Mr C Dibnah v RB Health Ltd: 1810569/2018
| Judgment Date | 26 November 2020 |
| Published date | 02 December 2020 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case No: 1810569/2018 (V)
10.5 Reserved judgment with reasons – rule 62 March 2017
EMPLOYMENT TRIBUNALS
Claimant: Mr C Dibnah
Respondent: RB Health Limited
Heard at: Leeds by CVP On: 2-6 November 2020
Before: Employment Judge Maidment
Members: Mrs JL Hiser
Mr AJ Senior
Representation
Claimant: Mr D Flood, Counsel
Respondent: Mr M Sethi QC
RESERVED JUDGMENT
1. The claimant’s complaint of unfair dismissal is well founded and succeeds
due to a lack of reasonable consultation. However, pursuant to the
principles in the case of Polkey the claimant would have been fairly
dismissed in any event had a fair procedure been followed and without any
extension of the effective date of termination.
2. The claimant’s complaints of disability discrimination, harassment and
victimisation all fail and are dismissed
REASONS
Issues
1. The claimant worked as a packaging technologist and brings a complaint of
unfair dismissal arising out of the purported redundancy from his position.
The claimant was at all material times a disabled person and, in addition,
brings claims of disability discrimination arising out of his dismissal and in
respect of specific aspects of his treatment in the period prior to it. The
respondent’s position is that the claims in respect of the dismissal have
been brought within the applicable time limit, but not those which predated
Case No: 1810569/2018 (V)
10.5 Reserved judgment with reasons – rule 62 March 2017
dismissal and in circumstances where there is no continuing act or course
of conduct.
2. The issues in this case had been identified during a process of case
management culminating in Employment Judge Cox setting out all of the
allegations in an Annex to her case management orders at a preliminary
hearing on 13 January 2020. At the outset of this hearing, the tribunal went
through those allegations which were confirmed by both parties’ counsel as
the entirety of the issues for the tribunal to determine. This was in
circumstances where the respondent accepted the claimant’s status as a
disabled person and made it clear that, in the context of the complaints of
victimisation, it did not accept that there had been any protected act.
Further, on behalf of the claimant, all complaints of direct discrimination
were withdrawn. For the avoidance of doubt, the claim of a discriminatory
dismissal would be reliant on a claim of indirect discrimination and
victimisation.
3. However, at the commencement of submissions, Mr Flood, on behalf of the
claimant, referred to his written submissions which, the tribunal suggested,
sought to redraw the list of issues. Mr Flood said that, on a review, he had
considered that the preliminary hearings which had taken place in this case
did not in fact summarise or reflect all the information the claimant had
provided regarding his claims. In his written submissions, Mr Flood had
included cross-references to Employment Judge Cox’s Annex, to a
summary of the issues provided at an earlier stage by Employment Judge
Shulman and to a document in which the claimant had provided further
information. Prior to determining the approach the tribunal would take
(where it appeared that not all of the expanded issues may have been
addressed in evidence), the tribunal sought to follow through these cross-
references in respect of the first allegation. In doing so, it was not in fact
clear that the suggested expanded allegation was reflective of information
previously before the tribunal. On reflection, Mr Flood’s position was that he
was not now saying that the tribunal needed to make findings on any issues
not in Employment Judge Cox’s Annex. Furthermore, he considered that
there were some claims which, on the basis of evidence now given, were to
be withdrawn. An adjournment was allowed then for Mr Flood to review the
Annex. On reconvening, Mr Flood took the tribunal through the Annex and
to a number of specific allegations which were no longer pursued and/or
where alternative causes of action were no longer to be relied upon. The
tribunal, immediately below, sets out Employment Judge Cox’s Annex
marked up showing the deletions Mr Flood had identified as flowing from
his aforementioned narrowing of the issues.
4. In the tribunal’s conclusions it has addressed only those issues which have
survived and which are set out so as to reflect the deletions made. The
tribunal has however in the conclusion section retained the original
numbering of the allegations in the Annex.
“ANNEX
The parties agree that the Claimant worked for the Respondent from 24
October 1995 to 11 June 2018. He worked as an R&D Packaging
Associate. He brings claims of unfair dismissal and various forms of
disability discrimination.
Case No: 1810569/2018 (V)
10.5 Reserved judgment with reasons – rule 62 March 2017
Unfair dismissal
The Claimant alleges that the Respondent had no fair reason for
dismissing him and that the reason for his dismissal amounted to unlawful
disability discrimination.
In the alternative, if the reason for his dismissal was redundancy, the
decision to dismiss him for that reason was unreasonable because:
the decision to dismiss him was pre-determined.
the consultation on his redundancy was inadequate as it began without the
Claimant being informed of the basis on which he had been provisionally
selected for redundancy;
it was unreasonable not to draw the pool for selection more widely, to
include the posts of Senior R&D Packaging Associate based in Hull and
Associate 3D Innovation based in Slough; and
the Respondent did not make reasonable attempts to identify alternative
employment for him.
Disability discrimination
The Respondent accepts that the Claimant was disabled at all material
times as a result of narcolepsy with associated cataplexy. The
Respondent has not contested that it had knowledge of his disability at all
material times.
The Claimant alleges he did two protected acts:
1. In June 2016 he raised a grievance about being subjected to a performance
improvement plan (PIP).
On 18 September 2018 he sent the Respondent an email complaining
about being left in the building when he was immobile as a result of a
cataplexic episode.
The allegations of discrimination are as follows:
In the period leading up to January 2016, the Respondent applied a
practice of requiring employees to meet a certain standard of
performance. That put the Claimant at a substantial disadvantage because
of the effect of his disability on his performance. Alleged to be a breach of
the duty to make reasonable adjustments: the Respondent should have
adjusted the standard required of him.
In January 2016 the Respondent put the Claimant under a PIP and froze
his salary. Alleged to be a detriment because of something arising in
consequence of his disability, namely the effect of his disability on his
performance.
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