Mr D Jenkins v Perkins Engines Company Ltd: 3311627/2021 and 3306968/2022

JurisdictionEngland & Wales
Judgment Date11 September 2023
Date11 September 2023
Citation3311627/2021 and 3306968/2022
CourtEmployment Tribunal
Published date05 October 2023
Subject MatterDisability Discrimination
Case Number: 3311627/2021
3306968/2022
1
EMPLOYMENT TRIBUNALS
Claimant Respondent
Mr D Jenkins
v
Perkins Engines Company Limited
Heard at: Cambridge (Hybrid by CVP)
On: 6, 7, 8, 9, 13, 14, 15, 20 and 21 February; and
6, 7, 8 and 9 June 2023
In Chambers: 5 June and 25, 26, 27 and 28 July; and
7 September (am) 2023
Before: Employment Judge Tynan
Members: Ms K Omer and Mr C Davie
Appearances
For the Claimant: Mr L Varnam, Counsel
For the Respondent: Ms J Duane, Counsel
RESERVED JUDGMENT
1. The Claimant’s claim that the Respondent discriminated against him, by
failing to comply with its s.20 Equality Act 2010 duty to make reasonable
adjustments, succeeds in part in respect of Issues 20 and 21 of the List of
Issues as set out in the Tribunal’s Reasons below.
2. Pursuant to s.123(1)(b) of the Equality Act 2010, the Tribunal determines
that it would be just and equitable to extend to 14 June 2021 the time for
the Claimant to bring the claims referred to in paragraph 1 above.
3. Whilst the Claimant’s claims:
3.1. pursuant to s.26(2) of the Equality Act 2010 in respect of Mr Simon
Collins’s comments on 11 September 2015 that the Claimant was
“changing tactics” (Issue 27(4) of the List of Issues);
Case Number: 3311627/2021
3306968/2022
2
3.2. pursuant to s.20/s.21 of the Equality Act 2010 in respect of PCPs (7),
(10), (13) and (14);
3.3. pursuant to s.19 of the Equality Act 2010 in respect of PCP (7); and
3.4. pursuant to s.15 of the Equality Act 2010 in respect of the Respondent’s
failure to pay the Claimant company sick pay after 14 March 2016 (Issue
6 of the List of Issues)
are potentially well-founded, the Tribunal has no jurisdiction in these
matters, the claims in respect of them having been presented outside the
time limit for presenting such claims in s.123 of the Equality Act 2010. The
Tribunal determines that it would not be just and equitable to extend time
for the Claimant to bring those claims.
4. The Claimant’s remaining claims that:
4.1. he was discriminated against contrary to s.15, s.19, s.20/21, s.26 and
s.27 of the Equality Act 2010;
4.2. the Respondent made unlawful deductions from his wages; and
4.3. the Respondent was in breach of his contract,
are not well founded and are dismissed.
REASONS
INTRODUCTION
1. The Claimant commenced employment with the Respondent on 1 July
1999. His employment terminated on 11 March 2022 when he was
dismissed by the Respondent with a disputed payment in lieu of notice.
Accordingly, he had over 22 years’ service with the Respondent by the
date of his dismissal. For nearly the final seven years of those 22 years
the Claimant was absent from work on long term sick leave.
2. The Claimant has brought two claims against the Respondent, including
various claims of disability discrimination. As we shall return to, he has
been diagnosed with an Autism Spectrum Disorder, specifically Asperger
Syndrome. The issues in the case are documented in an agreed 35-page
List of Issues that comprises approximately 250 discrete issues.
3. The first claim was presented to the Employment Tribunals on 14 June
2021, following Acas Early Conciliation between 6 and 14 May 2021. The
second claim was presented to the Employment Tribunals on 10 June
2022, following Acas Early Conciliation between 7 and 8 June 2022. It
follows, subject to there having been conduct extending over a period and
subject also to the Tribunal’s discretion to extend time as it considers just
Case Number: 3311627/2021
3306968/2022
3
and equitable, that any claim in respect of acts or omissions prior to 7
February 2021 (in the case of the first claim) and 8 March 2022 (in the
case of the second claim) have been brought out of time.
4. The Hearing Bundle is arranged in six lever arch files, the first five of which
extend to some 2687 pages. The page references in this judgment
correspond to those files. The sixth lever arch file is arranged in two
paginated sections that contain the Claimant’s GP records (204 numbered
pages) and handwritten notes kept by Mr Johan Truter of psychotherapy
sessions with the Claimant over a period of approximately ten years (364
numbered pages).
5. We refer briefly below to the adjustments we made in the course of the
proceedings to ensure, as far as practicable, that the parties were on an
equal footing and to enable the Claimant to give his best evidence. We
also refer to several issues that impacted the hearing and, indeed, caused
it to be adjourned part-heard.
6. Extensive reference was made in the course of the hearing to a talk on
Youtube by Patrick Lencioni, an American author of books on business
management. The parties refer to it as the Lencioni video, which we shall
also adopt for consistency. The Lencioni video was shown to employees
within the Claimant’s Division on 28 January 2015 at a strategy event they
were attending. The Claimant was particularly affected by two sections in
the video. We were able to view the Lencioni video in its entirety,
including the offending sections. As we shall come back to, the complaints
in respect of the Lencioni video are pursued under s.19 and s.20/s.21 of
the Equality Act 2010 (“EqA 2010”) rather than as a s.26 claim of
harassment.
7. The Claimant made a 70-page written statement in support of his claim.
Whilst, he undoubtedly endeavoured to provide a truthful and accurate
account of events as he perceived them, as did the Respondent’s
witnesses, we have not approached his, or their, evidence uncritically. We
have borne in mind the growing judicial recognition that when a witness is
doing their best to recount events as they recall them, even when these
events are presented with confidence, their evidence may not always be a
reliable guide to what happened. In Gestmin SGSP S.A. v Credit Suisse
(UK) Limited and Another [2013] EWHC3560 (Comm), Mr Justice Leggatt
(as he then was) made observations about the distorting effects of
litigation on the reliability of oral evidence and, in the context of a
commercial dispute, stressed the importance of contemporaneous
documents when making findings of fact. Memory can be unreliable when
it comes to recalling past beliefs because there is the risk that past beliefs
may be revised to make them more consistent with present beliefs,
especially when there are competing accounts of meetings and
conversations. It may be more reliable to base findings on inferences
drawn from contemporaneous documents and known or probable facts.
Although it was, as we say, a commercial dispute and, to our knowledge
has not necessarily established principles of wider application, we have

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