Mr C Watson v Financial Ombudsman Service Ltd: 3201492/2018
| Jurisdiction | England & Wales |
| Judgment Date | 19 December 2019 |
| Citation | 3201492/2018 |
| Published date | 23 January 2020 |
| Court | Employment Tribunal |
Case Number: 3201492/2018 RM
EMPLOYMENT TRIBUNALS Claimant
Mr C Watson
Respondent:
Financial Ombudsman Service Limited
Heard at:
East London Hearing Centre
On:
22, 23, 24 May 2019 and 19 June 2019
Before:
Employment Judge Russell
Members:
Mrs K Freeman
Mr D Ross
Representation
Claimant:
Respondent:
In person
Mr R Hignett (Counsel)
RESERVED JUDGMENT (1)
The claim of constructive unfair dismissal fails and is dismissed.
(2)
All claims of disability discrimination fail and are dismissed.
(3)
The claim of victimisation fails and is dismissed.
(4)
The claim of unauthorised deduction from wages fails and is dismissed.
REASONS
1
By a claim form presented on 17 July 2018 the Claimant brings complaints of constructive unfair dismissal, disability discrimination, sex discrimination and for unpaid wages. The Respondent resists all claims.
2
At a Preliminary Hearing on 15 October 2018, the sex discrimination claim was withdrawn and the issues were agreed as follows:
1
Case Number: 3201492/2018 Constructive unfair dismissal 2.1
Did the Respondent conduct itself, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously to damage the relationship of trust and confidence between it and the Claimant? The Claimant relies upon the following conduct:
(a)
May or June 2017: Mr Farmer (the Claimant’s line manager) falsely stated that he had met with the Claimant to discuss a customer complaint.
(b)
8 August 2017: the Claimant was required to be absent from work (suspended) until Occupational Health approved his return.
(c)
Around 12 September 2017: Mr Wightman refused the Claimant’s request for a formal investigation of the allegations against Mr Farmer.
(d)
Between August 2017 and 22 September 2017: the Respondent required the Claimant to pay a fee in order to access his employee file,
then sent him an electronic version in an unreadable format and, after the intervention of his MP, sent the Claimant a paper copy which was not personally addressed to him by name.
(e)
Late September 2017: Ms Sasha Chaudhri and Ms Tania Diggines improperly denied breach of data protection requirements in respect of the employee file.
(f)
27 November 2017: the Claimant was refused permission to record a grievance hearing and was told that he would be subject to disciplinary action if he did record it.
(g)
Late 2017: HR deliberately communicating with the Claimant at the end of the day in order to increase the Claimant’s anxiety.
(h)
5 January 2018: grievance outcome which made unwarranted ‘recommendations’ about the Claimant’s communication style, tone and language and instructed him to make no further complaints and not to go to the information Commissioner’s office.
(i)
From 15 January 2018 unwarranted and untrue complaints about the Claimant’s performance, including singling him out where all in shortterm lending division has cases outstanding but the Claimant was the only person disciplined.
(j)
19 February 2018: Ms Sloan’s recommendation that there should be a formal disciplinary hearing whilst deceitfully maintaining that she did not know the potential consequences of the investigation and doing so in order to avoid paying company sick pay.
2
Case Number: 3201492/2018 (k)
19 February 2018: the meeting with Ms Sloan was deliberately scheduled for that date in order to create a mental breakdown on the part of the Claimant and/or to provoke evidence of gross misconduct.
(l)
1 March 2018 Claimant’s grievance against Ms Sloan was improperly considered at the same time as the disciplinary hearing, rather than as a separate procedure which should have been heard first.
(m) 5 March 2018, Mr Ian Smith ostracised the Claimant upon his return to work by moving him from the ninth floor to the fourth floor, away from his short-term lending team, and requiring him to find his own desk.
(n)
15 March 2018: Mr Steve Dickey (hearing the grievance and disciplinary) changed the allegations from competence to behaviour.
(o)
21 March 2018 providing the Claimant with only a redacted copy of feedback from Ms Lisa Lowe given in November 2017.
2.2
Did the Claimant affirm the contract of employment before resigning? He Claimant resigned on notice given on 29 March 2018 and relies upon (n) and (o) above as the last straw(s).
2.3
Did the Claimant resign in response to the Respondent’s conduct?
2.4
If the Claimant was dismissed, was the reason or principal reason a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”); and, if so, was the dismissal fair or unfair in accordance with ERA section 98(4)?
2.5
If the Claimant was unfairly dismissed and the remedy is compensation,
should there be any reduction:
(a) to reflect the possibility that the Claimant would still have been dismissed had a fair and reasonable procedure been followed (Polkey);
and/or
(b) because the Claimant had by blameworthy or culpable actions, caused or contributed to dismissal to any extent.
Disability
2.6
Was the Claimant a disabled person in accordance with the Equality Act 2010 (“EQA”) at all relevant times because of the mental impairment(s) of anxiety and depression?
Section 26 EQA: harassment related to disability 2.7
Did the Respondent engage in the conduct set out at paragraphs 2.1 (d), (e),
(f), (g), (i), (j), (k), (m), (n) and (o) and/or the following additional conduct:
3
Case Number: 3201492/2018 (i)
4 April 2018: Ms Sloan and Ms Chaudhri denied the Claimant the right to a witness at a meeting and/or prevented him from leaving when he wished to do so.
(ii)
25 April 2018: Mr J Upsdale (HR) threatened the Claimant with further action if he released his recording of the events on 4 April 2018.
2.8
If so, was the conduct unwanted and did it relate to the Claimant’s disability?
2.9
Did the conduct have the purpose or (taking into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect) the effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?
Section 15, EQA: discrimination arising from disability 2.10 Did the Respondent treat the Claimant unfavourably in the following ways?
(a)
8 August 2017: the Claimant was required to be absent from work (suspended) until Occupational Health approved his return.
(b)
19 February 2018: Ms Sloan’s recommendation that there should be a formal disciplinary hearing whilst deceitfully maintaining that she did not know the potential consequences of the investigation and doing so in order to avoid paying company sick pay.
2.11 If so, was it because of something arising in consequence of disability? The Claimant relies upon (a) concern about his mental health in August 2017 and (b) his need for sickness absence in 19 February 2018.
2.12 If so, was it a proportionate means of achieving a legitimate aim?
2.13 Alternatively, has the Respondent shown that it did not know, and could not reasonably have been expected to know, that the Claimant had the disability?
Reasonable adjustments: EQA, sections 20 & 21 2.14 Did the Respondent apply the following provision, criterion or practice: (a)
the requirement to pay £10 for a Subject Access Request to obtain copies of an employment file; and/or (b) a policy not permitting the recording of internal hearings?
2.15 Did any such PCP put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time?
2.16 If so, did the Respondent know or could it reasonably have been expected to know the Claimant was likely to be placed at any such disadvantage?
4
Case Number: 3201492/2018 2.17 If so, were there reasonable steps that were not taken that could have been taken by the Respondent to avoid any such disadvantage? The Claimant says that the Respondent should have waived the fee to access his file from the outset and/or permitted him to record his grievance hearing.
Section 27 EQA: victimisation 2.18 Did the Claimant do a protected act on: (a) 1 February 2018, when he alleged that Ms Sloan was victimising him; and/or (b) 1 March 2018, when he made the same allegation in his grievance against Ms Sloan?
2.19 Did the Respondent subject the Claimant to a detriment as identified at paragraphs 2.1(m) to (o) and/or the email from Mr Upsdale on 25 April 2018,
because of a protected act?
Unauthorised deductions, s.13 ERA 2.20 Did the Respondent fail to pay the Claimant in full in respect of his sick pay for his absence in February 2018?
3
At the outset of the hearing, the Respondent conceded that the Claimant was disabled by reason of the mental impairment of depression for the relevant period from May 2017 until April 2018. At the conclusion of the hearing, the Respondent also conceded that the Claimant was disabled by reason of anxiety for the same period. It did not concede knowledge in respect of either disability. At the conclusion of the hearing, the Claimant withdrew the allegation that he had done a protected act on 1 February 2018.
4
The Claimant attended the first day of the hearing without a written witness statement. He told the Tribunal that he had produced a statement and had sent it to the Respondent in compliance with earlier case management orders. The Respondent denied receipt of any statement from the Claimant. Upon checking his email account on his mobile phone, the Claimant was unable to find either the email to which the statement was said to be attached or a copy of the statement itself. The Claimant told the Tribunal that he had it saved on a flash drive at home. The Tribunal decided that it would start reading the evidence and documents and adjourn for the day so that the Claimant could go home, find a copy of his witness statement and send it again.
5
On attending the second day of the hearing, the Claimant had still not been able to find a copy of his witness statement. The Claimant...
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