Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

[Loggerheads!]

Hi,

I previously posted this link on my Hello post, however, I think it is better placed here.

I am posting this link for a number of reasons i.e. in the hope of encouraging someone who finds him/herself in the same situation as my son to stand up against wrongdoings in the work place, to illustrate just because you stand alone doesn't mean you wont succeed and just because the whole establishment is against you doesn't mean you wont b believed. After doubting the advice we were getting form my sons union representative and our solicitor, we decided to go it alone. My son and I were up again 7 managers and a barrister. Remember the story of David and Goliath...

https://www.facebook.com/tescoetsuccess.judgement.5?

[CleverClogs]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

Remember the story of David and Goliath...

That kid just got lucky! :grin:

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

Hehe .. Yeah he did ... smartypants :0)

[bluebottle]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

I feel this case illustrates and sends out a very clear message to Tesco's senior management that being disingenuous, not only with your customers and staff, but with statutory tribunals too, will, sooner or later, result in it coming back and smacking you in the face. Tesco's senior management should take onboard the criticisms the ET has, quite rightly, levelled at them and the company and take action to ensure things change.

It is often said that the public is fickle. The public may be perceived as fickle, but they will not stand for being lied to by large companies. Tesco has already had to shut down its operations in a number of territories, including the USA, and appears to be losing money on its UK operations. Is this a case of "What goes around comes around"? Quite possibly.

[Gorang]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

Any chance someone could copy and paste it up in a post here for those of us that are not registered (and never will be) with crapbook

thanks

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

Any chance someone could copy and paste it up in a post here for those of us that are not registered (and never will be) with crapbook

thanks

I can post what I've copied so far, but it's not in order. I've only so far through so there's still quite a bit to add. However I hope this will be OK.


Witnesses:
The claimant and


For the respondent we heard from:
Mr Lester deputy Store manager
Mr Patel Change personnel manager (promotion obtained recently)
Ms Shipley Personnel manager
Mr McNulty Store manager
Mr Asif deputy manager
Ms Attille Union representative and wages administrator
Mr Razaq Night manager (although he was the bakery manager at the time he witnessed the incident in the warehouse between Ms Shipley and the claimant).


The Judgement was unanimous and it was heard by an employment judge and 2 lay persons ON:
27th and 28th of August on the 7th to 11th October inclusive 2013 and 3-5 December in chambers.


Appearence:


For the claimant: The claimants mother
For the respondent: Mr A Holmes of Consel







REASONS:
1. Names of judges

2. By an ET1 presented on 25th February 2012 claimant claimed disability discrimination and being subjected to a detriment due to raising a qualifying and protected disclosure. The claimant was employed from 30 April 2007 as a warehouse backdoor checker working 36.5 hrs a week. The allegations in brief are as follows:

3. That in December 2011 the claimant did not get promotion because of his communication skills and his inability to be a team leader despite the fact that he had been running the warehouse on his own for a year.

4. On the 7th November 2011 the claimant informed Ms Shipley about some of the issues going on with managers and particular in reference to the treatment he received from his new manager Mr Patel in his return to work meeting and the requirement that he bring in to work a letter saying he was fit for work. In the letter of the 7th November he referred to the state of the warehouse and referred to rats running around and the bad smell.

5. On 9th November 2011 he referred to the contents of the letter of the 7th November 2011.

6. On 1st February 2012 the claimant alleged that Ms Shipley made false allegations against him for gross misconduct. The claimant states that this was after him informing her that he was going to report her to head office The claimant also accused Ms Shipley of his letters going missing.

7. He stated that adjustments were made for him by the respondent in 2009 to accommodate his dyspraxia and since that time all those involved had left and he was now left on his own to cope.

8. The claimant maintained that he was turned down for the role of team leader because of the way he communicates he states that some people thought that the job was his, including himself and he was surprised he did not get it. He maintained that Ms Shipley treated him and continues to treat him as though he is stupid he alleged that Ms Shipley told him all he was good at was going to head office. He maintained the Ms Shipley knows about his dyspraxia and that she "deliberately puts me in situations that make me feel inadequate".

9. He alleged that Mr Asif told him that a child could do his job with his eyes shout and on the 1st February 2012 the claimant was told Mr Asif had gone through his bag without another person present and without it being recorded and without the claimants consent. The claimant was told that Mr Asif had suspected the claimant of stealing. When the claimant approached Mr Asif he maintained that Mr Asif became abusive and defensive and told him that he had no commonsense and he did no work. He maintained that on the 14th February 2012 the day after he put a grievance in against Mr Asif, he came into the warehouse about 8 times to intimidate him. The claimant alleged that the final straw was when Mr Asif filed a false allegation against him for aggressive behaviour the claimant alleged that Mr Asif tried to be intimidating with his size, facial expressions and body language.




10. The claimant alleged that Mr Patel refused to let the claimant move over to nights which was a straight shift swap as there was no logical reason for this. He also alleged that things got worse after the claimant refused to take eight weeks unpaid leave. The claimant also alleged that Mr Patel ignored him when he told him about H&S issues and that he asked about the correct uniform but still had not been provided with it.




11. On the 13th February Mr Mc Nulty held an investigation meeting that the claimant alleged that he refused to listen to for 5 hours and he told him that he wished to continue with his grievances. This continued even after the claimant became emotionally distressed. The claimant alleged that Mr Mc Nulty said to him he was being immature and needed to grow up. He also alleged that Mr Mc Nulty didn't allow him to be represented fairly and spoke over his mother and he also threatened to throw out the claimants mother who was there to assist him and he alleged that this was bullying. He also alleged that the minutes of the meeting were recorded incorrectly.




12. The claimant alleged that Mr Mc Nulty, Ms Shipley and Mr Patel tricked him and treated him like a foolish child had increased his workload, don't provide him with a safe environment and have ignored the problem with rats and constantly being called into the office for formal and informal discussions for things they allow other people to do. He also maintain that he was treated like he was "incapable, uncaring, aggressive, stupid and not worthy of consideration or being listened to"







ET3




13. In the ET3 presented on 28th March 2012 the respondent denied the claimant had a disability and maintained that any alleged complaints relating to acts that took place prior to November 2011 were out of time and the tribunal has no jurisdiction to hear those complaints and it would not be just and equitable to extend time.




14. The claimant was interviewed for the position of team leader on October 23rd 2011 by Ms Shipley, the main reason he was told he did not secure the role was due to concerns over leadership skills.




15. On 8th November 2011 the claimant handed to Ms Shipley a letter with details of various concerns he had in relation to Mr Patel, Ms Shipley arranged a meeting with the claimant and his union representative to speak to him later. The meeting lasted over 2 hours and the claimant felt his concerns had been adressed. Following this meeting Ms Shipley spoke to Mr Patel. Ms Shipley never received the letter dated the 9th November 2011.




16. The claimant left a bag on the warehouse floor on the 1st February 2012 and Mr Asif searched a bag as it was a potential H&S hazzard. The respondent will say this is entirely reasonable. The claimant confronted Mr Asif. The claimant went to speak to Ms attille and she put out an urgent call to Ms Shipley, however she was dealing with an urgent situation. Later that day the claimant went to speak wo Ms Shipley to complain about the bag search. During this conversation the claimant became very aggressive in the end she has to walk away from the claimant.


17. On 2nd February 2012 the claimant was suspended on full pay to allow the respondent to investigate his aggressive behavior.


18. On the 3rd February 2012 the claimant lodged a grievance against Mr Asif and Ms Shipley.


19. An investigation was launched into both the claimants grievance and his aggressive behaviour and a number of people were interview.


20. On the 6th February 2012 there was an investigatory meeting with Mr Lester the deputy store manager. The claimant was accompanied by his union representative and his mother, during this meeting the claimant admitted he said to Ms Shipley get out of my warehouse and he accepted he could be considered to have been aggressive.


21. On 13th February 2012 Mr Mc Nulty the store manager held a meeting with the claimant. The claimant was accompanied by his mother and his union representative. In the meeting the claimant accepted he may have been aggressive towards Mr Asif. it is denied that Mr McNulty acted inappropriately in this meeting. It is also denied that the claimant was told he was being immature and needed to grow up. It is accepted that Mr Mc Nulty did say to the claimant had the deciding to move forward from the bag search incident he felt that this was a mature decision. Itt is denied that Mr Mc Nulty bullied the claimant in the meeting. It was also denied that Mr Mc Nulty threatened to throw out the claimants mother, however she appeared to be influencing the claimant throughout the meeting. It is denied that Mr Mc Nuty discriminated against the claimant in the way he conducted the meeting.


22. On 7th February 2012 Ms Shipley referred the claimant to occupational health (OH).


23. All allegations made against Ms shipley, Mr Asif, Mr Patel and Mr Mc Nulty are denied.

The issues

24 The issues were agreed to be as follows:


24.1 The claimant sent to Ms Shipley on the 7th November 2011 a written qualifying and protected disclosure about his absence due to ill health, the state of the warehouse and held that there were rats and rotting food in the warehouse. The claimant was concerned about a breach of H&S and asked for it to b sorted out.


24.2 The clamant refers to the following acts of disability discrimination:


24.2.1 In November 2011 Ms Shipley told the claimant that he was not promoted because of his communication skills and his inability to lead a team although he had previously been told that he would be considered for a team leader vacancy. The claimant alleges that this is direct disability discrimination or discrimination arising from a disability. The claimant will say if this is out of time it is just and equitable to extend time.


24.2.2 In January 2012 Mr Asif asked the claimant if he was as stupid as he sounded. The claimant states that this is an act of harassment or direct discrimination.


24.2.3 On 2nd February 2012 Mr Asif told the claimant he had no commonsense. The claimant states that this is an act of harassment or direct discrimination.


24.3 On 13th February 2012 Mr McNulty:


24.3.1 Accused the claimant of being immature and acting like a child because he refused to withdraw his grievances.


24.3.2 Made the claimant drop 2 grievances after a 5 hour meeting in which the claimant broke down and had to leave the room.


24.3.3 Threatened the claimant with further suspension or relocation during the meeting when the claimant refused to drop the grievances.


24.3.4 The respondent did not follow the correct procedures during the meeting as not all the notes were taken, bullying took place and the claimant did not read or sign the notes.
The claimant also alleges that Mr McNulty threatened the claimant on the phone prior to the meeting saying that if he did not drop the grievances he would be moved. The claimant maintains that this is background evidence to the other complaints including the complaint for making a public interest disclosures.


24.4 On or around the 2nd February 2012 Mr Asif told the claimant that a child could do his job with his eyes shut. This is the complaint of harassment or direct discrimination.


24.5 On or around the 2nd February 2012 Ms Shipley told the claimant that all he was good for was running to head office and complaining. This is a complaint of harassment, or direct discrimination or discrimination arising from a disability.


24.6 The claimant was told by an Indian colleague (although later conceded that the colleague was of Pakistani origin) that he could speak English better than the claimant. This is a complaint of harassment or direct discrimination or discrimination arising from disability.


24.7 Ms Shipley expressed the view that if there are any problems between the claimants and colleagues (specifically Mr Asif) maybe the problem was with the claimant. This is advance as part of the background evidence that Ms Shipley was dissatisfied with the regime she had inherited from her predecessor where the claimant was allowed to take his concerns directly to personnel.


24.8 Mr Patel refusing a straight shift swap in December 2011 with Richard on the night shift although it was something they both wanted and it was backed up by the two night shift managers. This advanced as a complaint of harassment or direct discrimination or discrimination arising from disability.


24.9 A false allegation of aggressive behaviour was made in February 2012 by Ms Shipley. This is advanced as harassment, direct discrimination or discrimination arising from disability.


24.10 Ms Shipley lying to Mr Bloom of Occupational health (OH) about the claimant in order to get access to his medical records. This happened on the 6th February 2012. In particular it is alleged that Ms shipley said the following to Mr Bloom:


24.10.1. that the claimants aggressive behaviour had become difficult to manage.


24.10.2 the claimant was on his second final written warning.


24.10.3 the claimant was moving departments because of his behaviour and


24.10.4 dyspraxia was the reason for his aggressive behaviour


It is advanced as a complaint of harassment or direct discrimination or discrimination arising from disability.


24.11 Mr Asif's unlawful search of the claimant bag without following the correct company procedures this was in 1st February 2012. This is a complaint of harassment or direct discrimination or discrimination arising from disability.


24.12 Mr Asif telling Sam that he suspected him of stealing this was on 1st February 2012 and is a complaint of harassment or direct discrimination or discrimination arising from disability.


24.13 Not having false allegations that have been made against the claimant investigated about Mr Asif saying the claimant was stealing to the contract cleaning manager Sam when Mr Asif went through the claimants bag on the 1st February 2012. This is a complaint of harassment or direct discrimination or discrimination arising from disability.


24.14 The claimant constantly being called into the office for things other people got aay with for example:


24.14.1 when Paul spoke to the claimant about his hat and headphones in December 2011 or January 2012.


24.14.2 when Mr Patel spoke to the claimant about headphones in the same period.


This is a complaint of harassment or direct discrimination or discrimination arising from disability.


The detriments led to have risen from the protected disclosure made by the claimant are the same as those identified above as unlawful discrimination and harassment as set out in paragraphs 2.1 to 2.15.


The claimant confirmed that there is no claim for failure to make reasonable adjustment ot victimisation.


Preliminary Matters


There was an issue about documentation on the third day of the hearing (after the claimant finished on the witness stand) and after some discussion it was agreed that page numbers 515 - 547, 560 - 3, 622 - 567 and 547 be placed in the bundle and the rest of the disputed documents would be excluded. The claimant also produced to the tribunal a copy of the company handbook which was marked C1.


26. The claimant has been employed by the respondent since April 2007 with the Osterley branch of Tesco. Tesco is a large chain of retail outlets that employ 360,000 in the UK. The claimant took the tribunal to document C1 which was a copy of the respondents handbook which contained a copy of the respondents equal opportunities policy which stated that all employees should demonstrate respect for each of their fellow employees. Although a copy of this document was in the bundle it was noted that none of the respondents witnesses referred to this document in their evidence in chief even though we heard from two employees who had responsibility for personnel issues. Similarly the respondent had a H&S policy which was in the C1 and it stated that employees should report any signs of infestation of rodents, although the respondent did not refer to this document the tribunal noted that it was in the bundle at page 43L and N and it was also noted that the grievances raising H&S issues should be heard in 7 days. The claimant at first was employed on check outs but after experiencing some problems with his concentration and complaints had been made about the way he spoke to customers and getting in trouble for not wearing the correct uniform, he was moved to the job that he was employed in at the time of the tribunal hearing namely the role of warehouse/backdoor assistant.


27 - 35 This is my summary on paragraphs 27 - 35. The tribunal examined extensive documentation relating to the claimants disabilities. Due the sensitive nature of some of the information I will only just clarify the important points:

1. Diagnoised with verbal dyspraxia and developmental delay at 3 years old.
2. While at school he had SEN
3. Went to college at 16 until he was 18, where he required additional learning support.
4. Has mild global cognitive dysfunction
5. Difficulties associated with his Verbal dyspraxia and global cognitive dysfunction are mainly his verbal and non verbal communication skills, with his attention, memory, tone/pitch/rate and volume of voice, body positioning, getting around in unfamiliar surroundings, reading maps or bus routes, gets stressed and anxious especially under stressful or hostile environments, lacks in self confidence and self esteem, prone to low moods and perception. There is obviously a lot more info, but as I said I think I've included the main bits of information.

36. The claimant was off sick from 14th October 2011 to 24 October 2011 (13 days), his first day back was 25th. His return to work meeting was conducted by Mr Chan at which it was noted that reasonable adjustments were needed. Mr Patel the claimants line manager at the time, told the tribunal he did not know the claimant had a disability and he only found out "When the solicitor called me". The claimant then had an attendance review investigation on the 1st November 2011 and at pages 363 - 6 of the bundle where it was noted that Mr Patel checked the claimants file and had looked back over 26 weeks (page 363 of the bundle) and also reverted to the "Bigger picture" by looking back further in time. (page 364 of the bundle). The tribunal therefore concluded that he would have looked through the claimants file and would have seen the reasonable adjustments made for the claimant in 2009 to accommodate his dyspraxia in the work place and the research conducted by Ms Dickinson. The tribunal therefore find as a fact that on looking at the claimants file he would have found out that the claimant had a disability, his evidence to the contrary was found by the tribunal to be inconsistent with the facts and evidence before us.


37. The minutes of the meeting with Mr Patel are at pages 367 to 371 of the bundle and it was because his attendance was 9.96 which was over the threshold for absences and he asked him about the reason for his absence and they discussed IBS. The meeting was then seen to discuss the fact that the claimant was suffering from stress and Mr Patel put to him whether his problem was associated to dietary matters or whether it was related to his personal life. The claimant was seen to tell him that he wanted to be at work and he ha called for support but didn't receive any. He asked Mr Patel what support he would be given and mentioned that there was a bad smell in the warehouse. The meeting then ended with Mr Patel putting inn some next steps and these were seen at page 373 of the bundle which included a requirement that the claimant to bring in a "Fit for work" note and details of his medication.


38. It was the claimants evidence that Mr Patel "Wanted to check I wasn't lying" and disputed that the meeting was called in his best interest. It is also recorded that the claimant would be moved to check outs or lighter work. The claimant was taken to the minutes of the meeting on 1st November in cross examination and the claimant told the tribunal notes were not correct, he told the tribunal that Mr Patel did not wish to listen to the claimant's concerns about the smell of rotten food, he was only concerned about talking about the claimants tablets and medication. The tribunal noted that the minutes had been signed by the claimant which he accepted but he told the tribunal he didn't read them because it would have taken him about 15 - 20 minutes to read the pages. We also find as a fact that the minutes consisting of only 5 pages did not accurately reflect a meeting that lasted for over an hour. The tribunal however finds as a fact that the claimant was not off for a disability related reason. Ms Shipley confirmed that she knew about the meeting on the 1st November 2011 and she conceded that Mr Patel "May" have discussed with her the H&S issues the claimant raised in the meeting.
39 The claimant was interviewed for the role of team leader and the interview notes were at pages 343 to 359 of the bundle. The successful candidates interview notes were at pages 376A to 376F of the bundle dated the 7th November 2011. It was Ms Shipleys evidence that this interview took place on the 23rd October 2011 however it was conceded in cross examination that it could not have been conducted that day as the claimant was still off sick and did not attend his RTW interview until 25th October, Mr Patel was at first insistent that the interview with the claimant took place on the 23 October but on being taken to the claimants return to work interview with Mr Chan, conceded that "perhaps" it did not take place on that date. Mr Patels and Ms Shipleys evidence was not credible on this point. It was the claimants evidence that he went for the interview on the 4th November and in the absence of any credible evidence from the respondents to the contrary, the evidence of the claimants is preferred.





40. The tribunal did not see the adverts or any correspondence relating to calling the claimant to an interview or giving the claimant the notice of an interview. Ms Shipley deals with the conduct of the interviews at paragraphs 3 to 14 of her statement and Mr Patel deals with the conduct of the interview at paragraph 21 of his written statement. Although Mr Patel told the tribunal that he took the decision jointly with Ms Shipley, it was not disputed that he took no notes of the process and no notes of discussions.

41. It was the claimants evidence that he was called to a meeting at the end of his shift to attend the interview. He asked if he could take his mobile phone in because his brother was coming to collect him, Ms Shipley agreed to this. This was referred to in Ms Shipleys statement at paragraph 14 where she described how she was appalled that the claimant took the mobile phone into the interview and answered it when it went off. The tribunal prefer the evidence of the claimant on this point and that he had requested permission to take the mobile phone into the interview and had explained why and permission had been granted by Ms Shipley. The tribunal conclude this was the case because there was no evidence that the claimant was provided with any notice of the interview and the tribunal have no indication when all other candidates were interviewed (other than the example provided in the bundle of the interview that took place on the 7th November).





42. it was put to the claimant in cross examination that the interview records showed that the time allocated to different parts f the interview process took the "best part of 2 hours" however the claimant disputed this saying it didn't take that long. The claimants evidence was corroborated by Ms Shipley and Mr Patel who both confirmed that it took substantially less time to go through the process. Ms Shipley believed it took more than 30 minutes but Mr Patel believed it took less, it was his evidence that the meeting took "half an hour, 40 minutes, 20 - 25 minutes". Ms Shipley did not appear to follow the guidelines on the interview forms where more time appeared to be allowed for each part of the interview process and the whole interview process was meant to take 80 minutes (page 344). This time table was put to Mr Patel and he replied that "It was down to the person" as to how long it took. He denied that there was a requirement to give notice for the interview. Ms Shipley denied that the claimant would have been disadvantaged in the interview with his speech problems by only taking 26 minutes in the interview (instead of the full 80 minutes). The tribunal had no credible evidence before it as to how long the the candidates spent in the interview or whether they received notice.

43. It was the claimants case that he did not receive fair marks and referred to certain comments on his interview sheet including page 343 it states "How he is seen, heard?" and at page 347 there are the following words "attitude, "Rude" and "fiery" and the claimant only received 1 point out of a possible 3 points in the criteria described as "leadership skills - customer focus" on the interview form. In cross examination the claimant also referred to the words "personality clashes" that appeared on the interview notes at page 349 in the section dealing with leadership skills - drive" but the tribunal did not see the evidence as to when these personality clashes occurred and what they were about and how this was relevant to the interview with the claimant. It was also noted that on this page the words "lack of communication" appeared. Mr Patel was asked about these and he replied "there could be a lash, the way he speaks...the way he talks and might sound to people, we can't all speak clearly all the time". The tribunal took this to be a reference to the way the claimant spoke due to his disability, there was no evidence before the tribunal that other candidates were assessed on the way they spoke.


44. The claimant told the tribunal that he had run the warehouse for 18 months on his own and had trained others and he did not understand why he had been identified as showing a lack of communication. He told the tribunal that he had trained someone called Neville and this appeared to be reflected at page 351 of the interview notes which was exploring the claimants ability to develop himself and others (see paragraph 34 of his statement). The notes gave no indication of what the claimant had said in the interview but it was disputed by the respondent that he trained Neville (who is a manager) however there was no evidence that this matter was investigated by the respondent. The claimant told the tribunal he never came across in the way he was described in the interview notes. It was the claimants evidence that he was told he would get the job by Ms Shipley but this was denied by her.
45. Ms Shipley was asked in cross examination how she reached the scores for the claimant and she conceded that she could not recall how he answered his questions. She was asked specifically about paragraph 9 of her statement where she dealt with scoring him on team working (page 350) and she confirmed that she had no issue with his work as a general assistant (GA) and with his back door role. She confirmed his "His safe and legal records were the best in store and there was no issue that he could not do a GA role", however she doubted he could "lead by example". She was asked in cross examination how she scored the claimant on personal integrity (he scored 1 see page 348) and she replied "...Sometimes the claimant would leave early and we wouldn't know. I am just speculating I haven't written every single detail down, probably my mistake" She also conceded when taken to the claimants statement paragraph 34, that the claimant "probably" told her that he had trained Neville but she did not write it down (however we have found as a fact that this name appeared in the interview notes at page 351). it was also noted in her statement at paragraph 10 that she made no reference to the claimant providing evidence of giving advice and support to others even though she referred to Neville in the interview notes. She conceded that she did not know the answers that the claimant gave in this section of the interview and she could not explain how the claimant only scored 1 for team work. Ms Shipley also confirmed that not all candidates were asked the same questions and she did not take an accurate note of what questions were asked or answered (of any interviewees). Ms Shipley was asked about page 343 of the interview notes and was asked what the words "not recommended" meant and she did not know. She was also asked about the words that appeared on that page of "how he is seen, heard?" and again she could not explain what was meant by these words when she wrote them. In the absence of any explanation the tribunal conclude it was a reference to how he spoke taking into account the evidence of Mr Patel and what he said in relation to "personality clashes" and the way the claimant spoke and this was a reference to how the claimants dyspraxia manifested itself.










46. The claimant attended feedback after the interview the claimants recollection was set down in paragraph 34 of his witness statement and he stated it took 5 - 10 minutes. It was the claimants evidence that he attended the feedback meeting on or around the 14th November 2011, the tribunal accept this evidence as being correct in the absence of any evidence to the contrary. Although the respondent could provide no corroborative evidence of when the feedback interviews took place with any of the candidates in this selection process. Ms Shipley confirmed that it occurred after 7th November as interviews were still taking place that day and the successful candidate would be told last. It was the claimants evidence that he was told by Ms Shipley that he was not successful in becoming team leader because of his communication skills and she did not feel he could manage a team of people. It was the claimants evidence that he told her that he ran the warehouse for a year and that he had trained others. Claimants evidence was also that he had explained about his dyspraxia in the meeting that he was told by Ms Shipley that she went on the interview on face value and did not look at his folder. It was the claimants evidence that Mr Lester attended the feedback interview but he had no recollection of attending it.


47. The issue of feedback was dealt with by Ms Shipley in paragraph 17 of her witness statement however she could not remember doing it and did not keep notes however she was certain that the feedback she gave "would not have been discriminatory" and would not have related to his letters of the 7th or 9th November. The tribunal had the benefit of seeing the respondents handbook marked c1 and it was noted that selection is on "merit, using clearly defined and fair criteria". Ms Shipley did not refer to this document nor did she tell the tribunal what clearly defined and fair criteria was applied in the process. We raise an adverse inference from this. Ms Shipley was asked what was discussed in this meeting and she admitted that she could not recall what was discussed in the meeting and she was only "speculating". However the tribunal have found as a fact that the feedback meeting took place after he had handed in his whistle blowing letter. It was put to Ms Shipley that the claimant stated in paragraph 34 of his statement that she informed him in this meeting that the reason he did not get the position was due to his communication skills and she denied that this was said. It was also noted in Ms Shipleys statement at paragraph 14 that she referred to the claimant "looking away from us and generally not acting professionally" and the tribunal conclude that this conduct was a feature of his disability (as refers to our findings of fact at paragraph 32). The tribunal conclude on the balance of probabilities that he was told that he was not appointed due to his communication skills due to the evidence given by both Mr Patel and Ms Shipley especially taking into account the words written by Ms Shipley on his form about the way he is heard and the way that "he speaks" and she could provide no explanation for these words. It was not disputed by the claimant that he did not complain about the interview process or the outcome until February 11th 2012, on page 433 of the bundle. It was also put to Ms Shipley that in the grievance dated 11th February he stated that she prevented him from being promoted and she denied this. We find as a fact that the reason the claimant was not promoted was because of the way he speaks which was a reason related to his disability. Ms Shipley has not shown proportionate means of achieving a legitimate aim as we have seen no evidence that the criteria was non discriminatory and applied consistently throughout the interview process with all candidates.


48. It was put to the claimant in cross examination that there had been an issue with the food compactor which the claimant agreed. The compactor had been broken for 2 weeks and the food was piling up in the car park which created a smell and the claimant was concerned about cross contamination with the food deliveries. It was put to the claimant in cross examination that when he wrote his letter on 7th November 2011, the matter had been sorted out and he replied it had not.

49. The claimant wrote a letter to Ms Shipley dated 7th November 2011 complaining about the conduct of his new line manager Mr Patel. He complained that on return from absence on sick leave with IBS it was suggested that maybe his home life was causing him stress or maybe it was depression. He stated that since he came back to work Mr Patel had caused a major issue which resulted in arguments and this happened in front of other managers, employees and customers. The claimant said that this was causing his work environment to be very stressful. He also complained that Mr Patel had insisted the claimant bring his medication to work and a doctors note and he found this insulting as Mr Patel was implying he was lying. The claimant then went on to raise concern that there were rats in the warehouse and the smell was awful and that he had complained to Mr Patel about this everyday and nothing was done so he refused to work in the warehouse until this had been sorted out and during this time he was put on the tills. This was not disputed by the respondent however the claimant told the tribunal that he was only on the tills for a day. He also complained that Mr Patel had requested he attend meetings which had lasted up to 2 hours and had finished after his finishing time. The claimant was asked about this letter in cross examination and he confirmed that he wrote it with the help pf his mother.


50. Mr Patel told the tribunal that he had "never seen" the letter of the 7th November 2011 but he conceded that he had a discussion with Ms Shipley about it and Ms Shipley "may" have told him that the claimant had complained about him. It was put to Mr Patel that the claimants concerns were not addressed and he told the tribunal that "We tried to address" matters however there was no evidence as to what was done to try and address the claimants concerns and no evidence that the claimant was called to a meeting with 7 days as envisage in the respondents procedures. He was asked in cross examination about paragraph 4 of his statement where he referred to Ms Shipley speaking to him about "some concerns" and he told the tribunal that Ms Shipley spoke to him about the supporting attendance meeting (on 1st November 2011) and the claimants grievance against him (about issues at the back door and he was "shouting and rude and not supporting him"). Ms Shipley confirmed in anwsers to cross examination that the claimant "Did tell me about rats there would be nuerous occasions and not just in November it was throughout my time in Osterley". Mr McNulty had told the tribunal that the compactor had broken down and that the respondent company would not pay for a skip to have the food waste taken away and he conceded that around this time there was a rat infestation and they had to call in Rentokil to deal with the problem. We therefore find as a fact that the disclosure was out of a genuine concern and based on the reasonable and honest belief of the claimant that the H&S of the respondents customers was being endangered.




51. The claimant accepted in answers to cross examination that no one had said anything bad after he wrote the letter on the 7th November 2011 and he was no criticised for it. However the claimant told the tribunal in cross examination that the respondent failed to address the issues and he was always passed back to Mavis the Union representative. The tribunal also note that the claimant was not called to a meeting within 7 days to discuss it as set down in the respondents procedures. The claimant alleged that he had requested a shift swap in December 2011 but this had not been acted on because he raised a whistle blowing complaint. Mr Patel said it was not done because he had asked the claimant to put the request in writing and as he had not done so his application had not been taken forward. This was denied by the claimant.


52. The tribunal noted that in the respondents ET3 at page 19 it was their case that the claimant handed Ms Shipley a letter on the 8th November 2011 which the tribunal concluded on the balance of probabilities that this was his whistle blowing letter of the 7th November. It was noted in Ms Shipleys witness statement at paragraph 33 that she stated that she could not remember receiving the letter dated 7th November and in cross examination denied that the letters were handed to her. The tribunal conclude on the balance of probabilities that the letter of the 7 November was handed to Ms Shipley as the ET3 confirmed this and went on to record that a meeting was held to discuss this letter. The claimant told the tribunal that Ms Shipley did not speak to him after he had handed in this letter he told the tribunal that "The only conversation she had with me was about the £10" (in relation to the fit note from the GP). The tribunal find as a fact that this corroborated that Ms Shipley had a copy of the letter of the 7th November as this incident was referred to therein and she did not address his concerns nor did she hold a meeting with the claimant to discuss his concerns.

53. It was Ms Shipleys case that she spent more time with the claimant than with any other member of staff and that when he had an issue, he wanted it dealt with straight away (see paragraph 32 of her statement). Ms Shipley was asked what support she gave the claimant and she confirmed to the tribunal that there was no documentation and could only refer to what appeared to be social conversations and "Chit chat". Ms Shipley also told the tribunal that after November 2009 the only problem she had with the claimant was about headphones (until February 2012). The claimant denied that he had many meetings with Ms Shipley and there was no consistent evidence before the tribunal of the meetings, of when they took place and what was discussed. The tribunal also conclude that had Ms Shipley had many meetings with the claimant, she may have been more familiar with the contents of his file (with regards to the issues relating to the reasonable adjustments made to accommodate his disability and the fact that he had NO final warnings). The tribunal note that at paragraph 30 of her witnesses statement she expressed a view that the claimant had been dealt with "Too leniently" in the past and that he had raised grievances when attempts were made to manage him, there was no reasonable evidence before the tribunal that this was the case. The tribunal note that on page 244 of the bundle in the minutes taken on the 4th March 2009, the claimant was attempting to explain how his disability manifested itself and it was Ms Dickinsons decision to put reasonable adjustments in place, which she did on the 3rd November 2009 (see page 318). The tribunal conclude that Ms Shipley appeared to be referring to these adjustments as evidence that his treatment had been "Too lenient" and Ms Shipley appeared to disagree with what had been put in place and what was planning to manage him without taking the reasonable adjustments into account. We find as a fact that she did so by viewing the arrangement for the claimant to go to head office with his grievances as evidence of him "Running to head office" and viewed the conduct of the claimant negatively. Ms shipley appeared to have little understanding of equality issues, the duty to make reasonable adjustments or of the respondents equal opportunities policy despite the fact that she was a personnel manager.

54. The claimant writes a second letter to Ms Shipley dated 9th November 2011 at page 376 of the bundle and it referred to the letter that he had handed to her on the previous day 8th November 2011. The tribunal takes that as corroboration of the respondents ET3 that the whistle blowing letter was handed to her on the 8th. The letter stated that as Ms Shipley had not yet spoken to Mr Patel he was going to contact head office to ask for an external investigation to be carried out. He referred to the fact that this had happened to him a coupe of years ago because similar problems were occurring and he complained that staff in the store were turning blind eye. The tribunal take this to be a reference to his allegations in 2009 where he stated that he had been bullied and an adjustment had been put into place by Ms Dickinson that the claimant was to go direct to personnel if he had any problems. The respondent also denied receiving this letter but the claimants evidence was that he handed it to Ms Shipley in the office that day and that is dealt with in the claimants witness statement of paragraph 31 after a conversation where he maintained that he asked her whether or not she had spoken with Mr Patel and she told him she had not. It was then his evidence that he repeated what was contained in 7th November letter and said that if things weren't sorted he was going to go to head office. It was his evidence that she abruptly asked him why he always felt the need to go running to head office. The allegation was denied by Ms Shipley however on the balance of probabilities we conclude that Ms Shipley was referring to the reasonable adjustments that had been put in place to allow him to go direct to head office with his concerns. We find as a fact that this was said, having considered Ms Shipleys unreliable evidence as to whether she received the 2 whistle blowing letters and of her recollection about the dates of the claimants interview and feedback (and what took place). We conclude that the claimants evidence has been consistent whereas Ms Shipleys has not. We conclude that the words were spoken and they were less favourable treatment of the claimant due to something arising from his disability namely the reasonable adjustment that had been put in place for the claimant.

55. It was the claimants evidence at paragraph 32 of his statement that he complained to Ms Shipley about having to bring his medication and a doctors note; he said that this meeting took place with Mavis his union representative.He told the tribunal that in this meeting on the 11th November 2012 that he had been off with stress and he was not getting help with the warehouse, he stated that notes were taken but not provided to him. The tribunal saw no notes of the meeting.


56. In January 2012 the claimant referred to a discussion he had with Mr Patel at paragraph 39 of his statement where he was asked by Mr Patel if he would take 8 weeks of unpaid leave and the claimant refused as he could not afford to. The claimant also referred to an incident at paragraph 40 where he maintained an employee called Tahar told the claimant that he could "speak English which wasn't even his first language better than I could", this was said in relation to a conversation about dealing with the milk delivery. The claimant maintained that Tahar told him that if he "was capable of understanding things then this conversation would not be taking place". This conversation was denied by Tahar Razzaq. The tribunal note that this conversation was not included in the ET1 therefore this was not an allegation that the tribunal have jurisdiction to deal with.

58. The claimant alleged that (at paragraph 42 of his statement) Mr Asif told him that a child could do his job with his eyes shut, this was denied by Mr Asif at paragraph 15 of his statement and in cross examination. The claimants evidence was that this was said sometime in January 2012 but no specific date was identified. The conversation took place in the context of the claimant asking for extra help if it was needed. Although this allegation was mentioned in the ET1 (page 9 of the bundle) there was no evidence that this was raised in a grievance and it was not discussed in the meeting on the 13th February 2012. The claimant also alleged that Mr Asif said to him "was he as stupid as he sounds" (paragraph 43), this was denied by Mr Asif, The tribunal note that this allegation did not appear in the claimants ET1 and was not mentioned in his grievance on the 13th February, we therefore conclude that there is insufficient evidence to conclude on the balance of probabilities that these were raised with the respondent. We also conclude on the balance of probabilities that the claimant was happy not to pursue any complaints against Mr Asif as the tribunal noted that he told Mr Mc Nulty on the 13th February 2012 (see page 454) that he was happy to drop his grievance against Mr Asif.








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Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

59. Mr Asif told the tribunal that he was not aware of the claimants disability however when he provided evidence (after the close of his evidence which referred to the respondents closing submissions at paragraph 32) that he had a disabled child and had experience in dealing with dyspraxia and was very sensitive towards it. However it appeared to the tribunal that he showed no awareness of disabilities in general, the respondents equal opportunities nor of the claimants condition and his obvious difficulties in communicating. However in our light of our findings of fact, we conclude that there was no consistent evidence that he treated the claimant less favourably due to his disability or due to his whistle blowing, the claims against Mr Asif are dismissed.

The tribunal were taken to page 377 of the bundle which was a training record signed by Mr Patel. It is noted that Mr Patel signed off the document to record that the claimant had been trained on 4 courses on the 1st February 2012; the record was also signed by the claimant. Mr Patel was taken to this document n cross examination and it was put to him that the claimant did not attend training that day and was asked what time did the claimant attended these courses and he replied "1:00" but it was put to him that the claimant finished work at 12.30 so he could not have attended at that time. He conceded that he could not recall when the training took place and the date "May be incorrect". The tribunal did not find his evidence to be convincing. Due to the many inconsistencies in Mr Patels evidence again as to times and dates, where there is a dispute on evidence between the claimants and Mr Patels, the claimants evidence will be preferred.

61. There was an incident on the 1st February 2012 starting at 6.15 am when the claimant was told by Sam the contract cleaner that Mr Asif was going through his sports bag. It was not disputed that the claimants sports bag was too big for the lockers so he kept it in the warehouse. The claimant was told the reason Mr Asif was going through his bad was because he suspected the claimant of stealing. The claimant approached Mr Asif in what he described as in a "non aggressive way"at about 10 am and asked him why he went through his bag, he told him he could go through his bag without permission, The claimant told Mr Asif that his bag had been in the warehouse for 2 years and had not caused a problem. The claimant alleged that Mr Asif told him that he had no commonsense, the claimant told him not to talk to him like that. At This stage the claimant told the tribunal that Mr Asif put his palm facing his face and said "Talk to the hand".

62. The claimants colleague Kate Napora in stock control was a witness (paragraph 46) and her statement was at page 424 which was taken on the 6th February 2012. She stated in the interview that "They were shouting but no bad body language". This evidence was put to Mr Asif and he disputed that Ms Kapora was a witness because she was "20 metres away, and was out of vision so she was not there". The tribunal concluded on the balance of probabilities that she was an independent witness to the incident and was reliable, the tribunal having seen no evidence to the contrary.


63. The tribunal did not find Mr Asifs evidence as to the conduct of the bag search to be entirely consistent as it was put to him in cross examination that Mr Viera had told the investigation that he was not present at the search but Mr Asif told the tribunal that he was present and when asked about this evidence he said "Perhaps he had forgotten". However the tribunal were taken to page 420 of the bundle which was Mr Vieras statement interview conducted by Mr Lester on the 6th February 2012 and he confirmed that he was not there. The tribunal also note in the documents at C1 that bag searches should be carried out by 2 people and should be recorded. The tribunal did not find Mr Asifs evidence convincing on this point as the tribunal conclude that the contemporaneous evidence of Mr Viera was likely to be more accurate.

64. However there was no evidence before the tribunal that the decision to search the claimants bag was in any way related to the claimants disability and no evidence that it was a detriment because he raised the whistle blowing complaint as he had only arrived at the store around December 2011. We accept the evidence of the respondents that the bag was searched because it was in the warehouse. It was also put to the claimant that he did not raise a concern in the meeting with Mr Mc Nulty about the bag search not being properly conducted or the fact that it was not properly investigated was due to his whistle blowing in November. The claimant took the tribunal to pages 473A - G. but no mention was made of this and the letter and the claimant replied that maybe it was his fathers error. However there was no evidence before the tribunal that he had complained about this matter and not being investigated or the failure to investigate amounting to a detriment because of whistle blowing.

65. The tribunal were taken to a statement by Mr Chan at page 480 of the bundle who witnessed the incident. It was Mr Chans evidence that the claimant was quite upset when he approached Mr Asif and told him he had no right to search his bag. He recalled hearing Mr Asif saying to the claimant to "Stop shouting, I can shout louder than you" and he also recalled Mr Asif telling the claimant to go home during their conversation (and this was corroborated by Ms Attille). He then heard the claimant talking loudly to Mr Asif and Mr Asif saying "Get him away from me" and "I am not listening, talk to the hand". The tribunal were taken to Mr Asifs statement at paragraph 11 where he admitted to putting his hand up to stop the claimant from shouting in his face. He then told the tribunal (paragraphs 8 - 14 of his statement) that the claimant was "being aggressive" toward him and he stated that the claimant was trying to have an argument in front of staff to undermine him. Mr Asifs contemporaneous statement is at page 381 of the bundle. Although Mr Asif stated in his statement at paragraph 9 that the claimant was aggressive and came close to his face, the only reference to aggression was in the penultimate sentence where he described the claimant as being "Rude, aggressive throughout the whole conversation". Mr Asif told the tribunal that he took the exchange as "banter".




66. There was no reference in Mr Asifs statement to the claimant coming close to his face and no reference to him putting his hand up and saying "Talk to the hand" which was witnessed by Mr Chan. The tribunal find as a fact that Mr Asif did say to the claimant "Talk to the hand" whilst putting his hand up to the claimants face, this was in context of him telling the claimant that he was not listening to him. It was put to the claimant in cross examination that he was being aggressive and he denied it. The evidence before the tribunal was consistent and supported the claimants version of events that he did not act in an aggressive way as confirmed by Ms Napora and Mr Chan.

67. The claimant told Mavis about the incident at 10.30am and it was her decision to put out a call to Ms Shipley (paragraph 47) who came urgently to the confidential office. She told the claimant that unless it was an emergency she could not deal with it as she was dealing with more pressing matters (see Ms Shipleys statement paragraph 21-2), this evidence appears to be corroborated
and the fact that the claimant apologised to Ms Shipley.

68. At 11.30am on the 2nd February 2011 Ms Shipley was standing by the compactor in the warehouse and the claimant approached her and asked her why when he went to her with a problem she never sorted it out, he then told her he was going to head office and hr then alleged that she replied that that was all he was good at (paragraph 48). A discussion then ensued and the claimant maintained that Ms Shipley told him to walk away "With aggression in her voice and a threatening manner" and he asked her not to talk to him like that. Ms Shipley then walked away. Ms Shipley deals with this incident in paragraphs 24 - 27 of her statement. It was her evidence that the claimant was rude and aggressive from the outset and he was "Pointing his finger at me and shouting" she stated that "I was actually not sure if he was going to become violent towards me". Ms Shipley told the tribunal that she walked away and told the claimant to book some time with her, she also confirmed that the claimant had told her he was going to contact head office about the incident. It was put to Ms Shipley in cross examination that she told the claimant on 1st February 2012 that all he was good for was going to head office and she denied that this was said. However in light o the many inconsistencies in Ms Shipleys evidence we conclude on the balance of probabilities that the claimants evidence is consistent as compared to Ms Shipleys evidence which was not.


69. Ms Shipleys contemporaneous record of the incident was at page 384 of the bundle. In the report she stated "Nathan was getting very aggressive towards me at this time leaning through the cage and saying that I or no managers ever do anything to help him. I explained to him that he needed to walk away from the situation as I was not prepared to discuss it at the time and that he could book some time with me. He explained that he would take out a grievance and going to head office which I explained of course he had the right to do so. Ms Sipley told the tribunal that her contemporaneous statement did not express how aggressive the claimant was towards her but the tribunal find as a fact that the contemporaneous statement was, on the balance of probabilities, more likely to be the most accurate. The claimant denied being aggressive in this incident but he accepted in answers given in cross examination that he shouted because Ms Shipley was shouting at him and he wanted to be heard. The claimant told the tribunal that Ms Shipley said o him to "Go away" and the claimant replied "No you go away I work here". The claimant accepted that he told Ms Shipley to get out of the warehouse because "She was aggressive to me, shouting at me, I am not saying it was right". The tribunal found the claimants evidence on this matter to be consistent and candid and his answers in cross examination reflected his evidence provided to the respondent at the time were consistent with his statement.

70. The tribunal also heard evidence from Mr Radjpaul who was present at the incident. In his witness statement he describes the claimant at paragraph 7 as "Trying to start a fight" with Ms Shipley and fearing that he may "lash out at her". In answers to the tribunal Mr Radjpaul confirmed that reference to the claimant trying to start a fight was a reference to a verbal "fight". He was asked about paragraph 5 of his witness statement where he said that he tried to calm the claimant down and he was asked what he did and he said "I would have said let's calm down and see if we can sort it out. I know he comes across like that but I have a good rapport with him and can usually calm him down". He confirmed to the tribunal that he knew the claimant had "a condition".

71. The tribunal were taken to Mr Radjpauls more contemporaneous statement made on February 6th 2012 at pages 379 -9 of the bundle in this statement he describes the claimant as "Complaining and moaning" and the claimant "Shouting and being abrupt" and that the claimant "attacked Lisa verbally saying get out of my warehouse, you don't care, you don't listen to me". he then reported that the claimant "Just kept shouting and being aggressive saying get out of my warehouse". He could not tell the tribunal why this piece of evidence about the claimant accusing Ms Shipley of not listening to him, did not find its way into his witness statement as this evidence was corroborated by the claimants oral evidence above that he had told her to get out of the warehouse and he was upset because he thought Ms Shipley was not listening to him. It was put to Mr Radjpaul that he wrote his witness statement after seeing Ms Shipleys statement and he agreed that he did. It was put to him that his contemporaneous statement at pages 397 - 9 made no mention of a cage or the claimant leaning through it and he replied that he "Did not think it was relevant where he was standing". It was put to him that he took the evidence about the cage from Ms Shipleys evidence and he told the tribunal that he recalled this from memory. The tribunal on the balance of probabilities conclude that he did not conclude this from his memory the evidence was taken from Ms Shipleys statement. He was asked in cross examination if he could recall the claimant saying to Ms Shipley (see paragraph 48 of the claimants statement) that he was going to go to head office and he said he could not recall "Off the top of my head", it was then put to him that Ms Shipley could recall this being said (paragraph 27 of her statement). He then told the tribunal he could not recall because the claimant was "shouting the odds so much". Again the tribunal conclude that Mr Radjpaul did not appear to be an independent witness, where there is a conflict between the claimant and Mr Radjpaul, the claimants evidence will be preferred.


72. The tribunal find as a fact that the contemporaneous statement made by Mr Radjpaul was more in line with the contemporaneous statement of Ms Shipley. There was no evidence that the claimant was so aggressive that he may lash out, the evidence of Ms Shipley and Mr Radjpaul that the claimant was physically aggressive is not corroborated by the contemporaneous statements of both witnesses were more accurate and showed the claimant to be upset and talking loudly and complaining and moaning and the tribunal took this to be a feature of his dyspraxia that he was unable to adapt pitch and the volume of his voice when he is upset. We also find as a fact that the claimant had told Ms Shipley that he was taking his complaint to head office. The tribunal do not find the evidence of Ms Shipley and Mr Radjpaul credible when they refer to the claimant as trying to start a fight with Ms Shipley for the reasons set above. The tribunal conclude that Ms Shipley and Mr Radjpaul embellished their statements in order to produce an inaccurate and negative picture of the claimants behaviour. It was put to the claimant in cross examination that hid behaviour during the incident was "disgaceful" and he replied "They had both lied" and he felt like he was being "attacked". The claimant stated that he felt he was trying to defend himself against a losing battle. The claimant became distressed when he was questioned about this matter.


The suspension:


73. The claimant was suspended on the 2nd February 2012 for alleged aggressive behaviour see pages 380-3 and he was ivited to attend an investigatory meeting on the 6th February with Mr Lester.


74. The claimant raised a grievance against Mr Asif arising out of the exchange they had on the 1st February 2012, he accused Mr Asif of saying to him that he had no commonsense and put his palm up to his face and said "Talk to the hand". He stated in his grievance that he felt that he had been deliberately humiliated in front of 2 others managers and 2 drivers he also felt his character had been tarnished by being suspected of stealing. This was at pages 385 - 6 of the bundle dated the 3rd February 2012. The claimant conceded that he did not include this in this letter the allegation that Mr Asif said to him that "a child do his job with his eyes shut". We therefore find as a fact that the claimant did not raise a grievance about this matter in his letter.


The request for occupational health advice:


75. On the 3rd February 2012 at pages 386 Ms Shipley emailed Mr Bloom for advice about the claimant. She stated in her email that the claimant has dyspraxia and has been moved from customer based departments due to his aggressive behaviour. In her email she informed Mr Bloom that he has 2 final written warnings plus "verbals" and now has been suspended for aggressive behaviour. She asked in the email for advice to ensure that they had done "everything we can do to support Nathan". It was noted by the tribunal that Ms Shipley listed all the complaints that had been made against the claimant at her statement at paragraph 30 but the tribunal noted that they all predated the reasonable adjustments made by Ms Dickinson as they all referred to incidents up to 2009 (and see adjustments at pages 315). It was put to the claimant in cross examination at issue 24.10 that page 386A did not say that the claimant had become "Difficult to manage". Although the words do appear as in the issue referred to above, there was a reference to the claimants "percieved" aggressive behaviour which was becoming a problem and this was also reflected in the erroneous evidence included by Ms Shipley of the two final warnings"


76. The words "difficult to manage" appeared in a letter written by Mr Bloom of OHS dated 10th February 2012 at page 497j of the bundle. This was address to the claimants GP. It was noted that the claimant was described in this letter as "difficult to manage" and his opinion must have emanated from Ms Shipley as Mr Bloom had no day to day contact with the claimant. It was put to the claimant that Ms Shipley told Mr Bloom that the reason for his aggressive behaviour was his dyspraxia and the tribunal note ay page 497J he stated that *clearly this situation cannot ccntinue whatever is (sic) alleged diagnosis". Ms Shipley was taken to this letter and she was asked where the reference in the letter o "Dyspraxia ...reason for his uncontrolled outburts" came from and she conceded that she could not answer. Ms Shipleey confirmed to the tribunal that she should have read the whole file including the research at pages 60 - 62.


77. Ms Shipley accepted in her statement at paragraph 36 that the evidence in this email at page 386A was incorrect as the claimant had only received one warning that was overturned, she described these as being "Genuine errors", and she stated that the reference to previous aggressive incidences was to "PROVIDE SOME CONTEXT TO OUR OCCUPATIONAL HEALTH TO WHAT HAPPENED" (emphasis). The tribunal find as a fact however that Ms Shipleys decision to the historical references to complaints about the claimant behaviour was misleading and would have put the claimant in a bad light. The tribunal also note that pnly negative comments of the claimants behaviour appeared in the report and there was no reference to the reasonable adjustments that has been put in place or the research that Ms Dickinson had carried out which was also on the claimant file.


78. Even though this was described as a "genuine error" the tribunal could not understand how this had occurred as Ms Shipley had evidently searched the claimants file for historical matters and it had been confirmed by Mr Lester in his evidence that the research about dyspraxia was in the claimants file. The tribunal raised an adverse inference from this. The tribunal also saw the form completed by Ms Shipley dated 7th February 2012 at pages 427 - 8 of the bundle where she asked the question "How many more occasions do we expect (sic) this (the claimants dyspraxia) is the reason for his aggressive behaviour". The tribunal found this document to be a little disingenuous because it completely ignored the work completed by Ms Dickinson in 2009 to put in place reasonable adjustments including the approach made to jobcentre plus and the fact that since adjustments were put in pace there had been no complaints about that claimants performance. The problems that had arisen had been around the claimant raising concerns about H&S and the way he had been treated by his managers since November 2011 and the way in which he had pursued his concerns. This form gave an unduly false and negative impression of the claimant and failed to provide the background evidence to the latest incident (the bag search).


79. The claimant was taken to his grievance letter dated 6th February 2012 being a grievance against Ms Shipley at page 388 of the bundle. In this grievance letter he raised a concern about the working environment and the attitude of some members of staff. He raised a concern that his 2 previous letters to Ms Shipley had not been acknowledged and his concern being ignored. He stated that the incident 1st February placed him under extreme stress which resulted in him being suspended. He stated that this could have been avoided if Ms Shipley had done her job properly. He stated that "The Monday before the alleged incident occurred, which I have now been suspended for, I tried to talk to Lisa regarding this manager, and she simply looked at me then walked away". He then went on to talk about Mr Asif searching his bag and telling another employee that he suspected hi of stealing. He then went through the chronology of the incident and explaining what had happened with Mavis and then the exchange he had with Ms Shipley by the compactor where voices were raised. He complained in this letter that Ms Shipley was ignoring his concerns and had refused to address the problems that he had experienced from members of the management team. He also stated that Ms Shipley had told him that he was the problem and that she had "Refused to address H&S issues I have had at work". It was put to the claimant in cross examination that he didn't say that it was due to whistle blowing and the claimant replied "no", however the tribunal find as a fact that the claimant was making it clear in this letter that his concern was around a lack of response to the whistle blowing concerns raised n November 2011.

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Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

Letter dated 20th December 2013
Dear Sir


Mr H V Tesco Stores Limited


In accordance with rule 30 of the employment tribunals (constitution and rules of procedure) regulations 2013, please find enclosed a copy of an email sent today to the Employment tribunal on behalf of the respondent, the content of which is self explanatory.

If you have any objection to this correspondence, please raise it to the tribunal as soon as possible.


Squiresaunders UKLPP






Dear Sirs

Mr Harrison V Tesco Stores Limited
Claim number 2302135/2012/F


We write further to the tribunal judgement on this matter which was received by the respondents representative on 18th December 2013. The tribunal has given the parties 14 days from 17th December to try and conclude the matter without a remedy hearing. It is our view that given it is the start of the Christmas period, it will not be possible to have a meaningful discussions regarding settlement over the next 14 days, partly as the solicitor who has had continuous dealings with this matter is currently out of the office and ill only be in the office on one day before 2nd January 2013 (although I'm sure they means 2014) and the relevant ACAS conciliator dealing with this matter is out of the office until Monday 6th January 2014.


Given that the decision was sent to the parties just before the Christmas period on 17th December 2013 we request that the parties are given an additional 14 days from the 2nd January 2014 to explore settlement before a remedy hearing is listed on this matter.


We confirm that the claimant has been sent a copy of this email in accordance with rule 30.


Squiresaunders


-----------------------------------------------------------------------------------------------------------

We declined to meet with the respondents taking into account everything that has happened. We are now waiting to receive a date for the remedy hearing.

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

Hi,

Sorry about the mix up in order, I will do the rest in order :0)

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

80. The claimant submitted a statement for the investigatory meeting dated the 6th February 2012 at pages 391 -4, in this statement he referred to his dyspraxia and how it affects him and makes him sound abrupt which leads to people making negative assumptions about him. In the notes at page 394 he referred to a conversation he referred to a conversation he had with head office a week before the incident about the problem he was having with various managers.


81. Mr Lester acknowledged receipt of two grievances letter and two official grievance forms. The tribunal note that the grievance against Ms Shipley was at page 390 of the bundle and it stated with his grievance was 'constantly ignoring both verbal and written complaints I've had against various management team".


82. The minutes of the investigatory meeting were at pages 401 - 7 of the 6th February 2012 of the bundle. It was confirmed by Mr Lester who conducted the investigatory interview that the meeting was to discuss the incidents involving Mr Asif and Ms Shipley. The claimant referred to Mr Asif putting his hand up and said he could shout louder than him (this was supported by Mr Chans statement). Mr Lester said he was unaware that Mr Asif had put in a complaint against the claimant. With regards to the incident with Ms Shipley, Mavis confirmed that it was her decision to put out an urgent tannoy for Ms Shipley, not the claimant. The claimant confirmed that he had said he as going to complain to head office about Ms Shipley. He told Mr Lester that because of his illness he may have "come across as aggressive". He accepted he said to Ms Shipley get out of my warehouse and that she never listened to him. He accepted that in his discussion with Ms Shipley he was upset and frustrated and he could have been aggressive (see page 405). The claimant told Mr Lester in answer to a specific question that dyspraxia can affect the way he perceives things. The tribunal find as a fact that the symptoms seem to be consistent with the document referred to above (at page 32) which was in the claimants file at page 60 - 62 of the bundle which referred to the difficulties that dyspraxia suffers have with picking up non verbal signs and having difficulty understanding spatial relationships and body positioning.


83. The claimant was asked by Mr Lester about other matters in his file and he told Mr Lester that the warning was taken down to an informal discussion. Mr Lester confirmed that there was something about dyspraxia and it was confirmed in the meeting that Ms Dickinson moved the claimant to the warehouse. The tribunal were taken to page 407 where Mr Lester had agreed with the claimant that his grievances would be heard by another (external) manager. The evidence was put to Mr McNuty in cross examination and he agreed that that was what was agreed but he disputed that he was told this by Mr Lester. Mr McNulty concluded that he should hear the grievances because it was his opinion that he was "independent and trustworthy" and he sought advice, and this was despite the claimants request and an apparent agreement that the grievances should be dealt with independently. This appeared to be another example of the managers not listening to the claimant or hearing his concerns. At the end of the meeting the claimant told Mr Lester that he had spoken to Sam who had told him he was not happy and that he would get a "red audit" from Asif due to his statement to the investigation this meant that he would be marked down on his appraisal. The claimant remained suspended.


84. Mr McNuty was taken in cross examination to the evidence in the claimants witness statement about the telephone call he had had with the claimant on the 11th February 2012 (see paragraph 53 of the claimants statement). Mr McNukty could not recall the telephone conversation and it was his recollection that the call was to arrange a meeting to get the claimant back to work. The tribunal find as a fact that there was a telephone conversation and we were taken to the claimants minutes of the conversation at pages 433-4 of the bundle. In the minutes the claimant recorded that Mr McnNlty informed the claimant that "If I went with the grievances I would be sent to the Wembley store to work while the investigations were carried out and, that I could get a disciplinary or dismissal" but he was told that if he didn't proceed with the grievances he could return to work on Tuesday "without action being taken". The claimant was seen to confirm in the minutes that he wished to continue with his grievances. The minutes went onto confirm that Ms Shipley had refused to listen to his concerns and he went on to state that she had turned him down for promotion "becauase I do not have good communications skills and I am unable to manage a team of people". The claimant also stated that Ms Shipley had refused to listen to him on the 1st February 2012 and chose to listen to a managers version of the events and "a few hours later she files a false statement along with Asif saying that I used aggressive/threatening behaviour". The tribunal believe the evidence of the claimant that this conversation took place as above and we conclude that the contemporaneous record is accurate save for the fact that Mr McNulty also referred to the Twickenham store (see the minutes of the meeting on the 13th February at page 440 of the bundle).


85. Mr McNulty was taken to page 432 which was a letter dated 11th February 2012 from him to the claimant which stated he had been trying to contact the claimant about his return to work and asked the claimant to call him. Mr McNulty told the tribunal that he did not write this letter (even though his name was on the bottom) and he would not have signed his name off in that way. He also told the tribunal that it was not a foregone conclusion that the claimant was going to get back to work. The claimant denied receiving the letter and the tribunal conclude on the balance of probabilities that this letter was not sent and was not written by Mr McNulty even though it was referred to in Mr McNultys witness statement at paragraph 8 as a letter he had sent. He confirmed in cross examination that this evidence was not correct. None of the respondents witnesses could provide any evidence as to how this letter was created and why it was put in the bundle. The tribunal conclude that the respondents evidence on this point was unreliable and inconsistent and the tribunal have some considerable concern as to how this document came to be created, included in the bundle and referred to in Mr McNultys witness statement and then accepted by him to be a fabrication.


86. The claimant was taken to page 433 of the bundle in cross examination which was his grievance letter dated the 11th February 2012. In this letter he confirmed he wished to go ahead with the grievances against Ms Shipley. He stated in this letter that she had filed a false allegation against him and repeatedly refused to listen to his concerns. He also stated that she turned him down for the team leader position because he "did things by the book" and because he didn't have good communication skills and we have found as a fact that this was for a reason related to the claimants disability.


87. He complained in his letter that since November Ms Shipley had "Refused to not only listen to me, but also to help me". He stated that Ms Shipley had failed to carry out her role as personnel manger which resulted in him suffering unduly at the hands of various managers and resulted in him not getting promoted to team leader. It was put to the claimant in cross examination that he didn't state in this letter that he was being treated badly due to whistle blowing and he agreed but then he stated "I sent about 3 to 4 letters to Lisa and nothing got addressed...". The tribunal conclude from all the evidence before it that the claimant was complaining about the failure to take any action following his whistle blowing letter and her failure to take his concerns seriously and to label him as someone who is "Always running to head office". We also find as a fact that Ms Shipley subjected the claimant to a detriment after he handed her his whistle blowing letter by taking no action, not considering him for he team leader role and failing to listen to him when he raised concerns about how he was treated. Although it was her evidence to the tribunal that she spent more time with the claimant than anyone else, that was not corroborated by any consistent evidence before the tribunal.


88. The tribunal were taken to a document which appeared at page 435 - 8 of the bundle which deals with questions that the claimant would like to put across at the meeting on the 13th February 2012. At page 436 the claimant referred to a conversation he had with Sam on 6th February 2012 where he alleged that Sam told him he wasn't going to tell the truth because he was concerned that Asif would "Mess up his audit". In the document the claimant alleged that both Mr Asif and Ms Shipley had filed false allegations of threatening and abusive behaviour against him and both of them had failed to comply with companys rules and regulations. The claimant also referred in this document to the fact that the company had been aware of his dyspraxia since 2009 but when he entered the workplace he wanted to be treated as equal, so did not disclose it at first. The claimant also stated that he had no problems being moved to a stores within reasonable travelling distance while the investigation was ongoing into his grievance but asked not to be placed on check outs or in the front line. The claimant asked however why he should be moved to a different store as it would be making his life harder due to raising grievances and he wished to make it clear that he had repeatedly said he wished to go ahead with his grievances.

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

The Meeting with McNulty


89. The claimant attended a meeting with Mr McNulty on the 13th February 2012 this meeting began at 10.28 a.m and finished at 3.00 p.m. The tribunal noted that there was no letter calling the claimant to the meeting and no indication of what, if any, procedure applied to the process. Mr McNulty told the tribunal that he called the meeting because "There was a chance the claimant could be dismissed and he had reached this decision before the investigation had been completed but he confirmed that the meeting was not conducted under any formal process. He also concluded that if the claimant was dismissed "He would struggle to get another job", the tribunal did not see ANY evidence to support this conclusion. In Mr McNultys witness statement at paragraph 11 it was his conclusion that the claimants grievance was around the bag search however the tribunal has found as a fact it was wider and referred to his treatment in the interview process for team leader, his whistle blowing letters and how they were dealt with and how he was dealt with by his managers, Mr McNulty appears to have oversimplified the claimants grievances and the tribunal conclude on the balance of probabilities that he had not taken time to read and understand the claimants grievance letters in November and latterly in February 2012, clarifying his complaints.




90. The claimant was represented by Ms Attlie (Mavis) his union representative and the claimants mother also attended. Ms Attile was asked in cross examination why she understood the meeting to have been called and she replied "Over an incident of Lisa not listening to the claimant" and that it was to "Resolve 2 grievances and to get the claimant back to work". She conceded that she did not now what procedure would apply at the meeting and did not speak to the claimant before the meeting. Mavis confirmed that she obtained her knowledge about the purpose of the meeting from her role in the "confidential office" because it was her that sent out the suspension letter. It was her view that the claimant would have been called to a meeting by letter, but the tribunal did not see a letter or the procedure that would apply or the possible outcomes that could be reached. She was asked in cross examination as to whether she could recall that the claimant handed up to Mr McNulty pages 435 - 8 which were his questions to be dealt with at this meeting (dated the 13th February 2012) and she could not recall this.


91. As noted by the tribunal, Mr McNulty stated at the beginning of the meeting that he wished to "Resolve this today as it's been blown out of porp" (proportion), he again said this in the minutes at page 444, at 445 at 447 and said that the purpose of the meeting was to get the claimant back to work. He then referred to 3 issues being the complaints against Ms Shipley and Mr Patel and the management team. Mr McNuty asked the claimant when he submitted his grievances and the claimant replied that it was 6th February and he made the point that his grievances were handed in before he was suspended he also confirmed that Ms Shipley knew he was putting a grievance in before he had been suspended he also confirmed that Ms Shipley knew he was putting the grievance in on the Wednesday as he told her he was going to contact head office and he stated that he felt that his suspension was "tit for tat". It was confirmed in the meeting that Ms Shipe;y had not put in a grievance or allegation against the claimant this was on page 441 of the minutes. The claimant told Mr McNulty he had been bullied and victimised and picked on and wanted an apology from Mr Asif for the way he spoke to him and went through his bag.


92. It was noted by the tribunal that at page 448 of the minutes that it was confirmed that the claimants letters were given to head office and that the claimant wasn't happy about the grievances being opened in store as Mr Lester had told him that the grievances would be handled externally. Mr McNulty confirmed that he was the person who advised Mr Lester that he was able to hear the grievances himself as he was the store manager and he had a duty of care to his staff. This was contrary to what the claimant had agreed with Mr Lester.


93. The minutes show that a break took place at 11.45 but the claimant's evidence to the tribunal was that there was only one break when he became upset. The claimant confirmed that he would like to move on from the bag incident. At this stage Mr McNulty stated that he thought he was being very mature. He then confirmed that he was not happy to drop the grievance against Ms Shipley because she had lied about him, he also accepted later on in the meeting that he had jumped the gun with regard to his complaint and accepted that he was rude to Mr Asif but that was not the case with Ms Shipley (page 467). Again the claimant confirmed he wished to proceed with his grievance against Ms Shipley on page 451 at that stage Mr McNuty was recorded to have said "I'm trying to help you, pls look @ me when I'm talking to you". Mavis could recall this incident and it was her view that the claimant was not making eye contact and was "looking evasive". He again told the claimant that he as impartial and again said he was trying to resolve matters. Mr McNulty was then seen to make the following comments at page 452 of the bundle "If we proceed we will need to do a full investigation there may be some things not resolved. You made a really mature decision with Asif. I feel that it's all tied together. Both statements claim you're the aggressor. Remember facts and honestly look at the situation. We need to resolve this. I think you were very upset when you spoke to Lisa and in the warehouse. Thinking on how you have spoken today I can take that as being aggressive..." This comment appeared to prejudge the outcome of a disciplinary process that has yet to take place and it was noted that the investigation had not yet been completed. Mr McNulty appeared to be accusing the claimant of being aggressive by the way he spoke which was a feature of his disability, we conclude that this was unwanted conduct that was related to the claimants disability by making reference to the way he expressed himself and accusing the claimant of "Being aggressive". We conclude that this would have the effect of creating an intimidating or hostile environment for the claimant as he could not change the way in which he spoke and it was as a result of his disability.


94. The tribunal noted at page 453 of the minutes that the claimant was recorded to have said "I want to be treated fairly listening to this, I am not rude and I don't go out of my way to be horrible". The claimant told the tribunal he was called "immature" by Mr McNulty and the claimant was taken in cross examination to page 452 and 448 of the bundle where Mr McNulty described the claimant as being "mature" and the claimant said that although it wasn't said in the minutes, it was said. On the balance of probabilities the tribunal prefer the evidence of the claimant on this point as he did not have a copy of the minutes and had told the tribunal that the minutes were not accurate. We conclude that from the tenor of the meeting and the often hostile and confrontational way in which Mr McNulty spoke to the claimant, that on the balance of probabililties he did call the claimant "immature".


95. The claimant was again recorded to have said at 12.20 that he still wanted to take this matter further and he wanted the grievance to be conducted externally and that he was not a liar. In the minutes at page 454 the claimant was recorded as saying that if Mr McNuty helped him with the transfer he would "Make a deal". After about 3 hours in the meeting, Mr McNulty was recorded to have said "take into account Lisa is smaller than you and female, and you have acted the way you have today, it can be taken as aggressive". This was again seen to be an accusation that the claimant, by the way he spoke was aggressive referring to features of how his dyspraxia manifested itself. This is a hostile comment that appeared to be designed to place the claimant under pressure and would have had the effect of creating a hostile and intimidating environment for the claimant. He was being placed under pressure for many hours to drop his grievances. Mr McNuty then again stated that he was trying to get the claimant back to work. At page 459 of the bundle the claimant again referred to the fact that Mr Lester said the grievances would be given to an area manager and Mr McNulty accused the claimant of "Pretty much calling me a liar". Again the tribunal note that Mr McNulty was confrontational and hostile to the claimant due to the fact the he wished to proceed with his grievance.


96. In the hearing on the 13th February 2012 Mr McNuty is reported as reading various letters that referred to the way the claimant sounded and at one syage (page 460) Mr McNulty stated "I could make various statements make you sound rude and aggressive because you have cherry picked what you wanted to hear. This feels like I'm out to victimise you. I'm here to help you this is not fair what do you want to do". It was put to Mr McNuty that the claimants body language and demeanor was a feature of his dyspraxia and he told the tribunal that at the time he did not think so but now conceded it could have been. We therefore find as a fact the Mr McNultys references to the way the claimant spoke and his body language were references to the claimants disability and would have had the effect of being intimidating and hostile to the claimant and this would have been reasonable for him to conclude that looking at the manner in which thee meeting was conducted.

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

97. The claimant confirmed that he wished to come back to work. Mr McNulty told the claimant that the grievances were given in after he had been suspended and in reply the claimant stated that he had written to head office. The claimant confirmed that he had written 6 letters since November and confirmed that they were given to Ms Shipley by hand and via his father.


98. In the meeting Mr McNulty read the letters dated 7th and 9th November (see page 461 of the bundle) and asked questions about them. Hee was recorded to have said that it was "Not H&S". The claimant expressed concern about his letters going missing, in the meeting he confirmed that Ms Shipley receives "hundreds" of letters a week and did no filing. The tribunal was surprised that Mr McNuty expressed no concern that 2 whistle blowing letters had gone missing and had not beeen dealt with and he appeared to show no willingness to investigate why this was. There was also no discussion in the meeting as to what acction had been taken to rectify the H&S concerns even though it was clear from the evidence that Mr McNulty gave to the tribunal that he was aware of the concern and no meeting had been called with the claimant within 7 days (see document C1). In the minutes at page 463 of the bundle he stated "I was meant to have a meeting with Lisa about H&S" and the tribunal that this was in relation to H&S code we saw in the document at C1. Again the claimant emphasised that he wanted his grievance against Ms Shipley investigated and he wished for it to be investigated for it to be investigated externally but in reply Mr McNuty said that " I really want to help you from experience I can help you more. So what is the resolution you want?". The claimant replied that he wanted appropriate action taken and every detail looked at. The claimant was taken in cross examination to page 466 where the claimant was recorded to have said "I trust Mavis 100%" and the claimant denied he said this.


99. At page 468 of the minutes Mr McNulty commented that the matter could not be concluded as the grievance and the incidents were interlinked. He told the claimant that he wanted him to arrange a union representative to his next meeting and that he could not bring his mother as he felt that the claimants mother had influenced the claimants decision - making, the claimants mother stated that she knew when the claimant was struggling and Mr McNukty did not. Mr McNuty again stated at page 469 that it was a shame they could not resolve matters and the claimant replied that he just wanted to come back to work and he was told by Mr McNulty that arrangements were being made for him to go and work at Twickenham. Mr McNulty told the claimant (page 469) that he needed to follow the procedures and a copy was supplied to him but he did not state which procedure he was referring to. At this stage the claimants mother referred to his disability and confirmed that he would be in the warehouse, it was then that Mr McNulty said that part of the problem was that the claimant did not disclose hs disability when he was employed by the respondent. It was noted by the tribunal that Mr McNulty was putting pressure and blame onto the claimant in the meeting in order to encourage him to drop his grievances. It was noted that the right to be accompanied by his mother was a reasonable adjustment and Mr McNulty told the claimant that this would be refused if the matter moved forward; this was a threat and would have been a reason related to his disability and would have had the effect to create an intimidating and hostile environment for the claimant.


100. Mr Mculty then went on to refer to how the investigation will proceed and he stated that "Cage/no cage it's about how you behaved". Towards the end of a very long meeting the claimants union representative stated that "Paul's tried to resolve this matter could we all asif, Lisa, Paul and yourself come toetger, shake hands and rresolve this matter, to have a fresh clean start. You need to remember it's not about mgrs not liking you. How do you feel about that ...". It was put to the claimant in cross examination at page 472 the minutes of the meeting recorded that the clamants mother (Mrs Harrison) and Mavis told him it was more sensible to shake hands and move on and the claimant denied that this was said. It was put to Mrs Harrison in cross examination she was recorded to have said in the meeting that she should "Trust Paul (McNulty)" and she denied that this was said. It was put to Mr McNulty that on pages 465, 468 and 471 the claimant confirmed that he wished to go ahead with his grievace against Ms Shipley and in reply he was told by Mr McNulty that he could not return to work. He confirmed in answers to cross examination that "If he came back to work, if we drop the investigation he would need to drop the grievances - it is a statement of fact". The tribunal note at page 471 Mr McNulty confirmed they would do the disciplinary hearing first and the grievance second. The tribunal asked Mr McNulty about this statement and he replied "Carole Lewis (HR) said the grievances were taken out as a result of the disciplinary it was all around the situation and part of it was 3 months before". The tribunal find as a fact that the claimant had been concerned from November that his H&S whistle blowing letters were not being dealt with and on the date of the altecation with Ms shipley (1st february) he had told her tht he was going to report her to head office, which he subsequently did. There was no evidence that his decision to report matters to head office was as a result of the suspension as he had indicated before being suspended that he was going to complain (as is confirmed in Ms Shipley contemporaneous notes). It was also noted that the letters of the 7th and 9th November predated the incident and his was part of the claimants grievance. There was no evidence that the grievances were taken out as a result of the disciplinary action as there had been no decision taken as to whether a disciplinary offence had been committed as the investigation had not been completed.


101. Mr McNulty then stated that he wanted to move forward but the claimant was not allowing hi to do so, he stated that Ms Sipley wanted to conclude matters and there had been no complaints about the claimant from Ms Shipley and that she wanted to support the claimant. This did not appear to be consistent with opinion that Ms Shipley had written in the request for an OHS report dated 7th February 2012 where she asked "How many more occasions do they have to accept the claimants disability as being a reason for his "aggressive behaviour", although the form was related to seeking advice and the email to Mr Bloom to refer to a desire to support the claimant, the information provided by Ms Shipley was inaccurate and unduly prejudicial and labeled the claimant as "aggressive". This did not seem to be consistent with Mr McNultys opinion that there was no complaint by Ms Shipley and that she wanted to support him. The tribunal also noted an inconsistency in the information being given to the claimant by Mr McNulty that if Ms Shipley and Mr Asif had not logged a complaint about the claimants behaviour and they only wished to support him, why were they proceeding with a disciplinary and investigation? However if there was a genuine concern about the claimants "aggressive behaviour" Why would a reasonable employer agree to drop the allegations in return for the claimant for the claimant dropping his grievances, although Mr McNulty said that the 2 issues were interlinked, this was not explained with reference to the respondents policies and procedures.


102 Again in the meeting the claimant replied that he wanted to proceed with the grievance and in reply Mr McNulty said to the claimant that he had been offered more than he thought and he did not feel the claimant would get the response that he wanted, the tribunal did not know how this conclusion could be reached before all the matters had been fully investigated. This comment appeared to be evidence that a fair investigation would not be undertaken as this was an opinion by the putative decision maker that he would not find in the claimants favour in respect of his grievances. The union representative and then was seen to put pressure on the claimant by saying that Mr McNulty was trying to help him and finally the claimant after 4.5 hours in the meeting says "Drop it all. I want to come back to work". The claimants mother accepted that the claimant said this in the meeting. The claimant said in answers to cross examination that he was placed under pressure by Mr McNulty to drop his complaints because of his grievances and because of the missing letters. The claimant told the tribunal that he was bullied in the meeting and the tribunal conclude on looking at the minutes and on hearing the respondents evidence that the meeting was conducted using excessive pressure and there was evidence of Mr McNulty brow beating the claimant to drop his grievances and this was the entire focus of the 4.5 hr meeting. It was noted by the tribunal in a few of the extract we have referred to the claimant was consistent throughput the hearing that he wanted his grievance against Ms Shipley to continue.


103. Mavis could recall that at the end of the meeting the claimant handed up a letter to Mr McNulty dated 11th February 2012 at pages 434 - 4 of the bundle complaining that Ms Shipley had made a false allegation about him and that he did not get the team leader role due to his communication skills and he was fond to be "Unable to manage a team of people". In this statement he made it clear he wanted his concerns investigated but after 4.5 hours of Mr MccNulty of accusing the claimant of sounding aggressive, telling him in future he would not have his mother to assist him in meetings and that both managers had accused him of being aggressive (the implication being that with this it's likely to result in an adverse finding taking into account that he "sounded aggressive in the meeting"); the claimant decided to drop his grievance n the meeting. The tribunal conclude that this conduct by Mr McNulty was undue pressure ad was conduct that was sufficient to amount to harassment of the claimant related t his disability as Mr McNulty had made it clear that the claimant sounded aggressive to him and he was likely not to get the result he wanted. This conduct was coroborated by the claimants parents in the letter at page 473a in the bundle (see below).

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

104. The claimant told the tribunal that he had requested the minutes of the meeting but did not receive them; he denied that the minutes were accurate the claimants representative Mavis accepted that she did not ask the claimant to read or sign the minutes after the meeting.


105. The claimant collected the minutes of this meeting 11 days later on the 24th February 2012 and there was no evidence that they were made available at the end of the meeting. The tribunal heard evidence that Mavis finished work at 3 o'clock so the notes could not be signed off that day. Mr McNulty also confirmed that he did not sign the minutes and also conceded that the minutes did not reflect when the claimant left the room in tears and being distressed.


106. Following this meeting the claimants father wrote to the respondent in a letter dated 14th February 2012 at pages 473a - g of the bundle. The letter pointed out that the meeting had lasted 5 hrs and the main topic of conversation was for the claimant to drop his grievances which has been confirmed in our findings of fact. The claimant also told the tribunal that during this time he only had one break when he was in tears. It clarified that the grievances were handed to Mr Lester on 6th February and those grievances were to be carried out externally and they were only to be opened by an external manager. These letters went on to record distress the claimant suffered during the meeting and his verbal difficulties due to his dyspraxia. The letter stated that the claimant had unwillingly dropped his grievance against Ms Shipley and that the problems had dated back to October 2011. The letter ended by asking the claimants grievances to be looked into. The claimants father then wrote to the respondent on the 15th February 2012 after receiving 2 calls from HR (see page 473h - i).


107. The claimants mother told the tribunal that the meeting was taped but it was not disclosed. She also told the tribunal that this letter was typed and sent off to the respondent within 4 hours of the meeting and therefore was contemporaneous. She said that in the meeting Mr McNulty kept telling her to shut up and threatened to throw her out of the meeting. She said "It was intolerable". The tribunal conclude on the balance of probabilities referring to our above findings of fact that the meeting would have been distressing to any employee of reasonable fortitude but for a person with a disability that affects his communication skills and his ability to understand verbal communications which also affected his concentration, was likely to find the meeting hostile and intimidating.

108. The claimant went off sick 17th February 2012 and did not return until 5th October 2012.

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

181.3 We now wish to deal with the issue of equality. We were concerned by the fact that although we had two managers in the tribunal that dealt with personnel issues, neither made reference to the respondents Equal Opportunities Policy, this document was only referred to b the claimant. The respondents witnesses showed no understanding of equality issues save for providing anecdotal evidence as referred to above in our findings of fact at paragraph 59. None of the respondents witnesses appeared to have an understanding of disability issues or of the duty to make reasonable adjustments where the employee was placed at a substantial disadvantage. This was of concern particularly taking into account the size of the respondents undertaking and the number of employees employed. There was similarly no evidence in the bundle that employees were provided with equality training. The tribunal raise an adverse inference from this.


181.4 We now turn to a preliminary matter of the claimants qualifying protective disclosure. It was noted that on the 7th November 2011 the claimant raised a concern about rats in the warehouse (amongst other things). It was noted in the respondents closing submissions that the respondent denied that Ms Shipley received the letter. The tribunal have made extensive findings of fact on this matter and the tribunal were surprised that this submission was put in as it was noted from the ET3 that there was an acceptance that the qualifying and protected disclosure was received and indeed the ET3 refers to a meeting being held to discuss it to see it see above at paragraph 52 of our findings of fact. The tribunal have to conclude that Ms Shipleys evidence was entirely unreliable on this point.


181.5 The next thing we have to deal with is whether or not it was a qualifying and protective disclosure. It is noted that the claimant raised a concern about rats in the warehouse due to the compactor having broken down. The tribunal were again surprised that Ms Shipley in answers to cross examination accepted that the claimant had raised the issue of rats in the warehouse not only in November but also around the time both before and after 7th November. Although Mr Patel could not recall seeing any rats he did not dispute that this had been raised. It was also noted that Mr McNulty gave evidence (although not in his witness statement) that he was aware the compactor had broken down and had attempted to locate a skip to take the rotting food away, but this had been refused, he accepted that Rentokil were called in to deal with the problem. It was noted that the request by Mr McNulty for a skip had been refused on the grounds of cost. Although the tribunal were surprised that none of this evidence was dealt with either in the respondents ET3 nor in the witnesses evidence-in-chief it was noted that these were significant concessions by the respondent and the tribunal conclude that this was corroboration that the claimants whistle blowing letter on the 7th November raised a genuine concern about H&S and that it was made in good faith and on reasonable grounds.


181.7 It has also been put to us by the respondent in closing submissions at paragraph 53 that Mr McNulty could not have subjected the claimant to a detriment in the meeting of the 13th February because there was no evidence that he was aware of the protected disclosure and this was at paragraph 53 of the respondents closing submission. The tribunal refer to our findings of fact of this meeting above at paragraph 59 where Mr McNulty not only referred to the letters but read them in the hearing and this was at page 461 of the bundle although his only comment recorded in the notes was that this was not about H&S. We conclude that not only was Mr McNulty aware of the claimants 2 qualifying protected disclosures he was also aware of his other grievances that he had raised and that Ms Shipley had not responded or dealt with any of his complaints. It was his view that they had not been "filed" and had somehow been lost, but there was no evidence before the tribunal that Mr McNulty sought to establish what had been done about these serious complaints. The tribunal raise an adverse inference from the failure of the respondent's witnesses to refer to the H&S policy (or any whistle blowing policy if there is a separate policy) in the claimants documents at C1 and for the failure to call him to a meeting within 7 days to discuss his concerns.


181.8 The tribunal firstly wished to deal with the accusations against Mr Asif and they are listed above in paragraph 24.2.2 and 24.2.3, 24.4.11 - 24.13 (in the respondents closing submission and in cross examination the numbering adopted is that which appears in the bundle). The tribunal note that the accusation at 24.2.2 which was asking the claimant if he was "as stupid as he sounded" was not referred to in any detail in any of the claimants grievances. It was only referred to in the claimants witness statement at paragraph 44 but it was noted that there is insufficient evidence for the matter to proceed and this matter s therefore dismissed.


181.9 With regard to issue 24.2.3 where again there is an accusation against Mr Asif where he is alleged to have said that the claimant had "no commonsense" this was a matter relating to the bag incident and there was no evidence before the tribunal that these words were spoken nor were they related to the claimants disability or whistle blowing similarly this matter is not well founded and is dismissed.

[Loggerheads!]

Re: Mr N Harrison V Tesco Stores Limited - December 17th 2013 Unanimous Judgement

181.10 In relation to issue 24.4 where Mr Asif is alleged to have said to the claimant a child could do his job with his eyes shut this again was only referred to in the claimants witness statement at paragraph 42 and again there is sufficient evidence as to when this matter took place. The tribunal also took into account that this was not mentioned in the grievance and there was insufficient evidence to support the allegatin. This again is also not well founded and is dismissed.


181.11 The next allegation against Mr Asif is at issues 24.11 - 24.23 and this relates to the incident around the claimants bag being searched. The tribunal have seen the surrounding circumstances in relation to the bag search and we accept the evidence of the respondent that staff were not allowed to take their bags on the shop floor or to leave them in the warehouse. The tribunal accepts the evidence of the respondent that this would be a H&S and/or security risk. The tribunal conclude that Mr Asifs conduct in searching the bag was not less favourable treatment on the grounds of the claimants disability nor because he had raised a whistle blowing complaint, as there was no evidence that Mr Asif knew about the whistle blowing letter as he was new to the store. We similarly are of this view in respect of the alleged discussion with Mr Viera and what happened between Mr Viera and Mr Asif although Mr Asif did not appear to follow procedures regarding the bag search (to have someone present) and we did not find this evidence credible about Mr Viera being present, there was nothing to suggest that the claimant was treated in this way because of his disability or for a reason related to his disability. The tribunal conclude there was insufficient evidence to show that allegations 24.11 - 23.13 were less favourable treatment because of a disability or whistle blowing. These heads of claim are not well founded and are dismissed.


181.12 The tribunal will now turn to the issue at paragraph 24.6 where the claimant alleged he was told by an employee of Pakistani origin that he could speak better English than the claimant did. The tribunal accept the respondents submission that this matter was not mentioned in the ET1 and was not referred to in his grievance. The tribunal therefore conclude that we have no jurisdiction to deal with this head of complaint this is therefore dismissed.


181.13 The tribunal now wish to deal with the allegations against Mr Patel which appear in paragraph 24.8 of the issues and 24.14 which is a joint allegation against Mr Patel and Mr McNulty. The claimant alleged at paragraph 2.8 that he was refused a shift swap in December 2011 and he alleges that the refusal to allow this to happen was harassment, direct discrimination or disability related discrimination. There was simply no evidence before the tribunal that this was the case. Mr Patel told the tribunal that he requested that the claimant provided this in writing and the claimant failed to do so. Although the claimant denied that he was told this, there was no evidence before the tribunal that the failure to deal with this matter was less favourable treatment because of something arising in consequence of his disability. There was also no evidence that this was a detriment because the claimant raised a whistle blowing complaint.


181.14 Similarly the issues at paragraph 2.14 of the list of issues in relation to wearing headphones in the warehouse, the tribunal again have insufficient evidence to show the claimant was treated less favourbly because of his disability or of whistle blowing. The tribunal accepts the evidence of the respondent that the wearing of headphones in the warehouse or in the shop was not allowed due to H&S reasons and that a reasonable instruction had been given to the claimant not to d so. In the absence of an evidence to the contrary, the tribunal do not conclude that this was less favourable treatment because of disability nor was it a detriment because of raising a whistle blowing complaint this head of claim is therefore not well founded and is dismissed.


181.15 It has been put by the respondents at paragraph 21-22 of their closing submission that the matters in relation to the interview and the conduct of the interview for the post of team leader are out of time and it is not just and equitable to extend time. It has been found as a fact by the tribunal that the claimant was interviewed on or around the 4th November 2011. The tribunal note that in order for a claim to be in time the claim form should have been submitted by the 13th February 2012 and not the 25th February. The claim form is therefore a couple of weeks out of time. However on the evidence before us this was part of a course of continuing conduct that commenced around October 2011 and continued until the claimant submitted his ET1 The factors we have considered when considering or not the just and equitable extension should be allowed is to whether the parties had any problems in dealing with the evidence, it was noted that the respondent had no difficulty dealing with the evidence before them before them (despite the fact that they had little or no corroborating minutes as to the meeting they alleged took place). The tribunal also notes that the events re realitivey fresh in all the parties minds and all parties had no difficulty in oral evidence describing the events according to their recollection. The tribunal also considered the balance of prejudice and we also conclude that the balance of prejudice would fall disproportionately on the claimant where he was not allowed an extension of time to allow this complaint in. It is for this reason that we conclude it is just and equitable to extend time due to the fact sensitive nature of discrimination cases generally and the general public policy principle that discrimination cases ought to be aired.


181.16 The tribunal now deal with the issues firstly at paragraph 24.2.1. which was in November 2011 that Ms Shipley did not promote the claimant because of his communication skills and inability to lead a team. The claimant puts this matter as a claim for direct or disability related discrimination. The tribunal first wish to identify the appropriate comparator for direct discrimination. The tribunal conclude that the appropriate comparator would be a candidate who for some reason not related to a disability had poor verbal communication skills and did not come across well at interview. The tribunal conclude that the non disabled comparator would not have been treated any more favourably than the claimant. The claimants claim for direct discrimination is therefore not well founded and is dismissed.


181.17 Now turning to the claimants claim for discrimination arising from disability. We first wish to deal with the issue of knowledge as it is noted from the respondents closing submission that it is stated at paragraph 28 of their submissions that neither Ms shipley nor Mr Patel who conducted the interview, knew of the claimants dyspraxia. We wish to deal with the issue of knowledge generally. First, it was not disputed that in 2009 Ms Dickinson conducted research into dyspraxia and put n place reasonable adjustments. We have referred to the reasonable adjustments in our findings of fact at paragraph 31. Secondly the research on dyspraxia was on the claimants file.