Mr D Herry v Dudley Metropolitan Borough Council: 1303959/2015
| Judgment Date | 25 July 2018,31 December 2020 |
| Citation | 1303959/2015 |
| Published date | 03 August 2018 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
Case Number 1303959/2015
1300217/2016
1
EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondent
Mr D Herry Dudley
Metropolitan
Borough Council
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
(RESERVED JUDGMENT)
HELD AT Birmingham ON 5 – 9, 12 – 16, 19, 20, 23
& 28 March 2018
16 April 2018 (Panel only)
EMPLOYMENT JUDGE GASKELL MEMBERS: Miss SP Outwin
Mr PJ Simpson
Representation
For the Claimant: In Person
For the Respondent: Ms S Garner (Counsel)
JUDGMENT
The unanimous judgment of the tribunal is that:
1 At no time during the period 28 June 2014 – 23 March 2016 was the
claimant a disabled person as defined in Section 6 and Schedule 1 of
the Equality Act 2010. Accordingly, the claimant’s claims for direct
disability discrimination; a failure to make reasonable adjustments;
and disability-related harassment are dismissed.
2 The claimant was fairly dismissed: his claim for unfair dismissal is
not well-founded and is dismissed.
3 The claimant was lawfully dismissed in compliance with his
employment contract: his claim for wrongful dismissal is dismissed.
4 The respondent did not, at any time material to this claim, act
towards the claimant in contravention of Section 39 of the Equality
Act 2010. The claimant’s complaint of victimisation as defined by
Section 27, and brought pursuant to Section 120 of that Act, is
dismissed.
Case Number 1303959/2015
1300217/2016
2
REASONS
Introduction
1 The claimant in this case is Mr Damieon Herry: he commenced
employment as a teacher at Hillcrest School in Dudley on 14 January 2008; on
16 June 2008 the claimant also commenced work for Dudley Metropolitan
Borough Council as a part-time youth worker.
2 On 6 June 2010, the claimant commenced a period of sickness absence
which was to extend until his dismissal from his teaching post allegedly for gross
misconduct on 19 May 2015. The reasons for the claimant’s absences as
provided in sick notes from his GP were variously stress; fractured ankle; head
injury; leg pain; work-related stress; and stress & anxiety. After the claimant’s
dismissal from his teaching post he resumed work as a part-time youth worker
and that employment is continuing.
3 From late 2010, the claimant’s relationship with Hillcrest School has not
been a happy one: he believes that the Principal of the school, Mrs April Garratt
and latterly, a member of the HR team at the respondent, Mrs Jo Martin have
treated him unfairly.
4 On 17 December 2012, the claimant presented a claim to the Employment
Tribunal (the 1st claim): the claim was for unlawful discrimination and/or
harassment because of the protected characteristics of sex and/or race and for
victimisation. The claims were heard by a panel presided over by Employment
Judge Dean on multiple dates between 3 February and 18 July 2014; following
extensive deliberations in chambers, Judge Dean issued a judgement which was
promulgated to the parties on 21 October 2014; the claims were dismissed in
their entirety.
5 On 17 July 2014, the claimant presented his 2nd claim: this included claims
for direct discrimination and/or harassment because of the protected
characteristics of disability and/or sex and/or race and for victimisation. On 24
April 2015, Employment Judge Goodier considered as a preliminary issue the
question of whether or not, at any time material to that claim, the claimant was a
disabled person as defined in the Equality Act 2010. After a single day’s hearing,
Judge Goodier issued a judgement which was promulgated to the parties on 24
April 2015: he determined that the claimant had not been a disabled person
during the material period which was 4 April to 27 June 2014. A necessary
consequence of this decision was that the claimant’s claims for disability
discrimination were dismissed; the remaining elements of the claim were then
considered by a panel presided over by Employment Judge Dimbylow over
Case Number 1303959/2015
1300217/2016
3
several days in May 2015: the claims for sex and race discrimination,
harassment, and victimisation were dismissed.
6 Save for a successful appeal against the quantum of a costs order made
by Judge Dean, the claimant’s appeals to the EAT against those previous
determinations have all been unsuccessful; we understand that further appeals to
the CA and the CJEU are ongoing. Crucially, Judge Goodier’s decision on the
question of disability was upheld by a division of the EAT presided over by HHJ
Richardson in a judgement handed down on 16 December 2016 following a
hearing at the tribunal on 29 July 2016.
7 This panel is currently trying the claimant’s 3rd and 4th claims. Claim 3 was
presented on 12 October 2014: the claimant brings claims for direct
discrimination because of the protected characteristic of disability; a failure to
make reasonable adjustments; disability-related harassment; victimisation; and
unfair and wrongful dismissal. Claim 4 was presented on 21 January 2016 and is
a claim for victimisation.
8 To assist the claimant in presenting his claim in person the tribunal
adjusted its normal requirements: -
(a) The claimant was permitted to make an audio recording throughout the
proceedings: this was on condition that the recording was to be used for
his own preparation purposes only; and that, if any part of the recording
was transcribed for any purpose, a copy of the transcription would be
made available to the panel and to the respondent.
(b) The claimant was commuting to the tribunal each day from his home in
London: there were some days that he experienced travel delays; the
tribunal adjusted its sitting hours accordingly.
(c) The hearing of evidence in the case was concluded on Tuesday 20 March
2018: the claimant asked for time to prepare his closing submissions;
initially time was granted until Friday 23 March 2018; but, on that day, the
claimant requested further time; which was then allowed until Wednesday
28 March 2018.
9 It is the claimant’s case that, notwithstanding the determinations of EJ
Goodier and HHJ Richardson, during a period after 28 June 2014 he was and
remains a disabled person as defined in the Equality Act 2010. The material
period for consideration in these Claims is 28 June 2014 (before which date there
is an unassailable determination that he was not disabled) and 23 March 2016
(the last alleged act of discrimination/harassment in Claim 3/4 as amended).
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