Dr T Piepenbrock v The London School of Economics and Political Science: 2200239/2015

Case Number: 2200239/2015 (v) - 1 - EMPLOYMENT TRIBUNALS Claimant Respondent Dr Theodore Piepenbrock v The London School of Economics and political Science Heard at: London Central as a video hearing On: February 2022: 14-18, and 28 March 2022: 1-4, 7-11, 14-18, 21- 25, 28 – 31 April 2022: 1 Chambers: April 2022: 4-8, 19-22, and May 2022, 3-5 Before: EJ G Hodgson Mr D Kendall Mr D Clay Representation For the Claimant: Mr G Piepenbrock and Dr Piepenbrock For the Respondent: Mr P Michell, counsel JUDGMENT 1. The claim of unfair dismissal fails and is dismissed. 2. The claims of discrimination because of something arising in consequence of disability (section 15 Equality Act 2010) fail and are dismissed. 3. The claims of victimisation (section 27 Equality Act 2010) fail and are dismissed. Case Number: 2200239/2015 (v) - 2 - REASONS Introduction 1.1 The claimant presented a claim to the London Central employment tribunal on 26 January 2015. He brought claims of unfair dismissal, disability discrimination, and victimisation. The claim was stayed for a long period, whilst the High Court considered his personal injury claim. The employment claim was heard over a total period of 43 days starting on 14 February 2022 and ending on 6 May 2022. 1.2 It may assist the reader if we give an overview. The claimant states that he had been a highly successful international architectural/structural engineer responsible for designing some of the world's tallest buildings and longest bridges. Sometime around 2000, he decided to pursue a career in academia. He earned his MBA, MSc, and PhD degrees at Massachusetts Institute of Technology (MIT). His first academic appointment after MIT was at the LSE. On 1 September 2011, the claimant was employed as an LSE fellow in the department of management; this was for an initial fixed term of one year. This was a development role and was focused on teaching, albeit he had an opportunity to undertake his own research. The appointment was later extended to a total period of three years. On 1 September 2012, the claimant was also appointed to the role of deputy academic dean in the new executive global masters in management programme. This was a largely administrative position for a fixed term of one year. 1.3 In the first year, the claimant's teaching was largely well received, leading to his winning an LSE prize for his teaching. 1.4 One of his students was Ms D. She became his graduate teaching assistant from September to November 2012, when she resigned. In November 2012, the claimant was undertaking a lecture tour in Boston and Seattle in the United States. Ms D accompanied him. The claimant alleges that Ms D had become infatuated with him. He alleges that on 12 November 2012, she invited him to her hotel room and greeted him at the door in a state of undress. He alleges that he spurned her sexual advances. He alleges that this led to his having extensive conversations with her, both in Boston and later in a hotel room in Seattle, during the early hours of the morning. Whilst the outline of the events is agreed, the detail is disputed. 1.5 It is common ground that Ms D contacted the LSE, either directly or through her mother, and the LSE agreed to pay for a flight so that she could return from Seattle to her mother in New York. It is common ground security guards attended at the hotel room which she was occupying and ensured her safe passage from the hotel. Case Number: 2200239/2015 (v) - 3 - 1.6 Ms D resigned by email of 18 November 2012. In this email she made allegations of improper conduct against the claimant. On 11 December 2012, Ms D sent a formal complaint alleging harassment. 1.7 The claimant was told of the fact of the formal complaint on 12 December 2012. This caused a rapid collapse of his mental health. By the evening of 12 December 2012, the claimant stated, by email, that he could "give no more." The claimant never returned to work. The claimant did not engage with the LSE, in relation to his teaching duties, in any constructive or professional way, thereafter. 1.8 At the end of his fixed term period of employment, on 2 September 2014, the claimant was dismissed. Between 12 December 2012 and 2 September 2014, the claimant made numerous complaints and lodged numerous grievances against the LSE's employees. It was the claimant's case that the actions of the respondent caused him personal injury by causing depression. 1.9 In addition, he says treatment of him amounted to disability discrimination, victimisation, and unfair dismissal. It is his case that the respondent decided at an early stage that he was guilty of sexual harassment, punished him, and resolved to dismiss him. The claimant alleges that the respondent acted as a harassment machine, consistently victimised him, and dismissed him as an act of victimisation. It is those claims that we now consider. The Issues 2.1 The issues were defined during the hearing on 5 May 2021, when the claimant’s application to amend was decided. The issues were supplied to the parties and the content, as given to the parties, is set out below.1 The claims 2.2 The claimant brings the following claims: 2.2.1 Unfair dismissal contrary to section 94(1) Employment Rights Act 1996. 2.2.2 Victimisation contrary to section 27 Equality Act 2010. 2.2.3 Discrimination arising from disability contrary to section 15 Equality Act 2010. Disability 2.3 The claimant alleges he is disabled by virtue of anxiety and depression. He put it originally as follows: 1 Minor clarifications and typographical amendments have been made were helpful. Case Number: 2200239/2015 (v) - 4 - The claimant was disabled as of 12 December 2012 by virtue of his anxiety and depression. 2.4 By amendment he has added the following: The claimant suffered from a disability when he began working at the respondent in 2011 by virtue of the anxiety and depression he experienced while he was employed at the Massachusetts Institute of Technology in 2010, which he disclosed to the respondent in his interview in 2011;in any event, the claimant was disabled as of 13 December 2013 by virtue of his continuous chronic depression and anxiety caused by the respondent. 2.5 The respondent contends that the claimant was not disabled within the meaning of the Equality Act 2010 until about 13 December 2013 and/or that it did not have actual or constructive knowledge of that disability until about that date.2 Unfair dismissal 2.6 It is accepted the claimant was dismissed. 2.7 The respondent specified the sole or principal reason for dismissal in its application to amend the issues dated 1 April 20213 as follows: The respondent will rely on ‘some other substantial reason’ as the reason for the claimant's dismissal for S.98(1)(b) ERA purposes. In particular, the fact that: a. the claimant's three-year term of appointment had come to an end; b. there was no alternative role available to the claimant; c. the claimant appeared unwilling or unable to return to work and/or engage with the respondent about work until his various complaints had been resolved to his own satisfaction (and had caused an inordinate number of complaints to be raised on his behalf); and d. the claimant had been off work for some 21 months prior to the EDT, with no obvious prospect of return. Alternatively, the respondent will rely on some or all of the same matters saying that the principal reason for dismissal was capability or conduct for the purposes of S.98(2) ERA. 2.8 The respondent alleges it acted fairly in dismissing. Discrimination arising from disability 2.9 The alleged disability is set out above. 2.10 The claimant alleges the following allegations of unfavourable treatment: 2 The respondent did not set out the basis of the concession. 3 It had previously been unclear. Case Number: 2200239/2015 (v) - 5 - 2.10.1 allegation one [16.1]4: by an internal email on 25 July 2013 from Professor Calhoun, referring to the claimant’s communication with the respondent via his wife as “bizarre”; 2.10.2 allegation two [16.2]: by an internal email on 2 August 2013 from Professor Estrin to Professor Willman, referring to the claimant’s behaviour since December 2012 as “extraordinary”; 2.10.3 allegation three [16.3]: by indicating in the same email on 2 August 2013 that the claimant “cannot expect to take up where he left off”, and that Professor Estrin would not be “willing to contemplate using [the claimant] for teaching. In this or future modules”; 2.10.4 allegation four [16.4]: by failing to renew the claimant’s Deputy Academic Dean contract; further or alternatively, and 2.10.5 allegation five [16.5]: failing, on 2 September 2014, to renew the claimant’s employment contract. 2.11 The claimant failed to set out in the original claim form or in any application prior to 22 January 2021 what matter or matters arising in consequence of disability he relied on.5 He clarified this in the proposed amended claim of 22 January 2021. Some amendments were allowed, and the issues as set out below record verbatim what the claimant alleges is the ‘something’ arising in consequence of dismissal. The ‘something’ arising from the claimant’s disability was: a. The claimant's absence. b. The claimant's inability to teach and research due to his chronic illness (depression and anxiety). c. The claimant's behaviour being his inability to perform some functions, especially given his need for his reputation and teaching resources. d. The claimant being prevented from performing his professional duties, because of his difficulty with concentration, and his phobias (fear of people and especially women) and his general inability to meet with people and be in public settings. e. The exacerbation of the claimant's anxiety and depression and his ASD traits resulting in difficulties in relationships or interaction with people (including his difficulties in understanding social rules and communication). f. The claimant's need for support from his wife with...