Mr D Foat v Department for Work and Pensions: 2301877/2019 and others
| Judgment Date | 22 April 2022 |
| Subject Matter | Disability Discrimination |
| Date | 22 April 2022 |
| Citation | 2301877/2019 and others |
| Published date | 10 May 2022 |
| Court | Employment Tribunal |
Claim no.s: 2301877/2019; 2302789/2019; 2304195/2019
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EMPLOYMENT TRIBUNALS
Claimant: Mr D Foat
Respondent: Department for Work and Pensions
Heard at: London South Employment Tribunal (by CVP)
On: 31 January 2022 – 3 February 2022, 7 February 2022 – 8
February 2022, in chambers 1 March 2022
Before: Before: Employment Judge Dyal, sitting with Ms Carter and Mr Rogers
Representation:
Claimant: Ms Mallick, Counsel
Respondent: Ms Gordon Walker, Counsel
RESERVED JUDGMENT
1. The complaints of harassment related to disability succeed as follows:
a. In February 2018 forbidding the claimant from driving in the course of his work;
b. The conduct of the meeting of 26 April 2018;
c. On 2 May 2019 insisting the claimant attend a twelve- month review meeting
on the 23 May 2019 at the Ramsgate office;
d. Constructively dismissing the claimant.
2. The complaint of breach of the duty to make reasonable adjustments succeeds as
follows:
a. The failure to offer workplace mediation.
3. The complaint of constructive unfair dismissal succeeds.
4. The complaint of failure to pay holiday pay succeeds.
Claim no.s: 2301877/2019; 2302789/2019; 2304195/2019
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5. The complaints otherwise fail and are dismissed.
CASE MANAGEMENT ORDERS FOR REMEDY
1. Remedy in respect of the successful complaints to be determined at a remedy
hearing if not agreed.
2. The case is stayed until 1 June 2022 in order for the parties to try and agree
remedy.
3. If remedy is not agreed the parties must liaise with each other and propose either a
further stay or comprehensive case management directions for remedy (marked for
the attention of Judge Dyal) by 8 June 2022.
REASONS
Introduction
1. The Claimant presented a total of 5 claim forms. At a Preliminary Hearing before
Employment Judge Siddall it was agreed between the parties that claims
2302623/19 and 2302624/19 were superfluous and “could be treated as
withdrawn”. The other three claims 2301877/19, 2302789/19 and 2304195/19 were
consolidated and are now before the tribunal.
The issues
2. The issues were identified at a Preliminary Hearing before Employment Judge Kelly
on 16 September 2020. That list identified a handful of matters that the Claimant
was required to provide further information about. The information that the Claimant
subsequently provided was extremely lengthy. Much of it was voluntary rather than
required by Employment Judge Kelly. At the outset of this hearing the parties were
therefore asked to agree a final list of issues. Counsel indeed able to agree a final
list of issues which the tribunal was grateful to adopt. The final list of issues is
annexed hereto.
The hearing
3. Documents before the tribunal:
3.1. Agreed bundle running to 1035 pages;
3.2. Additional documents disclosed by the Claimant on 31 January 2022 and
added to the bundle by consent;
3.3. Additional document documents disclosed by the Claimant on 1 February 2022
and added to the bundle by consent;
3.4. Additional documents disclosed by the Claimant on 7 February 2022 and added
to the bundle by consent.
Claim no.s: 2301877/2019; 2302789/2019; 2304195/2019
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3.5. Letter of resignation and 4 page policy/procedure document in relation to
reasonable adjustments.
3.6. Respondent’s chronology and cast-list;
3.7. Respondent’s opening submissions.
4. Witnesses:
4.1. The Claimant;
4.2. Wendy Beaddie, Higher Executive Officer.
4.3. Maria Skinner (written evidence only – did not attend because of a family
bereavement);
4.4. Catherine Kirkpatrick (written evidence only – did not attend because of a family
bereavement).
5. Pre-Reading: Both parties produced a reading list at the tribunal’s invitation and we
read all of the documents on both lists.
6. Reasonable adjustments and the conduct of the hearing. The Claimant has
longstanding severe depression and anxiety which he continues to suffer from.
7. In January 2021, the final hearing of this matter had to be postponed on account of
the Claimant’s mental ill-health. By October 2021 the Claimant’s health had
improved to a degree. At a Preliminary Hearing careful thought was given to the
adjustments that the Claimant would need in order to participate at this final
hearing. It was agreed that:
7.1. For every 30 minutes of cross-examination of the Claimant would have a 10
minute break;
7.2. For every 45 minutes of cross-examination of the Respondent’s witnesses the
Claimant would have a 15 minute break;
7.3. There would be modifications to the style of cross-examination: it would need to
proceed with a manner, tone and pace that took account of the Claimant’s
mental health problems and avoid any unduly aggressive or confrontational
questions.
8. At the outset of this hearing we had a discussion of reasonable adjustments. Judge
Dyal checked with Ms Mallick whether the adjustments agreed in October 2021
continued to reflect the Claimant’s needs. She indicated that they did but added that
there were certain triggers in the history of the case that may cause the Claimant
particular upset. There was a discussion of what the best course take would be in
that event and Ms Mallick explained that taking a break was the best response.
Judge Dyal indicated that there would be no difficulty in taking unscheduled breaks
for that or other reasons in addition to the scheduled ones. Judge Dyal made clear
that he and the panel would do all they reasonably could to facilitate the Claimant’s
participation in the proceedings. He emphasised that he would do his best to
respond to the Claimant’s needs but that it may not always be apparent what they
were. Thus the Claimant should feel free at any time to say if he needed a break or
had any further needs as should counsel.
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