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

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

181.18 We now wish to deal with the issue of specific knowledge of Ms Shipley and Mr Patel. It was noted that Mr Patel became the claimants line manager and it has also been found as a fact above in paragraphs 36-8 of our findings of fact that Mr Patel conducted an attendance review investigation with the claimant on the 1st November 2011 and this was seen at pages 363 - 366 of the bundle. Mr Patel ticked the boxes to indicate he had checked the claimants file going back 26 weeks and had also looked at the bigger picture going back more than 26 weeks. He would have seen the research about dyspraxia on his file a and the minutes of the meeting with Ms Dickinson and Chris Osbourne which we have referred to above. The tribunal have therefore found as a fact at paragraph 36 that Mr Patel would have had knowledge of the claimants disability and his evidence that he didn't have such knowledge is found to be inconsistent on the facts before us. The tribunal also raise an inference that Ms Shipley knew of the claimants disability as she had meetings with Mr Patel to discuss the claimant and she had a meeting with the claimant to discuss his concerns about Mr Patel's conduct of that meeting with regard to Mr Patel asking him to get a fit note to return to work. The tribunal conclude therefore that Ms Shipley had knowledge of the claimants disability and would have discussed Mr Patel's attendance review investigation both with Mr Patel and with the claimant. We conclude therefore that if Ms Shipley did not know he could reasonably be expected to have known of the claimants disability in the workplace. We also conclude from paragraph 38 of our findings of fact that Ms Shipley conceded she had discussions about H&S issues and about the claimant. It was also noted that it was the evidence of Ms Shipley (although the tribunal found no corroborative notes of this) that she was involved in supporting the claimant in the workplace. We conclude from that that she must have known or have been reasonably aware that the claimant required support and had reasonable adjustments in the workplace due to his disability. We conclude that they both had actual or constructive knowledge of the claimant disability. What the tribunal did notice was some of the comments on the pages of the interview notes. For example Mr Patel at our paragraph 43 above was asked about the reference on page 347 to personality clashes and he explained to the tribunal that he felt there could be "a clash, the way he speaks, the way he talks and might sound to people..." This was a specific reference to the way he spoke in the interview process. Similarly Ms Shipley had written at page 343 of the bundle notes "How he is seen,heard?"Ms Shipley was asked about this comment by the tribunal and she could provide no explanation for these words (this is seen in our paragraph 45 and 47 of our findings of fact). It was evident to the tribunal that the 2 people who conducted the interview both independently made negative comments about the way the claimant spoke in the interview process. The tribunal have found as a fact that in the feedback interview we have concluded that the claimant was told that one of the reasons he was not promoted was due to his communication skills, even though this was denied by Ms Shipley. We conclude from the evidence of both witnesses that they referred adversely to the way he spoke we conclude that that was one of the reasons the claimant was not promoted.


181.19 Now turning to the interview process. This is dealt with in detail n our paragraphs 39 - 45 above and the feedback was dealt with in paragraphs 46 - 7 of our findings of fact. The tribunal did not find the respondents evidence convincing as to when the interview was conducted nor about how it was conducted. The interview was not conducted in accordance with the respondents own rules and although it had been put back to the claimant that the interview took 80 minutes, in fact it took 20 minutes (although the timing could not even be agreed by the respondents own witnesses). Although there were very few notes made of the interview, the tribunal do not conclude that the claimant was treated less favourably than his colleagues as we saw 2 other interview forms where the notes taken were equally as sparing.


181.20 What the tribunal did note however was the comments made on some of the pages on the interview notes. For example Mr Patel at our paragraph 43 above was asked about the reference on page 343 to "Personality clashes" and he explained to the tribunal that he felt that there could be "a clash by the way he speaks, the way he talks and might sound o people." This was a specific reference to the way he spoke in the interview process. Similarly Ms Shipley had written at pages 343 of the bundle the notes "How he is seen, heard?". Ms Shipley was asked about this comment by the tribunal and she could provide no explanation for these words (this is seen in our paragraph of 45 and 47 of our findings of fact.) It was evident to the tribunal that the 2 people who conducted the interview both independently made negative comments about the way the claimant spoke in the interview process. It was also not disputed that neither of the interviewers took notes of what questions the claimant was asked and his replies. Similarly the tribunal as a fact that in the feedback interview we have concluded that the claimant was told that one of the reasons he was not promoted was due ot his communication skills, even though this was denied by Ms Shipley. We conclude that the evidence of both witnesses that they referred adversely to the way he spoke, we conclude that was one of the reasons the claimant was not promoted.


181.21 We have concluded at paragraph 47 above that the reason that he was not promoted was due to his communication skills and his body language in the interview. We have concluded that these are both features and related to his disability. We conclude therefore that the reason he was not promoted was that the respondent, Ms Shipley and Mr Patel treated the claimant unfavourably because these matters arose in consequence of his disability. The respondent has been unable to show that the treatment of the claimant is a proportionate means of achieving a legitimate aim. Although it has been put to the tribunal that there is no evidence that the claimant was the best candidate for the job, similarly the respondent has not shown that the person appointed was the best candidate and we simply did not have any consistent evidence to show that the reason the successful candidate was appointed due to the evidence that he was the better candidate than the claimant and that their decision to appoint was based on reasons that could be justified. The respondent has not produced any consistent evidence that they promoted the best candidate and that this was a proportionate means of achieving a legitimate aim. The claimants claim is therefore well founded.


Point 181.22
We now turn to the issue 24.3 namely the conduct of the meeting by Mr Mc Nulty on 13th February 2012. The tribunal made extensive findings on this meeting above at paragraphs 89 - 104. The tribunal would first like to make some background comments about the meeting. It was not disputed that this meeting was not within any of the respondents procedures and the claimant had no letter inviting him to the meeting. The claimant had no indication as to how the meeting would be conducted or what possible outcomes could have followed from the meeting. The claimant was allowed to take his mother in as a reasonable adjustment but it was noted that Mr Nulty at times was irritated by the claimants mother and it was noted from the minutes that Mr Mc Nulty informed the claimant in the meeting that, were matters to proceed, he would not be able to take his mother to the meeting i future. We have referred to this in our paragraph 101 - 2 of our findings of fact where we conclude that Mr Mc Nulty in a meeting that lasted over 4.5 hrs was seen to browbeat the claimant and his sole focus was for the grievances to be withdrawn. We also have concluded that the treat that the claimant in future was not allowed to take his mother to a meeting was tantamount to harassment related to a protected characteristic namely the claimants disability and as a result he would be subjected and the effect of this would be to create a hostile, degrading or offensive environment for the claimant.


Point 181.23
Point 181.23
It was also noted that the claimant was at times distressed in the meeting and this was not accurately recorded in the minutes (which were not agreed and we refer to the issue to the minute in our findings of fact at paragraph 4). We conclude overall looking at the manner in which the meeting was conducted, the length of time it took and the tenor of the exchanges that the meeting was tantamount to conduct that was harassment related to a protected characteristic and we conclude that Mr McNulty did call the claimant immature in an attempt to put pressure on him to drop his grievances and whistle blowing complaints and we give reasons in the following paragraphs.

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

182.24
Turning to the specific matter at 24.3.1 that the claimant alleged he was called "immature" in the meeting we have found as a fact and on the balance of probabilities that this is proven. Our conclusions are recorded in our findings at paragraph 94. We have concluded both from the tenor of the meeting and from the consistency of the claimants own evidence that he was at times called immature by Mr McNulty and as this would also be consistent by the hostile way in which Mr McNulty was referring to the claimant in the meeting we therefore find the complaint well founded.




181.25
We now turn to 24.3.2 in the above list of issues namely that he made the claimant drop the grievances after a 4.5 hr meeting. As the tribunal have already said the meeting was over 4.5 hrs long and was seen to be at times hostile in nature, even taking into account the respondents own notes.


The claimant persisted throughout the meeting to the emphasis he wished to proceed with his grievance against Ms Shipley. It was not disputed that early on in the meeting he withdrew his complaint against Mr Asif and this is dealt with in paragraph 103 of our findings of facts. Despite the claimant emphasising his desire to proceed with his grievance, Mr Mc Nulty proceeded over 4.5hrs to continue to point out to him why he should drop his grievance. He first of all started to say that the whole thing had been blown out of proportion which is the way he opened the meeting. The meeting then proceeded with Mr Mc Nulty informing the claimant that he was trying to help him, but at the same time demanding that he look at him in the eye, which the tribunal found to be rather hostile especially taking into account the claimants disability, as we found above at paragraph 32 that his disability could affect his body positioning and may result in him being easily distracted. No reasonable adjustments were considered to accommodate the claimants disability in the meeting (save for allowing the claimants mother to assist him) and accusations were made about the way the claimant spoke and the way he presented himself.


181.26
The tribunal note with some disquiet the comment that was recorded at page 452 where he stated that both the statement of Mr Asif and ms Shipley state that the claimant was "the aggressor" and he also commented in the meeting he could take the claimant as being "aggressive". We found as a fact at paragraph 93 that this appeared to prejudge matters somewhat as it was noted that Mr Mc Nulty would be proceeding with the disciplinary hearing and that would have been intimidating to the claimant. It was also noted in our findings of fact that the claimants disability causes him to sound aggressive which he accepts and this is especially the case when he is stressed or in a hostile environment. We conclude that this meeting was unnecessarily hostile taking into account the claimants disability.


181.27
At page 454 of the bundle and at paragraph 95 above we find as a fact that Mr Mc Nulty suggests to the claimant that because Ms Shipley physically smaller than him and because of what he has heard from the claimant he could take him as being aggressive, again this is a clear warning from Mr Mc Nulty, who would be hearing the disciplinary and the grievance, that he perceived him to be the aggressive party and this was before he had taken a statement from the claimant as to the full facts about the incident from the claimants point of view. This we found again to be a hostile comment designed to place the claimant under pressure and was also confrontational.
181.28
Mr Mc Nulty also accused the claimant of calling him a liar. He also stated at page 460 of the minutes that he accused the claimant of cherry picking and stated "I could make various statements to make you sound rude and aggressive..." This again was a threatening and hostile comment to make in the course of a meeting where Mr Mc Nulty had told the tribunal he was simply concerned for the claimant and wanted to get him back to work. However the way in which the meeting was conducted did not appear to be a meeting to look at positive ways forward and for relationships to be mended. He was seen to accuse the claimant of being the aggressor in the knowledge that he was distressed after his complaints had been ignored. Although the claimant brought this evidence to the meeting, Mr Mc Nulty was seen to judge the claimant only on his physical presence and his voice rather than listen to what he had to say and to consider all the evidence before him.


181.29
We conclude therefore on the tenor of the meeting and the way in which Mr mc Nulty treated the claimant placed hi under pressure to drop the grievance and the manner in which the hearing was conducted amounted to harassment as it was unwanted conduct and the effect of the treatment by Mr Mc Nulty, which was clearly related to the claimants disability (namely the way he spoke and presented himself), had the effect of violating the claimants dignity or created an intimidating, hostile and degrading humiliating offensive environment. We also conclude that it was reasonable for the claimant to conclude this taking into account our findings of fact.


181.30
The tribunal now turn to matter 24.3.3 of the agreed issue namely that the claimant was threatened with further suspension. We also wish to deal with in the same point with 24.3.4 about the respondent not following the correct procedures. It was noted that the claimant was not suspended by Mr McNulty and it was unfortunately a reality that the claimant had been suspended pending an investigation which was conducted by Mr Lester and Mr Lester had to continue with that investigation, under the respondents own procedures the claimant would remain suspended until either the investigation was completed and a disciplinary held or no case to answer was found or if the respondent decided not to proceed with the disciplinary.


181.31
Mc Nulty was seen to say to the claimant in the meeting (and in the previous telephone conversation) that if he did not agree to drop the grievances, the disciplinary action will continue and he would remain suspended. The tribunal saw no evidence that warning the claimant he was likely to remain suspended could have been harassment or less favourable treatment because of a disability. The claimant had been suspended due to the incident on 1 February 2012 and this had not been resolved.


However the tribunal note that the grievances the claimant raised were about potential H&S breaches and allegations that managers failed to follow procedures. Mr Mc Nulty threatened that unless the claimant agreed to withdraw his grievances he would be suspended and face further suspension, disciplinary action and possible dismissal. The tribunal concluded that this was a detriment because the claimant had raised a number of whistle blowing complaints. The tribunal concluded this because we conclude that if the respondent had been genuinley concerned about the claimants behaviour they would have proceeded with disciplinary action, whether or not the grievances were withdrawn and would not have offered to drop the disciplinary action in this way. We also conclude that Mr Mc Nultys reference to the grievances and the disciplinary action being linked was unsupported by any evidence as we have found as a fact that the November grievances predated the suspension and the claimant informed Ms Shipley that he was going to complain about her to Head Office due to her failure to take any action, before he was suspended. There was little evidence that he only raised these complaints because he faced suspension. We refer to paragraph 79 of our findings of fact and where the claimant in his grievance dated the 6th February made a specific reference to H&S issues and attempting to speak with Ms Shipley before his suspension. We therefore conclude that the claimant was subjected to a detriment because he raised a protective disclosure and his complaint at paragraph 24.3.3 is well founded.

Point 181.32
With regard to the meeting on the 13th February the respondent did not follow any procedures. It was not disputed that the notes had not been agreed and indeed Mr Mc Nulty didn't even sign his own minutes. There was no procedure that applied to this meeting because it was outside of the disciplinary and grievance process and therefore there was no evidence that calling a meeting outside of the agreed procedures was either discriminatory or less favourable treatment and because of raising a protective disclosure. The tribunal conclude that allegation at issue 24.4 is not well founded and are dismissed.


181.33
The tribunal turn to issue 24.5 which is the allegation that Ms Shipley stated to the claimant that all he was good at was going to head office. We found as a fact in paragraph 54 that on the balance of probabilities we accepted the evidence of the claimant that Ms Shipley did state to him when he handed her his whistle blowing letter that she had said to him all he was good at was going to head office and we conclude that this was said on the basis that the claimant, as a reasonable adjustment, was allowed to go direct to head office which had been agreed by Ms Dickinson after he had been subjected to bullying in the work place. This happened on the 9th November after the claimant handed Ms Shipley the 2nd whistle blowing letter after he had received no reply from his first letter. The claimant told the tribunal that the reason he handed Ms Shipley the 2nd letter was because she promised to get back to him and she did not take action to arrange a meeting within 7 days. The claimant does not specifically complain about the incident on the 9th November but we have referred to this as corroborative evidence as the allegation that is relied upon in the agreed issues is the incident on or around the 1st February and this is referred to at paragraph 68 of our findings of fact. We have found as a fact that although this was denied by Ms Shipley, we conclude on the balance of probabilities that she said to him that all he was good at was going to head office because the claimant in his exchange with Ms Shipley at 11.30 that day was very upset and he informed her that he was going to complain to head office. This was reflected in her own statement at page 384 of the bundle.


181.34
We have preferred the evidence of the claimant to Ms Shipley in the light of many inconsistencies in Ms Shipleys evidence. The tribunal conclude that the claimant has been treated unfavourably because of something arising in consequence of his disability. We have found as a fact and it is conceded by the respondent that it was a reasonable adjustment that the claimant could go to head office if he had a concern. Ms Shipley was voicing publicly her disapproval of the claimant for doing so. We have already found as a fact that it was her view that the claimant had been dealt too leniently in the past with regard to his grievances and we have found as a fact that this was in reference to the 2009 incidents. It was the consistent evidence before the tribunal that Ms Shipey was dealing more harshly with the claimant and attempting to discourage him from availing himself to the reasonable adjustments that were put in place in 2009. We thus conclude that the claimant was treated less favourably by attempting to avail himself of the reasonable adjustment. The burden of proof therefore moves to the respondent. Ms Shipley has not shown that the treatment of the claimant was a proportionate means of achieving a legitimate aim; she provided no explanation for voicing these opinions or of concluding that the claimant had a legitimate concern about the rat infestation and he feared that his concerns on the 1st February would similarly be ignored. The claimants claim for discrimination arising from disability is therefore well founded.


181.35 The tribunal looked at issue 24.7 and we have concluded that the matter raised in 24.7 are identical to the matters we have just dealt with. We have considered the matter as to whether Ms Shipley expressed the view that if there were problems between the claimant and colleagues maybe the problem was with the claimant, but this was stated to be the general background. However we do not find that comment to be evidence of direct discrimination or disability related discrimination 24.7 is therefore dismissed.


181.36 The tribunal now turn to issue 24.9 which is stated in the issues to be in relation to "a false allegation of aggressive behaviour made in February 2012 by Ms Shipley". The tribunal saw that there was sufficient evidence before the respondent for Ms Shipley and Mr Radjpaul to conclude that the claimant had acted in an aggressive manner. The claimant himself accepted he raised his voice an could have been seen as aggressive. There was no evidence that this was a false allegation. Although we had concluded that the second statements were unduly embellished by both Mr Radjpaul and Ms Shipley, this did not mean that the original complaint that was pursued by the respondent was false. In ny event there was no evidence that the accusation made by Ms Shipley that was subsequently subject to initial investigation was less favourable treatment of the claimant by reason of his disability or was something arising from his disability 24.9 is therefore not well founded and is dismissed.


181.37
We now turn to the final outstanding issue at 24.10 namely Ms Shipley not telling the truth to Mr Bloom the respondents internal occupational health adviser, in order to get access to his medical records. This is put on 4 bases about referring to the claimants aggressive behavior becoming difficult to manage, the fact that he was on a second final warning, and dyspraxia was the reason for his aggressive behaviour. We have referred in detail in our findings of fact which will not be repeated in our decision and they are set out in paragraphs 75 - 78. The tribunal did not accept the evidence of Ms Shipley that she had made genuine errors when referring to historical issues especially about the fact of the claimant being on his 2nd final warning and that due to his aggressive behavior he had become what was described as difficult to manage. She also could not explain the link between the claimants dyspraxia and his "aggressive behaviour" (see pages 427 - 8 of the bundle). We conclude that Ms Shipley failed to look at the file with any degree of care, had she done so she would have seen that in 2009 reasonable adjustments were put in place for the claimants disability and the disability research was at pages 60 - 62 of the bundle which Ms Shipley made no reference to. The claimant was not on a second final warning and there was no evidence that after adjustments were put in place that there were any concerns about his behaviour.







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181.38
We have also found as a fact that Mr Bloom constructed the letter on the basis of the advise that emanated from Ms Shipley as we have found as a fact that Mr Bloom did not work with the claimant and could not have formed those opinions without her input. We conclude that this is discrimination arising from a disabilty because we conclude that the claimant has been treated unfavourably because of something arising in consequence of his disability. The unfavourable treatment is that Ms Shipley took no care in going through the claimants file; she misrepresented the extent of the warnings against the claimant and failed to properly transpose into the email and form seeking advice from occupational health, the true state of affairs. It was also noteworthy that Ms Shipley made no reference to Ms Dickinsons assistance or to the buddy provided by Jobcentre plus, and how this improved the claimants behaviour (see paragraph 31-2).


181.39 The burden of proof moves to the respondent to show how the treatment of the claimant is a proportionate means of achieving a legitimate aim. The respondent failed to show that their actions were a proportionate means of achieving a legitimate aim. We have already rejected the respondents evidence that this was a regrettable and genuine and honest mistake. These errors painted an entirely false and negative picture of the claimant and misinterpreted to a material degree his employment history. We conclude that it is forgivable to make one mistake on form of this sort but to make a number of mistakes as to the relevant factual matrix prior to seeking occupational health advice cannot be put down to a genuine mistake. The claimants claim in respect to 24.10 is therefore well founded.

181.40 The matter will now be listed for a remedy hearing. The parties are encouraged to see whether or not this matter can be concluded without the need for a further hearing. If however this is not possible the parties are invited to write to the tribunal within 14 days to the promulgation of this decision to indiicate whether they require a remedy hearing with an estimate of time of how long that remedy hearing should be listed.


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Regarding point 181.40 would anyone be able to advise me as to how many days would be reasonable for a remedy hearing, in addition to how it should be approached, what sort of preparation is involved, what sort of things can we discuss i.e. what been going on since my son has returned to work and the beginning of ET, any reasonable adjustments that can be considered to reduce his stress levels and re-occurring depression, the conduct of the respondents solicitors during the case etc. Also how do we go about working out compensation, would it be a bad idea just to leave that side of things to the employment tribunal as they know what they're doing, whereas I don't ...


Thank you in advance for any reply.