agreed the claimant shall, by or before, 23 March 2007 provide to the respondent a schedule of alleged loss. It was further agreed the claimant shall update that schedule 7 days prior to the commencement of the Hearing.

 

9. It was agreed the case shall be sisted for a period from 10 March 2007 until 30 April 2007 to enable both parties to take part in mediation of the issues in dispute with a view to resolving matters.

 

10. It was agreed the parties shall produce a single bundle of documents for the Hearing by no later than four weeks prior to the commencement of the Hearing. The respondent shall bear the cost of producing copies of the bundle and statements for the Hearing.

 

11. It was agreed that witness statements would be used for the Hearing, and that parties shall exchange witness statements by no later than two weeks prior to the commencement of the Hearing.

 

12. It was agreed the hearing of this case will take place on 2, 3 and 4 July 2007. It was further agreed.the claimant will lead his evidence and witnesses first.

 

13. It was agreed the respondent will endeavour to agree, with the claimant, a factual and unbiased chronology of events for use at the Hearing.

 

14. There were no outstanding requests for additional information or documentation to be dealt with; however both parties noted there were currently requests for information and documentation being considered. The claimant had requested the respondent provide email trails, as specified. Mr Davy confirmed the respondent was currently checking the position, and that they would disclose all relevant information.

 

15. The respondent had asked the claimant to provide his medical records. It was agreed following discussion, that the request should be refined to seeking disclosure of the medical records from January 2004 to date. The claimant was satisfied with this refinement, and agreed to produce the records requested.

 

16. The claimant queried why the respondent had failed to provide him with information regarding the number of employees selected as being at risk of redundancy in his group. Mr Davy clarified that the respondent believed the claimant held a unique position and for that reason there had been no-one else in the group. This was clearly an area of dispute between the parties. The Chairman confirmed the claimant could ask further questions of the respondent, although such questions may be a matter of cross examination at the Hearing.

 

17. The claimant sought clarification from the Chairman regarding the drawing of adverse inferences, and this was provided.

 

Pre Hearing Review

 

18. Mr Davy, for the respondent, referred the Tribunal to the claim form (R1), and to page 2 thereof, where the question “have you put your complaints in writing to the respondent” had been answered by the claimant confirming he had done so on 2 June 2006.

 

19. The response entered by the respondent was produced at R2. The question on the first page “has the substance of this claim been raised by the claimant” had been answered by the respondent in the negative. Thereafter, in the paper apart, it was provided “Contrary to the claimant’s assertion, he has neither raised the matter of which he now complains as a grievance, an appeal or at all with the respondent. Apart from confirming the return of company property to the respondent by email on 27 July 2006, the last verbal contact which the respondent had from the claimant prior to his redundancy was on 5 June 2006 with his manager, Mr P Snowden when the claimant said that he was “ok with the redundancy situation. Contrary to the claimant’s assertion in his Tribunal claim, the claimant’s communication of 2 June 2006 does not complain at his selection as being “at risk” of redundancy or otherwise raise any of the matters of which he now complains. In the circumstances it is the respondent’s belief that the claimant’s claim is inadmissible and/or that he is otherwise in breach of the statutory dispute resolution procedures.”

 

20. Mr Davy submitted that Section 32 Employment Act 2002 was in terms that an employee “shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if it concerns a matter in relation to which the requirement in paragraph 6 or 9 of Schedule 2 applies and the requirement has not been complied with.”

 

21. Schedule 2 provides that the employee must set out the grievance in writing and send a copy of it to the employer.

 

22. The question to be determined in this case was whether the claimant had raised a grievance in writing regarding the issue of the respondent’s failure to make reasonable adjustments. The claimant relied on an email sent to the respondent on 2 June 2006 (produced at page 202/203 of the respondent’s productions) which had been sent following his selection for redundancy.

 

23. Mr Davy referred the Tribunal to the case of Ms V Shergold v Fieldwav Medical Centre UKEAT.0487/05 and to paragraphs 28 – 37 of that Judgment.

 

24. Mr Davy submitted the email dated 2 June 2006 did not constitute a complaint as there was nothing in it referring to the issue of reasonable adjustments. The claimant, in that email, had asked three questions – “in my provisional redundancy letter, it states “as a consequence of a global business re-alignment” as the reason for my provisional redundancy, can you provide the technicalities behind this comment (eg role made redundant, etc); within my role and group, how many employees were provisionally selected for redundancy; if I decided to try and find another role within Oracle, will my provisional redundancy selection be on my HR records.” It was submitted that an employer would not reasonably have taken that email as a complaint

 

25. The email had not specified the general nature of the complaint – there had been no reference to a complaint in terms of reasonable adjustments, redundancy or treatment related to his disability. There had, in fact, been no reference to discrimination at all. There had been no reference to the matters which now form part of the claim to the Employment Tribunal.

 

26. Mr Davy submitted 2 June 2006 email could not, and did not, amount to a grievance raised in writing regarding a failure to make reasonable adjustments. Accordingly the Tribunal did not have jurisdiction to hear the complaint, and it should be struck out.

 

27. The claimant submitted that at the time it had been a choice of either the respondent making the reasonable adjustment or the claimant leaving his role for health reasons. The claimant accepted he had not raised a grievance at the time: in his mind it had come down to the simple choice that if he had to do both roles, he would have to leave his job. No reasonable adjustments had been made, and for this reason the claimant had looked for a different role with the respondent’s organisation, and had applied for two roles in February and one in March/April.

 

28. The claimant felt disgusted with Mr Snowden and Mr Cooper whom he believed had not been concerned about his health. He considered it would have been difficult to work with ihem if he’d continued in that role.

 

29. The claimant accepted he had not subsequently put any complaint in writing about the issue of reasonable adjustments.

 

30. The claimant stated he had received a phone call on the 26/27 May to attend a meeting in Edinburgh on 30 May. He had attended the meeting, where he was informed he was at risk of selection for redundancy and handed a letter to this effect. The claimant had not taken part in any discussions about selection for redundancy, but felt document 1, paragraph 3 showed he had been selected for redundancy either because of his disability or because of his request to make reasonable adjustments.

 

Considerations

 

31. I referred to Section 32 Employment Rights Act 2002 which provides as follows:-

 

“(1) This section applies to the jurisdictions listed in schedule 4.

 

(2) An employee shall not present a complaint to an employment tribunal under a jurisdiction to which this section applies if (a) it concerns a matter in relation to which the requirement in paragraph 6 or 9 applies, and (b) the requirement has not been complied with.”

 

32. I referred to Schedule 4, which sets out the jurisdictions to which Section 32 (above) applies, and was satisfied that claims brought under the Disability Discrimination Act were included.

 

33. I also referred to paragraphs 6 and 9 – which set out the standard grievance procedure, and the modified grievance procedure. Paragraph 6 provides that the employee must set out the grievance in writing and send the statement or a copy of it to the employer.

 

34. I was satisfied, having regard to the above provisions, that prior to raising a claim of disability discrimination in the Employment Tribunal, the claimant was required to raise a grievance in writing with the employer.

 

35. The claimant’s initial position (in the claim form) was that a grievance had been raised in his email to the employer on 2 June. That email was produced for the Tribunal at pages 202/203. The email sought information from the employer regarding the claimant’s redundancy, and then set out four questions to be answered, as follows:

 

"* in my provisional redundancy letter, it states "as a consequence of a global business re-alignment" as the reason for my provisional redundancy, can you provide the technicalities behind the comment (eg role made redundant etc)

 

  • within my role and group, how many employees were provisionally selected for redundancy;

 

  • if I decide to try and find another role within Oracle, will my provisional redundancy selection be on my HR records;

 

  • as I have to hand’back all equipment by 6 July 2006, and if an external employer wants me to start work before 17 August 2006, can I start work with this external employer before 17 August 2006? What if any would be the consequences of doing so?”

 

36. I considered whether this email was sufficient to satisfy the statutory requirements. I was referred to the case of Shergold v Fieldwav Medical Centre 2005 UKEAT/0487/05. In that case it was stated:

 

“First, the statutory requirements, we are satisfied, are minimal in terms of what is required. It is simply that the grievance must be set out in writing.

 

Secondly, the fact that the written grievance in this case was contained in the letter of resignation makes no difference at all, provided that it is the setting out of a grievance in writing.

 

Thirdly, therefore we make clear that it is not necessary to make it plain in the writing that it is a grievance, or is an invocation of a grievance procedure.

 

Fourthly there is equally no requirement that an employee must comply with any company or contractual procedure. It is simply a question of setting out the grievance in writing.

 

Fifthly, we turn to the live question, in terms of the helpful arguments of Mrs Purcell, before us, which relates to paragraph 18 of the Employment Tribunal’s judgement to which we have referred, and which we repeat: the grievance would have given details at the very least of the two incidents which led to the claimant to believe she had been constructively dismissed. The letter of the 31 October did not do so.

 

We agree with the submission of the respondent that the grievance in question must relate to the subsequent claim, and the claim must relate to the earlier grievance, if the relevant statutory provision is to be complied with. It is clearly no compliance with the requirement that there must be a grievance in writing before proceedings if the grievance relates, for example, to unpaid holiday pay and the proceedings which are then sought to be issued, are based upon race or sex discrimination with no relevance to any question of holiday pay. In those circumstances it is likely that it will be found that the proceedings were used in breach of the statutory procedure because no grievance in writing had been set out beforehand.

 

But that does not begin to mean that the wording of the simply grievance in writing required under paragraph 6, and the likely much fuller exposition of the case set out in proceedings, must be anywhere near identical; not least, as we have described, because, at any rate where the standard procedure is concerned, the basis of the grievance does not have to be set out in the first instance.

 

In our judgment provided that the general nature of the grievance in writing was substantially the same as the matter which then forms the subject matter of the claim, its different description or a difference by way of precise ingredients or particulars does not affect the statutory compliance.”

 

37. I considered it was clear from the terms of the email of 2 June, that no complaint was made about any alleged failure of the respondent to make reasonable adjustments. There is no mention, or reference to, the issue of reasonable adjustments, and no mention of, or reference to, the issue of the claimant’s alleged disability. I was satisfied, on this basis, the issues raised in the email were not substantially the same as the issue later raised in the claim to this Tribunal.

 

38. I was satisfied, having taken into account there was no hint of a complaint concerning disability discrimination in the email of 2 June, that that document could not amount to a grievance.

 

39. I noted from the claimant’s submission that he accepted no grievance had been pursued either at the time of his request for reasonable adjustments, or subsequently.

 

40. I decided, having taken all of the above points into account, that the claimant was required to raise a grievance prior to commencing proceedings in the employment tribunal regarding the respondent’s alleged failure to make reasonable adjustments. He did not do so. Accordingly, a Tribunal has no jurisdiction to hear the complaint.

 

41. The respondent requested that aspect of the claim be struck out on the basis of having no reasonable prospect of success. I granted that request as a Tribunal has no jurisdiction to hear the claim for the reasons which I have set out above.

 

42. The claim of unfair dismissal, and disability discrimination (the claimant will argue he was selected for redundancy because of his disability or because of the request for reasonable adjustments) will now proceed to a hearing on the merits.

 

The judgment of the Tribunal was:

 

  • that the claimant had not complied with Section 32 Employment Act 2002 in respect of raising a grievance regarding the complaint of an alleged failure to make reasonable adjustments;

 

  • the claim of disability discrimination in respect of an alleged failure to make reasonable adjustments is struck out under Rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, as having no reasonable prospect of success and

 

  • the claim of unfair dismissal and disability discrimination (being the assertion the reason for selection for redundancy was due to the claimant being a disabled person, or due to him having requested reasonable adjustments) will proceed to a hearing on the merits.

 

I received a letter from Morgan Lewis on 16 March 2007 regarding the email I had sent to the Tribunal, requesting an order to obtain missing emails from the Respondent.

 

Dear Mr McAlpine

 

We refer to your e-mail to the Tribunal dated 28 February 2007, a copy of which was forwarded to us on 1 March 2007. At point 5 of your e-mail, you state your intention to seek a Tribunal Order for disclosure of various e-mails as follows:

 

1. Full e-mail train (first to last e-mail), subject “Kenneth McAlpine”, various dates, early April 2006;

 

2. Full e-mail train (first to last e-mail), subject “Sue Scates – Support RIF”, various dates, mid May 2006;

 

3. Full e-mail train (first to last e-mail), subject “Confidential” various dates, mid May 2006; and

 

4. Full e-mail train (first to last e-mail), subject Kenneth McAlpine”, various dates, late May 2006.

 

As you know both from our letter to the Tribunal and from last week’s hearing, whilst we had thought all relevant material had been disclosed, we relayed your specific disclosure request to our client and confirmed that, should further relevant material emerge from our client’s further search, it would of course be disclosed.

 

Please therefore find enclosed the following in response to your numbered disclosure request.

 

1. One email from S. Harch to P. Snowden dated 7 April 2006 – we do not believe that this advances either your case or ours and had not previously disclosed it on this basis. Nonetheless we have no objection to its disclosure and so now do so.

 

2. One email between Sue Scates and Cathy Temple. Redacted extracts have already been disclosed to you but we have no objection to disclosure of further information from that email.

 

3. One e-mail and attachment dated 21 February 2006 from Malcolm Thompson to Cathy Temple. We enclose further emails from this train between 17 and 29 March. Again, we are not convinced that they advance either parties’ case, but we have no objection to their disclosure.

 

4. One email from Cathy Temple to Debbie Gardner and Bill Gemmell. Again, we are not convinced of this email’s relevance to matters in dispute in this case but disclose it anyway.

 

We note we have not had a response to our 13 March letter requesting copies of documents from your list and now look forward to receiving them.

 

At this point I began to get extremely suspicious that the respondent was not disclosing all relevant evidence, as I did not have in my possession, for example, the first email in the email trail entitled “Kenneth McAlpine” in the first point. I also thought that it was a pathetic excuse to state that whilst they had thought they had disclosed all evidence, they had found some more evidence but hadn’t disclosed it because it didn’t seem relevant.

 

 

[]Chapter 8

 

It was now 20 March 2007 and I received a letter from respondent:

 

STRICTLY PRIVATE AND CONFIDENTIAL FOR ADDRESSEE ONLY

 

WITHOUT PREJUDICE

 

Dear Mr McAlpine

 

Thank you for agreeing to the draft tribunal Orders that we prepared for the Case Management Discussion on 9 March 2007, including that there should now be a stay of proceedings whilst both parties consider a possible resolution to this dispute via mediation. If appropriate, a mediation can then be held.

 

We appreciate that you may not be familiar with the process of mediation and so if you would like to discuss this, then please don’t hesitate to contact either Angela Gill (details above) or Neil Davy, either of whom would be very happy to answer any questions that you may have.

 

As we believe Neil emphasised during your discussion with him, mediation requires both parties to approach matters in a spirit of compromise and with reasonable and realistic settlement expectations in mind.

 

Towards the end of your discussion with Neil, we understand that you referred to the case of Khan and King v the Home Office. Editorial comment about the case (but not a law report) appeared in the press on 23 February 2007. You said that you thought that this case may support your claim (if successful at Tribunal) for compensation for “loss of career”.

 

We have read The Times newspaper’s coverage of this case as well as a transcript of the Employment Appeal Tribunal’s (“EAT”) decision. We thought it would be helpful if we set out our views of the case and of the differences between this case and yours. You are of course, aware (but we repeat it for completeness) that our client does not accept any liability for the claims you make, and continues to defend them. With this proviso, we set out our views below:

 

1. Whilst the press reported that the two claimants in the Khan and King case have claimed substantial sums for “loss of career” neither at Tribunal nor on appeal in the EAT, were the claimants successful in all of their claims. In short, the fact that the two complainants have claimed particular sums or included a particular head of claim in their calculation of “loss”, is no guarantee that they will be awarded compensation, or any particular sum, in respect of them.

 

2. The facts of these cases are, we believe, very different from yours.

 

a) These claimants’ employment started, respectively, in 1979 and 1985.

 

b) They were dismissed as redundant in February 2005.

 

c) They had, in practice, been redundant since 1988 or 1990 but the Home Office had failed to deal with the situation for approximately 17 years.

 

d) During the intervening 17 years until their redundancy dismissals in February 2005, the claimants’ skills had been under-utilised, and since 2001 they had either been on sick leave or, since September 2002, had been suspended from work on full salary.

 

e) They complained, raised grievances, and brought Tribunal proceedings in relation to their treatment.

 

f) During the 17 year period of what the EAT described as “vacillation” by the Home office, some 101 HR professionals and managers looked into matters but failed to resolve them. The claimants were forced into a position where their skills “atrophied”.

 

g) These claimants were successful in their unfair dismissal complaints and in complaints of racial and sexual discrimination in relation to the handling of their grievances, and their treatment whilst on special leave. Many other of their claims, however, either failed before the Tribunal or the EAT.

 

We are sure you will agree from the above summary, that there are considerable differences between this case and your own.

 

We look forward to hearing from you regarding the possibility of mediation. If you prefer to speak to Neil Davy, then please let Angela Gill know and she will arrange for him to contact you at a convenient time.

 

Two days later, I received an email from the respondent:

 

Dear Mr McAlpine

 

In order to take this forward, Neil Davy has suggested that it may be useful, first, for you and he to have to have an informal without prejudice discussion. Neil is available on Tuesday afternoon of next week (at a time convenient for you) or alternatively, is available after 4pm on most days – either tomorrow or all of next week. I hope you agree that this would be useful and if so, if you could let me know a time, date and telephone number on which you would be available, Neil will give you a call.

 

Over the previous few days, I had been working on a document requesting a review of the striking out of the reasonable adjustments part of the case at the Pre-Hearing Review held earlier this month:

 

Dear Sir/Madam,

 

Please find attached a document which contains a request for the Tribunal Chairman Ms L J Crone to review the judgment issued on 13 March 2007, as recent new evidence has been obtained by the Claimant which may allow reinstatement of the reasonable adjustments claim.

 

Two days later I received the following letter from the Tribunal:

 

Dear Sir

 

I refer to the above named proceedings and to your email dated 26th March.

 

The Chairman (Ms Crone) has instructed me to say that your request for review has no reasonable prospect of success because:

 

1. It would appear the evidence produced is not “new evidence” but has been in the possession of the claimant, although not relied on previously.

 

2. The email exchange produced as appendix 2, makes no reference to a request for reasonable adjustments.

 

3. The claimant had previously been asked by the respondent if the matter had been put in writing, and relied upon the email of 2nd June.

 

I had been working on the following appeal, which I sent to the Employment Appeal Tribunal by email on 23 April 2007:

 

Mr KR McAlpine V Oracle Corporation UK Limited

 

This folder was posted first class at 09:00am on Monday 23 April 2007 and I just want to check that you have received it.

 

The Appeal

 

3 The appellant appeals from (here give particulars of the decision of the employment tribunal from which the appeal is brought including the date).

 

Date: 15 March 2007

 

The Judgement of the Tribunal was:

 

  • that the claimant had not complied with Section 32 Employment Act 2002 in respect of raising a grievance regarding the complaint of an alleged failure to make reasonable adjustments.

 

  • the claim of disability discrimination in respect of an alleged failure to make reasonable adjustments is struck out under Rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, as having no reasonable prospect of success.

 

7 The grounds upon which this appeal is brought are that the employment tribunal erred in law in that:

 

1. The Chairman at the Pre-Hearing Review failed properly to consider:

 

(a) Appeal 1 – The Claimant continued to work without alleged reasonable adjustments from December 2005 to June 2006, an act extending over a period of time, and as such, covered by the Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b). The alleged reasonable adjustments claim could be linked to the Claimant’s selection for redundancy and subsequent redundancy, and as such, could be construed as one act extending over a period of time (request for reasonable adjustments resulting in redundancy), rather than an individual reasonable adjustments claim. As such, the standard grievance procedure does not apply to discriminatory selection for redundancy and redundancy claims as outlined in the Employment Act 2002 (Dispute Resolution) Regulations 2004.

 

(b) Appeal 2 – The Claimant will rely on evidence “not relied on previously”, which, if allowed, will show that the Claimant complied with the first part of the Respondent’s grievance procedure, and also sent a written email to an employee in the Respondent’s organisation outlining the Claimant’s problems, which closely relate to the Claimant’s ET1 form.

 

© Appeal 3 – The Claimant had no way of determining that the Claimant’s request for reasonable adjustments in December 2005 was linked to the Claimant’s selection for redundancy and subsequent redundancy in July 2006, but disclosure of further evidence has shown a link. Although a grievance was not required as outlined in the Employment Act 2002 (Dispute Resolution) Regulations 2004, the claimant sent a written email questioning his selection for redundancy, and if the alleged failure to make reasonable adjustments is linked to the subsequent selection for redundancy, then this email could be construed as a grievance in writing complaining of selection for redundancy which the request for reasonable adjustments was a part.

 

Introduction

 

2. The only matter to be appealed is the striking out of the reasonable adjustments claim due to jurisdictional issues.

 

3. There currently exists a claim for unfair dismissal and disability discrimination regarding the Claimant’s selection for redundancy and subsequent redundancy, which will proceed to a hearing on merits.

 

 

Background

 

4. In August 1998 the Claimant started working for the Respondent, and since July 2004 to July 2006 worked as an On Demand Service Delivery Manager (oSDM), working within a team of some 14 oSDMs at that time.

 

5. Between July 2004 and June 2006 the Claimant was working as an oSDM assigned to help look after the Environment Agency account with another two oSDMs. This was an extremely large account, and accounted for around 34% of all problems that the oSDM team dealt with each year.

 

6. On 23 November 2005, the Respondent assigned the Claimant to help look after the General Electric account with one other oSDM from the UK. This account was a new, and even larger account than the Environment Agency account, and the Claimant was expected to split his time between the Environment Agency account and the General Electric account.

 

7. On 16 December 2005, the Claimant was reported to his manager by the other two oSDMs working on the Environment Agency account that work conflicts with the General Electric account were not allowing the Claimant to spend enough time on the Environment Agency account, and at this time the Claimant highlighted to his manager that work conflicts between the two accounts were beginning to have an adverse effect on the Claimant’s health, as the Claimant was under excessive stress due to these work conflicts and the Claimant’s medical condition, Type 1 Diabetes. (Reference: Tab 2, page 31)

 

8. The Claimant again raised the issue of work conflicts, excessive stress and Type 1 Diabetes at a further meeting on 21 December 2005 with the Claimant’s senior director.

 

9. Although both of these issues were raised verbally, this was in accordance with the Respondent’s grievance procedure (Reference Tab 6, page 65), which states:

 

“If you have a problem or complaint relating to your employment with Oracle this must be raised as soon as possible, either verbally or in writing.”

 

10. At the end of the second meeting on 21 December 2005, it was apparent that the Claimant would still have to work on both accounts, the status quo was to be continued. Due to the health problems that working on both accounts was causing the Claimant, and the disgust that the Claimant felt towards his managers that they were totally unconcerned about the Claimant’s health, the Claimant had no choice but to inform the Respondent at the end of the meeting on 21 December 2005 that the Claimant would have to look for another role within the Respondent, and hence, try to make his own reasonable adjustments by obtaining another role within the Respondent.

 

11. During the period 21 December 2005 to June 2006, the Claimant continued to look for, and apply for, other roles within the Respondent, and continued to work on the Environment Agency and General Electric accounts simultaneously (Reference Tab 2, page 23). During this time, the Claimant’s Diabetic control continued to deteriorate.

 

12. On 26 May 2006, the Claimant was phoned by his manager, and told to attend a meeting in the Respondent’s Edinburgh office. No reason was given for the meeting, and the meeting was with a senior manager who was unconnected to the Claimant in the employer’s hierarchy (Reference Tab 5, page 53).

 

13. At the meeting on 30 May 2006, the Claimant was handed a letter dated 30 May 2006, informing the Claimant that he had been selected for redundancy.

 

14. The Claimant’s official date for redundancy was 28 June 2006, but the Claimant fell ill in the middle of June, and was admitted to Accident and Emergency at the Claimant’s local hospital, and spent a period in hospital, and the official date for redundancy was moved to 10 July 2006, and it was on this date that the Claimant was officially made redundant.

 

 

The Grounds For Appeal

 

15. This appeal will take the form of three grounds of appeal, namely:

 

Appeal 1

 

16. The grounds for Appeal 1 will be based on an act extending over a period of time, the standard dismissal and disciplinary procedure, and the Respondents failure to follow the standard dismissal and disciplinary procedure.

 

17. The Respondent has conceded that the claimant worked on the Environment Agency and General Electric account from 21 December 2005 to June 2006 (Reference Tab 2, page 23), and did not contest the following point at the Pre-Hearing Review:

 

“If so, a determination by the Tribunal as to whether the Claimant’s claim that the Respondent failed to make reasonable adjustment to his workload in December 2005 is out of time, and if so, whether it is just and equitable to extend time for making such a claim.”

 

18. As the Respondent did not contest that the Claimant’s claim that the Respondent failed to make reasonable adjustments to his workload in December 2005 was out of time, and the Respondent has conceded that the Claimant worked without reasonable adjustments (working on Environment Agency and General Electric accounts simultaneously) from 21 December 2005 to June 2006, this act must be deemed to have been ongoing. As such, the Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3 (3)(b) (Reference Tab 2, page 17) states:

 

(b) any act extending over a period shall be treated as done at the end of that period;

 

19. If it is deemed that the reasonable adjustments claim was an act extending over a period, then the end of that period was June 2006 (Reference Tab 2, page 24).

 

20. At this point, it is worth recapping that the Claimant lodged his ET1 form on 25th August 2006, and that June 2006 is within the 3 month time limit (Reference Tab 4, page 43).

 

21. The last point in Appeal 1 will deal with the grounds of whether a grievance was required.

 

22. On 26 May 2006, the Claimant was phoned by his manager, and told to attend a meeting in the Respondent’s Edinburgh office. No reason was given for the meeting, and the meeting was with a senior manager who was unconnected to the Claimant in the employer’s hierarchy. At this meeting on 30 May 2006, the Claimant was handed a letter dated 30 May 2006, informing the Claimant that he had been selected for redundancy.

 

23. From the 30 May 2006, the situation was clearly a dismissal, so the standard dismissal and disciplinary procedure as outlined in the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulations 3(1) and 6(5) (Reference Tab 8, page 70):

 

Application of dismissal and disciplinary procedures

 

- (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.

 

Application of the grievance procedures

 

(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

 

24. Now, the inclusion of the reasonable adjustments claim will turn on whether the reasonable adjustments can be linked to the alleged discriminatory selection for redundancy and subsequent redundancy claim, or whether it is a standalone reasonable adjustments claim. If the reasonable adjustments can be linked to the alleged discriminatory selection for redundancy and subsequent redundancy claim, then it should follow that no grievance was required, as no grievance was required for alleged discriminatory selection for redundancy and subsequent redundancy claim.

 

25. What links the reasonable adjustments claim with the alleged discriminatory selection for redundancy and subsequent redundancy claim is contained in the email of 12th April 2006 (Reference Tab 2, Page 16), where various managers and HR personnel are discussing the best option to make the Claimant redundant, and which states:

 

“With either option, there is the possibility of Kenneth raising the health/stress issue that he discussed with me in December – the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness.”

 

26. This email, and the discussions contained therein, clearly link the request for reasonable adjustments in December 2005 to the alleged discriminatory selection for redundancy and subsequent redundancy claim, and as such, the alleged discriminatory selection for redundancy and subsequent redundancy claim should be viewed as an act extending over a period of time, which starts from the first request for reasonable adjustments on 16 December 2005 to when the Claimant was officially made redundant on 10 July 2006, and which must encompass the request and subsequent alleged failure to make reasonable adjustments, as this cannot be viewed as a standalone claim. A good analogy of this would be a seed and a plant, if a seed is not planted it will never become a plant, and will always remain a seed, however if the seed is planted, it will become a plant over time, and the DNA of the seed is contained within the plant. The request for alleged reasonable adjustments (seed), would have remained as such if it had never been used (planted), to grow into (ongoing) an alleged discriminatory selection for redundancy and subsequent redundancy (plant).

 

27. For the above reasons, outlined in Appeal 1, the Appellant appeals against the decision by the Chairman at the Pre-Hearing Review to strike out the claim of alleged failure to make reasonable adjustments.

 

Appeal 2

 

28. The basis for Appeal 2 will rely on evidence that was “not relied on previously” as stated by the Chairman on 28 March 2007 (Reference Tab 7, page 67), after a submission to review the Pre-Hearing Review judgement.

 

29. The Claimant has represented himself throughout, and finds it extremely difficult to try and navigate the law, deal with the numerous correspondence associated with this case, and also to manage his own case against the Respondent. Time and knowledge is something that the Claimant is not afforded with regards to these matters.

 

30. The Claimant has some eleven thousand three hundred emails, spanning over a period of around two years, in which to review and pick out relevant emails pertaining to the claim, a somewhat difficult and time consuming task, very akin to looking for a ‘needle in a haystack’. The Claimant noticed the email “not relied on previously” purely by accident shortly after the Pre-Hearing Review held on 9 March 2007. If it is permissible to rely upon this email in this appeal (Reference Tab 6, page 66), then it could be construed as a step 1 grievance letter.

 

31. The Respondents list of documents came into the possession of the Claimant around 12 February 2007, some 25 days before the Pre-Hearing Review on 9 March 2007. This list of documents contains, at a guess, around some two hundred pages, contained within this list of documents was the one page grievance procedure (Reference Tab 6, page 65) of the Respondent, the first time that the Claimant had seen this grievance procedure. The Claimant hardly had a chance to review any of these two hundred pages, due to preparation of his own documentation for the Pre-Hearing Review, and has still not had a chance to review all of the two hundred pages, some 2 months after first receiving them.

 

32. If the Claimant is allowed to refer to the documents discussed in paragraphs 30 and 31, then the grounds for Appeal 2 will be as follows:

 

33. The Claimant followed the Respondents internal grievance procedure by raising the request for reasonable adjustments verbally with the Claimant’s manager on 16 December 2005, and with the Claimant’s senior director on 21 December 2005. The Respondent’s internal grievance procedure (Reference Tab 6, page 65) states:

 

“If you have a problem or complaint relating to your employment with Oracle this must be raised as soon as possible, either verbally or in writing.”

 

34. On 10 January 2006, some 20 days after the last request for reasonable adjustments, the Claimant wrote an email to the oSDM who was working on the General Electric account with the Claimant (Reference Tab 6, page 66), stating:

 

“I spoke to Phil and Nick regarding working on EA and GE, and potential clashes with work. The amount of work, and time contraints on the work, means that most of my time in the first week, to week and a half, of each month, will have be mainly devoted to EA (EA Monthly Report, collating data, chasing all parties involved, writing report, reviewing, sending for internal review, attending EA Monthly Meeting at BVP, taking minutes, writing and reviewing minutes, sending minutes for internal review, etc).

 

If you need someone to help with GE work during the first week, to week and a half, of each month, I would inform Phil or Nick.”

 

35. The wording in the Claimant’s ET1 form (Reference Tab 4, page 44) was as follows:

 

Section 6: Discrimination

 

Discrimination: Disability

 

Discrimination incidents: Phonecall with Phil Snowden 16th December 2005, raised my concerns over my workload, stress levels and diabetes.

 

Meeting on 21st December 2005 with Nick Cooper, again, raised my concerns over my workload, stress levels and diabetes.

 

36. As can be seen from the email outlined in paragraph 34, and the Claimant’s ET1 form outlined in paragraph 35, there exist a number of similarities, namely references to the two discussions with managers and concerns over workload. The stress and impact on the Claimant’s diabetes was a private matter that the Claimant did not have to disclose in this email.

 

37. It only remains at this point to reflect what constitutes a step 1 grievance letter, and the case Shergold v Fieldway Medical Centre UK/EAT/0487/05 states:

 

i) “It is simply that the grievance must be set out in writing”

ii) “Not only are we satisfied that there is nothing in the terms of paragraph 6 itself which prevents the grievance being set out in writing in a document which also doubles as something else”

iii) “it is not necessary to make it plain in the writing that it is a grievance”

iv) “no requirement that an employee must comply with any company or contractual grievance procedure”

v) “that the grievance in question must relate to the subsequent claim”

 

(References Tab 6, page 64, Tab 9, pages 85 – 86)

 

38. For the above reasons, outlined in Appeal 2, the Appellant appeals against the decision by the Chairman at the Pre-Hearing Review to strike out the claim of alleged failure to make reasonable adjustments.

 

Appeal 3

 

39. Appeal 3 will be very similar to the arguments put forward in Appeal 1, but will introduce a written grievance of June 2006 which may apply, as the request for reasonable adjustment was referred to, and possibly used in the alleged discriminatory selection for redundancy and subsequent redundancy.

 

40. The basis for the grounds of Appeal 3 is as follows:

 

(a) The alleged failure to make reasonable adjustments was an act extending over a period of time, as discussed in paragraphs 18 and 19.

 

(b) The alleged failure to make reasonable adjustments was linked to the alleged discriminatory selection for redundancy and subsequent redundancy, as discussed in paragraph 25.

 

© The Claimant was not afforded the right of any selection procedure or consultation period before being selected for redundancy and made redundant, without the Respondent following the statutory standard dismissal procedure, as outlined in paragraph 22.

 

(d) As the Claimant was kept so much in the dark regarding the selection for redundancy, the Claimant could not infer any discriminatory aspect to this action, without first knowing the reason for the redundancy, and how many employees were to be made redundant.

 

(e) The Claimant wrote (emailed) two questions to the Respondent, on 2 June 2006, as outlined in step 1 of statutory grievance procedure, the questions were as follows:

 

“In my provisional redundancy letter, it states ‘As a consequence of a global business re-alignment’ as the reason for my provisional redundancy, can you provide the technicalities behind this comment (eg: role made redundant, etc)?”

 

“Within my role and group, how many employees were provisionally selected for redundancy?”

 

(Reference Tab 3, page 38)

 

(f) If the alleged failure to make reasonable adjustments is deemed to be linked to the alleged discriminatory selection for redundancy and subsequent redundancy, then the written submission from the Claimant to the Respondent outlined in (e) could be construed as satisfying the requirements of step 1 of the statutory grievance procedure. It is not within the scope of a step 1 grievance letter to go into detail at the step 1 stage.

 

41. It would anger the Claimant that the Respondent can so brazenly disregard any statutory requirements to follow procedures, keeping the Claimant so much in the dark as to the criteria and data (no selection procedure followed), reasons for contemplating making the Claimant redundant (no consultation period existed), and no right of appeal to the selection for redundancy (no statutory standard dismissal procedure followed), but the Claimant is the only party to suffer at this stage, as the Claimant has part of his claim struck out, namely the alleged failure to make reasonable adjustments.

 

42. The reason why the Claimant could not infer anything in June 2006, was simply that the Respondent had kept the Claimant so much in the dark by not following any procedures that would have at least allowed some information as to whether the dismissal by reasons of redundancy was fair or unfair, how many employees were involved, and whether there was some discriminatory aspect involved in the decision. The Claimant was never afforded that right, and could only ask questions like “why me?” and “how many?”, and even back in June 2006, nothing approaching satisfactory answers to these questions were ever provided. The first time that the Claimant, and the Chairman, were provided an answer to “how many?”, was at the Pre-Hearing Review held on 9 March 2007, some 9 months after the selection for redundancy (Reference Tab 3, page 37). The answer was that I was the only employee selected for redundancy and made redundant, out of a team of 14 where the Claimant was the 7th longest serving, the Claimant only took 2 days off in the previous 12 months, and the Respondent was actively recruiting one employee into the team whilst making the Claimant redundant, and has since started another five new employees between July 2006 and September 2006.

 

43. For the above reasons, outlined in Appeal 3, the Appellant appeals against the decision by the Chairman at the Pre-Hearing Review to strike out the claim of alleged failure to make reasonable adjustments.

 

44. This concludes the Claimant’s appeal.

 

One week later, the date on which the sist for mediation had expired 1 May 2007, I sent the following email with attached document to the Tribunal:

 

Dear Sir/Madam,

 

Please find attached a document which outlines the Respondent’s failure to comply with the Respondent’s requested sist for mediation.

 

Dear Sir/Madam,

 

The Claimant is writing to inform the Tribunal that the Respondent, after having requested, and being granted, a sist for mediation on 9 March 2007, the sisted period starting on 10 March 2007 until 30 April 2007, and lasting some 51 days, has failed to either arrange or take part in any mediation, and as such, with reference to Employment Tribunals (Scotland) Practice Direction No 2, which states:

 

EMPLOYMENT TRIBUNALS (SCOTLAND)

 

PRACTICE DIRECTION NO 2

 

In consequence of the power given to me under Regulation 13 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 I make the following Practice Direction:-

 

Sist for Mediation

 

Where both (or, as the case may be, all) parties to a claim agree that it should be sisted for mediation a Chairman of Employment Tribunals shall sist it for that purpose. The Chairman shall nevertheless review the need for that sist within such timescale as he or she thinks necessary having regard to the interests of justice.

 

has failed to comply with The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Schedule 1, rule 13, which states:

 

The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004

 

SCHEDULE 1

 

Compliance with orders and practice directions

 

13. – (1) If a party does not comply with an order made under these rules, under rule 8 of Schedule 3, rule 7 of Schedule 4 or a practice direction, a chairman or tribunal -

 

(a) may make an order in respect of costs or preparation time under rules 38 to 46; or

 

(b) may (subject to paragraph (2) and rule 19) at a pre-hearing review or a Hearing make an order to strike out the whole or part of the claim or, as the case may be, the response and, where appropriate, order that a respondent be debarred from responding to the claim altogether.

 

(2) An order may also provide that unless the order is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice under rule 19 or hold a pre-hearing review or Hearing.

 

(3) Chairmen and tribunals shall comply with any practice directions issued under regulation 13.

 

If it helps the Tribunal, the Claimant would prefer the following order, in order of preference:

 

1. Under The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Schedule 1, rule 13(b), an order that the Respondent be debarred from responding to the claim altogether.

 

2. Under The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Schedule 1, rule 13(a), an order in respect of preparation time.

 

That same day, I received the following email from the respondent, which was not sent to the Tribunal:

 

Dear Mr McAlpine

 

Thank you for sending us a copy of your letter of 1 May 2007 to the Tribunal. Please find attached a copy of our response.

 

As indicated in our letter of today’s date to the Tribunal, we are now in a position to suggest a mediation date in this case. As described in our letter, it has proved difficult to coordinate everyone’s availability including that of the agreed Mediator at Dundas & Wilson. However we can confirm that all have now indicated that they are available for a mediation on 21 June 2007. We therefore propose that the mediation be held on 21 June, and as previously discussed with you (and to which you agreed during your conversation with Neil Davy) that it should be held at Dundas & Wilson’s offices in Edinburgh ( 20, Castle Terrace, Edinburgh, EH1 2EN) on 21 June 2007.

 

As discussed with Neil Davy, we can confirm that the Respondent is prepared to contribute towards the costs of your being legally represented at that mediation up to a maximum such contribution of £2,000 for 10 hours’ legal representative’s attendance at such mediation.

 

The agreed mediator, Eilidh Wiseman, Head of Dundas & Wilson’s employment department, has said that it is her normal practice to contact each party in advance of a mediation in order to discuss the process and its aim. Please let us know if you are happy for Ms Wiseman to contact you by telephone on the number you gave in relation to your earlier contact with Neil Davy. If so, we confirm that we will supply this telephone number to Ms Wiseman. In addition, if there are any times/dates on which you are unavailable for such contact, it would be useful to know and again, we confirm that we will relay this information to her.

 

Later that day, 1 May 2007, I received a copy of the letter sent by the respondent to the Tribunal, which read:

 

FOR THE URGENT ATTENTION OF MRS. L J CRONE

 

Dear Madam

 

We have received this morning a copy of Mr McAlpine’s letter to you of 1 May 2007.

 

We have to say that we are frankly astonished by Mr McAlpine’s latest application to the Tribunal and set out below our detailed response to his letter. In doing so, we have had no alternative but to refer to what would otherwise be privileged discussions/correspondence between ourselves/Counsel and Mr McAlpine regarding mediation during the period 10 March 2007 to date.

 

By way of preface to our comments below, we record that, at the Case Management Discussion in this case on 9 March 2007, it was agreed (paragraph 9 of the Tribunal’s record of that discussion) as follows:

 

“It was agreed that the case shall be sisted for the period from 10 March 2007 until 30 April 2007 to enable both parties to take part in mediation of the issues in dispute with a view to resolving matters.”

 

In his letter to the Tribunal of 1 May 2007, Mr McAlpine claims that this was a Tribunal Order and that the Respondent has failed to comply with it. He applies for Tribunal Orders as follows:

 

1. An Order debarring the Respondent from responding to his claim and/or;

2. An Order for preparation time costs.

 

The Respondent responds as follows:

 

1. The Case Management Directions records that the parties agreed to a sist for mediation for the relevant period. This was not a Tribunal Order.

 

2. Further, the Respondent has taken steps to facilitate and arrange a mediation, including writing to and emailing Mr McAlpine on 20, 21, 22 March 2007 and arranging for Mr McAlpine to speak to the Respondent’s retained Counsel in this connection on 27 March 2007.

 

3. The Respondent has also identified a proposed mediator in Scotland as well as a venue for the mediation (also in Scotland in deference to the fact that Mr McAlpine is based there, and notwithstanding that all of those on behalf of the Respondent must then travel to Scotland to attend the mediation and therefore stay overnight the evening beforehand): clearly it would have been more convenient to the Respondent to have asked Mr McAlpine to travel to attend the mediation (in which case it would more conveniently for the Respondent have been held in London) but in order to be accommodating of Mr McAlpine, the Respondent did not pursue this option, but instead concentrated on a Scottish venue and a Scottish mediator.

 

4. The Respondent then took steps to identify a mutually convenient date for a mediation, co-coordinating the availability of its retained Counsel (Mr Davy) its own personnel who would need to attend the mediation, solicitors’ availability and, of course, the mediator’s availability.

 

5. Steps for arranging a mediation indicated above, included a telephone discussion between Mr McAlpine and the Respondent’s retained Counsel, Mr Davy, on 27 March (such conversation organised by the Respondent’s solicitors). We understood, as a result of that conversation, that Mr McAlpine agreed to the following:

 

i) our proposed mediator;

ii) that he would contact a solicitor who would represent him at the mediation;

iii) that he would let us know dates of availability for the mediation during April and mid-May; and

iv) that the Respondent would consider making a contribution towards the cost of a solicitor’s attendance at such a mediation on Mr McAlpine’s behalf.

 

6. In light of the above discussion, we awaited hearing from Mr McAlpine with regard to available dates for a mediation in the period April to mid May 2007, and also continued to make enquiries so as to try to identify/coordinate a proposed date for mediation. In practice, this has proved extremely difficult. We did not hear back from Mr McAlpine. Nonetheless, as of last Friday afternoon (27 April 2007), we can now propose a mediation date of 21 June 2007 to Mr McAlpine. We can confirm that this date is convenient for the mediator to whom Mr McAlpine has agreed.

 

7. Whilst this date is later than had been hoped originally, nonetheless, we still believe that mediation is the best forum for a resolution of this dispute and can confirm that this is the mediation date which we are today proposing to Mr McAlpine. We confirm that this proposal will include the unusual step of offering that the Respondent contributes towards the cost of Mr McAlpine being legally represented at the mediation; that the Respondent pays the mediator’s costs; that the Respondent pays for the facilities used at the mediation/its venue and, of course, is also responsible for the costs for all those concerned from/on behalf of the Respondent attending a mediation in Edinburgh (including accommodation costs). We have specifically chosen an Edinburgh venue and mediator in order to try to accommodate Mr McAlpine.

 

8. Given the proximity of the proposed mediation date of 21 June to the hearing in this matter, we do not propose that the sist for mediation be extended to include the proposed mediation date of 21 June. Nonetheless, we would hope that both parties would approach mediation in the spirit of goodwill and compromise.

 

We confirm that we are sending a copy of this letter to Mr McAlpine together with an invitation to a mediation on 21 June, coupled with the Respondent’s offer (as described above) in respect of his legal costs at such mediation.

 

In all the circumstances, we resist the application made by Mr McAlpine and would hope that the Tribunal would encourage him to attend the mediation we have described in this letter.

 

 

[]Chapter 9

 

On 23 May 2007 I received the following letter from the respondent:

 

STRICTLY PRIVATE AND CONFIDENTIAL

FOR ADDRESSEE ONLY

 

Dear Sir

 

We understand that, during a telephone conversation which you had with Mr Davy of Counsel on 11 May 2007, he raised with you the fact that we still await receipt from you of hard copies of all of the documents/materials contained in your list(s) of documents. We understand that Mr Davy conveyed to you that our client would be prepared to pay the reasonable costs of your sending a copy of each such document/material to us. We also understand from Mr Davy that you agreed to provide hard copies of all such documents/materials. To date, we have still not received them.

 

Similarly, whilst this morning we received a letter dated 14 May 2007 (forwarded by you to us) from your GP, Dr. Monahan, we have still to receive copies of your GP-held medical records within the terms of the consent form you signed. We requested these records from your GP by letter at the end of March 2007 and have now (9 May 2007) paid a £10 fee in respect of their provision. Again, we understand from Mr Davy that during your conversation with him of 11 May 2007, you agreed that you would contact your GP in order to assist the provision of these records. Again, to date, we have not received them.

 

Please note that it is intended that the bundle for use at the full Tribunal hearing should be agreed between the parties by 4 June 2007. Unless we receive hard copies of all of the documents/materials referred to in this letter by close of business on 25 May 2007, we will not be in a position to agree the bundle by 4 June 2007, and we will, reluctantly, have to trouble the Tribunal with a request for an Order that you provide all such documents/materials to us in hard copy form, and that agreement as to the content of the Tribunal bundle be postponed accordingly.

 

That same day, I received a letter from the Tribunal:

Dear Sir

 

I refer to the above claim to the Tribunals and to email correspondences to date in respect of your request for a disclosure order.

 

I write to advise you that the allocated Chairman (Ms Crone ) has directed me to state that it would appear the respondent has complied with the requests for disclosure and on that basis she has refused the request for an order.

 

The next day, I sent the following email to the Tribunal:

Dear Sir/Madam,

 

With regards to the letter dated 23 May 2007 from Glasgow Employment Tribunal, the Claimant finds the following statement an astonishing judgement to make:

 

“the allocated Chairman (Ms Crone) has directed me to state that it would appear the respondent has complied with the requests for disclosure and on that basis she has refused the request for an order.”

 

As the Chairman has refused the request for an order, and judged that the Claimant has disclosed all emails in the email trails, can the Chairman inform the Claimant of the following contents of disclosed emails:

 

The contents of the original emails with the subject heading “Kenneth McAlpine” to which the below list of disclosed emails 3,4,5,6,7,9,10 and 11 were replies?

 

The contents of the original email with the subject heading “Kenneth McAlpine” to which the below list of disclosed email 8 was forwarded?

 

1. 21-Feb-2006, 12:10:14, FW: confidential

2. 29-Mar-2006, 9:13:24, Re: FW: FW: FW: FW:?

3. 5-Apr-2006, 15:07:45, Re: Kenneth McAlpine

4. 7-Apr-2006, 9:25:56, Re: Kenneth McAlpine

5. 10-Apr-2006, 17:44:00, Re: Kenneth McAlpine

6. 11-Apr-2006, 9:09:22, RE: Kenneth McAlpine

7. 12-Apr-2006, 17:50:25, Re: Kenneth McAlpine

8. 13-Apr-2006, 9:10:00, FW: Kenneth McAlpine

9. 13-Apr-2006, 9:25:33, Re: Kenneth McAlpine

10. 13-Apr-2006, 11:37:29, Re: Kenneth McAlpine

11. 13-Apr-2006, 14:05:34, RE: Kenneth McAlpine

12. 16-May-2006, 14:56:15, Sue Scates – Support RIF

13. 30-May-2006, 20:25:02, RE: [Fwd: RE: Kenneth McAlpine]

 

If it helps the Chairman, review the Subject of the test email (at the bottom of this email) I sent myself to prove this point, and the reply I sent:

 

The original email was sent on “24 May 2007 09:49” subject “Kenneth McAlpine”.

 

I replied to this original email on “24 May 2007 09:52” and the automatically assigned subject was “RE: Kenneth McAlpine”

 

If the Chairman cannot provide the contents of the original emails, then the Respondent has not disclosed all emails with the Claimant’s name and subject heading “Kenneth McAlpine”, and as such a disclosure order is still required for the missing emails. If the Chairman decides not to issue an order for disclosure of the original emails, then the Claimant would request extended reasons why such an order was refused, including answers to the following questions:

 

1. How does the Chairman arrive at the judgement that “it would appear the respondent has complied with the requests for disclosure”?

 

2. Can the Chairman inform the Claimant of the contents of the perceived ‘disclosed’ emails (originals or first emails with the subject headings “Kenneth McAlpine”) to which replies were sent containing the subject headings “Re: Kenneth McAlpine”?

 

3. Can the Chairman explain to the Claimant how original (or first) emails, to which replies were sent containing the subject headings “Re: Kenneth McAlpine” are not relevant to either the Claimant or this claim?

 

A couple of days passed before I received a judgment sent from the Employment Appeal Tribunal on 25 May 2007 regarding my reasonable adjustments appeal. The judge was a Lady Smith, and the short judgment read:

 

Judgment

 

“An appeal lies to this Tribunal only in respect of an error of law. Nothing said in the grounds of appeal points to the Chairman having erred in law either in the pre-Hearing Review judgment or in her decision on the application for review. The grounds of appeal seek to argue a new case, but without any apparent relevance to the discreet issue that the Tribunal had to determine. This appeal has no reasonable grounds within it and Rule3(7) applies.”

 

Needless to say, I would be appealing that judgment, however, I only had twenty-eight days to appeal, so would spend the next four weeks putting together an appeal.

 

Four days later I sent the following email to the Tribunal:

 

Dear Sir/Madam,

 

I should be grateful if you would issue a witness order for the following witness to attend the hearing of this matter on 2nd July 2007:

 

Phil Snowden

 

Phil Snowden’s evidence will assist the tribunal in reaching a conclusion efficiently and fairly. He was the Claimant’s manager. He can give evidence regarding the emails which took place in April 2006 regarding the Claimant’s alleged discriminatory selection for redundancy and redundancy, and in particular, comments which were made regarding the Claimant’s disability which could result in prolonged periods of time off due to illness.

 

The Claimant has written to Phil Snowden regarding a witness statement, and feels that Phil Snowden will not attend without a witness order.

 

Catherine Temple

 

Catherine Temple’s evidence will assist the tribunal in reaching a conclusion efficiently and fairly. She was the Claimant’s HR manager. She can give evidence regarding the emails which took place in April 2006 regarding the Claimant’s alleged discriminatory selection for redundancy and redundancy, and in particular, why the respondent allegedly did not follow any selection procedure and did not follow the statutory dismissal procedure.

 

The Claimant has written to Catherine Temple regarding a witness statement, and feels that Catherine Temple will not attend without a witness order.

 

Susan Scates

 

Susan Scates evidence will assist the tribunal in reaching a conclusion efficiently and fairly. She was the Claimant’s ultimate director. She can give evidence regarding as to why she signed the Claimant’s alleged discriminatory selection for redundancy and redundancy, and, in general, the actions that the respondent took, or did not take at this time.

 

The Claimant has written to Susan Scates regarding a witness statement, and feels that Susan Scates will not attend without a witness order.

 

Andrew Hammett

 

Andrew Hammett’s evidence will assist the tribunal in reaching a conclusion efficiently and fairly. He was an employee of the Environment Agency. He can give evidence regarding alleged Environment Agency monthly reports and meetings, the Claimant’s role, as well as the size and importance of the Environment Agency account.

 

The Claimant has written to Andrew Hammett regarding a witness statement, and feels that Andrew Hammett will not attend without a witness order.

 

Michelle M Francis

 

Michelle M Francis evidence will assist the tribunal in reaching a conclusion efficiently and fairly. She is an employee of the Environment Agency. She can give evidence regarding alleged non-customer facing and unique role.

 

The Claimant has written to Michelle M Francis regarding a witness statement, and feels that Michelle M Francis will not attend without a witness order.

 

Martin Shiers

 

Martin Shiers evidence will assist the tribunal in reaching a conclusion efficiently and fairly. He is an employee of the Environment Agency. He can give evidence regarding alleged non-customer facing and unique role, as well as the frequency and types of problems encountered in the Environment Agency account.

 

The Claimant has written to Martin Shiers regarding a witness statement, and feels that Martin Shiers will not attend without a witness order.

 

Dr Ken Paterson

 

Dr Ken Paterson evidence will assist the tribunal in reaching a conclusion efficiently and fairly. He is an employee of the hospital that the Claimant attends regarding the Claimant’s disability. He can give evidence regarding the Claimant’s disability, the Claimant’s disability and the effects of excessive stress on that disability. He can also give evidence on the disability, and any alleged effects of alleged high blood pressure on this disability.

 

The Claimant has written to Dr Ken Paterson regarding a witness statement, and feels that Dr Ken Paterson will not attend without a witness order.

 

Just over a week passed, before I received a letter from the Tribunal on 4 June 2007:

 

Dear Sir

 

I refer to the above claim and to your emailed letter dated 27 May 2007.

 

On the direction of the allocated Chairman (Ms Crone ) the letter has been copied to the respondent The Chairman has invited comments and in particular, clarification whether the respondent intends to call any of the witnesses referred to.

 

The Chairman has also directed me to state that you should specify more precisely when you wish Dr Paterson to attend the hearing to give evidence as a witness order will not be issued requiring his attendance for three days

 

That same day, I also received a copy of a letter sent by the Tribunal to the respondent, which had the paragraph marked which listed thirteen incomplete emails the respondent had not disclosed to me:

 

Dear Sir

 

I refer to the above claim and to the emailed letter dated 24 May 2007 from the claimant.

 

The allocated Chairman (Ms Crone ) invites your comments on its contents and in particular, the paragraph marked.

 

Please reply in writing within seven days.

 

A week later, I received a copy of the letter sent from the respondent to the Tribunal:

 

Dear Sir/Madam

 

Thank you for your letter of 4 June 2007 inviting us to comment on Mr McAIpine’s application for witness orders in respect of some seven individuals to attend the Tribunal hearing on 2-4 July 2007.

 

We would comment as follows: -

 

1. Phil Snowden – The Claimant’s former Manager.

 

Mr Snowden is attending the Tribunal hearing to give evidence. No witness order is necessary.

 

2. Ms. Cathy Temple – A member of the Respondent’s HR Team.

 

Ms. Temple is attending the Tribunal to give evidence. No witness order is necessary.

 

3. Ms. Sue Scates

 

Ms Scates is the Senior Director ultimately responsible for the line of business within the Respondent in which Mr McAlpine worked.

 

It is the Respondent’s case that the redundancy of Mr McAlpine’s role arose because of an initiative introduced globally by Oracle (and not just in the UK), and nor was this decision taken, we understand, in the UK. The effect of this global initiative was to diminish the need for the back office support role performed by Mr McAlpine within the Respondent’s On demand Service Delivery Management team, and that, even before the introduction of this initiative, the constituent elements of Mr McAlpine’s role progressively reduced from 16 December 2005 onwards.

 

It is the Respondent’s case also that in December 2005 Mr McAlpine had said that he no longer wished to perform an On Demand Service Delivery Management role and that he then sought an alternative role (saying that he would seek such a role both internally and externally). Unfortunately, this search proved unsuccessful.

 

Coincident with the announcement of the global initiative which impacted Mr McAlpine’s role as described above, the Respondent was considering a wider, collective, reorganisation consequent upon its recent acquisition of a large competitor.

 

Possible candidates for redundancy were sought in the context of this wider reorganisation, and a possible list of candidates was compiled in February 2006.

 

In the circumstances described above, Mr McAlpine’s role was certified as redundant.

 

Approval for this UK organisation-wide reorganisation was given in April 2006 following discussions with the Respondent’s Employee Representative Body. Consultation with those individuals potentially affected by the redundancy began at the end of May 2006.

 

Evidence of all of these matters will be given at the Tribunal by Mr Snowden, Mr Cooper and Ms. Temple. It is not proposed to call Ms Scates as a witness.

 

We understand that Ms Scates was one of those individuals whom Mr McAlpine approached for responses to specific questions (May 2007). If it would assist the Claimant we will endeavour to obtain responses to those questions asked of Ms Scates and supply them to Mr McAlpine.

 

4. Andrew Hammett, Michelle Francis and Martin Shier – all of the Environment Agency, a client of the Respondent and one of the accounts to which Mr McAlpine was allocated to provide back office support to other members of the On Demand Service Delivery Management team performing the full constituent parts of that role.

 

We do not act for any of these individuals and therefore cannot respond to this witness order application on their behalf. As such, we believe that the Tribunal should approach them in relation to Mr McAlpine’s witness order request in order that they can make representations in relation to it.

 

For the avoidance of doubt, however the Respondent does not consider it necessary for any of the above to attend the Tribunal hearing. By letter of 31 January 2007, the Claimant agreed the constituent elements of his role in November 2005 and how that role diminished with effect from 16 December 2005 onwards, including as to whether it included, at various dates, his attendance at Environment Agency monthly meetings and the production of a monthly report for review at such meetings.

 

Within the 31 January 2007 letter, as regards the duties comprised in his role from 16 December 2005 onwards, Mr McAIpine has also agreed with the Respondent’s categorisation of the particular constituent elements of his role as “customer-facing” or “non customer-facing”.

 

Mr Snowden and Mr Cooper will both give evidence as to the constituent parts of a “standard” On Demand Service Delivery Manager’s role as compared with the role performed by Mr McAlpine.

 

The Respondent considers that none of those Environment Agency employees in respect of whom Mr McAlpine seeks a witness order can give evidence as to the constituent parts of positions within the Respondent, whereas both Mr Snowden and Mr Cooper will be present to do so (to the extent that it is necessary given Mr McAIpine’s 31 January 2007 response to questions posed by the Respondent).

 

5. Mr K. Patterson

 

We understand that Mr Patterson is Mr McAlpine’s diabetes consultant. We do not act for Mr Patterson and therefore cannot respond to this witness order request on his behalf. As such we believe the Tribunal should approach Mr Patterson direct in order that he can make representations in relation to Mr McAlpine’s witness order request.

 

Subject to the foregoing, we would comment as follows in relation to the witness order request. Mr Patterson has given a report as to the effect of Mr McAlpine’s condition on his ability to perform normal activities and its potential effects with and without treatment. Mr Patterson has also provided Mr McAIpine and us with copies of the results of Mr McAlpine’s regular diabetes monitoring appointments during the period January 2004 to March 2007. We also now have copies of Mr McAlpine’s GP medical records for this period.

 

Given that the Respondent has conceded that Mr McAlpine is disabled for the purposes of the Disability Discrimination Act and that the Tribunal will have access to the above medical records, (should they be relevant), we do not think it necessary for Mr Patterson to attend the Tribunal hearing and moreover we note from a letter to Mr McAlpine from Mr Patterson dated 24 May 2007 that Mr Patterson has informed Mr McAlpine, in any event, of a planned holiday booked for the period of the Tribunal hearing.

 

That same day, I also received a copy of a letter sent by the respondent to the Tribunal:

 

Dear Sir/Madam

 

Thank you for your letter of 4 June 2007 received on 5 June, inviting our comment on Mr McAlpine’s email to the Tribunal of 24 May 2007.

 

We have once again reviewed the emails to which Mr McAlpine’s 24 May email to you refers.

 

1. Email dated 21 February 2006. 12:10:14 Fw:Confidential

 

As promised in our email to you of 22 May 2007, we have reviewed this further with our client. In fact, the email from Mr Thompson to Cathy Temple on 21 February 2006 forwarded an email from Nick Cooper to Mr Thompson (Subject “Confidential”) in which Mr Cooper made two promotion proposals (neither of whom was the Claimant) and attached his October 2005 UK OSDM talent spreadsheet. The latter assessed the performance of each member of the OSDM team as at 27 October 2005. We are happy to disclose an appropriately redacted spreadsheet for completeness and this is enclosed under cover of our copy of this letter to Mr McAlpine sent by post.

 

We should make clear that the 7 February 2006 Provisional Reduction in Force spreadsheet which we disclosed to Mr McAlpine under cover of our 16 March letter was sent to Cathy Temple by Gay Brogden under cover of an email dated 23 March 2006 (already disclosed to Mr McAlpine).

 

We understand that a global request for potential candidates for redundancy was circulated to all Heads of Lines of Business in early February 2006 and that the relevant line of business head in Mr McAlpine’s case says that she would have cascaded this sort of request to her direct reports (although she has no copy records to support this) to ascertain whether they were aware of any roles which were redundant, and those occupying these roles would have been fed back to Gay Brogden via a copy of the spreadsheet. We understand that in response to such a request, Mr McAlpine’s name was identified in the spreadsheet which has been disclosed to him.

 

2. Email dated 29 March 2006 – time 9:13:24 “re .. fw fw fw fw.

 

The first email in this trail entitled “[name deleted] Customer care professional” is dated 14 March at 12:05 am and concerns a job offer made to an employee in another line of business to the Claimant who had been a potential candidate for redundancy. As it does not concern the Claimant and has no relevance to his claim, it has not been disclosed.

 

3. Email dated 5 April 2006 timed 15:07:45 “re Kenneth McAlpine.

 

The first email in this trail is from Mr Snowden and was disclosed to Mr McAlpine on 9 February 2007 and immediately precedes the one referred to above. We have discovered that in some circumstances with the Respondent’s email system, where an original email is responded to, and the response is printed out, the original message heading, date and time are all deleted and replaced by the word

 

“… [name of sender] wrote…”.

 

This is the case with a number of emails disclosed to Mr McAlpine in this litigation, including this one. A further copy of Mr Snowden’s email, titled “Kenneth McAlpine” and timed at 11.58.04 on 5 April 2006 is enclosed in Mr McAlpine’s copy of this letter, sent by post.

 

4 to 11 Emails between 7 and 13 April: these all form part of the email trail, to various different participants in this conversation, as disclosed to Mr McAlpine. The only additional email in this trail that we have found it is one email from Cathy Temple on 13 April to Ms S Scates. We have no objection to disclosing this additional email although we do not believe it is relevant to the issues in dispute.

 

12. Email dated 16 May 2006 timed 14:56 Sue Scates – Support RTF

 

This is not a reply to an email. There are two emails in this trail, both of which have been disclosed to Mr. McAlpine.

 

13. Email dated 30 May 2006 20:25:02 re fwd re Kenneth McAlpine

 

This is not a reply to an email. There are three emails in this trail, all of which have been disclosed.

 

Both we and our client take extremely seriously the obligation of disclosure and we have sought copies of all relevant materials from our client and disclosed all such material supplied to us insofar as it appeared even tangentially relevant to the issues in dispute in this case. We have to say however that we have now spent an inordinate amount of time in responding to Mr McAlpine’s repeated disclosure requests. We are always sympathetic to an unrepresented litigant and have done our best to accommodate Mr McAlpine in this regard, but we do hope that this will now be an end to his repeated requests.

 

The next day, 12 June 2007, I received a letter from Tribunal, which read:

 

Dear Sir

 

I refer to the above named proceedings and to the respondent’s letter of 11th June.

 

The Chairman of the Tribunals, Mr M MacMillan, has instructed me to inform you that the case will be listed for an urgent case management discussion (CMD) to discuss witnesses.

 

You will be informed of a hearing date in due course.

 

The following morning I received a letter from the respondent:

 

Dear Mr McAlpine

 

We are now finalising the principal bundle (in three volumes) for use at the Tribunal hearing. A copy of bundles the Claimant’s Legal Materials and Claimant’s Medical Records, Reports, Search for Employment and Schedule of Loss will also follow.

 

We note that we do not seem to have a copy of the following documents/are unclear of the relevance of those marked with an asterisk. If you would like them included in the principal bundle, we should be grateful if you would supply us with a copy of each:

 

 

1. 19 May 1998 acceptance of employment.

 

2. 13 January 2006 email from Claimant to A. Hammett re E A Monthly Report*.

 

3. 2 February 2006 email from Claimant to Phil Snowden re E A Monthly Report and 2 February 2006 email conversation between Claimant and R. Marsden re info for E A Monthly Report for January 2006*.

 

4. 16 February 2006 email from Claimant to Phil Snowden re E A Monthly Report*.

 

5. 6 March 2006 email from Claimant to R. Marsden re E A Monthly Report for February*.

 

6. 19 May 2006 email from Phil Snowden to Claimant re E A Monthly Report*.

 

Please note that we will insert into the principal bundle:

 

i) the additional emails and attachments enclosed with our copy letter to the Tribunal of 11 June (copy documents sent to you on 12 June 2007).

 

ii) copies of the job descriptions for the roles of EMEA Operations Engineer and Database Administrator.

 

iii) the covering email which accompanied your document 41.

 

iv) copy of CIM job description.

 

vi) copy of the letter of notification of your provisional redundancy and enclosed FAQs.

 

A copy of each of the above is enclosed.

 

Also to be added to the principal bundle are copies of the following:

 

i) copy of redacted full RIF list.

 

ii) copy of your Leaver’s Agreement.

 

iii) redundancy process guide for HR.

 

iv) your severance payment details.

 

v) A copy of an exchange of emails between yourself and Phil Snowden in July 2004. These documents were flagged in our records for disclosure to you (although as they were to you, you should also have copies) but was mistakenly not included in our proposed Index of Documents for use at the Tribunal hearing. We have now added a copy of each of them to the principal bundle, and a copy of each is also enclosed with this letter.

 

That same day, I also received a letter from the Tribunal:

 

NOTICE OF HEARING

Case Management Discussion

 

A chairman has ordered that there should be a Case Management Discussion.

 

The case management discussion will be held by a chairman in private at COET (Scotland), 3rd Floor, The Eagle Building, 215 Bothwell St, Glasgow, G2 7TS on Tuesday 26th day of June 2007 at 9:30 am or as soon after that time as the Chairman can hear it. It is only necessary for representatives and unrepresented parties to attend.

 

The Case Management Discussion has been given a time allocation of ½ hour. If you feel that this is insufficient, you must inform us in writing within 5 days of the date of this Notice.

 

Both parties had to exchange witness statements no later than fourteen days prior to the full hearing due to start on 2 July 2007.

 

Early on 18 June 2007, I emailed all my witness statements, including my own 50 page witness statement, to the respondent in order to comply with the exchange of witness statements no later than fourteen days prior to the full hearing.

 

Later that day I received the following email from the respondent:

 

Dear Mr McAlpine

 

Thank you for your email and attachment.

 

Copies of witness statements on behalf of our client will be sent to you in hard copy today, together with a copy of the 3 volume principal Tribunal bundle.

 

Given that you have already sent me your statements, please note that I that will not open them until tomorrow.

 

That email utterly enraged me. The respondent was not following agreed timescales, and now had all my witness statements, including my witness statement that contained my whole case, and they would have these witness statements for almost a full day, before sending out all their witness statements. In other words, they could read my whole case, and alter their own witness statements to enhance their case and counteract parts of my case.

 

That same day, I received a letter from the Tribunal:

 

A chairman, Ms L Crone, has ordered that there should be a Case Management Discussion.

 

The case management conference will be conducted by telephone conference call at 9:30 am on Tuesday 26th day of June 2007. To participate in the Conference Call you should dial 0845 301 4035 at the appointed time and then enter the pin code 533768# when prompted to do so by the recorded message. If you intend to refer to documents during the conference call, copies must be sent to the tribunal to arrive not later than Friday 22nd June 2007 either in an envelope or under cover of a fax or e-mail header sheet marked “Urgent for conference hearing on Tuesday 26th day of June 2007”. Please note there is now no requirement to attend the Central Office of Employment Tribunals to participate in the Case Management Discussion, as a Chairman (Ms S Craig) has instructed it should be conducted by way of Conference Call as per the Respondent’s Solicitors request dated 15th June 2007.

 

The Case Management Discussion has been given a time allocation of 30 minutes. If you feel that this is insufficient, you must inform us in writing within 5 days of the date of this Notice.

 

Two days later I received the most astonishing email from the respondent, which stated:

 

Dear Mr McAlpine

 

1. Please let us know whether you admit the contents of the statements of Simone Harch and Fiona Vickers. If not, please let us know which paragraphs of their statements you disagree with? Please respond to these questions by midday on Monday 25 June 2007.

 

2. Please confirm that you have notified each of the individuals in respect of whom you seek a witness order (save for those employed by Oracle):

 

a) that you are seeking a witness order in respect of them

 

b) that this matter is to be considered at next Tuesday’s Case Management Discussion

 

c) that they have the right to make representations in respect of your witness order application either at the Case Management Discussion itself, or before then in accordance with the Notice of Hearing from the Tribunal and

 

d) that you have given each of them details of the Case Management Discussion so that they can dial in and participate if they so wish.

 

Bearing in mind I had not received many of the respondents witness statements, and of the few I had received, most were not signed, I simply could not believe that any respondent could ask, prior to a case, whether you agree to certain witness statements, and if you don’t, to indicate where you disagree and why. My immediate thought was two fold, if I agreed then the respondent could use that to confirm to the Tribunal that I agreed to most of the other witness statements as Simone Harch and Fiona Vickers witness statements contained many similarities to the other witness statements I had received, and the respondent could use this information to verify and firm up any witness statements I had yet to receive, as well as any witness statements that had not been signed. Needless to say, I was not going to agree to any of the witness statements.

 

That same day, 20 June 2007, in response to me sending an appeal against the judgment of Lady Smith regarding the reasonable adjustments appeal, I received a letter from the Employment Appeal Tribunal, which read:

 

Dear Sir

 

I refer to the above matter and your letter dated 19 June 2007. This letter has been treated as an application under Rule 3(10). The hearing will be before a judge sitting alone at which the Appellant only will be heard.

 

It is noted that there is an ET hearing listed for 2 July 2007. The R3(10) application will not be heard in advance of this date as the EAT sits one week a month and is not due to sit next until 3-6 July 2007. The matter will therefore be listed for the earliest convenient date.

 

This matter will now be referred to the EAT List Office for listing of the forthcoming hearing. The Appellant is therefore requested to provide their available dates during the next 8 months. It is also important that we are advised of Counsel’s details (if you instructed) at the same time to avoid difficulties or conflicts with the future hearing. A response is required within 7 days from the date of this letter; late responses will not be considered. If you do not provide this information, a date will be fixed without further reference to you.

 

If you have any queries regarding the listing of this matter then you should contact the EAT List Office on 020 7273 1024/1038.

 

I also sent the following email to the Tribunal on 22 June 2007:

 

Dear Sir/Madam,

 

Please find attached a document which the Claimant would like to refer to during the conference hearing on Tuesday 26th day of June 2007.

 

That same day, I also received the following letter from the respondent:

 

Dear Mr McAlpine,

 

Written Representations for consideration at Tribunal hearing on 2-4 July 2007

 

Please find enclosed a copy of our letter of today’s date to the Employment Tribunal (which is self-explanatory), together with a copy of each of the following documents:

 

1. Witness statement of Malcolm Thompson

2. Witness statement of Sue Scates

3. Witness statement of William Gemmell

4. Witness statement of Simone Harch

5. Witness statement of Fiona Vickers

6. Witness statement of Richard Marsden

7. Witness statement of Francis Winters

8. Witness statement of Anil Gaur.

 

Three days later I received a short letter from the respondent that contained a report from an employment consultant who worked around one hours drive from my home. That report contained the consultant’s view on my chances of securing similar employment within one hour’s drive from my home. Needless to say, the report stated that my chances were good.

 

Dear Mr McAlpine,

 

Written Representations for consideration at Tribunal hearing on 2-4 July 2007

 

Please find enclosed a copy of our letter of today’s date to the Employment Tribunal together with the enclosed report. Also enclosed, as promised, are the signed back sheets of the witness statements of Mr. N. Cooper and Mr. P. Snowden.

 

That same day, I also received a copy of the following letter from the Employment Appeal Tribunal sent to the respondent:

 

Dear Sir/Madam

 

I refer to the above matter and telephone conversation of 25 June 2007 with Angela Gill.

 

Please find attached a copy of the Notice of Appeal and application for a Rule 3(10) hearing, as requested.

 

The R3(10) hearing will be a Judge alone hearing, at which the Appellant only will be heard, but you will be notified of the hearing date and can attend as an observer if you wish. No submissions or other action is required at this time and you will be notified of the hearing’s outcome in due course.

 

It was now 26 June 2007, and I had to dial into the Case Management Discussion that had been hastily organised by conference call. When dialling in I was nervous, because what I was about to allege and discuss could ruin me as the respondent may sue me for everything I owned. I was however aware that judge Crone would not be chairing the call and took comfort from the fact that another judge may take a much dimmer view of the altered documents and unsigned witness statements.

 

After connecting to the conference call, this very stern judge asked me to introduce myself and then asked the respondent to do likewise. On the conference call for the respondent was the Barrister Neil Davy, who then proceeded to introduce Simeon Spencer, who was a lawyer and Barrister, Angela Gill, who was a lawyer and soon to be Barrister, and another two lawyers. The Case Management Discussion then proceeded along the lines of the agenda sent earlier. I started to get an extremely hard time from the judge for alleging altered documents, and when it came to the unsigned witness statements, I could not believe that this judge started to raise his voice and ask what was wrong with unsigned witness statements. After the call ended I must have been in a state of shock for around an hour.

 

On the same day of the Case Management Discussion, the respondent sent me the following cover letter as well as a further three folders of documents for use at the full hearing:

 

STRICTLY PRIVATE AND CONFIDENTIAL

FOR ADDRESSEE ONLY

 

Dear Mr McAlpine

 

We refer to our email of 1 June 2007, and our letter of 13 June 2007, and as stated by Mr Davy at the start of the Case Management Discussion this morning, we now enclose a paginated bundle of:

 

1. Claimant’s medical reports, records and materials;

2. Claimant’s legal materials; and

3. Claimant’s search for employment and schedule of loss.

 

Also included in the latter bundle is a copy of the report of Bespoke Resourcing Limited, a copy of which was provided to the Tribunal yesterday and disclosed and served on you under cover of our letter of yesterday’s date.

 

We enclose copies of pages 173(a) to 173(f) (inclusive) (formerly pages 170(a) to 170(f) inclusive of the Pre-Hearing review bundle). These documents should be added to tab 13(b) of Volume 1 of the Principal Bundle. They relate to the 9 March 2007 Pre-Hearing Review and are included for completeness only.

 

That same day, I received a copy of a letter sent by the respondent to the Tribunal, which read:

 

Dear Sir/Madam

 

Thank you for your letter of 22 June 2007 received this morning, 25 June, enclosing an email and attachment from Mr McAlpine, dated 22 June.

 

We would comment as follows:

 

The Respondent’s witness statements

 

1. We can confirm that, in exchanging witness statements with Mr McAlpine, we followed our usual practice. We can confirm that each witness statement sent to Mr McAlpine was approved or signed by the relevant witness.

 

2. As the Tribunal is aware, we have endeavoured to keep to a minimum the number witnesses giving evidence in person at the Tribunal hearing. Consequently we have, perfectly properly, asked Mr McAlpine whether he admits the contents of the witness statements of Simone Harch and Fiona Vickers and if not, to indicate to us which paragraphs he disagrees with. Our intention was then to consider whether either or both need be called to give evidence in person.

 

3. Mr McAlpine suggests that our exchange of witness evidence has in some way disadvantaged him and suggests further that it is no longer possible for his claim to have a fair hearing. We are frankly at a loss to understand the basis for this suggestion. Throughout, we have conducted this litigation properly and we continue to do so.

 

Mr McAlpine’s email goes on to allege instances of what he describes as “further” unreasonable behaviour on our/our client’s part. We would comment as follows:

 

a) Cause for termination of the first CMD in this case (on 20 October 2006):

 

This was not, as Mr McAlpine suggests, terminated by the Respondent at all. Unfortunately, we were cut off from the call. We immediately re-dialed and spoke to a Tribunal clerk who informed us that in the circumstances Mrs Crone had decided not to continue the call. Nonetheless, by the point that we were cut off, we were not aware of any other issue which Mr McAlpine wished to have discussed at the CMD, and he has not suggested any.

 

b) Mr McAlpine has suggested that our client’s response to his DDA Questionnaire contained “untruths”.

 

Our client denies this allegation.

 

As Mr McAlpine is aware, it is accepted that Mr Snowden mistakenly thought that Mr McAlpine had attended a team meeting on 14 March 2006. Mr Snowden has since explained that mistake and corrected it.

 

c) Cause of “cancellation” of pre-hearing review scheduled for 12 January 2007

 

Our client applied for this hearing to be postponed by letter dated 8 December 2006. After considering representations made by Mr McAlpine, the Chairman postponed that hearing on 21 December 2006. The reason given for that postponement was that the chairman considered “it important to have the medical evidence available for that hearing”.

 

The report from Mr McAlpine’s medical consultant was not received by us until 2 February 2007 (albeit that the letter itself is dated 25 January 2007).

 

d) The sist for mediation and our client’s offer of mediation.

 

We wrote to the Tribunal on 1 and 2 May 2007 responding to allegations then made by Mr McAlpine: we would emphasise in particular that the sist for mediation was made by agreement between the parties on an initiative genuinely made by the Respondent; that an offer for a mediation was made to Mr McAlpine (albeit that it was not possible to suggest a date for the mediation earlier than 21 June); that the offer was made to Mr McAlpine by letter of 1 May, but that offer was declined by Mr McAlpine.

 

In the circumstances the Respondent resists Mr McAlpine’s application for its case to be struck out.

 

On 27 June 2007, just five days before the full hearing, I received the following note from the Tribunal:

 

Glasgow on 26 June 2007 by conference call

 

Chairman: Mr R A MacKenzie (Sitting Alone)

 

Mr K R McAlpine

Claimant In Person

 

Oracle Corporation UK Ltd

Respondents Represented by: Mr N Davy – Counsel

 

NOTE FOLLOWING CASE MANAGEMENT DISCUSSION

 

1. A Case Management Discussion was held by conference call on 26 June 2007 to discuss outstanding matters.

 

2. Mr McAlpine indicated that ten of the eleven witness statements sent to him were unacceptable as they were unsigned by the witnesses. I was advised by Mr Davy that copies of the final pages of the witness statements signed by the witnesses have been or will be made available to the claimant and on that basis the witness statements, when the final page is sent to the claimant, would be acceptable.

 

3. There was considerable discussion on the bundle of documents prepared by the respondents and Mr McAlpine drew my attention to a number of matters which gave him some concern.

 

4. Mr McAlpine alleged that an index of documents had been prepared and sent to him but all of the documents listed in the index were not provided. I DIRECT that the claimant will provide the respondents’ Solicitors by close of business on 27 June with a note of the documents allegedly missing from the index provided by the respondents.

 

5. Mr McAlpine also alleged that some of the documents which had been produced by the respondents had been altered and important information had been omitted. I DIRECT that the claimant provide the respondents’ agents by 12 noon on Friday 29 June with the list of documents allegedly altered and the reason why issue is taken with these documents.

 

6. Mr McAlpine alleged that the format of some of the documents produced by the respondents had been altered and, as I understood his position, it was that he was in some way disadvantaged by the change in format. If that is to be the case then I DIRECT that the claimant provide at the commencement of the hearing on 2 July the documents on which he intends to rely where the format has been altered by the respondents with five copies of these documents.

 

7. There was discussion over the issue of witness orders requested by Mr McAlpine. In the case of Ms Scates, the request for a witness order was refused as a witness statement from her had been produced. A request was made by the claimant for witness orders against Mr A Hammett, Ms M Francis and Mr M Shiers, all of whom work for the Environmental Agency, the client of the respondents.

 

8. In the case of Mr Hammett, a witness statement had been obtained by the claimant from Mr Hammelt and I did not consider his attendance would assist the Tribunal in its consideration of the claim.

 

9. In respect of Ms Francis and Mr Shiers, I was not persuaded that, as they were employed by a client of the respondents, they could give any useful assistance to consideration of the reasons for the claimant’s dismissal and consequently I refused the request for witness orders.

 

10. I did explain to Mr McAlpine that if, during the course of the hearing it appeared to the Tribunal that evidence from other witnesses would assist the Tribunal in considering the claim, then further witness orders may be granted.

 

I also received a letter from the Employment Appeal Tribunal that same day, which read:

 

Dear Sir

 

I enclose a Notice of Hearing of this Appeal in which you are the Appellant.

 

If it is your intention to be heard you should be present at the time and date as stated; otherwise the hearing may proceed and Judgment may be delivered in your absence.

 

You attention is drawn to Employment Appeal Practice Direction 2004 paragraphs 6 and 14 concerning the filing of bundles and Authorities for the forthcoming hearing. Failure to file the documents in accordance with the directions may result in you being required to appear before the President or another Judge of the EAT to explain your non compliance.

 

All documents should show the names of the parties, EAT number and hearing date.

 

Would you please complete and return the form relating to attendance. An addressed label is enclosed for that purpose.

 

NOTICE OF HEARING RULE 3(10) APPLICATION

 

TAKE NOTICE that this Appeal will be in the List for hearing before the Employment Appeal Tribunal sitting at 52 Melville Street, Edinburgh EH3 7HF at 2:00 pm on the 7 November 2007.

 

The estimated duration of the hearing is no longer than 1 Hour and you are required forthwith to notify the Registrar of any matters that may affect the length of the hearing.

 

Dated the 27th day of June 2007

 

On 28 June 2007, I attended a meeting at the local Citizens Advice Bureau, again with the manager Steve Butler, and during the meeting two letters were typed up and copies given to me straight after the meeting.

 

A copy of the first letter, which was sent to the Faculty of Advocates Free Representation Unit read:

Dear Sir/Madam

 

This is to confirm that the claimant has requested the support of the Free Representation Unit (FRU). We are assisting the claimant with his application to the FRU.

 

Whilst the claimant has represented himself until this time, we feel that he is being seriously disadvantaged by not having legal support and representation.

 

A copy of the second letter, which was sent to the Tribunal read:

 

Dear Sir/Madam

 

This is to confirm that I was present and witnessed the opening of the parcel from Morgan Lewis dated 27/6/07.

 

The parcel contained 3 binders of material relevant to the above case.

 

 

[]Chapter 10

 

Day 1 – Morning

 

I read out my Witness Statement:

 

Claimant’s Background

 

My name is Kenneth Robert McAlpine, I live at (address removed). I was born on 12th August 1964 at (town removed).

 

At age 18 months, I contracted Type 1 Diabetes, and from this date, I have had to administer insulin by daily injections.

 

During my educational years, and beyond, I have attained the following qualifications:

 

I graduated from (College name removed) with an HND in Mechanical Engineering in 1985.

 

I graduated from (University name removed) with Bachelor of Engineering with honours in Production Engineering and Management in 1988.

 

I graduated from (University name removed) with Master of Science in Business Information Systems in 1996.

 

I am now aged 43, and have had Type 1 diabetes for over 40 years, referring the Tribunal to the relevant evidence which proves this, and for these past 40 years it has been well controlled until around November 2005, and the Diabetes Clinic at (Hospital name removed), which I attend, has been happy enough with my Diabetes control over these past 40 years to see me every 6 months.

 

In 1998 I applied for a role with Oracle Corporation UK Limited, and started work for Oracle Corporation UK Limited on 12th August 1998, working as a Consultant in Oracle Consulting.

 

The work in Oracle Consulting was mainly very high profile clients (e.g. FTSE 100), short to medium term contracts (week(s) to month(s)), with travel and sometimes long periods away from home.

 

Early in 1999 I was asked by Oracle Consulting to participate in the formation of a very small 5-employee team with another Consultant from the Oracle Edinburgh Office, to start-up a small UK group within Oracle Support called “Oracle ExpertOnline”, which involved looking after customer systems in the UK via the internet. Through a period of some 4 years, “Oracle ExpertOnline” experienced growth in both customers and employees, and went through various name changes from “Oracle ExpertOnline” to “Oracle Outsourcing” to “Oracle On Demand”, which it is known as today. “Oracle On Demand” now employs around 100 employees in the UK, and over 1000 employees worldwide.

 

The On Demand Service Delivery Manager team, including around 18 On Demand Service Delivery Managers, and the On Demand Delivery Manager (Mr Phil Snowden), are all employees of “Oracle On Demand”.

 

Claimant’s Claim

 

The Claimant’s Claim will be on the following grounds:

 

Unfair dismissal.

On the grounds that the Respondent failed to follow the Statutory Dismissal Procedure, and that as such, The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 12(1) applies.

 

Disability Discrimination.

That the Respondent discriminated against the Claimant in both the selection for redundancy and redundancy process, on the grounds:

 

Direct Discrimination.

The Disability Discrimination Act 1995, regulation 3A(5).

 

Disability Discrimination.

The Disability Discrimination Act 1995, regulation 3A(1).

 

Failure to make reasonable adjustments.

That the Respondent discriminated against the Claimant with regards to a failure to comply with a duty to make reasonable adjustments, on the grounds:

 

Failure to comply with a duty to make reasonable adjustments.

The Disability Discrimination Act 1995, regulation 3A(2).

 

In order for the Claimant to be covered by The Disability Discrimination Act 1995, the Claimant has to fall under the definition of disability. With reference to the letter from the Claimant’s Diabetic Consultant to the Respondent’s Lawyer, it states:

 

Question 2: If Mr McAlpine failed to take any insulin treatment for his Type 1 diabetes mellitus, then he would, of course, become acutely unwell in a matter of days and require hospital admission. This would clearly completely undermine his ability to perform normal day-to-day activities.

 

For completeness, the Claimant has also included the Claimant’s last attendance card for the Diabetic Clinic at Glasgow Royal Infirmary.

 

With reference to The Disability Discrimination Act 1995, Part I, regulation 1(1), The Disability Discrimination Act 1995 defines a disability as:

 

A person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities

 

The Disability Discrimination Act 1995, Part I, regulation 6(1) further states that the effect of medical treatment is to be ignored when defining a disability:

 

6. (1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

 

It is therefore apparent from The Disability Discrimination Act 1995, that Type 1 Diabetes is deemed as a disability according to the definition of disability within The Disability Discrimination Act 1995.

 

The scan of the Claimant’s last attendance card for the Diabetic Clinic clearly shows that the Claimant was attending the Diabetic Clinic once every six months, but that in 2006, the Claimant had three appointments within a 9 month period.

 

As outlined previously, the Claimant started work for the Respondent on 12th August 1998. The offer of employment was made on 6th May 1998. The “OFFER OF EMPLOYMENT” letter clearly states:

 

This offer is subject to references that are satisfactory to Oracle and a medical assessment.

 

This contradicts any allegations made by the Respondent, that the Respondent was unaware of the Claimant’s Diabetes.

 

The ‘PRE-EMPLOYMENT CHECKLIST’ also clearly states:

 

4. Complete the enclosed medical questionnaire and return it in the pre-paid envelope provided immediately. Whilst the answers to individual questions are confidential, The Company Medical Officer will provide an assessment of your fitness for employment. This offer is subject to Oracle being satisfied with that assessment.

 

Again this further contradicts any allegations made by the Respondent, that the Respondent was unaware of the Claimant’s Diabetes.

 

On 19th May 1998, the Claimant received confirmation from the Respondent in the form of a letter, clearly stating:

 

We would like to take this opportunity to welcome you to Oracle and confirm that your manager will be in touch in due course.

 

The Claimant started work for Oracle Corporation UK Limited on 12th August 1998, and therefore had the medical assessment.

 

In 2003, the Claimant was working within a team mainly based in Germany, with some employees spread around Europe, including the Claimant, who was the only UK based employee in the team.

 

This team was informed by the manager at that time, that this team was to be split up, and that all the team members had to look for other roles within the Respondent, which resulted in email correspondence between the Claimant and his manager at that time.

 

Within this email correspondence there is further proof that the Respondent was aware of the Claimant’s Diabetes, as the Claimant outlines his wish not to return to a previous role, as working on call had potential health implications, not only to non-diabetics, but diabetics, due to the frequency and length of callouts.

 

In June 2004, I transferred into the On Demand Service Delivery Manager team, and started work almost immediately on the Environment Agency account. This was a very large account for Oracle On Demand, certainly one of the largest in the EMEA region (Europe Middle East and Africa region), and some people may dispute certain figures, but the value of the Environment Agency business was worth some £15 million to Oracle Corporation, with various lines of business (On Demand, Support, Consultancy, Licensing, etc) being involved, and a sizable chuck of the £15 million being allocated to On Demand.

 

In the email correspondence from Julie McFarlane (On Demand Service Delivery Manager for Environment Agency), it is clear from this email that Julie McFarlane was clearly struggling with the “number of issues that are being raised or managed by Oracle for EA”. This led to the Claimant being brought in to the Environment Agency account as an additional oSDM (On Demand Service Delivery Manager) “It has been necessary to bring in an additional oSDM, Kenneth McAlpine”, and that not only was the Claimant to be brought in as an additional On Demand Service Delivery Manager, but that the Claimant would cover the hours of 8:30am to 10:00am as the only On Demand Service Delivery Manager, the hours of 8:30am to 10:00am covering the busiest and most important time each day, as this is when customers experience and report problems that have occurred from the previous evening, through the night, up to the next morning.

 

This email was sent to various high level people within the Environment Agency in the ‘To:’ list, and ‘Cc:’ to various high level people within Oracle Corporation who worked on the Environment Agency account.

 

This contradicts any allegations that the Claimant was not an On Demand Service Delivery Manager, and any allegations that the Claimant had a unique role.

 

The email sent on 14th July 2004 from Nick Cooper to Phil Snowden, indicates that the Claimant had started in the On Demand Service Delivery Manager team “Kenneth McAlpine has transferred into the oSDM team”, and that Phil Snowden, the Claimant’s manager, and Nick Cooper, Phil Snowden’s manager, were both aware that the Claimant was starting in the On Demand Service Delivery Manager team as an On Demand Service Delivery Manager (oSDM).

 

The next email outlines that the Claimant was sent on the ‘On Demand Lifecycle Training’ course, and that not only were most, or all, of the On Demand Service Delivery Managers at that time sent on this course, but that the Claimant’s manager and Director also attended this course.

 

Why would the Respondent spend thousands of pounds (travel and accommodation expenses, course fees, etc), to send the Claimant on a course that most, or all, of the On Demand Service Delivery Managers were attending, as well as their management team, if the Claimant was not an On Demand Service Delivery Manager, and had such a unique role, as alleged by the Respondent?

 

It is also interesting to note, that contrary to this email, Julie McFarlane did not attend the October ‘On Demand Lifecycle Training’ at the same time as the Claimant, but instead attended the November ‘On Demand Lifecycle Training’, due to the problems that this would create due to Environment Agency account coverage.

 

The Claimant only has one copy of the training material issued at the ‘On Demand Lifecycle Training’ course, and will now produce this for the Tribunal, and as you can see, for a three day training course, the training material is considerable.

 

In the email dated 25th August 2004, this email disproves the allegations made by the Respondent that the Claimant was not an On Demand Service Delivery Manager (oSDM), disproves the allegations made by the Respondent that the Claimant had a unique role, and disproves the allegations made by the Respondent that the Claimant was ‘non-customer facing’.

 

The Claimant performed the ‘OnDemand duty manager’ role for two days every month, as did all the other On Demand Service Delivery Managers. This role comprised of working on your assigned accounts as per a normal day, but in addition, to be on-call that same day (the role of ‘OnDemand duty manager’), and thereby take any calls from any On Demand customers who could not contact their assigned On Demand Service Delivery Manager (oSDM).

 

The Claimant performed the role of ‘OnDemand duty manager’ two days each month from September 2004 until May 2006.

 

As the Claimant was asked to perform the ‘OnDemand duty manager’ role, as were all other On Demand Service Delivery Managers, this clearly disproves the allegations made by the Respondent that the Claimant was not an On Demand Service Delivery Manager (oSDM), and to act as a point of contact should an OnDemand customer not be able to contact their assigned OSDM.

 

This also clearly disproves the allegations made by the Respondent that the Claimant had a unique role, as all On Demand Service Delivery Managers, including the Claimant, had to perform the ‘OnDemand duty manager’ role twice every month. Also, it clearly disproves the allegations made by the Respondent that the Claimant was ‘non-customer facing’:

 

The role of the OnDemand duty manager will be to act as a point of contact should an OnDemand customer not be able to contact their assigned OSDM

 

Further proof is contained in the email dated 30th September 2004, as this email disproves the allegations made by the Respondent that the Claimant was not an On Demand Service Delivery Manager (oSDM).

 

Why would the Claimant be included as a contact point in the same email that the two other On Demand Service Delivery Managers are included as a contact point?

 

Also, it is interesting to note that the Claimant is listed as the first contact out of three On Demand Service Delivery Managers.

 

The email dated 30th September 2004, also disproves the allegations made by the Respondent that the Claimant had a unique role.

 

Why would someone who had a unique role, be included in an email outlining three On Demand Service Delivery Managers to contact?

 

The email dated 30th September 2004, also disproves the allegations made by the Respondent that the Claimant was ‘non-customer facing’.

 

Why would someone who was ‘non-customer facing’, be included in an email to an Environment Agency employee, outlining three On Demand Service Delivery Managers to contact?

 

The next document which will be discussed is an organisational chart. This organisational chart is taken directly from the Respondents internal website, and shows the Claimant and the rest of the On Demand Service Delivery Manager team, 12 employees in total, in the On Demand Service Delivery Manager team including the Claimant.

 

This chart also shows the Claimant’s job title “Service Delivery Manager”, with most of the other team members having the exact same job title “Service Delivery Manager”.

 

The organisational chart also shows that the Claimant’s manager was “Phil Snowden”, and that “Phil Snowden” manager was “Nick Cooper”. This organisational chart was printed from the Respondent’s internal website on 25th April 2005, and also shows that the data was last updated on that date, so it was very up to date.

 

This organisational chart disproves the allegations made by the Respondent that the Claimant was not an On Demand Service Delivery Manager (oSDM). The organisational chart also disproves the allegations made by the Respondent that the Claimant had a unique role.

 

The email sent on 6th June 2005 shows that the Respondent was sending the Claimant on an IT Service Management training course (ITIL = Information Technology Infrastructure Library) with most of the other On Demand Service Delivery Manager (oSDM) team (10 out of 12 team members). Notice that the Claimant (Kenneth) and Richard cannot attend the same training course, as both were assigned to the Environment Agency account.

 

The email sent on 6th June 2005 disproves the allegations made by the Respondent that the Claimant was not an On Demand Service Delivery Manager (oSDM).

 

With reference to the email sent on 6th June 2005, why would there be a problem with account cover if Claimant, as alleged, had such a ‘unique’ role?

 

This problem with account cover also disproves the allegations made by the Respondent that the Claimant had a unique role.

 

The next document which the Claimant will refer to is a presentation by management (Phil Snowden, Nick Cooper) that all three On Demand Service Delivery Managers (oSDMs) assigned to the Environment Agency account were working at 100% utilisation (anything below 100% was probably due to holidays). This presentation was presented around early June 2005. Notice also that management were stating that “In excess of 70% SDM time spent managing TARs” (TAR = Technical Assistance Request, another term which is same as TAR is SR = Service Request, TAR = SR = problem raised by customer).

 

This presentation disproves the allegations made by the Respondent that the Claimant was not an On Demand Service Delivery Manager (oSDM).

 

Why would the Claimant be included in an “EA oSDM utilisation” chart, prepared by Phil Snowden (Claimant’s manager) and Nick Cooper (Claimant’s director) if the Claimant was not an oSDM?

 

The presentation also disproves the allegations made by the Respondent that the Claimant had a unique role.

 

Why would someone who had a unique role, be included in a presentation with two other On Demand Service Delivery Managers (oSDMs), comparing various job tasks?

 

This presentation also disproves the allegations made by the Respondent that the Claimant was only working on TARs (Technical Assistance Requests).

 

Why would someone who was only working on TARs (Technical Assistance Requests), be included in a presentation and chart showing utilisation, and stating that “In excess of 70% SDM time spent managing TARs”?

 

If proof was needed as to how busy the Environment Agency account was, then this presentation provides that proof. Three On Demand Service Delivery Managers (oSDMs), working full time on Environment Agency account, all three working at 100% utilisation.

 

This presentation disproves the allegations made by the Respondent that the Claimant was not overworked.

 

Why assign the Claimant to work simultaneously on another very large account (General Electric), when the Claimant, and two other On Demand Service Delivery Managers (oSDMs), are already 100% utilised full time on the Environment Agency account?

 

Please also refer to, and notice the ‘FTE Allocation’ for all On Demand Service Delivery Managers (oSDMs). The Claimant seems to be a loading/allocation of 1.0, while some of the other On Demand Service Delivery Managers (oSDMs) seem to range from 0.1 to 0.5, so why assign the Claimant to work simultaneously on another very large contract, when the Claimant is already loaded to capacity, and some of the other On Demand Service Delivery Managers (oSDMs) have loadings which are 1/10th to 5/10th of the Claimant?

 

The email dated 10th June 2005 speaks for itself really, and highlights just one TAR (Technical Assistance Request) for the Environment Agency account. This email proves just how stressful problems could be on large accounts like the Environment Agency account. The Environment Agency would have been fined £ 12,000,000 (12,000 employees times £ 1,000 per employee) for late submission of P11D by the Tax Office. One problem (Technical Assistance Request) equals £12 million fine if not solved in time. As the Environment Agency is a government organisation, this £12 million fine would probably have to have come, ultimately, out of taxpayer’s pockets.

 

The next document is a spreadsheet taken from a presentation given at one of the monthly On Demand Service Delivery Manager (oSDM) meetings. There is a lot of data in this spreadsheet, but the only data that is particularly relevant are the columns titled “£pa”, “Total No. of SRs in Last 12 months” and “Number of Open SRs”.

 

Proof of the importance of Environment Agency account is show in the “£pa” column compared to other customers. Also, both columns regarding SRs (Service Requests = problems raised by customer) titled “Total No. of SRs in Last 12 months” and “Number of Open SRs” indicate just how busy the Environment Agency account was, compared to most of the other smaller accounts.

 

This spreadsheet disproves the allegations made by the Respondent that the Claimant was not overworked.

 

The certificate is proof that the Claimant passed the ITIL (Information Technology Infrastructure Library) “Foundation Certificate in IT Service Management”, and that this certificate, having satisfied the requirements of the Information Systems Examination Board, was awarded by the British Computer Society to the Claimant on 14th September 2005.

 

This certificate disproves the allegations made by the Respondent that the Claimant was not an On Demand Service Delivery Manager (oSDM).

 

Why would the Claimant be required to sit and pass an exam on IT Service Management, if the Claimant was not an On Demand Service Delivery Manager (oSDM)?

 

The certificate also disproves the allegations made by the Respondent that the Claimant had a unique role.

 

If the Claimant had such a unique role, why is there an award by the British Computer Society, which satisfies the requirements of the Information Systems Examination Board, and which 10 out of the 12 On Demand Service Delivery Managers attended, for the Claimant’s role?

 

The Claimant only has one copy of the training material issued at the ‘IT Service Management’ course, and will now produce this for the Tribunal.

 

The next email, dated 7th October 2005, is a congratulatory email from the Claimant’s manager (Phil Snowden) to the Claimant on passing the ‘IT Service Management’ course. The important points to note with this email, are the subject, date and the person who sent the email, namely congratulations on becoming certified in ‘IT Service Management’, in October 2005, from the Claimant’s manager, Phil Snowden.

 

On the 25th November 2005, the Claimant received an email from the On Demand Service Delivery Manager (oSDM) who had just been assigned to the new General Electric account (Fran Winters). As you can see from the previous email, the Claimant had outlined to Fran Winters discussions which the Claimant had recently had with the Claimant’s manager, Phil Snowden, who was proposing that the Claimant shares the Claimant’s time between the Environment Agency account (circa £15 million), General Electric account (circa $35 million), Alfred McAlpine account (unknown value), and standard reporting for all customers.

 

Clearly, compared to all other On Demand Service Delivery Managers, the Claimant was being severely overloaded with work, when you compare account values, problems raised by customers, and also include standard reporting for all customers.

 

The email of 29th November 2005, indicates the start of the simultaneous work for the Claimant on the General Electric account and the Environment Agency account. This email only concerns work on the General Electric account, but it is interesting to note that the other On Demand Service Delivery Manager (oSDM), assigned to the General Electric account, Fran Winters, was “offloading customer” to work fulltime on the General Electric account, while the Claimant, Kenneth McAlpine was gaining another customer, namely the General Electric account, to work simultaneously on both the Environment Agency and General Electric accounts.

 

The document entitled “GE Commercial Finance – On Demand Service Delivery Cookbook”, outlines part of the role of the On Demand Service Delivery Manager (oSDM) when working on the General Electric account. Notice the emphasis on SR/TAR (Service Request and Technical Assistance Request) management, and that General Electric expects the On Demand Service Delivery Manager (oSDM) to create, regularly check and escalate SR’s/TAR’s (Service Requests and Technical Assistance Requests), one of the key functions of the role of a Service Delivery Manager, to deliver the service and minimise problems by managing problems to a prompt resolution.

 

This document also disproves the allegations made by the Respondent that only the Claimant was working on SR’s/TAR’s (Service Requests and Technical Assistance Requests).

 

The email of 1st December 2005 will become relevant shortly, but shows that a new recruit started in the On Demand Service Delivery Manager (oSDM) team on 1st December 2005.

 

Why was this new On Demand Service Delivery Manager (oSDM) not assigned to either the Environment Agency account or the General Electric account, to replace the Claimant on one of these accounts, to ease the pressure on the Claimant, so that the Claimant did not have to work simultaneously on both of these very large accounts?

 

Would this have been a reasonable adjustment to make?

 

The Claimant, early in December 2005 had begun to notice some problems with his Diabetic control, especially with passing more urine and higher than normal blood glucose readings.

 

The email 16th December 2005 marks the start of the problems for the Claimant. The background to this email is as follows: the Claimant at this time was simultaneously working on both the Environment Agency account and the General Electric account, trying to balance the workload on both of these extremely busy accounts as best the Claimant could manage. The Claimant was due to finish work on 21st December 2005, and was looking forward to some time off over Christmas to spend with his young family, and to do some Christmas shopping on the 22nd December 2005.

 

On the 16th December 2005, the Claimant was reported to his manager, Phil Snowden, for indicating that the Claimant did not wish to attend the Environment Agency monthly meeting in the Respondent’s Birmingham office, as the Claimant had commitments to make sure that there was no outstanding work for both the Environment Agency account and the General Electric account on the 21st December 2005, which would require the Claimant’s attention on the 21st December 2005, so that this work was progressed over the Christmas period.

 

The Claimant indicated to the two other On Demand Service Delivery Managers (oSDM’s) who worked on the Environment Agency account, that due to commitments to the General Electric account, the Claimant could not spend a full day, travelling to and from Glasgow to Birmingham, to attend the Environment Agency monthly meeting, especially when the Claimant was finishing up on that day for Christmas holidays.

 

The Claimant was reported to his manager by the two other On Demand Service Delivery Managers (oSDM’s) who worked on the Environment Agency account, and a conference call took place with the Claimant, the Claimant’s manager, Phil Snowden, and the two other On Demand Service Delivery Managers (oSDM’s) who worked on the Environment Agency account, Julie McFarlane and Richard Marsden.

 

A reasonably short, but argumentative conversation took place, with raised voices. Towards the end of the conference call, the Claimant requested that his manager stay on the line, as the Claimant wished to discuss a personal matter with the Claimant’s manager, Phil Snowden. At this point the two other On Demand Service Delivery Managers (oSDM’s) who worked on the Environment Agency account, Julie McFarlane and Richard Marsden left the conference call.

 

The Claimant then outlined to the Claimant’s manager, Phil Snowden, that due to conflicting workloads, of which this conference call was an example, and the Claimant’s Diabetes, that the Claimant’s manager, Phil Snowden, take the Claimant off either the Environment Agency account, or the General Electric account.

 

The Claimant further outlined work conflicts when trying to simultaneously work on both of these extremely busy accounts, particularly problems in the first ten days of the month, when the Claimant had to spend 100% of his time on producing the Environment Agency monthly report, as there was a deadline for this report of the 10th of each month, when the Environment Agency expected the report, and how would the Claimant manage to spend any time on the General Electric account during the first ten days of each month.

 

The Claimant also outlined work conflicts when attending the Environment Agency monthly meeting, as that was a full day devoted to the Environment Agency (travel and meeting), and no time for any work on the General Electric account.

 

This request was ignored, and the status quo continued. This is briefly documented in the email 16th December 2005.

 

The Claimant would now like to discuss the email of 16th December 2005 further, as the Claimant feels that certain parts of this email require further explanation.

 

The point “The above is agreed to take up 50% or less of Kenneth’s time; the remainder of Kenneth’s time is on non-EA activity – currently GE;”. This was not a reasonable adjustment, this was the status quo before and after the conference call. The Claimant had been full time on the Environment Agency (EA) account up to late November, and had been 100% utilised when working on the Environment Agency account, according to the Claimant’s manager and director. In order for the Claimant to have any time to work on another account simultaneously, the Claimant’s work had to reduce from 100% utilisation on the Environment Agency account, hence the statement “The above is agreed to take up 50% or less of Kenneth’s time; the remainder of Kenneth’s time is on non-EA activity – currently GE;”.

 

The statement “A discussion on Kenneth’s continued involvement in EA and GE took place after this conference call, and will continue”, outlines that the Claimant’s request for reasonable adjustments was ignored, and the status quo continued, with the continuing work conflicts.

 

The Claimant attended the Environment Agency monthly meeting in the Respondent’s Birmingham office on 21st December 2005, and had to spend the first day of the Claimant’s Christmas holiday, the 22nd December 2005, working to ensure that no Environment Agency or General Electric work was outstanding over the Christmas period.

 

The next document, are the meeting minutes with Nick Cooper, the Claimant’s director.

 

When the Claimant attended the Environment Agency monthly meeting in the Respondent’s Birmingham office on 21st December 2005, the Claimant was informed by Richard Marsden, one of the On Demand Service Delivery Managers (oSDM’s) who worked on the Environment Agency account, just before the Environment Agency monthly meeting was about to begin, that Nick Cooper wanted to see the Claimant after the Environment Agency monthly meeting. This meeting was not scheduled, and the Claimant will now read out the minutes that the Claimant took at Birmingham Airport, 30 minutes after this meeting had ended.

 

The Disability Discrimination Act 1995, Part II, regulation 3A(2) defines discrimination as:

 

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person

 

The Disability Discrimination Act 1995, Part II, regulation 4A further states:

 

(1) Where-

(a) a provision, criterion or practice applied by or on behalf of an employer places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

 

The Disability Discrimination Act 1995, Part II, regulation 18B further states:

 

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments-

(b) allocating some of the disabled person’s duties to another person;

© transferring him to fill an existing vacancy;

 

To summarise these three parts of The Disability Discrimination Act 1995:

 

Employers have a “duty to make reasonable adjustments”

 

Respondent was duty bound to make reasonable adjustments.

 

b. Where “a practice places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled”

 

Diabetes and work conflicts, resulting in excessive stress, resulting in high blood sugar levels (high HbA1c levels), were placing the “disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled”.

 

10. By “allocating some of the duties to another person”

 

Gina Houghton, started 1st December 2005?

Or “transferring the disabled person to fill an existing vacancy”

 

Transfer to existing vacancy found by Respondent?

 

43. By law “a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments”.

 

Discrimination, by failure to comply with a duty to make reasonable adjustments?

 

The email 10th January 2006 further indicates the problems that the Claimant was experiencing with regards to work conflicts, pressure and stress. In the initial email on 5th January 2006 at the bottom of this page, the other On Demand Service Delivery Manager (oSDM named Fran Winters) who was working on the General Electric account was asking the Claimant to “re-commence same” work on the General Electric account in 2006, as the Claimant had performed in the later part of 2005. However, this request was a double-edged sword, as Fran Winters added “be aware that I will be approaching Phil or Nick for assistance from someone else”, which was a veiled threat, adding additional pressure on the Claimant to perform the work, otherwise it would be reported to his manager or director.

 

The Claimant replied to the initial email on the 10th January 2006, outlining that the Claimant had discussed the problems that the Claimant was experiencing with Phil Snowden (Claimant’s manager) and Nick Cooper (Claimant’s director). The Claimant outlines “potential clashes with work”, and indicates in this email the work that the Claimant has to perform for the Environment Agency account in the first 10 days of each month, and further indicates to Fran Winters, that due to “time constraints” on the Environment Agency account work, if Fran Winters required help in the first 10 days of each month on the General Electric account, Fran Winters would have to inform Phil Snowden or Nick Cooper.

 

In Fran Winters email reply on 10th January 2006 to the Claimant, there is no indication that Fran Winters had discussed this with Phil Snowden or Nick Cooper, but still expected the Claimant to perform work on the General Electric account in the first 10 days of each month, even although the Claimant had previously outlined that the Claimant did not have any time in the first 10 days of each month to perform General Electric account work, due to the Claimant’s commitments to the Environment Agency account.

 

To try and make a comparison as to what was being asked of the Claimant with regards to work, the Claimant will try and use a current topical example. What the Respondent was asking the Claimant to do in the first 10 days of each month, was equivalent to a member of a tribunal sitting at one extremely large and complex full tribunal, while simultaneously writing notes and judgements for another, completely different, extremely large and complex full tribunal, at the same time.

 

The Claimant would now like to briefly discuss the email 13th January 2006. This email will be discussed later.

 

The email 13th January 2006 makes references to “ITIL” and the Respondents move towards “ITIL framework, and bring our operations in line with “best in class” operational practices”, ITIL being the IT Infrastructure Library, and to which the Claimant became qualified in during September 2005.

 

With the Claimant’s selection for redundancy (30th May 2006) and subsequent redundancy (10th July 2006) in mind, the presentation given by Phil Snowden (Claimant’s manager) and Nick Cooper (Claimant’s director) at one of the On Demand Service Delivery Manager (oSDM) Monthly Meetings is interesting.

 

This presentation in Document 33 shows that around October 2005 (the earliest date that this presentation must have been prepared, “FY06 QTR2”, FY06, the Claimant believes, runs from April 2005 to March 2006, and QTR2 is months July, August, September, hence earliest date that this presentation must have been prepared was around October 2005), Phil Snowden (Claimant’s manager) and Nick Cooper (Claimant’s director) reported in this presentation that there were 12 On Demand Service Delivery Managers (oSDMs), the Claimant was classified as “OD Service Delivery Managers”, as the time period referenced by “FY06 QTR2” was July, August and September 2005, that the 12 “OD Service Delivery Managers” were the 12 listed in which was discussed earlier, is dated 25th April 2005, and that according to the Respondent’s Disability Discrimination Act response, no On Demand Service Delivery Managers (oSDMs) were started from when Document 14 was saved (25th April 2005) to the time period in the presentation in Document 33 refers (July, August and September 2005).

 

It is also interesting to note from the presentation in Document 33, that “Net ” in On Demand Service Delivery Managers (oSDMs) is “-3”, allowing for one new start in December 2005, Gina Houghton, but that in the time period up to the end of March 2006, the Respondent never started any other On Demand Service Delivery Managers (oSDMs), still leaving a “Net ” in On Demand Service Delivery Managers (oSDMs) of “-3”.

 

Was there ever a redundancy situation?

 

The email 23rd January 2006 is with reference to the meeting minutes of the meeting with Nick Cooper (Claimant’s director) contained in Document 27. Towards the end of this meeting, the Claimant stated that the Claimant would leave the role of On Demand Service Delivery Manager (oSDM), and Nick Cooper (Claimant’s director) agreed “that I would continue in the role in the meantime, until I was transitioned out of the role”, which did not help the Claimant, as the Claimant’s health and diabetes was suffering, and would continue to suffer the longer the Claimant worked in the role of On Demand Service Delivery Manager (oSDM) with the Claimant’s particular workload.

 

The Claimant, due to the Claimant’s health and diabetes suffering, started to look for internal roles within the Respondent at the start of January 2006, straight after the Christmas and New Year holiday. After returning from the Christmas and New Year holiday, and dealing with emails and work that had accumulated over the holiday period, and also compiling the Environment Agency monthly report, the first chance the Claimant got to write and send an email to Human Resources was 19th January 2006. In this email, the Claimant did not wish to disclose to the whole Human Resources team (hrteam_uk) the private matters of the Claimant’s diabetes and health concerns.

 

Just over a month passed, and Human Resources had not contacted the Claimant at all regarding any new role.

 

On the 27th February, the Claimant had identified two possible internal roles within the Respondent, and applied to Human Resources regarding both internal roles.

 

The email of 1st March 2006 indicates just how well the Respondent was doing in the business sector in Scotland. In the middle of this email it states:

 

“…AMBS. This is now the second major On-Demand win in Scotland in 9 months”

 

If there were two “major” On-Demand contracts in Scotland, why was the Claimant never reassigned to one of these new contracts, especially as the Claimant was experienced in working on large contracts, and lived in Scotland?

 

Why was the Claimant living in Scotland, but working on contracts in the South of England?

 

Does it make any sense to make an On Demand Service Delivery Manager (oSDM) redundant, who lives in Scotland, when there were two “major” On-Demand contract wins in Scotland in the last 9 months, and especially when around 80% of the On Demand Service Delivery Managers (oSDMs) live in England, and the Respondent is looking for all On Demand Service Delivery Managers (oSDMs) to be more customer facing?

 

The expenses statement submitted on 20 February 2006, is an extremely strange situation, and requires further explanation by the Respondent.

 

The Claimant was due to attend the Environment Agency monthly meeting on 23rd January 2006, and had a return flight booked from Glasgow Airport to Birmingham Airport return. However, when the Claimant arrived at Glasgow Airport, the Claimant was informed at the check-in desk that there was no booking for the Claimant, and when the Claimant further inquired at the booking desk, the Claimant was informed that the booking had been cancelled, and when the Claimant asked who had cancelled the booking, the booking desk called the travel company, but no-one could tell the Claimant, as the booking had been removed.

 

With reference to the American Express (AMEX) February 2006 statement, it is apparent that the Claimant was at Glasgow Airport, as there is an entry for “09-Feb-06” which states “NCP Glasgow”, the AMEX date is not the date that the expense was incurred. This expense of £1.50 should have appeared on the Expense Report in the email 5th March 2006, under Corporate Credit Card Expenses, however, it does not.

 

In the Expense Report “Line 2” under “Cash and Other Expenses”, the entry states “23-Jan-2006, Mileage Car Allow-All, Seamill to Glasgow Airport return”, this is not correct, who changed this expenses statement, as “Line 2” should have been under “Corporate Credit Card Expenses”, and should have stated “09-Feb-2006, Car Parking UK, N C P”, and the Amount should have been £1.50.

 

The Claimant could not have entered this expense incorrectly, as any “Corporate Credit Card Expenses” are automatically uploaded from the American Express (AMEX) system, so someone within the Respondent must have manually changed this expense, and moved it from “Corporate Credit Card Expenses” to “Cash and Other Expenses”.

 

Why did someone at the Respondent change this expense, and for what reason?

 

In the five American express (AMEX) statements, the statement for February 2006 confirms that the automatic entry on the Oracle expenses system should have been “09-Feb-2006, Car Parking UK, N C P” and that the amount should have been £1.50 (February 2006 AMEX statement, entry for 09-FEB-06, N C P GLASGOW, £1.50). The date on the American Express statement does not correspond to the actual date of the expense, and can be up to one month out of date.

 

The five American Express statements also confirm that the Claimant did not fly at all in 2006, and this will become important when the Claimant starts to discuss the Respondent’s reply to the Disability Discrimination Act Questionnaire.

 

 

[]Chapter 11

 

Day 1 – Afternoon

 

The email 10th March 2006 shows just how important the General Electric account is to the Respondent, and indicates just how stressful it was to work on this account:

 

“This engagement is a global programme being piloted in the UK”

 

“GE are a very demanding and large customer”

 

In terms of market capitalization, G.E. is the world’s second largest company. Source: Wikipedia.

 

“whom have quarterly con call reviews with Larry Ellison as Exec Sponsor”

 

“Larry Ellison is the co-founder and CEO of Oracle Corporation, a major database software company. Forbes listed Ellison’s 2005 net worth as $18.4 billion, making him one of the richest people in America, and the ninth richest man in the world. For a short period in 2000, Ellison was the richest man in the world.“

Source: Wikipedia.

 

Also notice that this email states “If you are contacted and need some SDM assistance then Kenneth McAlpine has kindly agreed to assist”.

 

The document titled “01 June 2007” was received by the Claimant, via email, in March 2006, and discusses the results achieved in the past year (April 2005 to March 2006).

 

Some of the notable quotes from this document are:

 

“the closure of 5 world class On Demand Deals in Q4”

 

“expecting to see an OD/ACS base of $55M, amazing given our exit position in FY06 was $36M”

 

“Oracle Support/On Demand being the most exciting place to work in Oracle”

 

Does this hint at a redundancy situation?

 

Does this hint at a dynamic, growing and vibrant Line of Business (LOB) to work in?

 

The email 28th March 2006 counters the following claims made by the Respondent:

 

  • Counters any claims that Claimant was not an oSDM.

 

How could the Claimant be asked to perform the “OSDM – Duty Manager” two days every month, the exact same request and frequency made to all On Demand Service Delivery Managers (oSDMs), if the Claimant was not an On Demand Service Delivery Manager (oSDM)?

 

  • Counters any claims that Claimant had a ‘unique’ role.

 

How could the Claimant be asked to perform the “OSDM – Duty Manager”, which covers for all On Demand Service Delivery Managers (oSDMs) and their customers, if the Claimant had a ‘unique’ role?

 

  • Counters any claims that Claimant was ‘non-customer facing’.

 

How could the Claimant be asked to perform the “OSDM – Duty Manager”, which covers contact for all On Demand customers in case any On Demand customer cannot contact their On Demand Service Delivery Manager (oSDM), if the Claimant had a ‘non-customer facing’ role?

 

The email 12th April 2006, describes, in the Claimant’s opinion, the exact reason why the Claimant was selected for redundancy (30th May 2006) and made redundant (10th July 2006).

 

If the email 12th April 2006, is analysed, it reveals the following:

 

“to allocate Kenneth to a new customer account. It has been some time since Kenneth attended the OnDemand Lifecycle training, and he has not been involved, due to his current engagement with EA and GE, in the initialisation process, which is vital to establish the initial customer environments. This would be quite a risk to the account at an early stage, It would also take a lot of support from another SDM during this phase.”

 

This would apply to any new On Demand Service Delivery Manager (oSDM), and the Respondent has started 6 new On Demand Service Delivery Managers (oSDMs) since the Claimant joined the On Demand Service Delivery Manager (oSDM) team, and a further 5 new On Demand Service Delivery Managers (oSDMs) since the Claimant was made redundant.

 

The Claimant has attended the OnDemand Lifecycle training, most or all new starts would not have attended this training.

 

The Claimant would also have had 2 years experience of large accounts, new starts would have had no experience, and hence, would have required more than a lot of support from another SDM.

 

“to allocate Kenneth to an existing customer account to replace an existing SDM. This is probably the least risk option, but would involve a prolonged handover so that Kenneth could get a good understanding of the account and the services that are being delivered to the customer. Any capability process could probably only commence once Kenneth was fully delivering to the customer following the extended handover.”

 

Again, this would apply to any new On Demand Service Delivery Manager (oSDM), and the Respondent has started 6 new On Demand Service Delivery Managers (oSDMs) since the Claimant joined the On Demand Service Delivery Manager (oSDM) team, and a further 5 new On Demand Service Delivery Managers (oSDMs) since the Claimant was made redundant.

 

The Claimant was, at this time, working on some of the largest accounts, so the services would, in most or all comparisons, have been more than the smaller accounts.

This only leaves:

 

“With either option, there is the possibility of Kenneth raising the health/stress issue that he discussed with me in December – the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness.”

 

This ‘statement’ will be discussed further with regards to The Disability Discrimination Act 1995.

 

First, and foremost, the wording “With either option” is extremely important, as this seems to be the dominant reason for making the Claimant redundant, above any other so called reason.

 

The wording “raising the health/stress issue that he raised with me in December” is also extremely important, as it directly links the Claimant’s request for reasonable adjustments to the Claimant’s selection for redundancy and redundancy. This sets a dangerous precedent to any disabled person who requests a reasonable adjustment, if you request a reasonable adjustment, it will be held against you, and you will be made redundant.

 

However, what is the most offensive statement in this paragraph is “the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness.”

 

Firstly, the Claimant does not have high blood pressure.

 

Secondly, only 30% of Type 1 Diabetics have high blood pressure (as a comparison, 25% of middle-aged people have high blood pressure).

Source: Patient UK (patient.co.uk)

 

Has the Respondent dismissed one quarter (25%) of its middle-aged workforce for having high blood pressure?

 

I will go on the assumption that it has not, in which case, the dominant reason for making the Claimant redundant must be the Claimant’s Diabetes.

 

The email 13th April 2006, states:

 

“As Kenneth is on the RIF list, I want to make sure we are not making matters more complicated by trying to bring him back into a customer facing role, which might lead him to go offsick again”

(RIF = Reduction In Force)

 

The term “offsick again” is immensely insulting remark to make about the Claimant, especially when, as outlined by the Respondent in the Respondent’s ET3 Response Form:

 

“during the period July 2004 to June 2005, the Claimant took just two days’ sick leave”

 

Ask the Respondent how many days sick leave the Claimant took, over the 8 years that the Claimant worked for the Respondent (the ‘average’ employee would have taken 8× 10 = 80 days sick leave over an 8 year period)?

 

This raises a fundamental question:

 

Did the Respondent even bother to check the Claimant’s attendance record before selecting the Claimant for redundancy (30th May 2006), and making the Claimant redundant (10th July 2006)?

 

The email 13th April 2006 further states:

 

“It might be more appropriate to action redundancy from the role he is currently doing (ie: no requirement for back office in the OSDM team). I have no timescales for when redundancies will be actioned at the moment, but assume it will be anytime around end FY06/beginning FY07.”

 

The statement “It might be more appropriate to action redundancy from the role he is currently doing” seems to confirm that the redundancy of the Claimant was a ‘sham’. A made up reason, for a made up redundancy?

 

It also confirms that the real reason for the redundancy was the Claimant’s disability, as the prelude to the above paragraph was the Claimant’s misconceived poor attendance, and so called potential for future misconceived poor attendance. Nothing else was discussed in this email, nothing else.

 

The Disability Discrimination Act 1995, Part II, regulation 3A(5) defines direct discrimination as:

 

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

 

The Disability Discrimination Act 1995, Part II, regulation 4(2)(d) further states:

 

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs-

(d) by dismissing him, or subjecting him to any other detriment.

 

The Disability Discrimination Act 1995, Part II, regulation 3A(1) also states:

 

(3A) Meaning of “discrimination”

(1) For the purposes of this Part, a person discriminates against a disabled person if-

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

 

To summarise these three parts of The Disability Discrimination Act 1995:

 

Direct Discrimination

 

Employers “directly discriminates against a disabled person”, if “on the ground of the disabled person’s disability” (Type 1 Diabetes), “he treats the disabled person less favourably” (Selection for redundancy (30th May 2006), Redundancy (10th July 2006)), “than he treats or would treat a person not having that particular disability” (Any employee without diabetes), “whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.” (Any employee without diabetes, especially new On Demand Service Delivery Managers (oSDM’s), but with raised blood pressure).

 

To determine direct discrimination, the main question here is:

 

Would the Respondent have dismissed any other employee without diabetes, especially new On Demand Service Delivery Managers (oSDM’s), but with raised blood pressure.?

 

If the answer is yes, then it is not direct discrimination, but please bear in mind that 30% of people have high blood pressure, including, but not specifically limited to, overweight people, and any employee that has had perhaps a bad day, a pressurised day, or a bad drive to work.

 

If the answer is no, then the Respondent has directly discriminated against the Claimant in particular, and diabetes in general.

 

Disability Related Discrimination

 

“for a reason which relates to the disabled person’s disability”

 

It is extremely unlikely that the Respondent has discriminated on the grounds that it was related to disability (disability related discrimination), as only 30% of diabetics have high blood pressure, and this is very similar to the number of people with high blood pressure who do not have diabetes, so the reason cannot be deemed to relate to the disability.

 

The email 20th April 2006, is simply an astonishing email to send out 12 days after discussing and deciding to select the Claimant for redundancy and make the Claimant redundant. To summarise the contents of this email:

 

Three new On Demand Service Delivery Managers (oSDMs) starting in the On Demand Service Delivery Manager (oSDM) team over the next few weeks.

 

The term “and if capacity allows” is used with respect to the new On Demand Service Delivery Manager (oSDM) “Mark Jones”, whose sole work, with regards to his new role as an On Demand Service Delivery Manager (oSDM), was to work full time on the Environment Agency account.

 

It is also interesting to note that the new On Demand Service Delivery Manager (oSDM) “Amanda Frisoli”, is only to be “assigned to one of the current pipeline accounts”.

 

The email 25th April 2006, is written by an On Demand Service Delivery Manager (oSDM), Margaret Shawcross, who works in the same On Demand Service Delivery Manager (oSDM) team as the Claimant. In summary, this email is complaining about the amount of time On Demand Service Delivery Managers (oSDMs) spend escalating customer problems (TAR = SR = problem raised by customer). Some of the statements in this email which are very relevant to this claim are:

 

“reason why we oSDM’s are forced to spend so much of our time in SR chasing – spending less and less time talking with and being out with, our customers”

 

“Most SDM’s did not take on the role to spend their lives forever “Tar Chasing””

 

“escalation places a very onerous additional work load on the SDM

 

This seems to contradict the Respondent’s claim that On Demand Service Delivery Managers (oSDMs) were to be more customer facing, how can On Demand Service Delivery Managers (oSDMs) be more customer facing, when one On Demand Service Delivery Manager (oSDM) is clearly stating “forced to spend so much of our time in SR chasing – spending less and less time talking with and being out with, our customers”

 

The Environment Agency account alone, accounted for over a third of all SR’s that the whole On Demand Service Delivery Manager (oSDM) team dealt with each year.

 

The email 28th April 2006, discusses “the CIM (Customer Incident Manager) role – this is the new name for the affinity engineer”.

 

Is the Respondent trying to honestly say that this was the role the Claimant was performing?

 

On the 28th April 2006, the Claimant received an email regarding another internal role the Claimant had identified.

 

The email 26th May 2006, suggests that the On Demand Service Delivery Manager (oSDM) team were not aware of any redundancy situation:

 

“the SDM meeting in July and the event afterwards? I need to confirm names and numbers.”

 

The above statement in the email was with reference to the SDM monthly meeting, which took place every month, and the “event afterwards” was “GoApe people will be preparing meals for us as part of the afternoon event on 4th July, a picnic lunch and BBQ in the evening”.

 

Obviously the On Demand Service Delivery Manager (oSDM) team were preparing for party mode at this time, and not in a selection for redundancy mode.

 

Was a fair selection procedure ever used for redundancy?

 

The email 27th May 2006, shows that the Claimant was still being assigned to other accounts (for the purpose of performing the OSDM – Duty Manager role) by one of the other On Demand Service Delivery Managers (oSDMs).

 

Why was this, especially when the Claimant was due to be notified for selection for redundancy in 3 days?

 

On 25th May 2006 the Claimant received a phone call from Phil Snowden (Claimant’s Manager) to attend a meeting on 30th May 2006 in the Respondent’s Edinburgh office with William Gemmell. No reason was given for this meeting.

 

William Gemmell was not the Claimant’s manager, or director, and had no direct relationship with the Claimant in the employee hierarchy.

 

At the meeting with William Gemmell on 30th May 2006, the Claimant was informed that the Claimant had been selected for redundancy, “As a consequence of a global business re-alignment”, a very vague, cover all type statement. The Claimant was informed by William Gemmell that the Claimant could not ask any questions as William Gemmell would not be able to answer any questions due to William Gemmell not having any direct relationship with the Claimant in the employee hierarchy, and was also informed, that to save on flights, William Gemmell had been tasked with informing the Claimant of his selection for redundancy at the Edinburgh office.

 

William Gemmell also informed the Claimant that Catherine Temple in HR had been assigned to help the Claimant through the selection for redundancy period, and that the Claimant should contact Catherine Temple soon.

 

Unknown to the Claimant at this time, but Catherine Temple in HR was the person who stated in Document 44:

 

“As Kenneth is on the RIF list, I want to make sure that we are not making matters more complicated by trying to bring him back into a customer facing role, which might lead him to go offsick again.

 

It might be more appropriate to action redundancy…..”

 

The single most wrong person to “help you with your consultation process and internal job search” for the Claimant, but the single best person to make sure that the Claimant was made redundant.

 

The next document which will be discussed is an organisational chart. This organisational chart is taken directly from the Respondents internal website, and shows the On Demand Service Delivery Manager (oSDM) team on the date that the Claimant was selected for redundancy.

 

Note 14 On Demand Service Delivery Managers (oSDMs) , containing two out of the three new starts outlined in the email, Document 48, so 14 On Demand Service Delivery Managers (oSDMs) on 30th May 2006, the date the Claimant was selected for redundancy, with one On Demand Service Delivery Manager (oSDM) due to start in two days,

 

1st June 2006, Mark Jones, who is not listed. This would result in 15 On Demand Service Delivery Manager (oSDM) in the team, on 1st June 2006, but the presentation in Document 33 stated that the headcount should be 18, so the team is 3 On Demand Service Delivery Managers (oSDMs) short, as of 1st June 2006.

 

Redundancy situation?

 

The email 31st May 2006, indicates that the “OSDM – Duty Manager” role (each On Demand Service Delivery Manager (oSDM) due to perform this duty 2 days every month) is short by 2 days in June 2006, and 1 day in July 2006, even including the Claimant in this roster.

 

Why was Amanda Frisoli not included in “OSDM – Duty Manager” roster?

 

Even although Amanda Frisoli was a new start, Amanda Frisoli should have been able to perform the “OSDM – Duty Manager” role?

 

The document, was the Provisional redundancy document sent by Catherine Temple to the Claimant on 31st May 2006, and referred to in Document 63, which states:

 

“I have tried to summarise in the attached document….”

 

Notice the following statements in this document:

 

“Please confirm the benefits (Select, Pension, share scheme, etc…) you have selected and I can explain what happens to them.”

 

“If you require any more information on the package please let me know.”

 

Again, also notice that everything had to go through Catherine Temple in HR, the person who stated:

 

“As Kenneth is on the RIF list, I want to make sure that we are not making matters more complicated by trying to bring him back into a customer facing role, which might lead him to go offsick again.

 

It might be more appropriate to action redundancy…..”

 

The email 2nd June 2006, states that the Claimant had been assigned to some “Admin” project.

 

Was this a project for employees being made redundant?

 

Why was the Claimant assigned to this project so quickly, on 2nd June 2006, 3 days after being selected for redundancy?

 

The email 2nd June 2006, shows that the Claimant was still being assigned to other accounts “BSM Group PLC” (for the purpose of performing the OSDM – Duty Manager role) by one of the other On Demand Service Delivery Managers (oSDMs).

 

Why was the Claimant being assigned to these accounts, especially when the Claimant had been notified for selection for redundancy 3 days ago?

 

Why was the Claimant being assigned to any other projects, when the Claimant had just been assigned to some “Admin” account?

 

The Claimant received a phone call from Phil Snowden (Claimant’s manager) on 5th June 2006 at around 10:20am requesting that the Claimant produce the Environment Agency monthly report in June 2006 for the period May 2006.

 

The Claimant indicated that the Claimant had started the Environment Agency monthly report for May 2006, on the 1st June 2006, and had completed around 2 days work on the Environment Agency monthly report.

 

The email 5th June 2006, was an email requested by the Claimant from Phil Snowden (Claimant’s manager), requesting a summary of the phone call that the Claimant received from Phil Snowden (Claimant’s manager) on 5th June 2006 at around 10:20am.

 

As the Claimant had been selected for redundancy, the Claimant wanted to check with HR whether performing the Environment Agency monthly report was acceptable, or could be deemed as customer contact, which was not acceptable to employees who had been selected for redundancy.

 

Interesting statements made by Phil Snowden (Claimant’s manager) regarding the Environment Agency monthly report, are:

 

“the request is to produce the monthly report for Environment Agency (EA) for May 2006, as you have been doing in previous months.”

 

The Claimant received an email from Catherine Temple in HR on 6th June 2006, stating that the Claimant was not required to complete the Environment Agency monthly report, and this work was handed over to Mark Jones, who was a new On Demand Service Delivery Manager (oSDM) who started on 1st June 2006.

 

The Disability Discrimination Act 1995, Schedule 3, Part 1, regulation 3(3)(b) further states:

 

3.-

(1) An employment tribunal shall not consider a complaint under section 17A or 25(8) unless it presented before the end of the period of three months beginning when the act complained of was done.

 

(3) For the purpose of sub-paragraph (1) –

(b) any act extending over a period shall be treated as done at the end of that period;

 

To summarise this part of The Disability Discrimination Act 1995:

 

  • The Court of Appeal in Hendricks v Commissioner of Police of the Metropolis [2002] IRLR 96 defined “any act extending over a period of time” as “an ongoing situation or a continuing state of affairs”.

 

  • The Court of Appeal in Hendricks v Commissioner of Police of the Metropolis [2002] IRLR 96 on time limits, states “The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.”

 

The questions for the failure to make reasonable adjustments part of this claim, are as follows:

 

Does the Environment Agency monthly report constitute “a succession of unconnected or isolated specific acts”?

 

Does the Environment Agency monthly report constitute “an ongoing situation or a continuing state of affairs”, which is an act extending over a period of time?

 

The Employment Act 2002 (Dispute Resolution) Regulations 2004, states:

 

“Application of dismissal and disciplinary procedures

3. – (1) Subject to paragraph (2) and regulation 4, the standard dismissal and disciplinary procedure applies when an employer contemplates dismissing or taking relevant disciplinary action against an employee.”

 

Paragraph (2) and regulation 4 do not apply to this dismissal.

 

“Application of the grievance procedures

6. –

(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.”

 

The statutory grievance procedure does not apply.

 

“Failure to comply with the statutory procedures 12. – (1) If either party fails to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then, subject to paragraph (2), the non-completion of the procedure shall be attributable to that party and neither party shall be under any obligation to comply with any further requirement of the procedure.”

 

DISMISSAL AND DISCIPLINARY PROCEDURES

CHAPTER 1

STANDARD PROCEDURE

 

Step 1: statement of grounds for action and invitation to meeting

 

1 (1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

 

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

 

In Step 1, the Respondent did not “send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter”. The Respondent did not follow any of “Step 1: statement of grounds for action and invitation to meeting”.

 

Step 2: meeting

 

2 (1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

 

(2) The meeting must not take place unless-

(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

(b) the employee has had a reasonable opportunity to consider his response to that information.

 

(3) The employee must take all reasonable steps to attend the meeting.

 

(4) After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

 

In Step 2, the Respondent did not follow any of the above procedures, as the Claimant was informed of the Claimant’s selection for redundancy at the meeting on 30th May 2006, the Respondent had not previously informed the Claimant of the basis or grounds, the Claimant never had any opportunity for a considered response.

 

The Respondent failed:

 

“ to comply with a requirement of an applicable statutory procedure, including a general requirement contained in Part 3 of Schedule 2, then, subject to paragraph (2), the non-completion of the procedure shall be attributable to that party”

 

As such, the Claimant, as a party:

 

“neither party shall be under any obligation to comply with any further requirement of the procedure.”

 

In Summary, the Respondent did not follow any of the statutory dismissal procedure, and as such, the Claimant was not “under any obligation to comply with any further requirement of the procedure”.

 

The Claimant had been feeling extremely unwell since the beginning of June 2006, and was admitted straight from the Claimant’s local GP Practice direct to Accident and Emergency at Crosshouse Hospital in Kilmarnock. The Claimant received a sick line from his local GP Practice that covered most of June 2006.

 

The email 7th June 2006, outlines the discussions that the Claimant had with Catherine Temple. To summarise this email trail, the Claimant called Catherine Temple on the date the Claimant was selected for redundancy, 30th May 2006. Catherine Temple wanted further contact to be via phone calls, but the Claimant indicated that the Claimant wanted all further contact to be via email, as email is in writing, and therefore everything is documented. Note the following statements in the middle of this email trail:

 

“some of the areas that require immediate actions”

 

“I will send by post copy of your Compromise Agreement and Leaver’s checklist tomorrow morning.”

 

“Bill Gemmell will be your contact regarding returning your equipment.”

 

The “some of the areas that require immediate actions” were contact details and benefits (including pension, shares, etc), which Catherine Temple of HR requested that I fill in immediately. This seems to contradict the statement that the Respondent made in Document 77, end of section 6.2):

 

“The only questions raised by the Claimant during the redundancy consultation process related to the severance payments payable…on continuing benefits provided by the Respondent.”

 

As stated in the email, it was the Respondent who required immediate information on severance payments and benefits, in order to calculate the final redundancy payment (eg: benefits paid for, but not taken in the remaining period).

 

Also notice how quickly the Respondent was sending out the Compromise Agreement and Leavers checklist, 2 days after being selected for redundancy, and informing the Claimant of who to return equipment to, again only 2 days into the selection for redundancy period.

 

Even although the Respondent did not follow any of the statutory dismissal procedure, and as such, the Claimant was not required to comply with any further requirement of the procedure, the Claimant still put in writing in this email two questions regarding the Claimant’s selection for redundancy, because the Claimant had to try and determine “why the Claimant” and “how many people in the Claimant’s team were selected for redundancy”. Even at this point, the Respondent did not provide anywhere near satisfactory answers (ie: to the question “how many”, the response given was “we do not share this information with individual employees”).

 

The letter dated 24th August 2006, is a letter sent by one of the Claimant’s Diabetic Consultants at the Diabetes Centre in the Glasgow Royal Infirmary (Dr Russell Drummond, Specialist Registrar), to one of the Claimant’s General Practitioners (GP) at the Saltcoats Health Centre, the Claimant’s local GP surgery.

 

Dr Russell Drummond, Specialist Registrar, is obviously concerned enough with the “deteriorated” “glycaemic control” of the Claimant to write this letter to the Claimant’s GP. The Claimant’s “glycaemic control” (HbA1c levels) have: “deteriorated from his previous position when he ran an HbA1c of approximate 7.0%, where he is now approximate to 9.0%”

Dr Russell Drummond, Specialist Registrar, quite clearly links the reason for the deterioration to:

 

“This gentleman is having a terrible time with job issues. He had a lot of stress at work and he has now been dismissed, which is now pending a tribunal. During this period his glycaemic control has deteriorated….”

 

The Claimant will show that there is a medically proven link, as stated above, between stress and HbA1c levels in Diabetes. This will be discussed in much more detail in Document 82.

 

This increase in the HbA1c level does not sound too much, however it is an additional increase in glucose in the blood of almost 30% (9% - 7% = 2% increase on normal levels of 7% which equates to 29% increase). This increase and the potential future medical problems will now be discussed in much more detail.

 

The document, entitled “The ABCs of Hemoglobin A1c Testing” is a web page which is taken from the “United States Department for Veteran Affairs” a part of the United States of America government, and which explains the facts on the importance of HbA1c testing for Diabetes. Some of the key text in this web page is as follows:

 

“The hemoglobin A1c test (also called H-b-A-one-c) is a simple lab test that shows the average amount of sugar (also called glucose) that has been in a person’s blood over the last 3 months.”

 

“It is the best test for a health care provider to tell if a person’s blood sugar is under control.”

 

“The findings of a major diabetes study, the Diabetes Control and Complications Trial (DCCT), have shown just how important the hemoglobin A1c test is.”

 

“The study showed that lowering the hemoglobin A1c number can delay or prevent the development of serious eye, kidney, and nerve disease in people with diabetes.”

 

“The hemoglobin A1c goal for people with diabetes is less than 7 percent. The DCCT findings showed that people with diabetes who keep their hemoglobin A1c levels close to 7 percent have a much better chance of delaying or preventing diabetes problems that affect the eyes, kidneys, and nerves than people with hemoglobin A1c levels 8 percent or higher.”

 

“Common causes of high blood sugar include ….stress”

 

During the period the Claimant had good HbA1c levels (7%) and bad HbA1c levels (9%), the Claimant had not changed his diet, had not changed the amount of physical activity, had not changed any medicines, and was not suffering from any prolonged infection or illness (the infection or illness would have to have lasted over a period of some 1.8 years, from November 2005 to now).

 

This only leaves “stress” as the last remaining cause, and the Claimant has certainly been subject to stress, both when working for the Respondent, and subsequently after the Claimant’s dismissal.

 

The document, entitled “Complications of Diabetes” is a web page which is taken from the “West Suffolk Diabetes Service” an NHS Trust. Important statements in this web page are:

 

“The risk of complications is not linear!

 

With increasing haemoglobin A1c the risk of complications of diabetes tends to rise disproportionately.

 

As you can see from the graph the risk of complications increases substantially with a small increase in HbA1c of 1%.”

 

Taking into account the previous discussions in this document and the previous document, with regards to the Claimant, and from the period November 2005 to August 2006, and as a result of the redundancy and alleged discrimination, continuing through to present day, what can be deduced from these statements is:

 

  • Period November 2005 to August 2006

* Claimant’s average HbA1c levels increased from 7% to 9%.

  • This results in a 5 fold increase in the risk of complications.

  • Which means that the Claimant risk of developing serious diabetes problems that affect the eyes, kidneys, and nerves has increased 5 fold.

 

The Claimant’s ET1 – Online claim to an Employment Tribunal, states the following:

 

Section 5: Unfair dismissal or constructive dismissal

 

Failure to follow dismissal and redundancy procedures.

 

No consultation with myself what so ever.

 

Telephone call to advise me to attend a meeting with a Manager (not my Manager) on 30th May 2006, no reason given. At that meeting, given a provisionally selected for redundancy letter dated 30th May 2006. Dismissal from a team of people performing very similar work, I was the 7th longest serving team member, in a team of around 14 people, the latest recruit to the team started on 1st June 2006.

 

Section 6: Discrimination

 

Discrimination: Disability

 

Discrimination incidents:

 

Phonecall with Phil Snowden 16th December 2006, raised my concerns over my workload, stress levels and diabetes.

 

Meeting on 21st December 2006 with Nick Cooper, again, raised my concerns over my workload, stress levels and diabetes.

 

The approximate value of normal contracts for our team was normally less than £0.5m, most team members worked on two or three of these contracts simultaneously. I was working on two contracts simultaneously with a value of approximately

 

£15m and £20m, although there was one additional team member assigned to work on each contract, but whatever way you split the contract value, I had the largest value.

 

No reduction in workload until I was selected for redundancy on 30th May 2006.

 

Loss of diabetic control over subsequent months.

 

After 30th May 2006, handover of some work (email from Phil Snowden on 5th June 2006) to Mark Jones, who was recruited to the team on 1st June 2006 (email from Phil Snowden 20th April 2006).

 

During June, I was admitted to Accident and Emergency Department of local hospital for 4 days, with a temperature in excess of 100F. My GP had diagnosed that I had ketones due to my diabetes, and because I was so run down, I had contracted a viral infection and a fever.

 

After my selection for redundancy period had expired, I was made redundant on 28th June 2006.

 

Email from Phil Snowden on 5th June 2006 is Document 60.

Email from Phil Snowden on 20th April 2006 is Document 48.

The Claimant was due to be made redundant officially on 28th June 2006, but due to illness and hospital, was made redundant on 10th July 2006.

 

The document, entitled “Oracle posts 29% Q1 profit jump” is a web page which is taken from the “San Francisco Business Times” a newspaper from the Respondents worldwide headquarters. Important statements in this web page, which cover the Q1 period 1st April 2006 to 30th June 2006 are: 19th September 2006 Oracle posts 29% Q1 profit jump

 

From 1st April 2006 to 30th June 2006, Oracle posts 29% Q1 profit jump.

From 1st April 2006 to 30th June 2006, Oracle Services revenue up 33% in Q1.

 

The Claimant worked in the On Demand Service Delivery Manager team, which was part of Support Services.

 

The document, entitled “The Disability Discrimination Act 1995 s56(2)(a) Complainant’s questionnaire” is a document which the Claimant can send to the Respondent to question the Respondent regarding the alleged discrimination, The Disability Discrimination Act 1995, states, regarding this questionnaire, in section 56(2)(a):

 

(2) The Secretary of State shall, with a view to helping the complainant to decide whether to make a complainant against the respondent and, if he does so, to formulate and present his case in the most effective manner, by order prescribe—

 

(a) forms by which the complainant may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant;

 

This document, “The Disability Discrimination Act 1995 s56(2)(a) Complainant’s questionnaire”, was sent to the Respondent on 21st September 2006.

 

The document, entitled “Delivered” is a web page which is taken from the Royal Mail web site, and which states that “The Disability Discrimination Act 1995 s56(2)(a) Complainant’s questionnaire” was delivered to the Respondent on 22nd September 2006 at 10:50am.

 

The document, is the Respondent’s “ET3 Response Form”. The Claimant would now like to go through the 8 pages of this document in brief detail, as the Claimant has no wish to bore the Tribunal picking out every single untruth contained in this lengthy version of events.

 

First, one glaring error. In subsequent documents the Respondent makes numerous references to the Claimant having a ‘unique role’. The words ‘unique role’ are not used once in the eight pages that comprise the ET3. This seems very strange, as the Respondent’s ET3 document is the main document to refute the Claimant’s claim.

 

The Respondent states numerous times in the ET3 document that according to the Respondent, the Claimant had a ‘non customer-facing role’, if this was true, can the Respondent explain the following:

 

* With reference to Document 118, why did the Claimant’s mobile phone charges for only outgoing calls increase from around £15 per month previous to July 2004, to around £60 per month (a 400% increase) after July 2004 (July 2004 was when the Claimant started work on the Environment Agency account), who was the Claimant calling many, many times, if it was not the Environment Agency customer?

  • As outlined in the discussions on Document 84, why did the Claimant attend the Environment Agency monthly meetings if the Claimant was ‘non customer-facing’.

  • How many times did Richard Marsden, one of the other On Demand Service Delivery Managers (oSDM’s) assigned to the Environment Agency account, attend the Environment Agency monthly meetings, compared to the Claimant?

 

The Respondent mentions numerous times a ‘home-based’ role, and that the Claimant was looking to move into a ‘home-based’ role. The Claimant had worked from home all the time that the Claimant had worked for the Respondent. Some 8 years in total.

 

The Respondent states in this document ‘The Respondent will say that it followed all applicable procedures’, the Respondent also states that it followed ‘fair selection’ and ‘dismissal procedure’. The questions that should be asked of the Respondent are as follows:

 

  • Which ‘applicable procedures’ did the Respondent think it followed?

  • What ‘fair selection’ procedure did the Respondent follow?

  • What ‘dismissal procedure’ did the Respondent follow?

 

The Respondent states in this document ‘The Claimant refused face-to-face meeting’. When did the Claimant ever refuse one single face-to-face meeting in Document 63?

 

Catherine Temple, Senior HR Manager, never once asked for a meeting, she just stated a telephone ‘call’, but the Claimant, quite rightly, wanted all further contact to be in writing, as a telephone call is not documented.

 

The Respondent states in this document ‘he asked questions about the financial package’. This is completely wrong. In Document 63, Catherine Temple, Senior HR Manager, requests of the Claimant ‘I have also highlighted some of the areas that require immediate actions’. These ‘immediate actions’ are contained in the attachment to the email that is Document 63, and this attachment is Document 57, and the ‘immediate actions’ were to ‘Please confirm the benefits (Select, Pension, share scheme, etc) you have selected and I can explain what happens to them’. So the Claimant never ‘he asked questions about the financial package’, the Claimant was asked to confirm these details by Catherine Temple, Senior HR Manager.

 

The Respondent states in this document that the Claimant commented that the Claimant was ‘OK with redundancy situation’. The Claimant will make no plea with regards to this statement, as the Claimant cannot remember every single word of any conversation that happened a year ago. However, if the Claimant did make such a statement, the Respondent has obviously taken this statement out of context, as the Claimant was certainly not happy at being selected for redundancy. The Claimant does note that the word ‘situation’ is used, so if the Claimant did make such a statement, it was probably in some discussion regarding the consultation process with HR.

 

The Respondent states in this document numerous times that the Respondent was unaware of the Claimant’s disability. The Respondent will have to explain the following:

 

  • The Claimant had to undergo a medical before starting employment with the Respondent, so is the Respondent seriously stating that Diabetes was not picked up at this medical?

  • The Claimant was Diabetic the whole of the 8 years that the Claimant worked for the Respondent, and as such, would have required one afternoon off every six months, some 16 in total, so is the Respondent seriously stating that the Claimant’s Diabetes was not known to the Respondent during this time?

  • The Claimant stated on 10 September 2003 that he was Diabetic?

 

The Respondent states in this document ‘At that meeting, the Claimant referred to the fact that other SDMs were customer-facing and would be required to be so for the future.’ The Claimant assumes that reference to ‘Claimant’ in this sentence should read as ‘Respondent’. If this is so, then the Claimant will state that the Claimant was customer facing, and, in fact, due to the size and frequency of problems on the larger accounts (2500 problems raised per annum for Environment Agency account, which accounted for around 34% of all problems that the On Demand Service Delivery Manager (oSDM) team dealt with that year), that the Claimant was one of the busiest customer facing On Demand Service Delivery Managers (oSDM’s) in the whole of the On Demand Service Delivery Manager (oSDM) team (which would account for a 400% increase in mobile phone calls made, since July 2004).

 

The Respondent states in this document ‘It is denied the Claimant made any mention of concerns as to overwork, stress or diabetes at this meeting’, if this is true, the Respondent will have to explain:

 

  • Why the Claimant would not have raised overwork, stress and diabetes at the meeting with Nick Cooper on 21 December 2005, just five days after the first meeting with Phil Snowden on 16 December 2005?

  • The Respondent will have to explain the email in Document 31?

  • The Respondent will have to explain the meeting minutes taken by the Claimant in Document 27?

  • The Respondent will have to explain the comment in Document 71 ‘It is denied the Claimant made any mention of concerns as to overwork, stress or diabetes at this meeting as alluded to by the Claimant in his Tribunal Claim’, which totally contradicts the comment in Document 79 (Page 4) ‘Analysis of workload – Claimant agreed with Mr Cooper that it was not unreasonable’ and the comment in Document 79 (Page 6) ‘Mr Snowden’s absence, and asked him to continue the dialogue as regards workload with the Claimant.’

 

The document, entitled “Company Financials” is a web page which is taken from the Nasdaq web site. This states the Annual Income for the Respondent for the last 4 years. The following facts are interesting to note:

 

Oracle Company Financials:

 

  • Oracle year-by-year growth going up in billions of dollars.

  • Oracle ‘Total Revenue’ increased by around 2.5 billion dollars in the year before making the Claimant redundant. The biggest increase over the last 4 years.

  • Oracle ‘Net Income’ increased by around 0.5 billion dollars in the year before making the Claimant redundant. The biggest increase over the last 4 years.

  • The ‘Net Income’ on 31st May 2006, 1 day after selecting the Claimant for redundancy, was $ 3,381,000,000 (or 3.4 billion dollars, approximately 1.7 billion pounds).

 

A Corporation in decline, resulting in a redundancy situation?

 

The document, entitled “Employment Law Explained” is a web page which is taken from the Got-The-Boot.com web site. This web site is run by Employment Law Specialists and this web page gives an explanation on the minimum requirements of redundancy, consultation and selection procedures. Notable statements are:

 

The redundancy process must be carried out in a fair manner. If the redundancy is not carried out in a fair manner, with adequate consultation, then the employee can bring a claim for unfair dismissal and/or wrongful dismissal.

 

No consultation with Claimant prior to selection for redundancy.

 

(a) Consultation

 

The employer must consult with employees about the proposed redundancies as soon as possible.

 

No consultation with Claimant regarding proposed selection for redundancy.

 

(b) The Selection Procedure

 

The employer must first decide whether an individual is self-selecting for redundancy or whether it is appropriate to identify a “pool” of employees to select employees from.

 

In making the decision, the employer needs to look at which employees’ jobs are similar; interchangeability of skills, etc.

 

Employer ‘states’ that Claimant was self-selecting for redundancy, what else could they ‘state’.

 

Claimant worked in a team of employees all performing the same role.

 

Claimant had same role title as other employees in the team, as stated in the Respondents ‘Organisation Chart’.

 

If the employer gets the pool wrong, by including or excluding the wrong people, the redundancy can be challenged as an unfair dismissal.

 

Why were the whole ‘On Demand Service Delivery Manager’ team not included in the pool, if the redundancy was real, and not ‘a sham’?

 

Each employee must be shown the basis of the proposed selection and must be given a chance to respond and challenge it.

 

Why did the Respondent not consult with the Claimant on the proposed selection, and give the Claimant a chance to respond and challenge it, if the redundancy was not ‘a sham’.

 

© Alternative employment

 

The employer must consider alternative employment for each employee before declaring them redundant, and if appropriate offer such employment to the employee or at least an opportunity of applying for alternative roles.

 

Why did the Respondent start a new On Demand Service Delivery Manager (oSDM) in the On Demand Service Delivery Manager team on 1st June 2006, 2 days after the Claimant’s selection for redundancy, without offering the Claimant the new On Demand Service Delivery Manager (oSDM) role?

 

Why did the Respondent start five new On Demand Service Delivery Managers (oSDMs) in the On Demand Service Delivery Manager team after 10th July 2006, the date the Claimant was made redundant, without offering the Claimant one of the five new On Demand Service Delivery Manager (oSDM) roles?

 

(e) Unfair redundancy

 

A dismissal which purports to be for redundancy reasons can be challenged on two bases. The first is that the reason for the dismissal was not a genuine redundancy situation, ie: a sham. The second is that although there is a redundancy situation there was inadequate consultation, unfair selection or no alternative employment considered.

 

The Claimant considers that the reason for the dismissal was not a genuine redundancy situation, ie: a sham, for the following reasons:

 

  • The Claimant was an On Demand Service Delivery Manager (oSDM).

  • The Claimant was listed in the Respondent’s Organisation Chart as ‘Service Delivery Manager’.

  • The Claimant was listed in the Respondent’s Organisation Chart as working in ‘On Demand Service Delivery Manager’ team.

  • The Claimant worked in the ‘On Demand Service Delivery Manager’ team, along with 13 other employees all performing the same role.

  • There was no consultation whatsoever prior to the Claimant’s selection for redundancy.

  • There was no selection criteria applied to the ‘On Demand Service Delivery Manager’ team, the pool.

  • There was no alternative employment considered for the Claimant, especially the six new On Demand Service Delivery Manager (oSDM) jobs created since 1st June 2006.

 

The document entitled “Legal Basics – Employment” is a web page which is taken from the Law On The Web web site. The Claimant will now use this spreadsheet to follow through the “Unfair Dismissal Flowchart”:

 

Are you an employee?

 

Yes.

 

Have you been employed long enough?

 

Yes. Just under 8 years employed by Respondent.

 

Have you been dismissed?

 

Yes, “The Claimant’s employment was terminated with effect from 10 July 2006.”

 

Were you below 65 when dismissed?

 

Yes. Claimant’s date of birth is 12th August 1964.

 

Are you in an excluded category or out of time?

 

No.

 

The Claimant is below age 65.

The Claimant was employed and worked in the United Kingdom for the Respondent.

The Claimant is not a policeman, dock worker, share fishermen or domestic servant.

The date of the Claimant’s dismissal was “The Claimant’s employment was terminated with effect from 10 July 2006.” and the Claimant’s ET1 form was submitted on 25th August 2006, within the 3 month time limit.

 

Was your dismissal fair or potentially fair?

 

No.

 

“b) unfair selection for redundancy – normally dismissal on the grounds of redundancy is potentially fair. However it becomes automatically unfair if the employee was selected for redundancy for an inadmissible reason, or in breach of an agreed procedure such as ‘last in – first out’”.

 

Did your employer use a fair procedure?

 

No.

 

No steps of the statutory dismissal procedure followed, as outlined in Document 62.

 

The document, is a letter that was sent to the Respondent to remind the Respondent of the date that “The Disability Discrimination Act 1995 s56(2)(a) Complainant’s questionnaire” was due to be replied and returned to the Claimant by 17th November 2006.

 

The document, entitled “Delivered” is a web page which is taken from the Royal Mail web site, and which states that Document 75 “DISABILITY DISCRIMINATION QUESTIONNAIRE SENT BY REGISTERED POST (REF: ZV 2662 9194 0GB) AND RECEIVED BY YOU ON 22/09/06” was delivered to the Respondent on 16th October 2006 at 09:30am.

 

The document, is the “Respondent’s response to Disability Discrimination Act Questionnaire”. The Claimant would now like to go through the 4 pages of this document in brief detail, as the Claimant has no wish to bore the Tribunal picking out every single untruth contained in this version of events, as the Claimant has already submitted a response in Document 92.

 

Notice that in this document, the concept of ‘unique role’ has started to be mentioned numerous times, probably because the Respondent realised due to the Claimant’s questions in the Disability Discrimination Act Questionnaire that there had been no selection process carried out at all by the Respondent (In section 6.5 the Respondent states ‘there are no such notes and scoring sheets‘), and that the Respondent must now state that it was a ‘unique role’, in order to justify why the Respondent did not carry out any selection process.

 

The Respondent states in this document ‘These changes were initially announced to the Claimant and his colleagues by email communication in January 2006’. The Claimant has checked through all the emails that the Claimant received in ‘January 2006’, and could find no email that even comes close to a redundancy situation. There was one email that notified all the On Demand Service Delivery Manager (oSDM) team regarding a change that is being implemented in another part of the On Demand Organisation (Operations is a part of the Organisation that the Claimant did not work for, as the On Demand Service Delivery Manager (oSDM) team was part of the On Demand Delivery Organisation). The Respondent did provide much documentation in Document 91 regarding the email that the Claimant was meant to have received in January 2006, and some points to note regarding this documentation are:

 

  • Where does it even suggest a redundancy situation for any part of the Organisation?

  • It states a number of times the move towards ITIL best practices, the Claimant was ITIL qualified, so this would have increased the Claimants demands on his skills?

  • It states ‘Removal of SDM focus on progressing SRs – Because of the deployment of time-based escalation (TBE) we anticipate a reduced need for SDMs to constantly track and progress incidents and SRs.’. Note the use of plural (‘SDMs’), as this was a primary function of the role of all SDMs, to track and escalate SRs (customer problems), and because the larger accounts had more problems (SRs), all the SDMs assigned to the larger accounts spent much more of their time ‘constantly track and progress incidents and SRs.’

 

The Respondent states in this document ‘a detailed presentation of these three initiatives were made at a team meeting on 14 March 2006 which the Claimant attended’.

 

The Claimant never attended ‘a team meeting on 14 March 2006’, and to prove this:

 

  • The Respondent has already conceded (Document 91) that the Claimant did not attend ‘a team meeting on 14 March 2006’, in a letter to the Claimant, but not to the Tribunal.

  • Document 78 proves that the Claimant did not take a flight in 2006 at all, and as the Claimant always traveled by plane to these meetings, proves that the Claimant did not attend ‘a team meeting on 14 March 2006’.

  • The Claimant’s AMEX statements again prove that the Claimant did not fly at all in 2006.

 

Some of the other untruths in this document will already have been discussed in Documents 71 and 79, and the Claimant has no wish to go over these untruths again.

 

The email dated 10th January 2007, from Carlson Wagonlit Travel, the Respondent’s Travel Agent, simply states that the Claimant had not travelled in year 2006 at all. This confirmation is particularly relevant, and disproves the statement made in “The Disability Discrimination Act 1995 s56(2)(b) Respondent’s reply”, which states:

 

a detailed presentation of these three initiatives were made at a team meeting on 14 March 2006 which the Claimant attended.

 

The document, is the “Respondent’s Further Particulars of Defence”. The Claimant would now like to go through the 17 pages of this document in brief detail, as the Claimant has no wish to bore the Tribunal picking out every single untruth contained in this lengthy version of events, as the Claimant has already submitted a response in Document 90.

 

The Respondent states in this document that the meeting on 16 December 2005 was ‘very amicable’. This conference call was far from amicable. There was arguments and raised voices throughout the conference call when all 4 employees were on the conference call.

 

The Respondent also states in this document ‘Mr Snowden spoke to the Claimant separately as he was concerned that the Claimant was refusing to perform work which he had previously undertaken.’. This is a complete untruth, as the Claimant asked Phil Snowden to stay on the conference call as the Claimant had a private matter to discuss with him, at which point the other two On Demand Service Delivery Managers (oSDMs) left the conference call, and the Claimant raised the subjects of workload and stress, and the effect on the Claimant’s diabetes. If, as the Respondent states, Mr Snowden ‘was concerned that the Claimant was refusing to perform work which he had previously undertaken’, how could the Claimant possibly work 100% of the time on Environment Agency, and 100% of the time on General Electric accounts, something had to give?

 

This is why the Claimant raised the issue, because what the Claimant was being asked to work was simply impossible given the size of the Environment Agency and General Electric accounts?

 

The Respondent further states in this document ‘Mr Snowden mentioned to the Claimant that this would be an opportunity to continue the dialogue about workload and that Mr Cooper would probably wish to talk to him then.’

 

If this was true, the Respondent will have to explain the following:

 

  • Why did Richard Marsden inform the Claimant around 9:30am on 21 December 2005, just before the Environment Agency monthly meeting was due to start, that Mr Cooper wanted to speak to the Claimant after this meeting had finished?

  • If the Respondent had informed the Claimant 5 days before this meeting, why did the Claimant not change the time of the Claimant’s return flight to Glasgow, as the Claimant had a return flight to Glasgow, which left Birmingham around 15:30, so the Claimant would have to have been at Birmingham Airport at 14:30, and it is around 20 minutes taxi from the Respondent’s office, so the Claimant would have to have left the Respondents office around 14:00. The Environment Agency monthly meeting finishes around 12:30, and then all meeting attendees go for lunch together, which takes around an hour. This is why the meeting with Mr Cooper was interrupted by a taxi arriving for the Claimant, precisely because the Claimant did not know about this meeting prior to 21 December 2005.

 

The Respondent states in this document ‘there were already two other, customer facing, SDMs working on the account’ in July 2004. This is not true, as Julie McFarlane was the only On Demand Service Delivery Manager (oSDM) working on the Environment Agency account, at the time the Claimant started working for the On Demand Service Delivery Manager (oSDM) team on the Environment Agency account. For proof of this, please refer to. Notable points with regards to this document are:

 

  • Richard Marsden is not on the list to receive this email at all, because Richard Marsden was not working on the Environment Agency account at this time.

  • Notice in the content of the email that it is only Julie McFarlane and the Claimant who are covering all the hours, 08:30 to 19:00.

 

The Respondent further states in this document ‘Claimant had declined to attend December 2005 EA monthly meeting’, but does not add that the Claimant did attend this meeting, giving the impression that the Claimant did not attend this meeting at all:

 

  • Claimant did attend the meeting, please refer to Document 84 and 39.

  • How could the Claimant have been in Nick Coopers Birmingham Office on 21 December 2005, if he had not been down in the Birmingham Office, and had not attended the Environment Agency monthly meeting at the Respondent’s Birmingham Office

 

The Respondent also states in this document ‘EA comment that the Claimant was not adding value to these meetings and accordingly he was not then required to attend them.’ The Claimant simply does not believe this statement, and this statement, if false, will place the Respondent in an extremely vulnerable position, as the Respondent would have lied on the Environment Agencies behalf. The reason why the Claimant does not believe this statement is, as follows:

 

  • I doubt very much that anyone at the Environment Agency would have said that, as the Claimant had attended most of these meetings before, chaired quite a few of them, and was the sole person who produced the Environment Agency monthly report, parts of which were discussed at these meetings, so who could have discussed these parts of the monthly report?

  • Please refer to the Andrew Hammett witness statement, which states ‘I remember the first meeting you did not attend and expecting you to be there. No explanation was made; other than me knowing you had also started working on a different account.’

 

The Respondent states numerous times in this document ‘contemporaneous notes of significant points of each meeting/discussion’. The Claimant would simply state:

 

  • If Phil Snowden (the Claimant’s manager) and Nick Cooper (the Claimant’s director) kept ‘contemporaneous notes of significant points of each meeting/discussion’, how did both of them not know who was attending their own employees internal meetings (the meeting ‘at a team meeting on 14 March 2006 which the Claimant attended’, which the Claimant did not attend, and which has been retracted by the Respondent in Document 91)?

 

 

[]Chapter 12

 

Day 2

 

Some of the other untruths in this document will already have been discussed in Documents 77 and 79, and the Claimant has no wish to go over these untruths again, and the Claimant will answer any questions on the Respondent’s ‘version’ of events when the Respondent discusses these during the Respondent’s response.

 

The letter dated 10th January 2007, is a letter that was sent to the Claimant by the Respondent, but not sent to the tribunal. In this letter, and with reference to Document 77, it begins to reveal some untruths:

 

In Document 80, the letter from the Respondent, it states:

 

“It is agreed that the Claimant did not attend the team meeting on 14 March 2006.”

 

Which totally contradicts “The Disability Discrimination Act 1995 s56(2)(b) Respondent’s reply”:

 

“a detailed presentation of these three initiatives were made at a team meeting on 14 March 2006 which the Claimant attended.”

 

In Document 80, the letter from the Respondent, it states:

 

“Copy e-mails and presentation available from the Respondent’s intranet following the 14 March 2006 team meeting attached.”

 

Which totally contradicts “The Disability Discrimination Act 1995 s56(2)(b) Respondent’s reply”:

 

“These changes were initially announced to the Claimant and his colleagues by email communication in January 2006”

 

The Disability Discrimination Act 1995, Part VII, section 56 states:

 

(56) – Help for persons suffering discrimination

 

(1) For the purposes of this section -

 

(a) a person who considers that he may have been discriminated against or subjected to harassment, in contravention of any provision of Part II or, to the extent that it relates to the provision of employment services, Part 3, is referred to as ‘the complainant’; and

 

(b) a person against whom the complainant may decide to make, or has made, a complaint under Part II or, to the extent that it relates to the provision of employment services, Part 3 is referred to as ‘the respondent’.

 

(2) The Secretary of State shall, with a view to helping the complainant to decide whether to make a complainant against the respondent and, if he does so, to formulate and present his case in the most effective manner, by order prescribe –

 

(a) forms by which the complainant may question the respondent on his reasons for doing any relevant act, or on any other matter which is or may be relevant; and

 

“The Disability Discrimination Act 1995 s56(2)(a) Complainant’s questionnaire”.

 

(b) forms by which the respondent may if he so wishes reply to any questions.

 

“The Disability Discrimination Act 1995 s56(2)(b) Respondent’s reply”.

 

(3) Where the complainant questions the respondent in accordance with forms prescribed by an order under subsection (2) -

 

(a) the question, and any reply by the respondent (whether in accordance with such an order or not), shall be admissible as evidence in any proceedings under Part II or, to the extent that it relates to the provision of employment services, Part 3;

 

(b) if it appears to the tribunal in any such proceedings –

 

(ii) that the respondent’s reply is evasive or equivocal, it may draw any inference which it considers it just and equitable to draw, including an inference that the respondent has contravened a provision of Part II or, to the extent that it relates to the provision of employment services, Part 3.

 

In summary of this part of the Disability Discrimination Act 1995, the Claimant believes that if the Respondent’s reply is deemed to be equivocal (synonyms: vague, ambiguous, unclear, shifty) by the tribunal, then the tribunal can draw an inference.

 

Now, with reference to The Disability Discrimination Act 1995, Part VII, section 56, this states:

 

(1) A person who knowingly aids another person to do an unlawful act is to be treated for the purposes of this Act as himself doing the same kind of unlawful act.

 

(2) For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 58 (or would be so liable but for section 58(5)) shall be taken to have aided the employer or principal to do the act.

 

(3) For the purposes of this section, a person does not knowingly aid another to do an unlawful act if -

 

(a) he acts in reliance on a statement made to him by that other person that, because of any provision of this Act, the act would not be unlawful; and

 

(b) it is reasonable for him to rely on the statement.

 

(4) A person who knowingly or recklessly makes such a statement which is false or misleading in a material respect is guilty of an offence.

 

Questions that have to be answered by the respondent to the tribunal in relation to aiding unlawful acts are:

 

Which parties were responsible for the contents of the “The Disability Discrimination Act 1995 s56(2)(b) Respondent’s reply”?

 

Which parties were responsible for the contents of the “Respondent’s Further Particulars of Defence”?

 

If the Respondent is found to have been guilty of discrimination, then the Claimant would outline to the tribunal the possible actions against the parties involved that should be taken on unlawful acts under The Disability Discrimination Act 1995, section 57.

 

The parties involved in both of the documents, “The Disability Discrimination Act 1995 s56(2)(b) Respondent’s reply”, and the “Respondent’s Further Particulars of Defence”, contradict themselves in places, and contain material which is at best equivocal with regards to the evidence submitted in this witness statement and the Claimant’s bundle of documents.

 

As such, does The Disability Discrimination Act 1995, section 57(4) apply?

 

Also, the emails of April 2006 and all parties involved. Does The Disability Discrimination Act 1995, section 57(1), (2) and/or (4) apply?

 

The document, entitled “Stress” is a web page which is taken from the American Diabetes Association web site, and which states:

 

“Stress

 

Sources of stress can be physical, like injury or illness. Or they can be mental, like problems in your marriage, job, health, or finances.

 

Many sources of stress are not short-term threats.

 

As a result, long-term stress can cause long-term high blood glucose levels.

 

Many long-term sources of stress are mental.

 

It can also be long term: from working for a demanding boss.

 

In mental stress, the body pumps out hormones to no avail. Neither fighting nor fleeing is any help when the ‘enemy’ is your own mind.

 

How Stress Affects Diabetes

 

In people with diabetes, stress can alter blood glucose levels. It does this in two ways. First, people under stress may not take good care of themselves. They may drink more alcohol or exercise less. They may forget, or not have time, to check their glucose levels or plan good meals. Second, stress hormones may also alter blood glucose levels directly.

 

Scientists have studied the effects of stress on glucose levels in animals and people. Diabetic mice under physical or mental stress have elevated blood glucose levels. The effects in people with type 1 diabetes are more mixed. While most people’s glucose levels go up with mental stress, others’ glucose levels can go down. In people with type 2 diabetes, mental stress often raises blood glucose levels.

 

People with type 1 diabetes don’t make insulin, so stress reduction doesn’t have this effect. Reducing stress can help people with type 1 diabetes take better care of themselves.”

 

The hospital records from Crosshouse hospital in Kilmarnock, state the following:

 

  • The Claimant was admitted straight from Saltcoats Group Practice, the Claimant’s local GP Practice, straight to Crosshouse hospital Accident and Emergency on 13th June 2006.

 

  • The Claimant was suffering from an infection, and had ketones in the blood, glucose in the urine, and a blood sugar level (BM) of 17.

 

The Claimant is not normally prone to infections, as stated by the Respondent in Document 71:

 

“Further, according to its records, during the period July 2004 to June 2005, the Claimant took just two days’ sick leave (in October 2005).”

 

This would tend to suggest that due to prolonged stress (from November 2005, when the Claimant was working simultaneously on Environment Agency and General Electric accounts), which resulted in prolonged loss of diabetic control (high HbA1c levels from November 2005, HbA1c level from February 2006 minus 3 months because the HbA1c level is for the last 3 months from when it is taken), that the combined effects of prolonged stress and prolonged loss of diabetic control (high HbA1c), must have resulted in the Claimant becoming more susceptible to infection, something which the Respondent has confirmed, is not typical of the Claimant.

 

In the “Saltcoats Group Practice” document, the local GP has referred the Claimant to Accident and Emergency with a “Provisional Diagnosis: IDDM DKA”, which according to Document 85:

 

IDDM is “insulin-dependent diabetes mellitus”

DKA is “a condition called diabetic ketoacidosis (DKA)”

 

The document contains some 10 “Meeting Minutes” for the Environment Agency monthly meeting between the period 10th July 2004 through to 21st December 2005, and shows the following information:

 

* Julie McFarlane, On Demand Service Delivery Manager (oSDM), attended 100% of the Environment Agency monthly meetings.

 

* The Claimant, Kenneth McAlpine, On Demand Service Delivery Manager (oSDM), attended 80% of the Environment Agency monthly meetings.

 

* Richard Marsden, On Demand Service Delivery Manager (oSDM), attended 50% of the Environment Agency monthly meetings.

 

The Claimant did not attend the Environment Agency monthly meeting on 23rd February 2005, as Birmingham Airport was snow bound, and the flight was delayed substantially, which resulted in the Claimant missing the meeting. The Claimant did not attend the Environment Agency monthly meeting on 7th July 2005, as the Claimant was on the Claimant’s summer holiday.

 

The main points to note in these meeting minutes are the Claimant’s attendance, and compare the Claimant’s attendance to Richard Marsden, On Demand Service Delivery Manager (oSDM).

 

The document entitled “Diabetes Mellitus (cont.)” is a web page which is taken from the MedicineNet web site, and which states:

 

“Diabetic ketoacidosis can be caused by infections, stress or trauma all which may increase insulin requirements. In addition, missing doses of insulin is also an obvious risk factor for developing diabetic ketoacidosis. Urgent treatment of diabetic ketoacidosis involves the intravenous administration of fluid, electrolytes, and insulin, usually in a hospital intensive care unit. Dehydration can be very severe, and it is not unusual to need to replace 6-7 liters of fluid when a person presents in diabetic ketoacidosis. Antibiotics are given for infections.”

 

The Claimant, when admitted to Accident and Emergency, had at least 3 litres of fluid and electrolytes (0.9% saline) replaced intravenously throughout the evening/night of 13/14 June 2006. The Claimant was also given Amoxycillin 500 mg (antibiotic) for 5 days.

 

The Claimant has never missed one dose of insulin throughout his diabetic life.

 

The document dated 4th April 2007, reference “KRP/AR/20675493” is the Claimant’s medical records from the Department of Diabetic Medicine at Glasgow Royal Infirmary. To summarise these records from January 2004, it shows that the Claimant, prior to November 2005, had an average HbA1c level of approximately 7.0% ( (6.3% + 7.4% + 7.1% + 6.9%)/4 = 6.9%), but since November 2005 to August 2006, had an average HbA1c level of approximately 9.0% ( (8.9% + 9.6% + 8.5%)/3 = 9.0%). The reason why the July 2006 result (9.6%) is not shown, is that this was an individual appointment with the Diabetic Sister, Sister E Cameron, who asked the Claimant to attend an individual appointment with the Sister, as she was concerned about my last HbA1c result, and admittance to Accident and Emergency at Crosshouse Hospital in June. This result may not be contained in the clinic results. Proof of this result (9.6% in July 2006) can be referenced by the calculation arriving at 9.0%, as explained previously, and backed up by the 24th August 2006 notes written by Dr Russell Drummond, who states “where he is now approximate to 9.0%”.

 

These medicals records show that the Claimant’s Diabetes suffered from November 2005, and is still suffering to present day. The Claimant started to work simultaneously on both the Environment Agency and General Electric accounts in November 2005, and since the Claimant’s redundancy, the Claimant has been representing himself for around the last year, in an extremely complex discrimination claim.

 

The document dated 14th May 2007, reference “PBM/WK” is a summary of the Claimant’s blood pressure results from the Saltcoats Group Practice, the Claimant’s local GP Surgery. To summarise these results, it is best to quote Dr Monaghan directly:

 

His blood pressure therefore remains satisfactory

 

So, according to the Claimant’s local GP Surgery, the Claimant does not have a blood pressure problem.

 

The document dated 24th May 2007, reference “KRP/AR/20675493R” is a response to a letter the Claimant wrote to his Diabetic Consultant regarding the stated insulin doses contained in the Claimant’s records as outlined in Document 86. The Claimant was just concerned that the stated insulin dosage was not a true reflection of what actual insulin dosage the Claimant had been taking, but the Claimant does recognise that this could just be, to use the term ‘splitting hairs’, as it is not far removed from the actual insulin dosage the Claimant was taking anyway. The main reason for the Claimant having to decrease the Claimant’s insulin dosage seems to be because over the period late 2005 to mid 2006, the Claimant has lost around 10% of his weight. Prior to late 2005, the Claimant’s weight remained pretty constant.

 

The main question with regards to the Claimant’s medical records, which needs answered, is why did a well-controlled Diabetic for decades, the Claimant, start to lose Diabetic control suddenly in November 2005?

 

The document is a witness statement from Mr Andrew Hammett, who worked for the Environment Agency as Technical Manager, and this witness statement contradicts any claims by the Respondent that the Claimant was either non-customer facing, or had a unique role.

 

The document is the Claimant’s Search for Employment since being made redundant from the Respondent on the 10th July 2006.

 

The document is a job specification for an On Demand Service Delivery Manager from the Respondent’s headquarters in the United States, and it is interesting to note, particularly:

 

  • The oSDM is a focal point for support service issues and other Oracle/customer issues (TARs/SRs).

 

  • Preferred Qualifications: bachelors degree.

 

  • Assumes leadership role in Technical Assistance Request (TAR) management.

 

In the additional details of this job specification, the Claimant is willing to discuss at great length the majority of the additional details that the Claimant performed as an On Demand Service Delivery Manager (oSDM), and if there are any additional details that the Claimant did not perform, the reasons for not performing these additional details (mainly division of tasks between the three extremely busy On Demand Service Delivery Managers (oSDMs) working on the Environment Agency, which meant that no one On Demand Service Delivery Manager (oSDM) performed every additional detail).

 

The document is the Claimant’s Schedule of Loss, and the Claimant has also prepared, separate, small witness statements regarding certain heads of loss, namely:

 

  • Witness Statement W3 – Injury to Feelings.

  • Witness Statement W4 – Future Loss of Earnings.

 

The Claimant would now like to make reference to specific documents which have passed between the Respondent, the Claimant and the Tribunal, between the period August 2006 to June 2007.

 

Summary

 

To summarise this claim, this claim is simple, it has only become more complex due to the Respondents invention that the Claimant had a unique, non-customer facing role.

 

I would ask the Tribunal to concentrate on Philip Snowden’s email and Catherine Temples’s email, particularly the reference to Diabetes and blood pressure, and the belief that this would result in the Claimant being off sick a lot in the future.

 

The two other paragraphs which start “- to allocate…” can be immediately discounted, as both of these paragraphs would apply to any new start in the On Demand Service Delivery Manager team, and the Respondent has started 5 new On Demand Service Delivery Managers since making the Claimant redundant. The Claimant does not even agree with both of these paragraphs anyway, for one simple reason, the Claimant worked on some of the largest, busiest accounts in the On Demand Service Delivery Manager team, so would have easily coped with any of the majority of smaller, quieter accounts that other On Demand Service Delivery Managers were working on, and the reverse may be more true, where an On Demand Service Delivery Manager working on a smaller, quieter account would have to obtain substantial support from the Claimant if they had to work on the Environment Agency or General Electric accounts.

 

The statement “the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness” is extremely insulting to not only the Claimant, but to all Diabetics, some 200 million worldwide. There is no link between Diabetes and high blood pressure, so this is not a side effect of Diabetes, and as such, this discriminatory statement is not disability related, which immediately rules out indirect discrimination.

 

The Claimant would like to remind the Tribunal again, that the Claimant does not have a blood pressure problem.

 

This only leaves direct discrimination, and in order to prove direct discrimination, the Tribunal has to ask the Respondent if the Respondent has made redundant every employee who has ever had high blood pressure, and as 25% of the population have high blood pressure, whether the Respondent has made 25% of the Respondent’s workforce redundant.

 

If the Respondent has not made 25% of the Respondent’s workforce that has high blood pressure redundant, or anyone in the Respondent’s workforce with high blood pressure redundant, then that just leaves the Claimant’s disability, Diabetes, which amounts to direct discrimination.

 

The Claimant would like to end with this quote:

 

“Prejudice, not being founded on reason, cannot be removed by argument”

 

Samuel Johnson

 

I believe that the facts stated in this witness statement are true.

 

This ended the witness statement of the claimant, and there was a slight pause before the Tribunal panel started to ask a few questions of the claimant. The Tribunal panel started by asking a few questions of the claimant on the separate injury to feelings witness statement prepared by the claimant, and then asked a few more questions about the future loss of earnings witness statement prepared by the claimant, finishing with a couple of questions on job seekers payments made by the government to the claimant. The witness statement from Mr Andrew Hammett, with regard to the claimant and his customer-facing role, was noted.

 

The claimant left the witness box, and Dr Gordon, the expert witness for the claimant on Diabetes, was called to the witness box.

 

Dr Gordon was questioned by the claimant and confirmed that the claimant had good control of diabetes for over forty years. The doctor also confirmed that the claimant’s blood sugar levels had increased since December 2005, and remained higher than the ideal target levels, and confirmed that stress can affect diabetic control, due to the fight or flight response of the body to produce excess glucose in times of stress.

 

Mr Davy now questioned Dr Gordon, and started by asking about the claimant’s blood sugar levels during the year 2000, and inferred that the claimant had previous problems with illness and higher blood sugar levels. This inference then jumped to the claimant’s higher blood sugar levels from December 2005, and the illness and hospital admission in June 2006 when the claimant had been provisionally selected for redundancy. Counsel suggested that the claimant may have reduced insulin dosage, which would have resulted in a higher blood sugar level.

 

The Tribunal panel asked Dr Gordon about diabetic checks, altering insulin and if it was possible for stress to affect diabetic control. Dr Gordon confirmed that stress might have caused the blood sugar levels to be higher than normal.

 

The claimant finished by asking Dr Gordon to outline the difficulties faced by diabetics in controlling diabetes and stress. The doctor replied that it was difficult, and required finding more time to test blood sugar levels and alter insulin according to blood sugar levels, and added that the claimant’s diabetic control over forty years had been good and that the claimant had experienced no great complications over that period.

 

After lunch, Mr Davy outlined to the Tribunal Judge that the claimant had notified the respondent that the claimant wished to withdraw the personal injury part of the claim prior to this hearing, as the claimant wished to pursue a separate personal injury claim in Court using one of the many no win no fee lawyers. Mr Davy argued that withdrawal of part of a claim would prevent another claim in the future, and cited one case law. The Tribunal Judge intimated to Mr Davy that she would seek clarification and advised the claimant of the possible consequences of a withdrawal of part of the claim. The claimant sought clarification from the Tribunal Judge, who outlined that the Tribunal can consider the personal injury part of the claim, but if the whole case is lost then the personal injury part of the case cannot be pursued through the civil Courts.

 

Claimant took the witness stand and was cross-examined at length by Mr Davy.

 

The cross-examination of the claimant began by Mr Davy with the chronology of events regarding the claimant’s employment with Oracle Corporation UK Ltd. Mr Davy outlined the claimant’s early job titles. He then proceeded to give an overview of these events from 12 August 1998 to April 2003 and that the claimant moved to the Service Delivery Management team as an OnDemand Service Delivery Manager in July 2004 when he was assigned to the Environment Agency account. At the end of November 2005, the claimant had the General Electric account added to his assignments. The claimant had some disagreements with the important details of the events of December 2005 concerning his Manager, Phil Snowden, and his Director, Nick Cooper, and also with their intended change to the claimant’s duties in January 2006 in order to ease his stress and health concerns. The claimant disagreed that the respondent had made the reasonable adjustments requested by the claimant and that the claimant still worked on the General Electric and Environment Agency accounts, which created work conflicts in the first third of every month. This ding dong battle between Mr Davy and the claimant continued for half an hour, with neither giving any ground.

 

Mr Davy then outlined the organisational changes that took place from 13 January 2006 through to March 2006 with the key date being early February 2006 when the Reduction in Force list was introduced, and candidates for this list were sought. From February 2006 to June 2006 Mr Davy sequenced the events regarding the claimant applying for other internal positions within Oracle and the events leading up to 12 and 13 April 2006 with regard to the claimant’s role, the Reduction In Force list and the possible one-off redundancy of the claimant, who disagreed that he was ever given notification of the Reduction In Force list or that he knew that he was identified for redundancy on 13 May 2006. It was on 30 May 2006 that the claimant learned of his provisional selection for redundancy, and following on from his illness and stay in the hospital during June 2006, he was confirmed as redundant on 10 July 2006. From this sequence of events, there were four key issues that Mr. Davy wished to explore further.

 

First, the claimant was overworked and needed to seek another role. In reply the claimant insisted that his workload had not been reduced and he didn’t agree that he was seeking a technical role, giving his explanations to various points made by Mr Davy.

 

Second, the role that the claimant had within the On Demand service. The Claimant asserts that his role was the same role that the other OnDemand Service Delivery Managers in the team had and that he did not have the ‘unique role’ that the respondent was claiming. He also clarified the slightly different interpretations of the role and totally rejected suggestions that he had a non-customer facing role.

 

Third, the claimant denied that his role was redundant.

 

Fourth, the claimant asserted that the respondent did not comply with the statutory dismissal procedure.

 

A detailed cross-examination of the claimant’s employment with Oracle was then conducted by the respondent’s Barrister, and of the problems the claimant had with the various roles over that eight-year period from his initial consultancy role through to his database role, a technical position, and on to the Project Manager role in April 2003.

 

The claimant failed to see the relevance of this history, as it is a widely known fact that employees in the Information Technology business change jobs approximately every two years, mainly because it is such a fast moving, dynamic industry.

 

The cross-examination continued with a line of questions and comments from Mr. Davy with regard to the Claimant’s role following his transfer to the On Demand Service Delivery Management team in July 2004, working under Phil Snowden, and to his assignment in that role to work on the Environment Agency account with Julie McFarlane in the lead role. There followed a series of heated exchanges between Mr Davy and the claimant about this assignment, with Mr Davy suggesting that the claimant worked in a support role, and the claimant stated that the line of business all OnDemand Service Delivery Managers worked in was called “Support”, so all OnDemand Service Delivery Managers had a “Support” role.

 

A question and answer cross-examination then took place regarding Technical Assistance Requests, also known as Service Requests, and the Customer Incident Management role. Where the claimant disagreed with the Barrister’s extremely limited knowledge of these subjects, the claimant gave a full explanation.

 

In November 2005, a change was effected when the claimant was also given the General Electric account to work on. This additional account was a different, more reactive, twenty-four hours a day, seven days a week operation, and as he was one of only two points of contact, it raised additional problems. Mr Davy asked if he did only the work assigned to him and the claimant responded by confirming his various duties, which had four main aspects, and explaining his allocation of work to meet those demands. The claimant also outlined his continuing work on the Environment Agency account and strongly disagreed with Mr Davy’s assertion that Mr Hammett of the Environment Agency, in his witness statement, had confirmed that the Environment Agency role was diminishing, rather that the Environment Agency account was maturing. Maturing does not equate to diminishing.

 

Mr. Davy then turned to the crucial day of 16th December 2005 when a conference call had taken place between three OnDemand Service Delivery Managers, including the claimant, and their manager Phil Snowden. At the end of that conference call the claimant and Mr Snowden stayed on the telephone line to allow the claimant to explain to Mr Snowden that his heavy workload and work conflicts were causing his health to suffer due to stress affecting his Diabetes. Mr Davy’s line of comments and questions centred on the changes made following that conference call with regard to the claimant’s monthly role and workload that could briefly be described as follows, monthly report and meeting, Environment Agency management and General Electric management. Mr Davy commented that the claimant had not said to Mr Snowden that he was not happy with that outcome. The claimant explained that it was an ongoing situation. Mr Davy said that the claimant had no more incident management to do on the Environment Agency account. The claimant explained that it was not as simple as that, as the claimant still had duties to perform on the Environment Agency and General Electric accounts which were causing workload conflicts.

 

Mr Davy asked “Did you agree with your Environment Agency work?” to which the claimant replied “Yes”.

 

Mr Davy asked “Now the role had been reduced to three aspects?” the claimant replied “Correct”.

 

Mr Davy stated “Change had been made?” claimant stated, “Change had to be made for health reasons”.

 

Questions regarding the allocation of time continued with the Environment Agency account, which was four to five days on the monthly report, and one meeting every month. The claimant disagreed and explained that the Environment Agency report took ten days from beginning to end. He also gave his interpretation of the way the 16th December call with Mr. Snowden had ended, particularly that the claimant had still to work on both the Environment Agency and General Electric accounts simultaneously, and this led to workload conflicts still taking place between the Environment Agency and General Electric accounts in the first third of every month, and he gave his reasons for previously saying no to attending the 21 December 2005 Environment Agency monthly meeting as he was going off on his Christmas break to spend time with his young family, and wanted to use 21 December 2005 to clear up all outstanding work that required being completed on the General Electric account. Mr Davy said that the claimant had stated that no answer was given to him after the call with Mr Snowden, but the status quo had changed. Claimant strongly disagreed. Four tasks reduced to three were what was agreed, what was also agreed was not to do Environment Agency work and customer facing work. Claimant agreed.

 

The Claimant then explained that he had monitored his work from the first to the tenth of December 2005, and as the list was growing, this led to the realisation that it was not possible to do all of the work simultaneously, which resulted in his health suffering particularly in the first third of the month. When he attended his Diabetic clinic in February 2006 the results did not shock him as he had known from around November 2005 that his health and diabetic control was beginning to deteriorate, and explained higher blood sugar levels.

 

Mr Davy then moved on to the meeting the claimant had with his Director Nick Cooper on the 21 December 2005, and with regard to that meeting, Mr Davy put it to the claimant that no General Electric incident management could take a whole day. The Claimant replied that there was always incident management to be done. But, said Mr Davy, Mr Cooper indicated that you had not to do General Electric work at certain times. The claimant answered that this was not always possible, due to the volume of incidents and the other OnDemand Service Delivery Manager, Fran Winters, being unavailable, and he disagreed with the further assertion that the work was manageable. Mr Davy pointed out that Nick Cooper had said that the claimant had to speak to the other General Electric OnDemand Service Delivery Manager, with regard to offloading some of the work from the claimant, who replied that it was not always possible to do so for reasons he had given to Mr Cooper. The claimant had concluded in his minutes of the meeting, written at Birmingham Airport, that both Nick Cooper and Phil Snowden were not concerned with his health problems, and that with workload conflicts being ignored, he would have to leave the role of OnDemand Service Delivery Manager.

 

The Barrister continued by stating that the claimant was instructed not to participate any further in the Environment Agency monthly meetings and that there were other aspects of the role that he did not need to perform, for example, in the General Electric work there had to be no customer contact. Mr Davy then pointed out various aspects contained in the series of emails between Fran Winters and the claimant starting on the 5 January 2006. The claimant disagreed with the assertion that he had not to work on the General Electric account in the first week and a half of each month, and totally disagreed with the assertion regarding the General Electric work taking no more than half a day each month, giving explanations of how busy the General Electric account was, and about assignments from Fran Winters, especially when Fran Winters was unavailable. But, stated Mr Davy, with regard to the workload issue, a lot of this work was not assigned to the claimant. It was expected that he would work his way through his revised list of duties.

 

The claimant retorted that it never worked out that way with regard to customer incident management. Mr Davy asked how often this occurred, to which the claimant replied that one time would be one too many. Mr Davy then took the claimant through a series of extracts from Phil Snowden’s ‘daybook’ with regard to the period from December 2005 through to June 2006, where it stated “stress level – has settled down”, “Workload – General Electric – not too bad”, “discussed Cigna, will keep in mind”, although the claimant had said no to Cigna, stating the main reason was because he had attended the Diabetic Clinic for over forty years, and this Clinic was the best place to manage Diabetic issues. Mr Snowden’s ‘daybook’ also had a note stating “Kenneth – ok with situation”. The claimant rejected the claim that his workload had been reduced, and disagreed that he was doing significantly less and that he was not overworked, stating again that he was overworked, conflicts with the workload, and that the Company had not made the required adjustments.

 

The cross-examination then switched to give an overview of two very large elements of a customer contract, Oracle as host, and a hosting partner for the Environment Agency account, who had decided that their hosting partner would be Colt Datacentre and, therefore, these two elements were non-involvement areas for OnDemand Service Delivery Managers. The claimant replied that there were four elements to the customer contract, and explained that if there was a problem he had to contact Colt Datacentre, but OnDemand Service Delivery Managers were not involved in every aspect of the customer contract. He was working on two very large accounts while other OnDemand Service Delivery Managers were working on much smaller accounts, citing the much lower Full-Time Equivalent allocation percentages of other team members working on smaller customers, and that on bigger accounts there was an executive sponsor plus other assistance. The Environment Agency account had been split between three OnDemand Service Delivery Managers and he gave an explanation of the aspects of the work done by himself, Julie McFarlane and Richard Marsden. He disagreed that the role of an OnDemand Service Delivery Manager was not a technical role, as technical knowledge helped the OnDemand Service Delivery Manager to manage technical problems requiring resolution in order to maximise service delivery uptime.

 

With regard to the period from January 2006 to June 2006, and in particular, the claimant’s applications for three internal vacancies, Production Manager, Database Administrator and EMEA Operations Engineer, Mr Davy suggested that the constraints of looking for a more technical and non-travelling role had contributed to the claimant being unsuccessful with these applications. The claimant disagreed, and gave a full explanation as to the actual reasons he was not offered or considered for each of the three positions. He also stated that as new OnDemand Service Delivery Managers had been recruited during January 2006 to June 2006, he should have been left in his own OnDemand Service Delivery Manager role until another position had been found. Mr Davy brought up the email sent by Mr Snowden on the 12 April 2006 with regard to the claimant’s diabetes, and he suggested that Mr Snowden would not have expressed the same concerns in respect of the options about other OnDemand Service Delivery Managers. The claimant disagreed as this email concerned the claimant alone and had not been copied to the claimant. He also could not agree with Catherine Temple in her email on the 13 April 2006 regarding a customer facing role for the claimant which might lead him to go off sick again as he was one of the most customer facing members of the OnDemand Service Delivery Manager team when working on the Environment Agency account. Mr Davy said that the claimant knew of the Reduction in Force list, of the reorganisation, of other redundancies, of the new OnDemand Service Desk and that he would also be specifically informed about such changes. The claimant answered that he did not know of the Reduction In Force list, he knew of some reorganisation, but was not aware of any redundancies, was vaguely aware of the new OnDemand Service Desk and was never specifically informed about any changes, and any impact of changes. Mr Davy asserted that all OnDemand Service Delivery Managers would be made aware of the changes and of the introduction of the customer incident management role that would ease the flow of incident management and subsequently the workload of OnDemand Service Delivery Managers. The claimant retorted with his views on the different roles, and on any effect, the differences would make to the OnDemand Service Delivery Manager role.

 

The cross-examination moved on to the letter given to the claimant at the Edinburgh office on 30 May 2006 declaring his provisional selection for redundancy, and also to the leaflet which defined the details applicable to the redundancy process, a process which had the claimant’s point of contact as being Cathy Temple of Human Resources. The claimant insisted that the reason given for his provisional selection for redundancy, global business re-alignment, was much too vague a term and that he had never been invited to any consultation process meeting. He also explained his reasons for the series of emails between himself and Cathy Temple when he insisted that all contact should be in writing for the purpose of documenting. There had been no suggestion of a meeting and the responses from Catherine Temple had been by a questions and answers document. Unsatisfactory answers had been received for the two most important questions, the reason for the claimant’s provisional selection for redundancy, and on how many other OnDemand Service Delivery Managers had been provisionally selected for redundancy. The answers given, that the claimant’s role was no longer required and that the information regarding any other redundancies could not be shared with individual employees, meant that the claimant was not able to determine if an appeal could be lodged as it did not assist the claimant. On the 5 June 2006, the claimant received a phone call from Phil Snowden about the Environment Agency report and the claimant informed him that he had spent three days working on the report and that he had completed half of the report.

 

Mr Davy then moved on to the claimant’s witness statement that referred to an email received by him regarding Oracle Support results achieved in the year April 2005 to March 2006 and to which he had attributed three quotations, hinting at a dynamic, growing business. In fact, said Mr Davy, this was a fictitious email, it said so and the claimant was portraying it as factual. The claimant replied that he understood it to be a letter designed to imply where the company would be in 2007 as if it was a fact, and he apologised if he had overlooked the fictitious part of the email. Mr Davy then moved on to the Full-Time Equivalent allocation referring to members of the OnDemand Service Delivery Manager team, some of whom had much lower allocation percentages than the claimant, and he suggested the reason for the differences was that some team members had part time roles. The claimant did not believe that any OnDemand Service Delivery Managers were part time.

 

This concluded the matters for the second day of the Tribunal.

 

 

[]Chapter 13

 

Day 3

 

The third morning began with an attempt towards the resolution of the personal injury to health part of the case, and the Judge asked the claimant if he had been able to consider the case presented on the second day by the Respondent’s legal team with regard to withdrawal and the possible consequences thereof. The claimant replied that he had been able to study the case law cited earlier and to consider the consequences. Given the circumstances his decision was to withdraw the personal injury part of the claim, and continue this in a higher Court. Mr Davy stated that the reason for withdrawal at this late stage was not good, as it had been discussed at the Pre-Hearing Review. He cited examples from other case law, and that there was still more evidence to be considered. He continued by calling for the case against this part of the claim to be dismissed. The Judge acknowledged the call for dismissal and would make the decision known at the end of the Hearing when the Tribunal have had the opportunity to consider the other case law examples and the withdrawal decision in relation to that part of the case.

 

With the claimant back in the witness stand, Mr Davy continued his cross-examination by revisiting his assertion that all OnDemand Service Delivery Managers would have received a general notification of the re-organisational changes and, in particular, of the impact that these changes would have to their current way of working. The claimant replied by giving the example of the 25 April 2006 email from an OnDemand Service Delivery Manager to Nick Cooper and Phil Snowden, which expressed concerns about the function of the new War Room and there being no reduction in the number of customer incidents and the excessive time spent by OnDemand Service Delivery Managers in managing customer incidents. Mr Davy then moved on to the claimant’s witness statement where the claimant had asked the question as to why he had been assigned to other accounts three days after being made redundant. Mr Davy suggested that the question posed was misleading. The claimant replied that it was not misleading, as the emails in question had been sent to him alone.

 

Mr Davy then went back over again, in some detail, the previous evidence with regard to the workload of the claimant having been reduced in response to his request. The claimant again insisted that his workload had not been significantly reduced, that he was doing more than most of the other OnDemand Service Delivery Managers with his involvement in the two largest accounts and that his role was most certainly not a unique role. The cross-examination continued with a very terse exchange between Mr Davy and the claimant regarding a £1.50 expenses claim for the Glasgow Airport NCP parking ticket for his car on the date 23 January 2006. The claimant was originally at a loss to explain why his flight booking to Birmingham for the Environment Agency monthly meeting had been cancelled and was at a further loss to explain why this £1.50 expense item had been changed on his expense statement. He categorically denied that he must have changed it himself, as this was impossible to do under the American Express system and claimed that this could only have been manually changed from within the respondent company by someone who had the relevant permissions to access and change expense statements. Mr Davy again changed direction by turning to the health issues and asserting that the claimant had only been working on the two large accounts together for fifteen days yet his health had suffered over that short space of time. He further asserted that in the days leading up to his hospitalisation in June 2006 the Doctor’s entry on his medical report had stated that the claimant had been on a family camping holiday and could have picked up an infection whilst on that camping holiday. The claimant dismissed these assertions with detailed explanations on his personal health, he was not prone to infections, and on how his Diabetes had been affected by events at work, lowering his immune system.

 

The cross-examination then moved on to the claimant’s job searches, and also to the claimant’s schedule of loss and on to the total sum claimed in the schedule of loss.

 

Mr Davy also focussed in on future loss of earnings, the types of jobs searched for within the job search, and the search for employment regarding searching for Service Delivery Manager roles, in particular job categories. In response to Mr Davy’s scathing attack on the claimant’s total sum claimed, and in particular to his future loss of earnings calculation, the claimant outlined that he had submitted a very detailed and evidential based summary of the losses which made up the total sum claimed. If the future loss of earnings calculation was high then it was based on his salary and benefits and on evidential data concerning his prospects of finding a similar role in the future. Mr Davy referred to the claimant’s unsuccessful attempts to find employment and said that the respondent had carried out a search and found thirty-four jobs available, five of which were allegedly very suitable vacancies for the claimant, who retorted by inquiring how far away these alleged vacancies were from the claimant’s home. Mr Davy then questioned the claim made by the severe lack of phone calls from employment agencies regarding OnDemand Service Delivery Manager vacancies and asked how many were related to job offers. The claimant gave his response with regard to the number of phone calls he had received and confirmed that none of the calls had resulted in interviews, never mind job offers. He also went on to explain the reality of finding a job with his specialised skills and he gave a full explanation of his search for employment externally through agencies, job centres and of his consideration of enhanced training. All of this had been done in between the huge amount of time he had to spend in preparing for his case against the respondent to go to Tribunal.

 

With regard to the charge made by the claimant at the start of the Tribunal Hearing, that there had been alterations made to a sizeable number of documents, Mr Davy said that the claimant had posed serious questions about whether the alterations had been deliberate and whether he was saying that the respondent was responsible for the deliberate alterations. The claimant explained with regard to the list of alterations that he, the Claimant, had been disadvantaged by the alterations. Mr Davy stated that their request to the claimant was for hard copies of all of the documents but the claimant had sent them by email. He provided the example of sending on word documents in this way, stating the possibility that the claimant had made mistakes when sending these documents. The claimant refuted this and explained that this was not possible with the scanning and cut and paste method he had used. However, he conceded that he could not state who had altered the documents. The Claimant gave examples of documents altered with regard to his case. He pointed out one specific document that had been altered and stated that the respondent should not be in any position to say what information is relevant or not relevant to the claimant’s case and that he had been disadvantaged by the alterations.

 

This completed the cross-examination of the claimant by Mr Davy.

 

The Judge stated that the charge regarding the alterations had been raised first at the June 2006 Case Management Discussion conference call, and because of the Judge’s unavoidable absence on that occasion, it had been held over to the full Tribunal for consideration.

 

The Judge asked the claimant to take the witness stand again for cross-examination by the Tribunal panel. The claimant was asked about his typical working day, his communications by email and about logging on for work. He explained with regard to his normal working day, about logging on and how the system is capable of knowing how long he was logged on. He also explained that most of the communication aspect of his work within the company was done by email, and also explained the system of live messaging, and that he did not have a lot of face to face contact with his immediate management. He was also asked about travel and about working from home and he explained the nearest office of the respondent was two hours drive away and his personal preferences for working from home, which he had done for the eight years that he had worked for the respondent. One Tribunal panel member asked about his Diabetes and that he had raised it within the company in 2003 and then in 2005. The claimant explained that in 2003 he was on call, and found it difficult sometimes when doing shift work and was called out through the night, and the difficulties that such an irregular pattern of work brought with regard to good diabetic control. In response to further questions, he also explained that it should have been picked up in his medical examination prior to being offered employment that he was an insulin-dependant Diabetic, although he could not remember if it was asked or mentioned in his original application to join Oracle. When asked about the frequency of hypo attacks the claimant said that the last one would be about ten years ago. When asked about jobs and about training courses for a different career, the claimant said that he was prepared to consider re-training but that this would be a step back and would not necessarily lead back up to his present level and salary. In response to concluding questions, he gave explanations about customer service requests, and with regard to working extra hours for Oracle when required, he said that he did do extra hours and that he was not paid for this extra work.

 

The Claimant stood down from the witness stand.

 

Prior to calling his first witness to the stand, Mr Davy, for the respondent, highlighted the witness statement of Malcolm Thompson, a Senior Director of Support Services for the United Kingdom, who had written that the claimant’s role was a unique role, that it was redundant due to global change within Oracle and that he was unaware that the claimant was a Diabetic. Mr Davy also highlighted the witness statement of Sue Scales, Vice President, Regional Leader for the United Kingdom, with regard to a spreadsheet on redundancy, to candidates being placed on a list and that it was the relevant manager’s decision as to which candidate should be nominated for the list.

 

A very nervous Phil Snowden, Senior Manager of On Demand Services took the witness stand.

 

When prompted by Mr Davy, he agreed that at the end of his witness statement he had confirmed that it was a true statement. Mr Davy then began by asking him on what basis had the claimant joined the On Demand Service team and Mr Snowden answered that the claimant’s role would be one of dealing with customer enquiries so that their problems would be progressed and solved. When asked to explain the differences in the On Demand Service Delivery Manager roles, Mr Snowden gave a protracted explanation which was full of technical terminology regarding the various aspects of the On Demand Service Delivery Manager role including the contact involved, the form it took, the significant contact with customers and of project planning being one practical example of the issues involved. The Judge interceded to ask the very nervous Mr Snowden if he could give his explanations in more simple and basic terms when speaking about systems within Oracle. Mr Snowden continued by explaining the purpose of the On Demand Service system and giving as an example the Environment Agency account that had various roles active within that account. He spoke about contacts within the system, about how other departments worked and of how the plan was carried out by the departments within Oracle. He talked about the On Demand Service Delivery Managers involvement in knowledge and technical support within the context of the whole On Demand System team. The On Demand Service Delivery Manager is one of the liaison points as the On Demand Service Delivery Manager co-ordinates and updates the internal system. Project planning would deal with quarterly security updates. The On Demand Service Delivery Manager would see the schedule for a customer but would not be involved with regard to more users on the customer system as the co-ordinator would deal with this aspect. Julie McFarlane was the On Demand Service Delivery Manager lead for the Environment Agency account.

 

Mr Snowden continued his responses to Mr Davy’s considered promptings, by stating that at the end of 2005 the Environment Agency account was stabilising and incidents were being reduced. He had expressed his concerns about the outcome of the 16 December 2005 meeting and had decided to reduce the claimant’s role on the Environment Agency account to that of co-ordinating and attending to the reports. This would allow him to split his time, fifty-fifty, between the Environment Agency and General Electric accounts. He agreed with Mr Davy that the extract from his daybook was about his conversation with the claimant regarding his workload, stress and diabetes, about Julie McFarlane leaving her role, about the reduction in the Environment Agency work, about other small roles and that he would arrange a meeting with Nick Cooper as Mr Snowden was going on holiday. On his return from holiday, Nick Cooper had informed him by email that the claimant would be looking for another role, he understood that he would be looking internally and externally and that he would be looking for a more technical role. Mr Snowden continued by confirming that, from his notes of a conversation he had with On Demand Service Delivery Manager, Fran Winters, the understanding from Fran Winters was that the claimant was spending one hour per day on the General Electric account, that he was too busy to assist Fran Winters during the first half of the month and that he was too busy for conference calls so a production manager should be assigned for these calls. The email between the claimant and Fran Winters confirmed the significant effort in the first part of the month and that he was supportive of the claimant. Mr Snowden continued by addressing the organisational changes within groups who provided On Demand Services from the Global Desk. In response to the emails regarding diabetes, offsick in the future, and exit him from the organisation, between himself and Catherine Temple, the Senior Human Resources Manager, Mr Snowden confirmed that as there was a reduced need for the claimant’s role then that was the reason for his redundancy selection. He further confirmed that the claimant was “ok” with the redundancy situation and that he had no other accounts to work on and no other support roles that needed to be done.

 

As the examination of Phil Snowden’s witness statement had now been completed the claimant was asked if he had any questions to put to Mr Snowden. The claimant asked Mr Snowden, his old manager, to confirm if his role was On Demand Service Delivery Manager, to which Mr Snowden answered “Yes”. The claimant then asked Mr Snowden to read from his 12 April 2006 email to Malcolm Thompson, Nick Cooper, Simone Harch and Catherine Temple, the last two paragraphs regarding the health and stress issue, diabetes and high blood pressure and to exit the Claimant from the organisation. Mr Snowden did so and confirmed that he did send the email. On realising that the claimant would not be asking any more questions the Judge advised the claimant that if he did not ask any further questions regarding Mr Snowden’s witness statement then it could be construed that he agreed with the remaining parts of his witness statement. The claimant replied that he did not agree with many aspects of Mr Snowden’s witness statement, but he continued by asking Mr Snowden to confirm with regard to the claimant’s job title that it was not a unique role, it was not a back office role, was not a non-customer facing role, and that it was not a support role. Mr Snowden confirmed that it was none of these roles.

 

Phil Snowden left the witness stand and sat at the back of the Tribunal Hearing room.

 

Nick Cooper, a Director of Oracle On Demand, took the witness stand for examination of his witness statement, and he began by explaining the differences between the claimant’s role and other team members’ roles. When asked to expand on this by Mr Davy he spoke of the other team members’ involvement to a high degree with customers, and that this contact takes the form of face to face meetings. He was then asked about his 21 December 2005 meeting with the claimant and of the brief notes of that meeting he had entered into his daybook. He summarised the meeting with regard to the claimant’s stress, health and workload concerns plus he had noted that he understood that the General Electric work was cyclical and that he had jotted down approximate breakdowns of the work that the claimant had to do. His conclusions after the meeting were that there was not enough in the role, which was not a technical role, to give him the full-time role that he wanted. Nick Cooper responded to the continual prompting of Mr Davy by giving explanations about the reorganisation process, which began in January 2006, and he gave a breakdown of his understanding of this process.

 

The claimant began his cross-examination of Nick Cooper, his old director, by asking him if his role was that of an On Demand Service Delivery Manager, to which Nick Cooper agreed. The claimant then referred Nick Cooper to the 12 April 2006 email sent to Malcolm Thompson, Simone Harch and Catherine Temple, and which Nick Cooper had been copied, and in particular to the last two paragraphs regarding the health and stress issue, diabetes and high blood pressure and to exit the claimant from the organisation. This extract the claimant read out to Nick Cooper. The claimant asked Mr Cooper why he did not question the validity of the statement made in it with regard to the claimant’s disability and assumption that this would lead to future sickness absence. No answer was provided.

 

What, the claimant inquired, were the reasons the claimant had given to him with regard to not wanting to do the On Demand Service Delivery Manager role. Those reasons were that he had been given the two biggest accounts in Oracle On Demand to work on, that these accounts were in the top ten globally and that there was too much work in both of these accounts for it to be undertaken simultaneously. The claimant went on to confirm that there had been a reduction made in the Environment Agency workload, but that this time was taken up with General Electric work. The claimant asked Mr Cooper if he would not agree that there were problems of Full-Time Equivalent allocation and that some of this work could have gone to other On Demand Service Delivery managers who were on a much lower Full-Time Equivalent allocation workload. The claimant insisted that he had also flagged up the matter of working on two large accounts to Phil Snowden at the 16 December 2005 meeting. Nick Cooper insisted that there were reductions made to the workload in December 2005 and in January 2006. The Claimant retorted that this never really happened, as Fran Winters was unavailable at certain times, the reductions could have come but did not materialise. The claimant concluded by asking Mr Cooper if he had a unique role, a back office role, a non-customer facing role or a support role as his job title. Mr Cooper confirmed that it was none of these.

The Judge, Ms Crone, asked Mr Cooper to explain how the organisational changes, for example to the Global Desk, would impact on the On Demand Service Delivery Manager role. Mr Cooper explained that it would reduce the workload of the On Demand Service Delivery Manager role. Ms Crone asked if the changes meant that there would be a redundancy situation. Mr Cooper replied that the business was growing. Ms Crone asked if more On Demand Service Delivery Managers would be required as it grew. Mr Cooper agreed, more On Demand Service Delivery Managers would be needed to meet incident management requirements. Wouldn’t the new Customer Incident Management role reduce the need for more On Demand Service Delivery Managers as the incident management activity moved through the new system, asked Ms Crone? Mr Cooper concluded by explaining how the Customer Incident Management role would differ from the On Demand Service Delivery Manager role.

 

Nick Cooper left the witness stand and sat at the back of the Tribunal Hearing room.

 

Catherine Temple, Senior Human Resources Manager, was called to the witness stand for her witness statement, which on the last page was unsigned due to her having been on holiday. She signed it in the witness stand. Mr Davy began by reminding Catherine Temple of the email sent by the claimant to Human Resources seeking another role within Oracle and he asked her about the process that would follow on from such a request for notification of current and future vacancies. Catherine Temple replied that there were two main aspects to this process, the Oracle internet site and through a filtering system and that anyone who was actively seeking an internal employment role should input via the Oracle Recruitment website. Mr Davy moved on to the Reduction In Force list and asked Catherine Temple about this list. She replied that it was in February 2006 that the Reduction In Force list first became known and it was designed for employees whose role would be at risk of redundancy. The list would only be known by a very few at that time and this list would eventually be compiled by relevant Managers. Mr Davy asked if, on the 12 April 2006, Nick Cooper and Phil Snowden were aware of this list. Catherine Temple replied “No”. Mr Davy turned to the series of emails and asked Catherine Temple to give an explanation as to the roles performed by herself and by Simone Harch within the Human Resources department, in particular as to why they were both involved in dealing with the claimant. This explanation was given. Mr Davy continued by referring to the email from Phil Snowden to Simone Harch on the 10 April 2006 about the claimant, but, in particular, he referred to the series of emails after that from 11 April to 13 April 2006 with regard to the claimant. Within this series lay the important opinions on the claimant’s suitability for assignment to other roles, on his capabilities, and specifically, Phil Snowden’s 12 April 2006 email with it’s two options, it’s raising of the health issues and it’s prompting of one other option, to exit the claimant from the organisation. Catherine Temple replied, as earlier, that Phil Snowden would not have been aware of the Reduction In Force list, that this series of emails were of wanting to give the claimant the option of redundancy and that the basis of her comment “might lead him to go off sick again” was the claimant’s own stress and health problems. In response to Mr Davy, she also spoke about the Reduction In Force list process which began in February 2006 with the identification of roles, like the claimant’s, at most risk of redundancy, and examples of this process from mid-March to the end of March 2006 had been provided. This ongoing process continued through April and May in order to provide data to the Oracle Headquarters in America, as the Reduction In Force was likely to go ahead. The confirmation of the names to remain on the Reduction In Force list would only be done after the revalidation phase of the process. Mr Davy then outlines the process through that phase, with the emails validating the reasons given that the claimant’s role was not required as it was a unique role. Catherine Temple confirmed that this check-and-confirm phase had been carried out with the name and role in question being that of the claimant’s. Mr Davy concluded by asking Catherine Temple to confirm that there had been 121 redundancies and was the list of people referred to in evidence. Catherine Temple confirmed that this was the case.

 

The claimant began his cross-examination of Catherine Temple and her witness statement by referring her to her witness statement, particularly February 2006 where she had stated that there were ten On Demand Service Delivery Managers in the On Demand Service Delivery team, yet the quarterly organisation summary headcount taken just prior to then had shown that there were fourteen On Demand Service Delivery Managers, with one in the process of being hired, all of which left a shortfall of three On Demand Service Delivery Managers, as the targeted number of On Demand Service Delivery Managers was eighteen. Catherine Temple replied that the figure given in her statement was correct to her knowledge and that she would not have that detail of knowledge with regard to the headcount. But, said the claimant, she was aware to the extent of being very involved with the redundancy of the claimant. She explained that she was not involved in the consultation or selection process, just in the facts that the role was unique. The claimant concluded by asking her if she was saying that she wasn’t involved in any way with the redundancy of the claimant. Catherine Temple confirmed that she wasn’t involved.

 

The Judge, Ms Crone, asked Catherine Temple to confirm that she had never met the claimant, and Catherine Temple confirmed this fact. Ms Crone then asked Catherine Temple, with regard to the number of employees made redundant, as to what form of redundancy procedure was followed. Catherine Temple replied that the company does have a process to follow and that it did take place, and Ms Crone inquired “But not in the case of the claimant”, to which Catherine Temple replied quietly “No”.

 

Catherine Temple left the witness stand and went to be seated at the back of the Tribunal Hearing room.

 

Mr Davy now continued by highlighting other aspects of witness statements when he confirmed the recruitment services available and the contact made with the claimant regarding these services. These witness statements also reflected on a brief history of the claimant’s previous roles within the company, on his current role being a support role, and not standard within the On Demand team and on the steps taken to find a different role following on from his stress and diabetes problems. The statements also provided details on the steps taken to contact the claimant, to meet his wishes but that such a role did not exist within Oracle as the series of emails regarding the claimant had concluded. The claimant had expressed concerns with many of the witness statements not being signed, but Mr Davy confirmed that they had been signed, and went on to discuss the meeting the claimant had with Mr Gemmell in Edinburgh, when the claimant had received the provisional selection for redundancy notification letter dated the same day as that meeting. Mr Davy referred also to the witness statement by Fran Winter with regard to his work on the General Electric account and of the part-time service that the claimant was providing to this account. He concluded his witness statement referrals with Richard Marsden’s statement, regarding a series of questions, and with the statement of Fiona Vickers OnDemand Service Delivery Manager, regarding her being a Type 1 Diabetic.

 

The Judge, conscious of the lateness of the day, asked Mr Davy how long it would take for his closing submission. Mr Davy replied that it would take forty-five minutes.

 

The Judge then confirmed that it would be necessary to fix another date to conclude the Tribunal Hearing. After a short break to confer on a suitable date it was agreed by all concerned that the Tribunal Hearing would be re-convened on Monday 6th August 2006. Mr Davy again brought up the withdrawal of part of the claim by the claimant as being unresolved and this was noted by the Judge, who concluded by confirming that, after the closing submissions, the decision of the Tribunal would be given in writing.

 

 

[]Chapter 14

 

Day 4 – Submissions

 

Introduction

 

This is the closing statement from the Claimant, Kenneth Robert McAlpine, given on this day the 6th of August 2007. It is the final summation of the Claimant’s claim against the Respondent as covered in the full Tribunal sittings of the 2nd, 3rd and 4th of July 2007.

 

The Claimant’s claim is based on a factual account of the important events from November 2005 through to July 2006. Factual was the intention from the very outset, hence the reason why the Claimant with his expertise and up front knowledge decided to represent himself, and important the events of those crucial months certainly were to the life and to the career of the Claimant.

 

In contrast, the Respondent’s legal team has had a difficult and demanding task in weaving their way through the jargon and complexities of the On Demand Service Delivery Management system. As a consequence of this the Respondent’s defence has changed over time, from initially stating in the ET3 form that the Claimant had a non-customer facing role, then, after realising that this would not explain the reason for the redundancy, changing it to the Claimant having a unique role and/or back office role, and then again, after realising that the Claimant did not have a unique role and/or back office role, finally settling for a support role.

 

During the first day of the full tribunal, the 2nd July 2007, the Claimant read out the Claimant’s witness statement, and during the second day, 3rd July 2007, the Claimant was cross examined by Mr Davy (of counsel).

 

On the third day of the full tribunal, 4th July 2007, the Respondent introduced three witnesses, who did not read out their witness statements, but answered questions by the Respondent, the Claimant and the Tribunal.

 

The first witness, Phil Snowden, when asked why Mr Snowden had stated in his email of the 12th April 2006 and I quote “the combination of diabetes and high blood pressure which could result in a prolonged period of time off due to illness” unquote, mumbled something about it applying to either option. Obviously no remorse was shown at all to that statement which is not only untrue for the Claimant, but is also untrue for most, if not all 200 million people who suffer from Diabetes. Mr Snowden also confirmed that the Claimant had the job title ‘Service Delivery Manager’, and that the Claimant did not have the job title ‘Non-Customer Facing Service Delivery Manager’ or ‘Unique Service Delivery Manager’ or ‘Back Office Service Delivery Manager’ nor, crucially, did the Claimant have the job title ‘Support Service Delivery Manager’.

 

The second witness, Nick Cooper, again confirmed that the Claimant had the job title ‘Service Delivery Manager’, and also stated that the Claimant did not have the job title ‘Non-Customer Facing Service Delivery Manager’ or ‘Unique Service Delivery Manager’ or ‘Back Office Service Delivery Manager’ or ‘Support Service Delivery Manager’. Mr Cooper when asked if the ‘Customer Incident Management’ role, which had been used as one of the excuses for making the Claimant redundant, would help all Service Delivery Managers, stated “Yes”. This raises a number of serious questions, none the least of which is, why was the Claimant made redundant when the Claimant had a Full Time Equivalent (FTE) Allocation of 2.0, when other Service Delivery Managers had an FTE Allocation as low as 0.2, which would be further reduced with the introduction of the ‘Customer Incident Management’ role?

 

The third, and last witness for the Respondent, Catherine Temple, when asked if the redundancy procedure had been followed for the Claimant, quietly stated “No”. If the Claimant had such a non-customer facing, unique, back office and/or support role, what did the Respondent have to hide by not following the redundancy procedure? And, why did Catherine Temple, a Senior Manager in the Human Resources department, not insist in the redundancy procedure being properly adhered to for the Claimant?

 

The Law

 

The Claimant’s Claim will be on the following grounds:

 

  • Unfair dismissal

 

On the grounds that the Respondent failed to follow the Statutory Dismissal Procedure, and that as such, The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 12(1) applies.

 

  • Disability Discrimination

 

That the Respondent directly discriminated against the Claimant in both the selection for redundancy and redundancy process, on the grounds:

 

Direct Discrimination

The Disability Discrimination Act 1995, regulation 3A(5), which states:

 

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

 

An employer “directly discriminates against a disabled person”, if “on the ground of the disabled person’s disability”, Type 1 Diabetes, “he treats the disabled person less favourably”, selection for redundancy on 30th May 2006 and redundancy on 10th July 2006, “than he treats or would treat a person not having that particular disability”, any employee without diabetes, “whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”, any employee without diabetes, especially new On Demand Service Delivery Managers (oSDM’s), with or without high blood pressure.

 

To determine direct discrimination, the main question here is:

 

Would the Respondent have dismissed any other employee without diabetes, especially new On Demand Service Delivery Managers (oSDM’s), with or without high blood pressure?

 

  • Failure to make reasonable adjustments

 

That the Respondent discriminated against the Claimant with regards to a failure to comply with a duty to make reasonable adjustments, on the grounds:

 

Failure to comply with a duty to make reasonable adjustments.

The Disability Discrimination Act 1995, regulation 3A(2).

 

Respondents Claim

 

The Respondent has tailored a story around facts raised by the Claimant, which has resulted in a fictitious story in which the Respondent would have you believe the following:

 

1. “The Claimant had a non-customer facing role as stated by the Respondent in September 2006.”

2. “The Claimant had a unique role as stated by the Respondent in November 2006.”

3. “The Claimant had a support role as stated by the Respondent in June 2007.”

4. “The Claimant was not overworked.”

5. “The Respondent made reasonable adjustments.”

6. “The Claimant wanted out of the Service Delivery Manager role.”

7. “The Respondent did not unfairly dismiss the Claimant.”

 

The reason why the Respondent had to tailor a fictitious story around historical facts is simply that the Respondent would not have had any defence against the claims made by the Claimant.

 

One example of the fictitious nature of this story is highlighted by the following two documents:

 

The Claimant is on the Reduction In Force (RIF) list on 21st February 2006.

 

Request to add the Claimant to the Reduction In Force (RIF) list on 2nd April 2006.

 

When was the Claimant added to the Reduction In Force (RIF) list, 21st February 2006 or 2nd April 2006?

 

The Claimant would now like to go through some of the points that make up the Respondent’s fictitious story:

 

1. “The Claimant had a non-customer facing role as stated by the Respondent in September 2006.”

 

This is simply pure invention by the Respondent in order that the Respondent could justify dismissing the Claimant. The reasons why this is pure invention is as follows:

 

1.1 This document shows that the Claimant attended 80% of the Environment Agency monthly meetings, it also shows that another Service Delivery Manager, Richard Marsden, during the same period, only attended 50% of these monthly meetings.

 

1.2 Shows a sustained 400% increase in the Claimant’s mobile phone bill for outgoing calls made to customers from July 2004 to July 2005.

 

1.3 Witness Statement of Andrew Hammett.

Andrew Hammett, in his witness statement, when asked “Can you confirm that Kenneth McAlpine (“Claimant”) initiated or received phone calls on a mainly daily basis from Environment Agency…..”, answered ‘Yes’.

 

1.4 The oSDM Duty Manager role allows any customer to contact the oSDM Duty Manager if they cannot contact their assigned oSDM.

 

1.5 One of a number of emails outlining the Claimant as one of the main named contacts for the Environment Agency.

 

These are just a small number of the documents outlining that the Claimant did not have a non-customer facing role.

 

2. “The Claimant had a unique role as stated by the Respondent in November 2006.”

Again, this is simply pure invention by the Respondent in order that the Respondent could justify dismissing only the Claimant from a team of people performing the same work. The reasons why this is pure invention is as follows:

 

2.1 This Aria Organisational Chart for 25th April 2005 shows that the Claimant had the job title ‘Service Delivery Manager’, the same job title as most other team members. It is also interesting to note that this chart shows a number of team members who do not have this job title.

 

2.2 This Aria Organisational Chart for 30th May 2006, shows that the Claimant had the job title ‘Service Delivery Manager’, the same job title as most other team members. It is also interesting to note that this chart shows all team members now had a Service Delivery Manager role, and that role titles within this Organisational Chart must have been reviewed and updated on a regular basis

 

2.3 Why would the Claimant be included in a presentation slide of EMEA Field Experience, SDM Deployment, along with two other Service Delivery Managers, if the Claimant had a unique role?

 

2.4 If the Claimant had such a unique role, why would there be problems with account cover as outlined in this document.

 

These are just a small number of the documents outlining that the Claimant did not have a unique role.

3. “The Claimant had a support role as stated by the Respondent in June 2007.”

 

3.1 If the Claimant had a support role, why would the Claimant be working on his own, in a shift pattern, at the busiest time of each day, on one of the largest accounts in Europe Middle East and Africa.

 

3.2 Why would the Claimant be sent on the expensive 3-day Lifecycle Training course, along with all other Service Delivery Managers and the Claimant’s manager and director, if the Claimant had a support role?

 

3.3 Why would the Claimant be sent on the expensive 3-day IT Infrastructure Library training course, along with most other Service Delivery Managers, if the Claimant had a support role?

 

3.4 As the Claimant had to perform the oSDM Duty Manager role each month unaided, along with most Service Delivery Managers, excluding new starters, this is a further indication that the Claimant did not have a support role.

 

These are just a small number of the documents outlining that the Claimant did not have a support role.

 

4. “The Claimant was not overworked.”

 

According to the FTE Allocation of the Respondent, the Claimant had an FTE Allocation of 1.0 when working on the Environment Agency account, other Service Delivery Managers had an FTE Allocation that ranged from 0.2 up to a maximum of 1.1. When the Claimant was further assigned to work simultaneously on the GE account, this brought the Claimant’s FTE Allocation up to 2.0.

 

Why was the Claimant being overworked, when some Service Delivery Managers were only performing around 1/5th of the Service Delivery Managers role?

 

5. “The Respondent made reasonable adjustments.”

 

The Respondent never made any reasonable adjustments. The Claimant could not perform the EA and GE roles simultaneously, so something had to give. The main problem, which was never addressed, was the Environment Agency monthly report that had to be worked on 100% of the time in the first 10 days of each month, but the Claimant was expected to still perform GE duties in the first 10 days of each month. This expectation and situation persisted from December 2005 to June 2006.

 

6. “The Claimant wanted out of the Service Delivery Manager role.”

 

The Claimant would have happily stayed in the Service Delivery Manager role, if the FTE Allocation of the Claimant had been 1.0 or less. Due to the FTE Allocation of the Claimant being 2.0, resulting in work conflicts and stress, resulting in ill health, and the Claimant raising these issues with the Claimant’s manager and director, and the status quo continuing, the Claimant had a simple choice, work in the current Service Delivery Manager role which was causing the ill health, or look for a new role within the Respondent.

 

7. “The Respondent did not unfairly dismiss the Claimant.”

 

Why did the Respondent have to raise the Claimant’s disability at all, if this was a genuine redundancy?

Why did the Respondent not involve the Claimant in any discussions regarding redundancy?

 

Who was representing the interests of the Claimant in the Reduction In Force (RIF) list validation process?

 

Where are the missing elements of the Reduction In Force (RIF) list email trail?

 

Who made the initial decision to place the Claimant’s name on the Reduction In Force (RIF) list if the Claimant’s managers, Phil Snowden and Nick Cooper, were seemingly not aware of the Reduction In Force (RIF) list in April 2006?

 

Why, if there were 121 redundancies, did the Respondent not follow the statutory dismissal procedure in the case of the Claimant?

Claimants Claim

 

The Claimant’s claim is a simple claim.

 

During late November 2005 the Claimant, already having a Full Time Equivalent (FTE) Allocation of 1.0 due to working on the Environment Agency (EA) account, was further assigned to work simultaneously on an even larger account, the General Electric (GE) account, which resulted in the Claimant having an FTE Allocation of 2.0. Many of the Service Delivery Managers in the Claimant’s team had an FTE Allocation of between 0.2 to 1.1, so the Claimant had an FTE Allocation that was between 2, and up to 10 times fellow Service Delivery Managers.

 

During December 2005, the Claimant first realised that work conflicts between the Environment Agency and General Electric accounts were unavoidable. Due to the size, complexity and sheer volume of these accounts, the Claimant could not perform the Environment Agency monthly report and the General Electric duties simultaneously during the first part of each month. The Claimant also could not spend a full day attending and travelling to and from the Environment Agency monthly meeting at Birmingham as this would result in no General Electric work being performed each day of the Environment Agency monthly meeting. This was just an example of the problems that the Claimant was experiencing working simultaneously on two very large accounts.

 

Due to the conflicts of workload between these two extremely large accounts, the Claimant was invited to a conference call with the Claimant’s manager, Phil Snowden, and had a further unscheduled meeting with the Claimant’s director, Nick Cooper. During these two discussions, the Claimant outlined the problems of working on both of these extremely large accounts, and the problems of work conflicts at certain times each month, and the consequences that these work conflicts were having on the Claimant’s health and disability, Type 1 Diabetes. The Claimant was simply astonished that Phil Snowden and Nick Cooper did not take the Claimant off one of the extremely large accounts, and allocate this work to one of the Service Delivery Managers with an FTE Allocation that was much lower than the Claimants. As the status quo was to continue, the Claimant had no choice but to inform Nick Cooper that the Claimant would have to search for another role within the Respondent.

 

Once the Claimant had returned from the Christmas and New Year holiday, the Claimant sent an email to HR in January 2006 requesting a transfer, and once the Claimant had a chance to look for another role within the Respondent, the Claimant identified two internal roles in February 2006, and a further role around April 2006, and applied for all of these roles.

 

During the period December 2005 to June 2006 the status quo continued, with the Claimant having to produce the Environment Agency monthly report in the first ten days of each month, but was also tasked with performing the daily work expected on the General Electric account. This created severe work conflicts during the first ten days of each month.

 

Please note that during the period December 2005 to June 2006, at no point was a reasonable adjustment ever made, it was impossible to perform all the work that the Respondent was expecting of the Claimant, and because of this, it was simply a case of either Environment Agency work, or General Electric work, but not both at the same time. However, during the first ten days of each month, the Claimant was expected to perform both Environment Agency and General Electric work, and this workload conflict was never resolved.

 

On 25th May 2006, the Claimant received a phone call from Phil Snowden, the Claimant’s manager, to attend a meeting on 30th May 2006 in the Edinburgh Office. No reason was given for the meeting.

 

At this meeting, which was with a Senior Director unrelated to the Claimant in the employee hierarchy, the Claimant was informed that the Claimant had been provisionally selected for redundancy. The meeting on the 30th May 2006 was the first time that the Claimant had been notified of any redundancy situation.

 

During June 2006 the Claimant still performed the Environment Agency duties and the General Electric duties, as the Claimant had been doing since November 2005. As the Claimant had been provisionally selected for redundancy, the Claimant contacted his manager, Phil Snowden, as an employee who has been provisionally selected for redundancy should not have direct contact with customers, and the Claimant was unsure whether the Environment Agency report would fall into that category. The outcome of this was that my manager asked me to hand over the remaining Environment Agency report to a new starter in the On Demand Service Delivery Managers team, who had started on the 1st June 2006, 2 days after the Claimant had been provisionally selected for redundancy. This was the very outcome that the Claimant was seeking when requesting reasonable adjustments in December 2005.

 

The Claimant then became acutely unwell, and was taken straight from the Claimant’s local GP Surgery, to Crosshouse Accident and Emergency. The provisional diagnosis from the Claimant’s local GP Surgery was ‘Insulin Dependent Diabetes Mellitus Diabetic KetoAcidosis’. In essence, this is a condition in which the glucose in the blood is too high, and it would not have been caused as a result of a two-day family camping holiday in a nearby locality.

 

The Claimant was made redundant on 10th July 2006, and remains to this day shocked, shattered and unemployed by this unjust act.

 

During this claim, the Claimant served a Disability Discrimination Act Questionnaire on the Respondent, and it has become apparent that the Respondent, since making the Claimant redundant on 10th July 2006, has started a further 5 new Service Delivery Managers in the On Demand Service Delivery Managers team that the Claimant worked in for two years. It is also apparent that the Respondent had a further 6 Service Delivery Managers with less time served in the On Demand Service Delivery Managers team than the Claimant.

 

During April 2006 the Claimant was not involved in any discussions regarding making the Claimant redundant, however, if you date order the emails in Bundle of Documents, Volume III, document 74, the emails discussing the Claimant’s disability are at the end of this email chain, which suggests that this was the real reason for making the Claimant redundant. This email chain also makes specific reference to the discussions on reasonable adjustments in December 2005, which links the reasons for the Claimant’s redundancy to as far back as December 2005.

 

Remedy

 

During the full hearing in July 2007, the subject was raised as to retraining for an Oracle DBA role. This is a genuine loss of career, as the Respondent is the only organisation that provides Oracle software, so the Claimant cannot be expected to support and have contact on a regular basis, with the organisation that discriminated against the Claimant. The Claimant will have to start a new career, which does not involve any Oracle software, or ‘Oracle DBA’ role. This is a completely unacceptable situation for someone with a disability of some 40+ years, who is in their mid forties, and who has a young family and wife to support.

 

As the Respondent is the only organisation who provide Oracle software, many Oracle employees enjoy a long and prosperous career, either working directly for the Respondent, or working for one of the Respondent’s customers, and it is not uncommon for these employees to have a long career as highlighted by Mary Tighe, an On Demand Service Delivery Manager, who has worked for the Respondent for some 19 years and counting.

 

The Respondent has produced a Report on the Claimant’s job search that lists a number of Oracle DBA roles that the Claimant could quote ‘fill’ according to the Respondent. However, the Claimant applied for, but did not obtain an Oracle Database Administrator (DBA) role within the Respondent in April 2006, so the Respondent cannot seriously argue that the Claimant could get an Oracle DBA role, when the Respondent would not employ the Claimant in the same Oracle DBA role, after the Claimant worked for the Respondent for 8 years, 4 years of which was working in the role of DBA.

 

The Respondent has also listed a number of rather vague IT vacancies, most of which seem to be very IT specific rather than Oracle specific, and as the Claimant has only worked with Oracle specific products for the last 10 years, it is highly unlikely that the Claimant would even be considered for an interview for these very broad IT roles, which would likely involve PC hardware, software and purchasing experience, experience which the Claimant does not have.

 

If the Respondent does not attempt to mitigate the Claimant’s assessment of loss, by way of factual evidence and statistics, the Employment Appeal Tribunal appeal “British Medical Association v. Chaudhary [2004]” states in paragraph 61:

“ little effort appears to have been made to challenge the figures he relied upon or to assist the Tribunal with appropriate evidence and with specific, alternative calculations set out in schedule form, as we in this Appeal Tribunal are now accustomed to seeing in such high-value discrimination cases. The BMA’s arguments were principally directed to establishing that Mr. Chaudhary was not entitled to any compensation at all. In our judgment Respondents who choose to take that course cannot subsequently seek to criticise the Tribunal’s approach in this Appeal Tribunal and to raise issues which, as it seems to us, should properly have been raised in evidence before the Tribunal faced with the task of assessing compensation.”

 

Considering the Respondent had one Barrister and four lawyers present, and net profits in billions, any large award is highly unlikely to be anywhere near punitive.

 

Summary

 

To try and summarise this claim, the Claimant would ask the Tribunal to determine the following:

 

Whether the Claimant was unfairly dismissed.

 

Whether the reason for this unfair dismissal was due to direct discrimination by the Respondent, due to the Claimant’s disability of Type 1 Diabetes. In determining whether this was direct discrimination, the Tribunal should note the following:

 

  • The job title of the Claimant.

  • The job role of the Claimant as based on factual evidence.

  • The team within which the Claimant worked.

  • The Full Time Equivalent (FTE) Allocation of the Claimant as compared to other team members.

  • The Claimant’s request in December 2005 for reasonable adjustments to be made to the Claimant’s workload to counteract the adverse effects that stress and work conflicts were having on the Claimant’s disability of Type 1 Diabetes.

  • The Claimant’s inclusion in the Reduction-In-Force (RIF) list in February 2006.

  • The reason why the Claimant’s disability was mentioned at all in redundancy discussions that the Claimant was not involved with.

  • The completely unfounded allegation that the Claimant’s disability could result in a prolonged period of time off due to illness.

  • The fact that high blood pressure is not a side effect of the Claimant’s disability.

 

The Claimant would also ask the Tribunal to consider the Respondent’s behaviour in moving the Claimant from a position of esteem high enough to merit giving him the two largest accounts ever worked on by On Demand Service Delivery Management, to that of being selected for redundancy. Where, in those intervening months, was the Respondent’s duty of care to a valued employee in his time of need? An employee, the Claimant, who worked on through his period of ill health in order to provide the Service, Delivery and Management that his job title required.

 

The Claimant would also state that the Claimant does not agree with all of the main witness statements of the Respondent, which contradict the Claimant and Mr Hammett of the Environment Agency version of events.

 

The Tribunal will make its own mind up on the Respondent’s behaviour throughout the entirety of this whole claim, one example being the Respondent’s request for a sist for mediation of some 51 days, which resulted in no mediation during those 51 days, or at any time after, and will also make its mind up on the lateness that the Claimant received the joint bundle of documents, receiving 3 out of 6 folders on 18th June 2007, and the remaining 3 out of 6 folders on 27th June 2007, as well as the alterations to some of the documents, all of which have disadvantaged parts of the Claimant’s claim.

 

During the course of this 3-day Tribunal, the Respondent has had ample opportunity to provide answers, something that the Claimant believes the Respondent has not done, as there now exists more questions than answers, namely:

 

Why did the Respondent follow the statutory dismissal procedure when the other employees were made redundant, as claimed, but did not follow the statutory dismissal procedure when the Claimant was made redundant, as claimed?

 

Why did the Claimant have the job title ‘Service Delivery Manager’ for the whole of the 2 years that the Claimant worked in the On Demand Service Delivery Managers team:

 

Why was this job title not changed, if, as the Respondent states, this was not the job role performed by the Claimant?

 

Why did not one of all the other Service Delivery Managers in the On Demand Service Delivery Managers team not complain about the Claimant’s job title throughout the whole of the 2-year period, if this was not the job role performed by the Claimant?

 

Why, throughout the whole of the 2-year period, did Phil Snowden or Nick Cooper not change the Claimant’s job title of ‘Service Delivery Manager’, if this was not the job role performed by the Claimant?

 

Why was the Claimant placed on the Reduction In Force (RIF) list a couple of months after being assigned to work on the two largest accounts ever worked on by On Demand Service Delivery Management, giving the Claimant a Full Time Equivalent (FTE) Allocation many times higher than other Service Delivery Managers?

 

Why was the Claimant not involved in any prior consultation before selection for redundancy?

 

Why did the Respondent have to use the Claimant’s disability of Type 1 Diabetes in redundancy discussions at all?

 

In addition, the Respondent has produced an employment report that does not in any way prove that the Claimant has not suffered a loss of career, but which enhances further the Claimant’s argument that the Claimant will not find a ‘Service Delivery Manager’ job vacancy.

 

Finally,

 

In Phil Snowden’s own words:

 

“With either option, there is the possibility of Kenneth raising the health/stress issue that he discussed with me in December – the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness.”

 

The Claimant feels that if the Claimant had never raised the workload and health concerns with both managers in December 2005, that this Tribunal would never have taken place.

 

That it has taken place, leads the Claimant to again end with the very relevant quotation from Samuel Johnson:

 

“Prejudice, not being founded on reason, cannot be removed by argument.”

 

Thank you for your consideration of the Claimant’s claim.

 

 

[]Chapter 15

 

Two months had passed since the three-day hearing, and one month had passed since the half day submissions hearing, and I had not received any correspondence from the Tribunal, so on 7 September 2007, I decided to email the Tribunal.

 

Dear Sir/Madam,

 

Can the Glasgow Employment Tribunal confirm whether a judgment has been sent out for the full tribunal held in Glasgow on 6th August 2007, as the Claimant has not received any correspondence?

 

I received a letter from the Citizens Advice Bureau on 17 September 2007, stating that they had received the judgment, the findings of the judgment, and an enclosed copy of the judgment.

 

The Judgment

 

Mr Kenneth McAlpine (Claimant In Person)

Oracle Corporation UK Ltd (Respondent Represented by: Mr N Davy – Counsel)

 

JUDGMENT OF THE EMPLOYMENT TRIBUNAL

 

REASONS

 

Background

 

1. The claimant presented a claim to the Employment Tribunal Service on 25 August 2006 claiming his dismissal had been unfair and that he had been discriminated against contrary to the Disability Discrimination Act (the DDA). The claimant asserted his dismissal for reasons of redundancy had been unfair; that he had been selected for redundancy because of his disability and/or because he had requested a reduction in his workload because of his disability and that there had been a failure to make reasonable adjustments.

 

2. The respondent entered a response admitting the claimant had been dismissed for reasons of redundancy, but denying the dismissal had been unfair. The respondent further denied the claim of disability discrimination and raised a number of preliminary issues regarding whether the claimant was a disabled person for the purposes of the DDA and whether there had been compliance with section 32 Employment Act 2002.

 

3. A case management discussion took place on 20 October 2006. The claimant confirmed he is diabetic and that he had met with his manager on 16 and 21 December to discuss workload and stress. The claimant asserted the respondent had not responded to or addressed his concerns, and he believed they had failed to make a reasonable adjustment to his workload. The claimant had thereafter been selected for redundancy and believed he had been selected because of his disability or because of his request to reduce his workload. It was agreed the claimant would provide further specification of his claims and also medical information.

 

4. The claimant, in response to an Order for Additional Information confirmed his claim of disability discrimination was brought under section 3A(1) (he had been selected for redundancy because he had requested a reduction in workload because of his disability and this amounted to less favourable treatment); section 3A (5) (his- selection for redundancy because of his disability amounted to direct discrimination) and a failure to make reasonable adjustments to reduce his workload as requested.

 

5. The claimant provided medical reports regarding his diabetes, and the respondent conceded the claimant was a disabled person for the purposes of the DDA.

 

6. A further case management discussion took place on 9 March, immediately followed by a pre hearing review to consider the respondent’s motion to strike out part of the disability discrimination claim relating to the alleged failure to make reasonable adjustments on the basis the claimant had failed to comply with the statutory grievance procedure. The decision of the Tribunal, set out in a Judgment dated 13 March, was that the claimant had not complied with section 32 Employment Act 2002 in respect of raising a grievance regarding the complaint of an alleged failure to make reasonable adjustments, and that part of the claim was struck out.

 

7. The issues to be determined by the Tribunal at this Hearing were:

 

(i) unfair dismissal: the claimant alleged there should have been a pool for selection for redundancy and that there had been a failure to follow the statutory procedure;

 

and

 

(ii) disability discrimination in respect of the claims the claimant had been selected for redundancy because of his disability and/or because he had made a request to reduce his workload.

 

8. A number of preliminary matters arose at the commencement of this Hearing and were dealt with as follows:

 

(a) The Chairman became aware on 4 July that the claimant had lodged an appeal against the Judgment of the Tribunal dated 13 March, to strike out part of the claim of disability discrimination relating to an alleged failure to make reasonable adjustments. The parties confirmed this matter had been discussed at a case management discussion (which had taken place during the Chairman’s annual leave) and there had been agreement to proceed with this Hearing. In the circumstances the Chairman proceeded with the Hearing.

 

(b) The claimant had received three of the six folders of productions on 27 June, which he felt had been too late and had disadvantaged him in his preparations for the Hearing. Mr Davy, for the respondent, confirmed the 3 folders which had not been delivered on 27 June – but on 29 June – referred to the claimant’s medical information and records; the claimant’s job search and schedule of loss and the claimant’s legal materials. The three folders had contained information which the claimant had provided, and therefore there could have been no prejudice to him. The claimant did not dispute Mr Davy’s position and, on that basis, the Hearing proceeded.

 

© The parties had agreed to produce a chronology of events to assist the Tribunal. The claimant had wanted to add his comments to the chronology, and accordingly the respondent had added their comments. Mr Davy acknowledged this rather defeated the purpose of the chronology, but the Tribunal accepted the document in any event as a helpful guide to the timing of events in this case.

 

(d) The respondent had, by agreement, produced witness statements. The Chairman directed the statements would not be taken as read, but upon reconsideration - given the claimant's evidence took more than one day to complete, and there was time overnight to read the statements -directed they would be taken as read. There was no objection to this.

 

(e) The Chairman had not made any direction at the case management discussion for the claimant to prepare a witness statement. In fact the claimant had chosen to do so, and the claimant read out this statement as his evidence in chief.

 

(f) The respondent indicated the claimant had recently confirmed he was not pursuing injury to health as part of the discrimination claim, as he may wish to pursue a separate personal injury claim. In the circumstances the respondent wished the claimant to withdraw that part of his claim, whereupon they intended to ask for it to be dismissed. The Chairman explained the respondent’s position to the claimant, and gave him time to consider his position and/or seek legal advice. (This matter is dealt with in full at the end of this Judgment.)

 

(g) The claimant submitted that documents in the productions had been deliberately altered by the respondent to mislead the Tribunal and improve their prospects of success at this Hearing. Mr Davy confirmed the respondent strenuously denied the very serious allegation, and confirmed that much of the confusion over documents appeared to stem from the fact the claimant had been asked to provide a hard copy of the documents he wished to have included in the bundle of productions, but he had refused to do this and had just provided an Index and a soft copy (that is, a word document attachment to an email). The respondent’s position was that they had produced what the claimant had sent.

 

The claimant produced a folder of his original documents and the documents he alleged had been altered, or were missing. The claimant went through each document and explained to the Tribunal the alleged alteration: for example, (i) in the letter of offer of employment, the signature had been removed; (ii) the format of an email had been changed; (iii) the second point in an email was missing; (iv) part of an email had been removed; (v) an item on a spreadsheet had been blanked out; and (vi) in a letter of the 30th May, parts referring to a compromise agreement had been removed.

 

Mr Davy responded by confirming that the letter of offer of employment was the respondent’s file copy, which had not been signed. Mr Davy submitted the fact the copy was not signed did not mean the claimant had not been offered employment. That was not in dispute. Furthermore, it appeared the claimant wished to criticise the respondent for not producing his copy of the letter, when the claimant had refused to provide it.

 

Mr Davy referred to the various emails and documents, where it was alleged the respondent had removed part of the document, and confirmed the respondent had produced the information provided to them by the claimant in soft form. The original spreadsheet had, for example, part highlighted in red – this had photocopied black and there had been no attempt by the respondent to “blank out” the section.

 

The claimant wished to produce two additional folders of documents which he considered to be complete. The Chairman was reluctant to accept two more folders containing a version of the same productions, particularly where it appeared that some of the documents referred to by the claimant were not material to his case (for example, the letter of offer of employment). The Chairman refused the claimant’s request to produce the two additional folders of productions, but confirmed that it was in order for the claimant to highlight to the Tribunal if he considered a production had been altered.

 

The Chairman directed, having heard the submission of the parties above, that if the claimant’s position was that the respondent had deliberately altered and/or omitted documents to improve their position in this case, that should be put to the relevant witness/es for comment. Thereafter, the Tribunal – at the request of the respondent – would make a specific finding of fact regarding that matter.

 

9. The claimant agreed he was ready to proceed.

 

10. We heard evidence from the claimant; Dr Derek Gordon, Consultant Physician at Stobhill who was standing in for Dr Patterson from the Glasgow Royal Infirmary, who was the claimant’s Consultant; Mr Philip Snowden, Senior Manager of On-Demand Service Delivery; Mr Nicholas Cooper, Director of On Demand Service Delivery in the UK and Ms Catherine Temple, Senior HR Manager. We were referred to a joint bundle of productions. On the basis of the evidence and productions we found the following material findings of fact to have been agreed or established.

 

11. We should state that in addition to the evidence we heard, we were also referred to various witness statements including the claimant’s witness statements; Mr Andrew Hammett who had been working for the Environment Agency in January 2005 as Technical Manager; Mr Philip Snowden; Mr Nicholas Cooper; Ms Catherine Temple; Ms Fiona Vickers, an oSDM with the respondent, who also has type 1 diabetes; Ms Simone Harch; Mr William Gemmell, who informed the claimant of his potential redundancy; Mr Richard Marsden, who was an oSDM on the EA account and Mr Fran Winters, who was lead oSDM on the GE account.

 

Findings in Fact

 

12. The respondent company provides computer applications and systems for use by customers, who purchase a license to use the system, which is then set up to provide the functions and services they specifically want. There are specific functions within the respondent company – for example, sales, support and maintenance, security and “on demand”. The role of “on demand” is to work with an implementer and the customer to plan for the implementation of the scheme and decide who is to carry out various tasks and activities in order to achieve what the customer wants. Thereafter, any modifications to the system would be organised and arranged by the on-demand staff.

 

13. The claimant commenced employment with the respondent on 12 August 1998 as a Consultant. In April 2003 he became an On Demand Project Manager. The claimant continued in this role until early 2004, when he sought a transfer to another role because he was unhappy at attending customer meetings and having to travel away from home, and wished a more technical role. A note from a meeting the claimant had with his then Manager, Mr Calum Blair, was produced at Volume 2 page 233 and confirmed “there are some parts of the role which you’re not comfortable with” and that travel “is a major issue for you. You do not enjoy travelling, even for holidays. This has become more of an issue since you had a family, especially staying away from home overnight. Travel is even more difficult due to flight times from Glasgow airport which mean very early morning starts. Your acceptable level of travel would be approx once a fortnight maximum.” The note concluded by stating the options for moving forward were to perform the Project Manager role to the same degree as others in that role, or to source another role either internally or externally.

 

14. Mr Philip Snowden, On Demand Service Delivery Manager, sent an email to Mr Blair on 1 July 2004 (volume 2 page 241) in the following terms: “following on from previous conversations, I’d like to arrange a meeting to discuss the potential transfer of Kenneth to the UK CSO in a “support operations” type role, supporting the On Demand SDMs similar to the role Kenneth is currently performing for Environment Agency.”

 

15. A meeting took place on 12 July 2004, and as a result of that meeting the claimant transferred to the On Demand Service Delivery team. The claimant’s job title was On Demand Service Delivery Manager. He earned £43,323 gross per annum, giving a net annual salary of £33,908.

 

16. The claimant worked from home, and carried out a support role. This meant the claimant did not perform all the elements of the On Demand Service Delivery Manager (hereafter referred to as an oSDM) role. The claimant’s role was restricted to assisting with incident management on the Environment Agency (the EA) account. The EA account was an extremely large account: at implementation and in the initial phases of a system going live there can be numerous problems; these problems are notified by the customer to an oSDM in a request for assistance; the oSDM decides how best to deal with the request and ensures the appropriate people/departments are then involved in resolving the issue. This is incident management. It is envisaged in any new system that incident management will be high volume at the beginning, and thereafter decrease to what was referred to as a Business As Usual volume as the account matures.

 

17. Volume 2 page 245 was an email from Julie McFarlane, who was the lead oSDM on the EA account, announcing to the client that the claimant had been appointed to the team. The email confirmed that “due to the number of issues that are being raised or managed by Oracle for EA, it has been necessary to bring in an additional oSDM. Kenneth McAlpine will be from today cover the hours of 8.30am until 4.30pm Monday to Friday.” This email reflected the scope of the claimant’s role at that time.

 

18. The claimant accepted there were many elements of the oSDM role he did not carry out – for example”, conducting customer kick-off meetings; conducting regular customer progress review meetings; working closely with the customer and implementer to ensure that all activities are planned and executed as required; liaising with Oracle’s renewals and sales teams to identify renewals and sales opportunities, and ensuring that renewal activity is planned and executed and other ad hoc activities as required resulting from internal communications, assessment of new HR legislative packages and password reset programmes. The claimant, in particular, did not carry out any of the customer facing aspects of the job in terms of meeting with customers; and was not required to travel, other than to attend the monthly EA meeting.

 

19. The claimant, notwithstanding the above, argued that his role as an oSDM had been the same as that of the other oSDMs. We preferred the respondent’s evidence regarding this matter and we found as a matter of fact that although the claimant’s job title was oSDM, he in fact performed only a small part of that job restricted to expediting support and preparing the EA report. In making this finding we took into account the evidence of Mr Snowden, Mr Cooper and the witness statements of Mr Winters and Mr Marsden.

 

20. The claimant worked exclusively on the EA account until November 2005. At that time his role involved incident management, attendance at an EA monthly meeting to take the minutes and preparation of the monthly report for EA. The volume of incident management requests on the EA account was decreasing as the account became more mature (by December 2005 the number of incident management-requests on the EA account had halved from the peak in May 2005). Mr Snowden, the claimant’s line manager, in discussion with Mr Nicholas Cooper, Director of On Demand UK, decided in December 2005, that in view of the decrease in incident management on the EA account, to assign the claimant to the General Electric (the GE) account to carry out incident management on that account.

 

21. The monthly report had to be prepared for a deadline early in each month (approximately the 9th/10th of each month), and the preparation of the monthly report took the claimant 4/5 days. The claimant alleged he felt under pressure, and stressed, at the beginning of each month when trying to prepare the monthly report and deal with incident management requests.

 

22. Mr Snowden received notification on 15/16 December, from two oSDMs that the claimant had refused to attend the EA monthly meeting scheduled for 21 December. Mr Snowden arranged a conference call with the claimant, Ms McFarlane and Mr Marsden – an oSDM on the EA account – to discuss this matter. Mr Snowden’s notes of that meeting were produced at volume 2 page 274 and 275. The claimant informed Mr Snowden that he was not happy with his workload, and in particular the pressure at the beginning of each month when he was endeavouring to prepare the monthly report but also had incident management to do. The claimant also informed Mr Snowden that he had not noticed a fall in demand for incident management on the EA account and he questioned why he had been given incident management on another very large account. The claimant was also concerned about Ms McFarlane leaving that account. There was no dispute regarding the fact that the outcome of the discussion was that the claimant would no longer be required to carry out incident management for the EA account. It was also agreed the claimant would attend the EA monthly meeting on 21 December. Mr Snowden was due to go on annual leave, and suggested to the claimant that whilst he was at the EA monthly meeting, he speak to Mr Cooper to follow up on these issues.

 

23. Mr Snowden confirmed the outcome of this meeting to Ms Julie McFarlane, and to Mr Nick Cooper - his line manager - in an email dated 16 December (volume 2 page 296). The email stated: "just to confirm the outcome of the earlier conference call. Kenneth will write up the minutes of the meeting from November 23rd and send to Julie for review. Kenneth will incorporate review comments and distribute the minutes. Going forward, Kenneth's remit on EA is to focus on the monthly reporting, attend the review meetings, and take minutes at these meetings. The above is agreed to take 50% or less of Kenneth's time; the remainder of Kenneth's time is on non-EA activity -currently GE."

 

24. We found as a matter of fact that the claimant’s role, following this meeting, had reduced from four elements to three, and encompassed – preparation of the EA monthly report, attendance at the EA monthly meeting and GE incident management.

 

25. Mr Snowden learned for the first time, during his conversation with the claimant on 16 December, that the claimant was diabetic. Mr Snowden spoke to Mr Blair, the claimant’s previous line manager to enquire if he had been aware of this, but he had not.

 

26. Mr Snowden, prior to going on annual leave, contacted Mr Cooper to let him know about the conversation with those on the EA account, including the claimant and to suggest Mr Cooper might take the opportunity of the claimant’s visit to the Birmingham office for the EA monthly meeting, to continue the dialogue about his workload. Mr Snowden also made Mr Cooper aware that the claimant had informed him that he was diabetic, and had been feeling stressed during the period since the change to his role in December 2005, when the GE account had been added to his remit.

 

27. Mr Nicholas Cooper met very informally with the claimant on 21 December to ascertain and understand the problem with workload. Mr Cooper had been involved in discussions with Mr Snowden in November 2005 when it had been decided to allocate incident management on the GE account to the claimant. Mr Cooper had understood at that time that with the tailing off in the EA account, it had not been unreasonable to add the GE account to the claimant’s remit.

 

28. Mr Cooper noted the main points of the meeting in his day book (volume 2 page 298). The main points raised by the claimant at that meeting were (i) the demands of the GE account were cyclical in that the support required varied throughout the month; (ii) support for the EA account was heavy during the first two weeks of each month and in the last few days of each month. This meant the first two weeks were taken up in compiling the monthly report, then attending the monthly meeting and producing the minutes. Mr Cooper had noted the claimant stated he usually spent between 2 and 2.5 days on average in collating and putting the report together, (iii) The claimant estimated his duties on the GE account required him to spend half a day each day of the month performing those duties.

 

29. Mr Cooper informed the claimant that on the basis of what he had said, and the time assigned to each task, it did not appear to equate to a full time role. Mr Cooper, on that basis, could not understand why the claimant felt the workload to be excessive. The claimant endeavoured to explain that he spent a lot of time chasing people to co-ordinate the various incident management aspects of his role. However, even with this additional information, Mr Cooper still could not understand how the duties the claimant described amounted to a 100% role. Mr Cooper felt there must be some other reason behind the claimant's feeling about his role, and accordingly enquired of the claimant whether he was happy in the role.

 

30. Mr Cooper discussed with the claimant the fact that – as per one of the objectives from his August 2005 appraisal, and with the diminishing need for the claimant’s role in respect of the EA account which was maturing – it was likely in the future that the claimant would be required to perform the full oSDM role. Mr Cooper was aware of the fact that although the claimant’s job title was oSDM, he had never performed the full requirements of that role. The claimant informed Mr Cooper that he was home based and did not want to take on the full role: he asked for Mr Cooper’s permission to look for another job within the respondent’s organisation. Mr Cooper confirmed his permission was not required and advised the claimant to carry out the remaining elements of his job whilst he looked for another role.

 

31. Mr Cooper emailed Mr Snowden on 21 December (volume 2 page 297) in the following terms: “spoke with Ken and bottom line is he will start looking for another job as clearly he is not happy with what he is doing and doesn’t see himself doing an oSDM role. I asked him to continue on GE/EA but we need to manage Ken and his transition (and timelines) plus come up with a plan to backfill etc.”

 

32. The claimant’s role, following the meeting with Mr Cooper, was revised and the claimant was instructed not to carry out GE incident management in the first days of the month when he was preparing the EA monthly report. The claimant accepted he had been advised of this and had been instructed by Mr Cooper to inform Mr Fran Winters, the lead on the GE account, that he would not be available to do GE work at certain times of the month.

 

33. The claimant, whilst acknowledging the above, rejected the suggestion that these measures reduced his workload: the claimant’s position was that notwithstanding the instruction from Mr Cooper, Mr Winters still contacted him to carry out GE work in the early part of the month, particularly if Mr Winters was not available and needed someone to cover the work.

 

34. We preferred the evidence of Mr Snowden and Mr Cooper regarding this matter. There was no dispute regarding the fact Mr Cooper instructed the claimant not to take on GE work during the early part of each month when he was compiling the EA report. The claimant confirmed this to Mr Winters in an email on the 10th January 2006 (volume 2 page 301), when he explained he had spoken to Mr Snowden and Mr Cooper about “potential clashes with work”, and that most of his time in the first week to week and a half in each month would have to be devoted to EA monthly report. The claimant concluded that if Mr Winters needed someone to help on the GE account in the first week to week and a half of the month he should inform Mr Snowden or Mr Cooper.

 

35. Mr Winters responded to the effect that he could not promise to always remember to avoid the first week of each month, but that he would try. Mr Winters confirmed that the way he would play it would be to “ping” the claimant for assistance, and if the claimant could not help to “ping” back accordingly.

 

36. We found as a matter of fact based on the above evidence that not only had the claimant been instructed not to carry out GE work in the early part of each month, but he had also been given the authority to inform Mr Winters of this. The claimant had done so and had been informed by Mr Winters that on occasions when he forgot about this and asked the claimant to assist, the claimant was to tell him accordingly. We found as a matter of fact the claimant had the authority to advise Mr Winters he was not available for GE incident management work.

 

37. The claimant maintained that the work he carried out was the equivalent of two full time posts. The claimant referred to a chart (reference the claimant’s blue folder of documents) to support this position, and challenged that it had been unfair to load him with work in circumstances where others had less than a full time equivalent post. The claimant, in cross examination, agreed that one of the oSDMs with a less than full time equivalent had recently lost an account and would be allocated other work in due course; another one had recently started and had not developed a full workload; another two listed were not in the claimant’s team and one worked part time.

 

38. Mr Snowden contacted the claimant on 16 January 2006 to suggest he contact the centralised HR department to see whether they were aware of any vacancies within the respondent company which may interest the claimant. The claimant duly did this. Mr Snowden also contacted the HR department (Ms Simone Harch) and there was a discussion regarding the sort of role the claimant was looking for – he wanted a more technical job on the same grade, where he could work from home. The claimant did not like his current role as it involved spending time chasing up other departments, whereas he would prefer a role involving problem resolution and management.

 

39. There was no dispute regarding the fact that in the period January to June 2006, the claimant looked for alternative roles, of a technical nature, within the respondent’s organisation.

 

40. In January/February 2006 Mr Snowden was informed by Mr Marsden that the claimant was not regarded as adding value to the EA monthly meeting, other than taking the minutes, as he was no longer performing the incident management role and not aware of what was going on on a day to day basis. Mr Snowden met with the claimant on 17 February to discuss this, and other matters. One outcome of that meeting was that Mr Snowden informed the claimant he was no longer required to attend the EA monthly meeting. There was no dispute regarding the fact that from, and including, February 2006, the claimant was no longer required to attend the monthly meeting.

 

41. The claimant’s role, as at February 2006, was to prepare the EA monthly report and to carry out GE incident management after the monthly report had been prepared. The claimant agreed he had no customer contact – other than sending the report to EA.

 

42. The claimant rejected the respondent’s suggestion that GE incident management took approximately half a day each day of the month (when he was not working on the EA monthly report). We preferred the evidence of the respondent (Mr Snowden) regarding this matter: volume 2 page 278 was an extract from Mr Snowden’s day book, where the main points of a conversation with Mr Winters on 2 February 2006, were recorded. The notes report that Mr Winters informed him that he had made little use of the claimant’s services on the GE account; that he had not used the claimant during the first part of the month when the claimant was dedicated to producing the EA monthly report and that he considered the amount of time the claimant needed to spend on GE matters to be about 1 hour per day. We also took into account Mr Cooper’s notes (see above) where he had noted the claimant as having told him he spent half a day each day of the month on the GE account.

 

43. Mr Snowden spoke to the claimant on a monthly basis to enquire generally about work. Mr Snowden’s note of the conversation on 2 February confirmed the claimant had described the GE work as “not too bad”: the claimant, beyond this would not give an indication of the average number of hours per day the GE tasks took. The claimant confirmed, in response to a question from Mr Snowden, that his stress levels had settled down, and that health-wise he was slightly better. The claimant had been suffering from a viral infection and was monitoring his blood sugar levels. Mr Snowden reminded the claimant he could use the company’s external occupational health service.

 

44. In January 2006 an announcement was made of a merger between the respondent and CBL, resulting in a reorganisation. Employees, including the claimant received email announcements regarding the merger, and also confirming the establishment of an Oracle Global On Demand Service Desk and dedicated Customer Incident Managers (CIMs) for large clients. The Global On Demand Service Desk was to provide incident management and escalation functions, which meant the removal of incident management escalation and progression from the oSDM role; there was also to be a redefining of responsibilities between the oSDMs, CIMs, Production Engineers and cluster teams. In short, the new Service Desk would be responsible for incident and escalation management and the CIMs would be dedicated technical engineers working on the resolution of problems. These changes were due to be rolled out in the period to May 2006.

 

45. There was no dispute regarding the fact that the introduction of the Service Desk impacted on the role of the oSDM, because they all dealt with incident management issues. There was however – with the exception of the claimant’s position – no requirement for redundancy of oSDMs because the respondent had acquired new customers and the business was expanding. In fact there was a requirement for more oSDMs to be recruited to manage new client activities, and there was no dispute regarding the fact that a number of new oSDMs were recruited at, or about, this time.

 

46. The introduction of the Service Desk did impact significantly on the support role carried out by the claimant, because his duties predominantly comprised incident management – and this function would, in future, be dealt with by the centralised Global Service Desk and CIM function. The introduction of the Service Desk and CIMs effectively removed the need for the claimant’s role because the only part of the role left would be production of the monthly report, and there was no requirement to have a person dedicated to this one task.

 

47. The claimant argued that he should have been offered an oSDM role, and that it had not been fair to recruit to that role when he was being made redundant. The claimant however acknowledged that he did not want to carry out the full functions of the oSDM role and notwithstanding the fact he had been aware of the advertisements for these posts, he had not applied.

 

48. Mr Snowden telephoned the claimant on 25 May 2006 to advise him to attend a meeting on 30 May in the respondent’s Edinburgh office, with Mr William Gemmell. At that meeting, the claimant was informed of his provisional selection for redundancy. He was also informed that Catherine Temple from the respondent’s HR department, had been assigned to help him through the redundancy process. The claimant’s provisional selection for redundancy was confirmed in a letter of 30 May 2006 (volume 3 page 452), and the reason for the redundancy was “as a consequence of a global business re-alignment.”

 

49. The need for redundancy, and the reasons for it, had been discussed at the respondent’s employee consultation forum. In total 121 employees across the UK were made redundant.

 

50. Ms Temple confirmed that candidates for possible redundancy had been sought in February 2006, when senior Managers had been asked to identify employees in their area who may be at risk of redundancy due to the recent announcement of reorganisation. A Reduction In Force (RIF) list was compiled and the claimant’s name was added to that list by Mr Malcolm Thompson (Mr Cooper’s line manager). The RIF list was, at that stage, highly confidential and was not known of by Mr Snowden, Mr Cooper or the claimant.

 

51. Mr Thompson confirmed in his witness statement that the claimant’s role was identified as potentially redundant because of the anticipated impact on that role of the introduction of the global service desk and the CIMs. At the time Mr Thompson placed the claimant’s name on the RIF list he was not aware the claimant was diabetic. He was aware the claimant had concerns with stress and had discussed this matter with his manager.

 

52. Ms Temple was aware at that time, that the claimant and Mr Snowden had been in contact with HR - Ms Simone Harch - regarding seeking alternative employment. Ms Temple was also aware that in parallel with the RIF, which was confidential, there had been discussions at manager level regarding the claimant's position. Ms Temple knew Mr Snowden was of the opinion the claimant's current role amounted to only 60% of a role, and that he had queried whether the claimant could be asked to take on additional tasks. This had been referred to in an email from Mr Snowden to Ms Harch dated 10 April (volume 3 page 414) which had been copied to Ms Temple, Mr Thompson and Mr Cooper. The email set out the background of the current role and the fact there was a reduced need for the "back office" type role the claimant had been performing. Mr Snowden continued "the suggestion is now to request Kenneth performs the full customer facing role. Given that Kenneth has already indicated that he doesn't wish to continue with the oSDM role, I see a risk to both Kenneth and the account that he's assigned to. The suggestion is that I would need to closely manage this situation." Mr Snowden concluded by asking Ms Harch - "if Kenneth doesn't accept to do the customer facing role, then what is the next step?" He also asked Mr Thompson - "if this is the only option, then Kenneth will need to be assigned to one of the new business accounts - are you ok with this position."

 

53. Mr Thompson responded to that email on 11 April (volume 3 page 416). He expressed his view that “if Ken was taken on as an oSDM then he should be able to handle the customer facing element. If not then we are into a capability issue. I am not really happy to put a new customer at risk and we should be looking at ways we can re-allocate or support Ken for a period whilst he is exposed to the true role of an oSDM.” Mr Thompson queried what the options were and concluded that whatever they went for, there was a need to outline to the claimant in clear terms what their expectations were of him. He confirmed that currently he could see no other “internal roles” in which they could use the claimant.

 

54. Mr Snowden responded to that email on 12 April (volume 3 page 418) to state the options were (i) to allocate Ken to a new customer account or (ii) to allocate Ken to an existing customer account to replace an existing oSDM. Mr Snowden commented with regard to the first option that it had been some time since the claimant attended the OnDemand Lifecycle training which is vital to establish the initial customer environments. Mr Snowden felt the first option would be quite a risk to the account at an early stage, and that the claimant would require a lot of support from another oSDM. Mr Snowden, with regard to the second option, commented this was the option with the least risk, but would involve a prolonged handover.

 

55. Mr Snowden stated that “with either option there is the possibility of Kenneth raising the health/stress issue that he discussed with me in December – the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness”. He asked Ms Harch/Ms Temple if, given the above, there were any other options to exit Kenneth from the business prior to the end of the financial year.

 

56. Mr Snowden accepted that the above reference to time off for illness had been a mistake on his part, because the claimant had, in fact, had very little sickness absence – he had taken 2 days sick leave in the period July 2004 to April 2006.

 

57. We accepted that at this stage Mr Snowden had not been aware of the existence of the RIF list and the fact the claimant’s name was on that list.

 

58. Ms Temple responded to that email on 13 April (volume 3 page 423) stating that “as Kenneth is on the RIF list, I want to make sure we are not making matters more complicated by trying to bring him back into a customer facing role, which might lead him to go off sick again. It might be more appropriate to action redundancy from the role he is currently doing (ie no requirement for back office in the oSDM team). I have no timescales for when redundancies will be actioned at the moment, but assume it will be anytime around end FY06/beginning FY07”.

 

59. Ms Temple, in essence, understood the role of the claimant had been identified as being potentially redundant in February 2006, and she felt that this should proceed rather than trying to make the claimant do a role (oSDM) he did not want to do. Ms Temple had confirmed with Ms Scates, HR Head of the Support and On Demand line of business, that the RIF list was likely to go ahead.

 

60. Ms Temple accepted that the reference in her email to “off sick again” had been an error on her part, arising from a misinterpretation of Mr Snowden’s letter.

 

61. The RIF list was “revalidated” in May 2006 when Mr Thompson confirmed that the claimant’s role was no longer required due to the changing business model; and, that the claimant was not appropriate for a customer facing oSMD role.

 

62. The claimant was, at the meeting on 30 May, provided with a list of frequently asked questions, and answers, regarding redundancy. This information confirmed his right to appeal against the decision.

 

63. Ms Temple intended to conduct a subsequent consultation meeting with the claimant by telephone. This did not happen because the claimant requested that all further contact be by way of email (volume 3 page 462). Ms Temple responded to this email the same day by stating that they needed to have a call to go through some of the information the claimant would require as part of his consultation. Ms Temple offered to confirm matters in writing, if the claimant wished. The claimant responded by stating that any information or questions could be sent by post or email because he would prefer everything to be in writing. Ms Temple, in response to this request, sent a summary of the points she would have covered with him during the consultation meeting.

 

64. The claimant responded to this by email on 2 June (volume 3 page 474). He asked two questions of Ms Temple – (i) a request to provide the technicalities behind the comment that the reason for the redundancy was as a consequence of a global business realignment and (ii) within the claimant’s role and group, how many employees were provisionally selected for redundancy. The respondent responded to these points by email (volume 3 page 474).

 

65. The claimant was notified by letter of the 10 July (volume 3 page 486) that his selection for redundancy had been confirmed, and that his employment was to be terminated by reason of redundancy.

 

66. The claimant has had type 1 diabetes since the age of 18 months, and administers daily injections of insulin. The claimant attends six-monthly reviews at Glasgow Royal Infirmary, and copies of the reports from those reviews, which were sent to the claimant's GP, were produced in the Medical Information Folder at pages 79 - 91. The report from the review on the 23rd February 2006 (page 85) stated the claimant's HbA1C level was 8.90%. Mr Gordon, Consultant Physician at Stobhill, who attended the Tribunal Hearing in place of Dr Patterson, explained that HbA1C was a test to measure the average blood/sugar over a 6/8 week period. Ideally the reading should sit at 7% or less. Mr Gordon confirmed that prior to the review in February 2006 the claimant's level had been within the ideal range, but had then deteriorated.

 

67. The review went on to state as follows: “approaching 40 years since diagnosis of Type 1 diabetes and remains remarkably unscathed. Still has very low levels of microalbuminuria which have not really changed over the past 20 years. BP slightly elevated today and would be worth checking at the surgery. The fact that microalbuminuria is not progressing would be in keeping with blood pressure overall being well controlled. No other active tissues identified. Unfortunately continues to smoke up to 20 cigarettes daily and does not presently seem particularly motivated to change this.”

 

68. The next review in August 2006 (page 84) recorded the HbA1C level at 8.5% and stated "this gentleman is having a terrible time with job issues. He had a lot of stress at work and he has now been dismissed, which is now pending a tribunal. During this period his glycaemic control has deteriorated from his previous position when he ran an HbA1c of approximate 7%, where is he now approximate 9%. His sites are okay, he rotates them and has great knowledge after 40 years. I will let him know the result of the current test and if need be I will contact Sister Cameron if his control remains poor, and we may even think about transferring him onto a basal bolus regimen."

 

69. There was no dispute regarding the fact the claimant was admitted to hospital on an emergency basis in June 2006. The note from his GP dated 13 June 2006 was produced at page 25, and stated "last 6 days unwell fever. Not eating/drinking. Vomited one 2/+ hours ago ... feels getting worse. Has been taking insulin." The provisional diagnosis was "IDDM ?DKA". Mr Gordon explained that IDDM referred to type 1 diabetes and DKA referred to a lack of insulin due, in this case, to fever/infection, which would have resulted in a need for increased insulin. The normal dosage of insulin would not have been sufficient because of the fever/infection and this would have led to problems.

 

70. The report sent from the hospital to the claimant’s GP was dated 19 July 2006 (page 24) and was in the following terms:

 

“Discharge Diagnosis = lower respiratory tract infection.

 

Medication on Discharge = Amoxycillin 500 mg tid for 5 days; Paracetamol one g qid pm; Lisinopril 20 mg od; PenMix 20/80 26 units pm; Simvastatin 20 mg od; Metoclopramide 10 mg tid pm.

 

Arrangements for follow up = review appointment 6-8 weeks time and a chest xray in 6 weeks.

 

This 40 year old man was admitted as an emergency to ward 3E on 18th June 2006. His main complaint was of a 6 day history of flu-like symptoms with fever. His blood glucose had become erratic. However, he denied any symptoms such as productive cough, cellulitis, diarrhoea and vomiting or symptoms of meningism. He has a background of Type 1 diabetes mellitus with known retinopathy and neuropathy and attends the Glasgow Royal Infirmary Diabetic Clinic. He lives along with his wife, smokes and drinks occasional alcohol.

 

On examination he appeared comfortable, blood pressure 160/80 mmHg. Heart rate 120 beats per minutes regular, heart sounds were dual. His chest was clear, his oxygen saturations were 99% on air. His abdomen was soft and non tender and neurologically he was intact.

 

He was treated for a possible viral illness and initial blood tests revealed normal full blood count, normal U&Es but with an elevated CRP of 139. An MSU was performed which was negative and a chest xray revealed left lower zone chest xray changes in keeping with acute inflammatory change. An ECG showed normal sinus rhythm and he was commenced on oral amoxicillin.

 

He was well enough for discharge home on 16 June 2006.”

 

71. The claimant accepted he had picked up a chest infection whilst on a camping holiday, but argued that the reason why he had contracted the chest infection was because he had reduced insulin control due to the stress at work, which had been affecting him since November 2005. The claimant rejected the respondent’s suggestion that he had picked up a chest infection and that that had interfered with his diabetes control which had resulted in him being admitted to hospital.

 

72. Dr Gordon agreed it was possible the admission to hospital may have affected the August 2006 review figure for HbA1c, but it depended on whether the claimant had returned to tight control of his condition.

 

73. The claimant sought to argue that stress at work had impacted on, and led to, deterioration in his diabetes. Dr Gordon confirmed that it was possible for stress to impact on diabetes.

 

74. Dr Gordon confirmed that a reduction in insulin would lead to a rise in the figure for HbA1C. He further confirmed the claimant’s medical records noted that he had reduced his insulin towards the end of 2005 although the claimant argued this had been appropriate due to weight loss. Dr Gordon also confirmed that an acute illness can affect the HbA1C reading, and that the claimant’s illness would likely have had some effect on the reading.

 

75. Dr Gordon confirmed that the claimant would have been expected to check his blood/sugar levels four times a day on 3 days a week, and to change the amount of insulin required. He considered the claimant’s records showed he was in remarkably good health for having had diabetes for 40 years, and that it indicated he had it well controlled. The records suggested there had been times when it had not been well controlled, but for the most part this had not been the case.

 

76. The claimant’s position was that in December 2005, when he had been given the GE account, it had caused his health to suffer – notwithstanding the fact that he had only done this work for 15 days before Mr Cooper took action to instruct him not to do it at the same time he was preparing the EA monthly report. The claimant further argued that his control of diabetes had been affected by this stress, causing him to become unstable and culminating in his admission to hospital.

 

77. We were referred to a witness statement from Ms Fiona Vickers, who is employed by the respondent as an oSDM. Ms Vickers confirmed she has type one diabetes and has never experienced any difficultly with Mr Snowden, or any other manager, regarding time off in association with this condition. Ms Vickers commented that given she was also diabetic, she doubted the claimant’s position that he had been selected for redundancy because he was diabetic.

 

Following Dismissal

 

78. The claimant has been in receipt of Jobseekers Allowance from July 2006 until March 2007, of £56 per week.

 

79. He registered with the Job Centre and various agencies to find alternative employment. He applied for one position – an Engineering role – but was not interviewed. The claimant had only noticed four Service Delivery Manager posts advertised in the past year, and they had all been in the south of England. He had started to expand what he was looking for, but found it difficult to know what sort of jobs to look for.

 

80. The claimant produced a folder of information regarding his efforts to find alternative employment. He included, in this folder (page 182) an analysis of his prospects of finding a similar role within one hour’s drive from his house, being .00003181%. The claimant rejected the respondent’s suggestion this was not realistic.

 

81. The claimant graduated from Bell College in 1985 with an HND in Mechanical Engineering. He graduated from Strathclyde University in 1988 with a Bachelor of Engineering honours in Production Engineering and Management. He then graduated from Paisley University in 1996 with a Master of Science degree in Business Information Systems.

 

82. The claimant rejected the respondent’s suggestion that he was sufficiently well qualified to seek employment as a Business Analyst, an IT Analyst; IT Planning Manager; Programmer Analyst or a Database Administrator. The claimant confirmed various employment agencies had contacted him regarding Database Administrator positions, but had lost interest when they learned his skills in this area were five years old. The claimant did accept that a position as an IT Project Manager was an option he could consider.

 

83. The claimant had carried out internet searches for vacancies on a regular basis. The information produced in his folder showed that he had searched only for On Demand Service Delivery Manager posts. The claimant believed that the search would be based on all the words entered, and that it would include any Manager posts. We found this aspect of the claimant’s evidence to be not credible: it was clear the search was confined to only On Demand Service Delivery Manager posts. This was supported by the fact that one of the searches (page 118) had advised him to widen the scope of the search and that the search would benefit from less specific keywords.

 

84. The claimant accepted that he had not carried out a search within the last 3 months.

 

85. The respondent had carried out a search (on the Monster website) for suitable employment for a person with the claimant’s skills, in June 2007, and they had found no Service Delivery Manager posts, although positions as a Database Administrator and an IT Manager had been available. The respondent had widen the search to cover the previous 12 months, looking for jobs which fit the claimant’s profile (as detailed in his CV), within one hour’s drive from his home and at a similar salary (page 273). The search had revealed 34 suitable job vacancies. The claimant refused to accept this evidence on the basis that if the jobs had been suitable he felt sure he would have been contacted by one of the agencies.

 

86. The claimant accepted he had not met anyone from an agency face to face. He maintained that he had been contacted by 40/50 agencies in the period between July and November 2006, but none of that contact had resulted in a job to apply for. The claimant further maintained that most of the contact had been with regard to positions as a Database Administrator, but their interest had not progressed when they learned his skills in this area were five years old. The claimant rejected the respondent’s suggestion that agencies would have been aware of this information from his CV prior to contacting him. The claimant confirmed he could update his skills in this area, but that he considered it to be a step back in his career.

 

Altered Documents

 

87. The claimant did not question the respondent’s witnesses regarding his position that documents had been deliberately altered.

 

88. The claimant was unsure when questioned by the respondent’s representative whether he was stating the respondent had deliberately altered documents – for him it was more a question of why certain things had been done, for example, unsigned letters being produced and sections removed from letters. The claimant subsequently conceded that he was not maintaining that documents had been altered deliberately, but just that they had not been produced in the right format.

 

89. The claimant conceded that he had sent the respondent a document attached to an email which included all of the material upon which he wished to rely: this material had been cut and pasted from other documents. The claimant further conceded that he had not checked the information he had sent to the respondent, to see if it corresponded to what had been produced.

 

90. The claimant agreed he had repeatedly been asked by the respondent to provide hard copies of the documents he wished to rely upon, but he had rejected that request because he thought it would be easier to use soft copies. The claimant further agreed the respondent had offered to pay the photocopying costs.

 

91. The claimant also conceded that a number of documents about which he complained, were documents he had in fact had from the respondent in advance of the proceedings – for example, volume 1 page 99 was the chart the claimant had previously complained about as having been missing.

 

Submissions

Claimant’s submission

 

92. The claimant invited the Tribunal to note that when asked, Mr Snowden and Mr Cooper, had each confirmed the claimant had the job title of Service Delivery Manager. The claimant’s role had not been a Support, or Back Office, Service Delivery Manager. He had carried out the role of Service Delivery Manager and questioned why he had been made redundant when he had a full time equivalent allocation of 2, in contrast to other SDMs with a full time equivalent allocation of 0.2.

 

93. The claimant submitted the respondent had tailored a story around facts raised by him. The respondent had stated the claimant had a non customer facing role. The claimant described this as pure invention, and referred the Tribunal to (i) volume 3 page 105 which showed the claimant attended 80% of the EA monthly meetings; (ii) volume 3 page 111 which showed the claimant's mobile phone bill for outgoing calls to customers had increased; (iii) the witness statement of Andrew Hammett which confirmed the claimant took calls from EA; (iv) volume 3 page 71 which showed the claimant took his turn as oSDM duty manager; and (v) volume 2 page 22 where the claimant was named as one of the main contacts for the EA account.

 

94. The respondent had stated the claimant had a unique role. The claimant disputed this and referred to (i) volume 1 page 102 which was an organizational chart showing the claimant had the same job title as other team members; (ii) volume 3 page 87 was an updated organizational chart again showing the claimant had the same job title and (iii) volume 2 page 25 showing the claimant included on a presentation slide.

 

95. The respondent had stated the claimant had a support role. The claimant disputed this and referred to (i) volume 2 page 16 showing the claimant’s shift pattern; (ii) volume 2 Page 19 showing the claimant had been sent on the respondent’s Lifecycle course; (iii) volume 2 page 24 showing the claimant had been sent on the respondent’s IT Infrastructure Library course and (iv) volume 3 page 71.

 

96. The respondent had stated the claimant was not overworked. The claimant referred to the full time equivalent allocations: his had been 2.0 whereas others had been rated at 0.2

 

97. The claimant submitted the respondent had not made reasonable adjustments. He could not perform the EA and GE roles simultaneously, and something had to give. The main problem, which he submitted, had never been addressed was the EA monthly report that had to be worked on 100% of the time in the first 10 days of each month, but the claimant was expected to perform GE duties during this time. The claimant submitted this expectation persisted from December 2005 until June 2006.

 

98. The claimant disputed that he wished to leave the oSDM role, and submitted that he would have happily stayed in the role had his full time equivalent allocation been reduced to 1 or less. The claimant believed that whilst the allocation remained at 2, he had no option, because of his health, to look for a new role.

 

99. The claimant submitted his dismissal had been unfair because the issue of his disability had been raised; he had not been involved in any discussions regarding redundancy; there had been no consultation; who had been representing his interests in the RIF validation process and why had the statutory procedure not been followed.

 

100. The claimant submitted he had been assigned to work on the two largest accounts which had created work conflicts and affected his health. The claimant denied that any reasonable adjustments had been made because he had still been asked to do GE work during the first part of each month.

 

101. The claimant submitted he had become acutely unwell, and had been admitted to hospital. The provisional diagnosis had been “insulin dependant diabetes mellitus diabetic ketoacidosis.” The claimant submitted this was not a condition which would have been caused as a result of a two-day family camping holiday.

 

102. The respondent had, since making the claimant redundant, taken on a further five new oSDMs. In addition to this six oSDMs in the department had less service than the claimant.

 

103. The claimant had not been involved in any discussion regarding his redundancy. There had been reference to the claimant’s disability and the claimant submitted this had been the real reason for his selection. The claimant submitted that the question to be asked to determine direct discrimination was “would the respondent have dismissed any other employee without diabetes, especially new oSDMs with or without high blood pressure.”

 

104. The claimant submitted he would need to start a new career, which he found unacceptable for a person in their mid 40s who had a disability. The claimant submitted the respondent’s information regarding available positions should be disregarded.

 

105. The claimant confirmed his claim was (i) unfair dismissal on the grounds the respondent had failed to follow the statutory dismissal procedure; (ii) direct discrimination in that the respondent selected the claimant for redundancy because he was disabled and (iii) failure to make reasonable adjustments.

 

Respondent’s submission

 

106. Mr Davy, for the respondent, detailed the key factual situation which the respondent believed to have been the case –

 

  • 1998 – the claimant commenced employment with the respondent in a technical role.

 

  • April 2003 – the claimant moved to an On Demand Project Manager role. This role involved travel and customer facing responsibilities. By March 2004 the claimant was not happy in this role: Mr Blair noted at a meeting that the claimant did not enjoy travel and preferred a more technical role. This led to the claimant changing to a support role in the On Demand Service Delivery team.

 

  • July 2004 – Mr Snowden’s email confirmed the claimant was to be in a “support operations type role”. The support role was aimed at assisting the oSDMs on the EA account. The claimant was involved in incident management; the monthly meeting and preparation of the monthly report. He performed a unique role.

 

  • The EA account started to mature with a consequent reduction in the number of incident management requests.

 

  • November 2005 – the claimant’s duties involved EA incident management; EA monthly meeting; EA monthly report and GE incident management.

 

  • 16 December 2005 – claimant agreed with Mr Snowden that he no longer had to do EA incident management. The claimant’s role was therefore: EA monthly report; EA monthly meeting and GE incident management. The respondent estimated the claimant spent 6/7 days on the monthly report; 1 day at the EA monthly meeting and half a day each day on GE incident management.

 

  • The claimant accepted four tasks had become three, but denied this had amounted to a change.

 

  • The claimant identified a problem in the first week or so of each month when he was required to prepare the monthly report but could also be asked to do GE incident management. The claimant accepted that his workload would have been manageable if he had not had to do both at the same time.

 

  • 21 December 2005 – the claimant accepted he was told by Mr Cooper not to do GE work when preparing the EA monthly report.

 

* Mr Cooper told the claimant his role did not look like a 100% role, and informed him he would, at some point in the future, be required to perform a full oSDM rble. The claimant did not want to do this, and so decided to look for another job.

 

  • January/February 2006 – announcements were made regarding organisational changes, with the introduction of the Global Service Desk and CIMs.

 

  • Mr Thompson was invited to name employees for the RIF list. Mr Thompson’s statement made it clear he was not aware of the claimant’s diabetes.

 

  • February 2006 – the claimant was no longer required to attend the EA monthly meeting.

 

  • The claimant’s duties at this time involved preparation of the EA monthly report and GE incident management. The claimant accepted this involved no customer contact.

 

  • The claimant’s position that he held a full time equivalent role of 2 was clearly wrong on the evidence. The others on the list with less than a fulltime equivalent of 1 had been explained by them being part time or not a member of the SDM team.

 

  • Mr Snowden was not aware the claimant was on the RIF list. Ms Temple’s evidence had not been challenged by the claimant.

 

  • The claimant was notified of his potential redundancy. Thereafter the claimant wished all contact to be via mail or email and thus no face to face consultation could take place.

 

107. Mr Davy, in conclusion, submitted the claimant had been dismissed for reasons of redundancy and not for any reasons connected with his disability.

 

108. Mr Davy reminded the Tribunal the claim in respect of disability discrimination for failure to make reasonable adjustments had been dismissed by the Tribunal (at pre hearing review) and was not a matter to be determined at this Hearing. The claims to be determined were under section 3A(1) – less favourable treatment and 3A(5) – direct discrimination.

 

109. Two questions had to be asked – (i) has there been a reorganisation, reduction in work or some other reason meaning there was a diminished need for an employee doing the kind of work the claimant did and (ii) was the dismissal wholly or mainly attributable to those circumstances. Mr Davy submitted that given the claimant had not challenged the witnesses’ evidence on these points, the Tribunal must find the answers to the questions to be yes.

 

110. The claimant’s role had been very different to that of the other oSDMs. The role had been very different even when it had comprised four parts, and the claimant had accepted in evidence that he had not performed large parts of the oSDM role. He had been the only oSDM not to do these elements of the role, and accepted he had no customer facing element to his role.

 

111. There had been a diminishing need for employees to perform the role the claimant did. Mr Davy submitted it was the role, and not the job title, that was crucial. The incident management role decreased and the reorganisational changes meant that element of the job would move to the Global Service Desk. This had resulted in a reduced need for the claimant’s role.

 

112. The claimant maintained that he had been dismissed because of his diabetes, or a reason related to it. Mr Davy submitted this was not correct because (i) on the facts, it was clear the only effective cause of dismissal was redundancy; and the claimant had been put on the RIF list by someone who had not known of his diabetes, (ii) When the issue of diabetes had been raised, Ms Temple confirmed it was not relevant because the claimant was already on the RIF list. Mr Davy submitted the cause of the dismissal had been redundancy.

 

113. Mr Davy submitted the claim of direct discrimination must fail because, when properly considered, the claim was one of less favourable treatment. The appropriate comparator was an employee doing the same role as the claimant, who no longer wished to do that role, and wanted to look for something more technical and who had raised issues regarding stress – the comparator was not someone else who had diabetes. Would the respondent have treated this person as they treated the claimant – Mr Davy submitted they would have done so.

 

114. Mr Davy noted the claimant’s submission the respondent had failed to follow the statutory dismissal and disciplinary procedure. He submitted the statutory procedure did not apply in a collective redundancy situation. The claimant had inferred that Ms Temple had agreed the statutory procedure had not been followed in his case – Mr Davy submitted this had been wrong, and in fact Ms Temple had said that in redundancies of 20 or more the statutory procedure did not apply.

 

115. Mr Davy submitted that in any event the respondent had complied with the statutory procedures. There had been a step 1 letter – being the announcement of organisational changes; a step 2 meeting – when the claimant had been informed of his potential redundancy and a step 3 appeal – when the claimant had been notified of his right to appeal. Mr Davy invited the Tribunal to dismiss the claims.

 

116. Mr Davy submitted that should the Tribunal decide to uphold the claims, they should consider the credibility of the claimant’s evidence regarding his search for alternative employment. The claimant had produced a wealth of information regarding job searches, but suggested to the Tribunal that he could not work with any company that uses Oracle software. This was wholly unreasonable and displayed an unreasonable approach to redeployment. Furthermore, the claimant knew that by entering specific words in the search engine, his search would be too narrow.

 

117. The respondent had presented clear evidence that the claimant could have obtained a job with similar pay within a 3/6 month period.

 

118. Mr Davy invited the Tribunal to make a specific finding in respect of the claimant’s allegation that documents had been deliberately altered. The respondent had taken a great deal of time and effort to respond to this very serious allegation, and in cross examination the claimant suggested he had made the allegation without even first checking if the documentation in the bundle was the same as the information he had sent. Mr Davy submitted it had been wholly inappropriate to make the allegation without having first checked.

 

119. No alterations had been made and any errors that had arisen had come from the documents the claimant sent, or from a lack of clarity about which document he was referring to. In one document the claimant had known full well that a red section in the document would copy as black, but notwithstanding this, the claimant had still sought to suggest the respondent had blacked out the information.

 

120. Mr Davy concluded by reminding the Tribunal the claimant had withdrawn the claim in respect of injury to health and he confirmed the respondent wished this element of the claim to be dismissed.

 

Credibility

 

121. We found the respondent’s witnesses, Mr Snowden, Mr Cooper and Ms Temple to be credible witnesses who gave their evidence in an honest and straightforward manner. Their evidence was not challenged to any great extent by the claimant in cross examination, notwithstanding an explanation from the Chairman regarding the consequences of this action and a direction to challenge points with which he disagreed.

 

122. We found the claimant, in contrast to the above, to not be a credible witness in many aspects of his evidence. The claimant was evasive when responding to questions, and often maintained the position of responding with the information he wished to give, rather than answering the question. An example of this was when the claimant had accepted his role had reduced to two elements, and was asked if he maintained, in those circumstances, that he had been so overworked that he had had no option but to seek a different job. The claimant was asked this question three times but would only state there had been a workload conflict. Similarly when the claimant was questioned about his efforts to find alternative employment, and refused to accept that a search for service delivery managers would have limited the scope of the search.

 

123. We also found the claimant undermined himself on several occasions. For example, the claimant accepted there were a large number of tasks within the oSDM role that he did not carry out, but refused to accept that he carried out a restricted support role. Also the claimant accepted that of the four elements he initially carried out, this was reduced to three and then to two; but he would not accept that changes had been made to address his concerns.

 

124. We, for these reasons, have preferred the respondent’s evidence in any matters of dispute.

 

Conclusions

 

125. We decided to deal with two preliminary matters before considering the merits of this case. We firstly considered the respondent’s request for a specific finding that they did not deliberately alter documents to gain advantage in this case. The allegation made by the claimant was a very serious one. We, having considered the preliminary submissions made by the parties at the commencement of the Hearing and the claimant’s responses in cross examination, were satisfied of the following points:

 

  • the claimant had been asked by the respondent to provide hard copies of the documents he wished to rely upon at the Hearing and be included in the joint bundle of productions;

 

  • the claimant refused to provide hard copies notwithstanding the respondent’s offer to pay for photocopying costs;

 

  • the claimant provided a soft copy of the documents in the form of an attachment to an email;

 

  • the attachment included various materials the claimant had cut and paste to form the document;

 

  • there was confusion regarding the documentation and this confusion was not helped by the fact the claimant had refused to provide hard copies of the documents as requested;

 

  • the information produced by the respondent was a copy of the information provided to them by the claimant;

 

  • the claimant did not check whether the respondent had provided a copy of the information he had sent them before making the allegation;

 

  • many of the documents referred to by the claimant were either not material to the claim (for example, the letter of offer of employment); or had been provided to the claimant but he had not noticed them in the bundle.

 

126. We concluded from the above that the claimant’s allegation was unfounded and that the respondent had not deliberately altered, amended or removed documentation from the bundle of productions in order to improve their case at this Tribunal.

 

127. We next considered the respondent’s motion to have the injury to health aspect of the claim dismissed. The background to this was that the claimant had initially indicated that his claim included an assertion that the respondent’s conduct, in discriminating against him, had caused or contributed to, an injury to his health. The claimant subsequently notified the respondent that he no longer intended to pursue this as part of his claim because he may pursue a separate personal injury claim. The respondent invited the claimant to withdraw this part of his claim.

 

128. Mr Davy was concerned that the claimant understood the respondent's position which was that if the claim was dismissed - or if it failed at Tribunal -they would seek to argue that this debarred the claimant from raising any further proceedings regarding this matter, for example, a personal injury claim. Mr Davy referred to the case of Khan v Hevwood & Middleton Primary Care Trust 2006 EWCA Civ 1087 in support of his position that the effect of dismissal prevents further proceedings.

 

129. The Chairman explained the respondent’s position to the claimant which was that he should either proceed with his claim in respect of injury to health, or withdraw it. If the claimant withdrew the claim, the respondent would seek to have it dismissed and – if it was dismissed – would subsequently seek to argue that the dismissal debarred the claimant from raising a personal injury claim. The Chairman confirmed she could only explain the respondent’s position and could not give advice on it, or on whether it was correct.

 

130. The claimant, having had time to consider his position, confirmed he wished to withdraw that aspect of the claim.

 

131. Mr Davy, for the respondent, sought an order that that part of the claim be dismissed. He submitted the reason for the withdrawal had not been a good one: the claimant had, up until last week, been pursuing this aspect of his case; it had been investigated by the respondent and the claimant had produced medical evidence and called witnesses. There had been no reason to do this if that part of the claim was not being pursued. Mr Davy submitted it had been unreasonable to withdraw that part of the claim so late. The respondent was entitled to finality and it was unacceptable for the claimant to drag the respondent through these proceedings, only to withdraw that aspect of the claim with a view to dragging the respondent all through it again in a different forum. On that basis the respondent sought an order dismissing that part of the claim.

 

132. We referred to rule 25(4) Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, which provides as follows:

 

“(1) A claimant may withdraw all or part of his claim at any time – this may be done orally at a hearing or in writing in accordance with paragraph (2).

 

(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the … tribunal (in the case of oral notification) receives notice of it…

 

(4) Where a claim has been withdrawn, a respondent may make an application to have the proceedings against him dismissed. Such an application must be made by the respondent in writing to the Employment Tribunal Office within 28 days of the notice of the withdrawal being sent to the respondent. If the respondent’s application is granted and the proceedings are dismissed those proceedings cannot be continued by the claimant (unless the decision to dismiss is successfully reviewed or appealed).”

 

133. We noted that rule 25(4) refers to a written application being made to dismiss the claim. We considered that as withdrawal of the claim had been done orally at the Hearing, we could consider the respondent’s oral application for dismissal.

 

134. We were initially reluctant to grant the respondent’s application to have part of the claim dismissed because we were not persuaded that injury to health was “part of his claim”. The claim is one of disability discrimination, and the parts of that claim are direct discrimination and less favourable treatment. Any argument regarding injury to health is dependant on part of the disability discrimination claim being successful. Injury to health is not a freestanding claim; it is essentially an argument in respect of remedy.

 

135. We however acknowledged the respondent’s argument that the claimant had, up until the week before the hearing, been pursuing this line of argument, and on that basis the respondent had had to prepare for it. The claimant had, notwithstanding his decision to withdraw that aspect of his claim, persisted in calling Dr Gordon to give evidence regarding his medical condition and the effects of stress on diabetes. We also acknowledged Mr Davy’s submission that the respondent is entitled to finality.

 

136. We decided, in all the circumstances and notwithstanding our reservations (above), to grant the respondent’s application to have part of the claim dismissed – that is, the part of the claim relating to injury to health. We, in reaching this decision took into account our conclusions below regarding the merits of the claim of disability discrimination.

 

Unfair Dismissal

 

137. We next turned to consider the claim of unfair dismissal. The claimant sought to challenge that he had been unfairly dismissed for a number of reasons: (i) he had been an oSDM and therefore should have been considered against all other oSDMs for redundancy; (ii) there was a lack of consultation and (iii) the respondent failed to follow the statutory dismissal and disciplinary procedure.

 

138. We referred to section 98 Employment Rights Act which provides as follows:

 

“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

 

(a) the reason, (or, if more than one, the principal reason) for the dismissal, and

 

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2) A reason falls within this subsection if it -

 

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do;

 

(b) relates to the conduct of the employee;

 

© is that the employee was redundant, or

 

(d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

 

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b) shall be determined in accordance with equity and the substantial merits of the case.”

 

139. This section sets out how a tribunal should approach the question of whether a dismissal is fair. There are two stages: firstly, the employer must show the reason for the dismissal and that it is one of the five potentially fair reasons set out above; secondly, if the employer is successful in the first stage, the tribunal must then consider whether the employer acted reasonably in dismissing the employee for that reason under section 98(4).

 

140. The first issue for this tribunal to determine is whether the employer has shown the reason for the dismissal of the claimant. The respondent’s position was that the reason for the claimant’s dismissal was redundancy. The claimant sought to challenge this and argued that the real reason for his dismissal had been because he was diabetic and/or because he had requested changes to his workload because of his diabetes.

 

141. We referred to section 139 Employment Rights Act, which provides that an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to the fact that the requirements of that business for employees to carry out work of a particular kind have ceased or diminished or are expected to cease or diminish.

 

142. We noted there was no dispute regarding the fact the respondent company merged with another company and, as a consequence of that merger, announced a number of organisational changes. The claimant accepted he had received the emailed announcements regarding the introduction of the global service desk and the CIMs. The claimant did not dispute the evidence of Mr Cooper regarding the impact of those changes on the role of the oSDMs. We found as a matter of fact, and accepted, that the introduction of the global service desk would result in the oSDMs not having to carry out incident management, because all requests for support would be dealt with centrally at the global service desk. Furthermore, the introduction of CIMs meant they, and not the oSDMs, would be responsible for monitoring, managing and progressing incidents from the global service desk.

 

143. The key argument in this respect was that if the introduction of the global service desk and the CIMs affected the oSDM role, then all oSDMs should have been in the pool for selection for redundancy. We, in considering this argument, noted the respondent did not dispute the fact the claimant’s job title was On Demand Service Delivery Manager. The respondent however maintained that notwithstanding the fact of the job title, the claimant performed a different, and limited, role in comparison to the other oSDMs.

 

144. The claimant did not dispute there were many aspects of the oSDM role that he did not carry out. We were satisfied, having taken into account the evidence of the claimant and Mr Snowden – and having had reference to various witness statements which all confirmed the claimant performed a small sub-set of the total oSDM role – that the claimant, whilst having the job title of oSDM, in fact carried out limited aspects of that role.

 

145. The claimant objected to the various descriptions used by the respondent to describe the role he performed – for example, “support”, “back office” and “non customer facing”. We accepted that whilst those descriptions did not define his job title, they did define the range of duties he performed in comparison to the other oSDMs. The claimant had limited customer contact in comparison to the other oSDMs; he did a limited amount of travelling in comparison to the other oSDMs and he did a limited number of the total elements of the oSDM role in comparison to other oSDMs. We were entirely satisfied the claimant performed a limited oSDM role. Furthermore, there was no dispute regarding the fact the claimant was the only oSDM in this type of role.

 

146. The claimant suggested that he had performed a role with a full time equivalent of 2, and he suggested others had had a much lower full time equivalent. The claimant’s evidence regarding this matter had doubt cast upon it when he conceded in cross examination that a number of those people with a less than full time equivalent rating either worked part time; had not been in the oSDM team or had recently lost an account. In addition to this we considered that even if the claimant carried out a role that had a full time equivalent of 2, it did not detract from the fact he carried out a limited range of the oSDM duties in comparison to the other oSDMs.

 

147. There was no dispute regarding the fact that by February 2006, the claimant’s duties comprised preparation of the EA monthly report and GE incident management. We have stated above that the introduction of the global service desk and the CIMs would remove the requirement for oSDMs to carry out incident management. It was accepted the preparation of the EA monthly report took the claimant the first week to week and a half of every month; thereafter he carried out GE incident management. The removal of the requirement to do GE incident management would remove the larger part of the claimant’s role.

 

148. Mr Cooper accepted that the removal of the requirement for oSDMs to carry out incident management impacted on all oSDMs; however he did not consider there to be a diminution in the need for that role given the fact the respondent company had gained new clients and had, in fact, to recruit more oSDMs to service these clients. We were satisfied, having accepted the evidence of Mr Cooper, that the requirements of the respondent business for employees to carry out the work of the full oSDM role had not diminished.

 

149. We were satisfied, having taken into account the above information, the introduction of the global service desk and the CIMs impacted on the claimant's role, and that the requirements of the respondent's business for employees to carry out the work which he did had ceased or diminished. We accepted that if incident management was removed from the claimant's role, he would have been left with one task - preparation of the monthly report -and the respondent had no requirement to employ a person simply to perform this task.

 

150. We were satisfied the requirements of the respondent’s business for employees to carry out the role the claimant did, had ceased or diminished with the introduction of the global service desk and CIMs. The claimant’s role was redundant.

 

151. We next considered the claimant’s argument that redundancy had not been the real reason for his dismissal and that in fact he had been selected for redundancy because he was diabetic and/or because he had requested changes to his workload because of his diabetes. We have set out in detail our considerations regarding these matters below. In summary, we were entirely satisfied that the claimant’s selection for redundancy was based on the fact there was no longer a requirement for his role, and had nothing whatsoever to do with the fact of the claimant’s diabetes or any changes that had been requested regarding his role.

 

152. We were satisfied the respondent had shown the reason for dismissal was redundancy, which is a potentially fair reason for dismissal falling within section 98(2)(c) above. We must now go on to consider whether the respondent acted reasonably in dismissing the employee for this reason.

 

153. The claimant’s argument that there should have been a pool of oSDMs for selection for redundancy has been dealt with above. We were satisfied there was no pool for selection because there was no diminution in the requirements of the respondent’s business for employees carrying out the full oSDM role. We were satisfied, for the reasons set out above, that the claimant carried out only limited aspects of the full oSDM role, and as such it was the respondent’s requirement for that limited role that had ceased or diminished.

 

154. We noted the evidence of Ms Temple, to the effect there had been consultation with the Employee Consultation Forum, was not challenged by the claimant. We accepted Ms Temple’s evidence regarding this matter, and the fact that there had been consultation about the redundancy and the reasons for it. There was also no dispute regarding the fact that 121 redundancies occurred throughout the respondent’s UK business.

 

155. The claimant next argued there had been no consultation with him. There was no dispute regarding the fact that the RIF list was, initially, a confidential document known only to the senior managers. There was no consultation with the claimant until the RIF “list had been revalidated and the claimant informed of his potential redundancy. We acknowledged that the individual consultation process usually takes place once employees have been informed of being at risk of redundancy – that is what happened in this case. There was no dispute regarding the fact the claimant was advised by Mr Gemmell of his potential redundancy, and notified that Ms Temple, from HR, would be in contact to go through the consultation process with the claimant and answer any questions. We found as a matter of fact that Ms Temple intended to conduct the preliminary consultation with the claimant by telephone, there being a number of standard information issues to deal with. The claimant refused to participate in either a telephone call or a face to face meeting because he wanted all communication to be by post or email. We were satisfied this limited the consultation process that could be carried out.

 

156. Ms Temple did send to the claimant a redundancy fact sheet and also a questions and answers document: she also ensured that the questions raised by the claimant were addressed. We were satisfied, in the circumstances of this case, that the respondent had done as much as possible to consult with the claimant within the confines he imposed.

 

157. An employer is expected, in a redundancy situation, to consider alternative employment for the employee. The claimant did seek to argue that he should have been given the opportunity to perform the full oSDM role as an alternative to redundancy, particularly when new oSDMs had to be recruited. There would have been merit in that argument but for the fact the claimant had made it clear to Mr Cooper that he did not wish to perform the full oSDM role, and wished instead to seek alternative employment within the respondent’s organisation. The claimant in fact started searching for alternative employment in early 2006, when approaches were made to the respondent’s HR department.

 

158. We were entirely satisfied that the claimant did not wish to perform the full oSDM role, and no criticism could be made of the respondent for failing to offer him this alternative. We acknowledged, in considering this matter, that there had been discussion between Mr Snowden and HR and Mr Thompson regarding alternatives for the claimant. The respondent did consider whether the claimant should be forced to carry out the full oSDM role, and if this happened, what risks there would be for the client. We further noted the RIF list was not revalidated until Mr Thompson had been satisfied the claimant should not be made to perform the oSDM role in circumstances where he had already indicated his desire to leave that role. We noted, in addition to the above, that the claimant did not dispute he had been aware oSDMs were being recruited, but did not apply for the post.

 

159. The final argument raised by the claimant was that the respondent had failed to follow the statutory dismissal and disciplinary procedure. The Employment Act 2002, Schedule 2 sets out the statutory dismissal and disciplinary procedure. Step 1 of the procedure provides that the employer must set out in writing the employee’s alleged conduct, or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee. The employer must send the statement of a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. Step 2 of the procedure is that there must be a meeting and step 3 is the appeal There was no dispute regarding the fact a meeting took place in terms of step 2, and the claimant was advised of his right to appeal. The dispute accordingly focused on whether step 1 of the procedure had been followed.

 

160. The respondent referred the Tribunal to regulation 4 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, where it is stated that the statutory procedures do not apply to certain dismissals – one such category being where the dismissal of an employee is one of a number of dismissals in respect of which the duty in section 188 (consultation in collective redundancies) applies.

 

161. We have stated above that we accepted Ms Temple’s evidence, which was not challenged, that there had been collective consultation with the Employee Consultation Forum regarding the redundancy and the reasons for it. We further accepted that the claimant’s redundancy was one of 121 redundancies in the respondent company at that time.

 

162. We acknowledged the claimant may have been unaware of the collective consultation exercise and of the other redundancies, however that does not detract from the fact both occurred. The claimant’s dismissal falls within one of the categories to which the statutory procedures do not apply. There was no duty on the respondent to follow the statutory dismissal and disciplinary procedures, and accordingly the claimant’s argument regarding this matter failed.

 

163. We decided, having taken all of the above points into account, that the respondent had acted fairly in dismissing the claimant for reasons of redundancy. This claim is dismissed.

 

Disability Discrimination

 

164. The claimant asserted he had been selected for redundancy because of his diabetes (direct discrimination) and that he had been treated less favourably for a reason related to his disability.

 

165. We referred to the Disability Discrimination Act section 3A, which provides:

 

“(1) For the purposes of this Part, a person discriminates against a disabled person if-

 

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

 

(b) he cannot show that the treatment in question in justified.

 

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.”

 

166. We firstly considered the claimant’s assertion of direct discrimination – that is, that he was selected for redundancy on the ground of his disability. The concept of direct discrimination in disability cases is highlighted well by the following example – the refusal to employ a person with a skin complaint to work on a food counter. The reason for not employing the person is their disability. The claimant sought to argue that the reason for his selection for redundancy was his diabetes. The claimant, in support of his position, pointed to the fact there had been reference in Mr Snowden’s emails to his disability and potential for absence.

 

167. We were referred to Mr Thompson’s witness statement where he stated that he had been unaware of the claimant’s diabetes at the time of putting his name forward for the RIF list. The claimant did not have an opportunity to cross examine Mr Thompson regarding this matter, but Ms Temple spoke to this matter, and the claimant did not seek to challenge her evidence. On that basis we accepted that Mr Thompson, the senior manager who put forward the claimant’s name for the RIF list, had been unaware of the claimant’s diabetes at the time of putting him on the RIF list. Mr Snowden and Mr Cooper were initially unaware of the RIF list, and could not have influenced Mr Thompson’s decision.

 

168. The claimant referred to the emails from Mr Snowden where reference was made to his diabetes and potential for absence. We, in considering this matter, were satisfied of two points: firstly, that the communication to and from Mr Snowden did not lead to the selection for redundancy of the claimant because his name was already on the RIF list; and secondly, at that time, Mr Snowden did not know of the fact the claimant’s name was on the RIF list. The discussion Mr Snowden had (via email) related to the role the claimant could take on in the future, the risks in moving the claimant to a full oSDM role with a new account and the requirements of moving him to take over an account from one of the other oSDMs – all against a background of knowing the claimant did not want to take on the full oSDM role. There was no suggestion this discussion led to the claimant’s selection for redundancy – he was already on the RIF list and would be made redundant if an alternative could not be found.

 

169. The claimant questioned why reference had been made to his diabetes at all. Mr Snowden, when responding to this question in cross examination, said he had been highlighting the effect of the two options. Mr Snowden was aware of the claimant’s diabetes and aware he had raised issues of stress/conflict of workload. We considered – in the context of consideration being given to force the claimant to carry out the full oSDM role – that it had been appropriate to make reference to the fact stress and pressures of workload had been previously raised. We were satisfied (i) that at the time Mr Thompson put the claimant’s name on the RIF list he did not know of his diabetes; (ii) Mr Cooper and Mr Snowden were initially unaware of the RIF list and could not have influenced Mr Thompson’s decision; (iii) the context in which Mr Snowden’s comment was made was whether the claimant should be forced to perform the full oSDM and alternative employment and (iv) this discussion did not lead to the claimant being selected for redundancy. We concluded that the fact Mr Snowden referred to the claimant’s diabetes was not evidence to support the claimant’s assertion that he had been selected for redundancy because of his diabetes.

 

170. We noted another oSDM also had type 1 diabetes. She continued in her role. This appeared to undermine the claimant’s assertion that diabetes had been the reason for his selection for redundancy.

 

171. The correct comparator in cases of direct discrimination is a person who does not have that particular disability, but whose circumstances are not materially different from those of the disabled person. We considered that an appropriate comparator in this case would be a person carrying out the same limited oSDM role as the claimant, whose circumstances in terms of health were not materially different from those of the claimant. We considered whether the respondent would have treated that person differently. We decided the respondent would similarly have selected that person for redundancy. We reached that decision after having been satisfied that the requirements of the respondent's business for employees to carry out the limited oSDM role had ceased or diminished with the introduction of the global service desk and the CIMs. We were entirely satisfied that it was the role which was redundant, and accordingly the person occupying the role -be that the claimant or a comparator - would be selected for redundancy. We decided, for these reasons, to dismiss the claim of direct discrimination.

 

172. We next considered the second aspect of the discrimination claim, where the claimant alleged he had been treated less favourably (that is, selected for redundancy) for a reason which related to his disability (that is, because he had requested changes to his workload because of the effect of stress on his diabetes). We noted that to constitute unlawful discrimination the reason for the less favourable treatment must be related to the disabled person's disability - there must be a causal link between the employee's disability and the treatment complained of. We referred to the case of Clark -v- TDG Ltd t/a Novacold 1999 IRLR 318 where the Court of Appeal said two questions had to be posed: the first question was one of fact - was the employee treated less favourably for a reason which relates to his/her disability? If so, the second question was - did the employer treat the employee less favourably than he treated (or would treat) others to whom that reason does not apply. In other words it is necessary to determine the issue of causation - whether the employee was dismissed for a reason related to his disability -before determining whether he was treated less favourably than the appropriate comparator.

 

173. The first question we must ask is: was the claimant treated less favourably (that is, selected for redundancy) for a reason related to his disability (that is, because he had asked for adjustments to be made to his workload). We, in considering this matter noted our findings in fact that the claimant’s duties had been altered on three occasions: (i) on 16 December following the claimant’s discussion with Mr Snowden, the claimant was instructed to no longer carry out the EA incident management; (ii) on 21 December following his discussion with Mr Cooper, the claimant was instructed not to do GE incident management when he was preparing the EA monthly report and (iii) in February 2006 when the claimant was advised he was no longer required to attend the EA monthly meeting.

 

174. We further noted the fact the changes on 16 and 21 December had been made as a result of the claimant informing Mr Snowden and Mr Cooper there were workload conflicts resulting in him feeling stressed at particular times.

 

175. Mr Snowden and Mr Cooper took action immediately to address the concerns raised by the claimant. Mr Snowden and Mr Cooper were both aware of the claimant's workload, particularly as they had discussed and agreed that with the maturation of the EA account and the reduction in incident management requests, the claimant would be allocated incident management on the GE account. Mr Cooper very frankly pointed out to the claimant that he could not - even with further explanation from the claimant - see how the duties amounted to a 100% role: notwithstanding this observation, Mr Cooper agreed the claimant did not have to do GE incident management when preparing the EA monthly report. There was no suggestion Mr Snowden or Mr Cooper were unhappy at making the changes or resented the claimant in any way; and we noted no such suggestion was put to these witnesses in cross examination. We further noted there was no suggestion by the claimant that Mr Thompson - who put his name on the RIF list - had been unhappy at the adjustments having been made.

 

176. It appeared to this Tribunal that the respondent had responded appropriately, and very positively, to all requests made by the claimant – for example, the claimant’s move to the oSDM role when he no longer wished to carry out his previous role; restricted travelling and working from home and the adjustments made to his workload. There was nothing to suggest, or from which we could infer, the respondent had any difficulty with, or related to, the claimant’s disability, or the fact he had requested adjustments to his workload. In fact, up until 16 December, Mr Snowden and Mr Cooper had been unaware of the claimant’s disability.

 

177. The claimant focussed on the fact there had been reference by Mr Snowden in subsequent e-mails, to his disability. We have dealt with this point above and our conclusion was that this e-mail exchange did not lead to the selection of the claimant for redundancy. We were satisfied the e-mail exchange centred on alternatives for the claimant, and that the comment was made in the context of forcing the claimant to do a role they knew he did not wish to perform. We were not prepared to accept that mere mention of the fact the claimant had diabetes was sufficient to link the subsequent treatment to the claimant’s disability.

 

178. We were satisfied, based on the evidence before the Tribunal, that the reason for the claimant’s selection for redundancy (the alleged less favourable treatment) was because the respondent’s need for employees to carry out the limited oSDM role which the claimant performed, had ceased or diminished. The claimant had been unable to discharge the burden placed on him to show his selection for redundancy related to his disability, and in the circumstances that aspect of his claim must fail. We dismissed this claim.

 

179. These were the only claims of disability discrimination to be determined by the Tribunal – the claim in respect of reasonable adjustments having been dismissed at the pre hearing review in March 2007. We should state that notwithstanding that decision, and direction from the Chairman regarding this matter, at the commencement of the Hearing, the claimant made reference to the claim of reasonable adjustments in his statement. We should state that had we been required to consider the claim of failure to make reasonable adjustments, we would have dismissed it. The evidence, which was not in dispute, was that adjustments were made to the claimant’s workload on 16 and 21 December, and in February 2006. The claimant accepted his duties reduced from four elements of work to two. He further accepted that having been instructed by Mr Cooper not to do GE incident management whilst preparing the EA monthly report, he was to – and did – inform Mr Winters of this.

 

180. The claimant argued that notwithstanding the instruction to Mr Winters, he continued to receive requests to do GE incident management during the first week to week and a half of each month. We found this evidence to be weak and not credible in light of the fact he had specifically told Mr Winters not to refer GE incident management to him during that period; and, Mr Winters, having acknowledged this, confirmed that if he forgot and sent GE work, just to let him know he was not available. It appeared to this Tribunal that the claimant had been given the authority not to do GE incident management whilst preparing the EA monthly report, and in the face of this evidence, we could not accept his evidence that there was still a workload conflict.

 

181. In conclusion:

 

  • we were satisfied the reorganisation and introduction of the global service desk and the CIMs led to a diminution in the need for employees doing the limited oSDM role which the claimant performed;

 

  • the claimant’s role was redundant;

 

  • we were satisfied the claimant’s dismissal was attributable wholly to redundancy and was not caused by, or related to, his disability;

 

  • the claim of unfair dismissal is dismissed and

 

  • the claim of disability discrimination (including injury to health) is dismissed.

 

  • We also confirm our specific finding that the respondent did not deliberately alter documents in order to advance their case at this Tribunal hearing.

 

Date of Judgment: 13 September 2007

 

The judgment of the Tribunal was to:-

 

  • dismiss the claim of unfair dismissal and

 

  • dismiss the claim of discrimination contrary to the Disability Discrimination Act (including that aspect of the claim relating to injury to health, which was withdrawn by the claimant during the hearing).

 

Something was telling me that this was going to be a difficult and long battle…..

 

 

 

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Other books by Nostaple Limited:

 

The Justify This series:

 

Justify This 2006 – 2007

Justify This 2007 – 2008

Justify This 2008 – 2010

Justify This 2010 – 2011

Justify This 2011 – 2015

 


Justify This 2006 - 2007

  • Author: Nostaple Limited
  • Published: 2017-05-30 17:50:24
  • Words: 103482
Justify This 2006 - 2007 Justify This 2006 - 2007