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

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 Case Number: 3311627/2021 3306968/2022 4 regard to Leggatt J’s insightful observations at paragraphs 16 to 22 of his judgment, observations that were recently revisited by Mr Justice Johnson in the course of his comprehensive judgment in TZV & Others v Manchester City Football Club Ltd [2022] EWHC 7 (QB), a personal injury case. Johnson J noted that human memory is fallible, and that Courts should be alive to the dangers of reattribution and confirmation bias. He thought it necessary to treat oral recollections of events, particularly oral evidence as to the cause of events, with considerable caution. He was deciding claims in respect of events that had occurred decades ago. Whilst there was no scope for mistake or misunderstanding, and very little scope for fallibility of memory, on the fundamental question of whether the Claimants in TVZ had been sexually abused, so far as the consequences of the abuse was concerned, Johnson J noted the significant scope for reattribution and confirmation bias. 8. Notwithstanding the events in this case occurred within the last ten years, rather than decades ago, we have been mindful of the scope for reattribution and confirmation bias, including as to the impact upon the Claimant of critical feedback following a staff cultural survey in 2014 and his exposure in January 2015 to the Lencioni video. On the Claimant’s own account, he is prone by reason of his condition to ruminate, has to be persuaded to change his views about matters, and where things are grey will create mechanisms to try and get them in a certain box. These, and other aspects of the Claimant’s autism, together with the potentially distorting effects of time and litigation, carry with them an increased risk of reattribution and confirmation bias. 9. We also have regard to the fact that the Claimant has experienced significant long term mental health issues. He has a history of depression and a long standing anxiety disorder that is a feature of and/or co-morbid with his Autism Spectrum Disorder. We find that these adversely impacted both his concentration and his ability to recollect events when giving evidence at Tribunal and, as we shall come to, his ability to attend Tribunal on two days. We have made allowance for this. Equally, however, we have born in mind that they may have impacted his perception of key events at the time and continue to impact his perception to the present day. The fact for example that the Claimant reports experiencing heightened anxiety in the supermarket and a ‘flight’ response, provides just one example of how he can perceive everyday situations in ways that others do not. 10. Towards the end of her incisive, sometimes compelling, written submissions, Ms Duane addresses the issue of the Claimant’s credibility. Amongst other things, she invites the Tribunal both to accept her submission that the Claimant was evasive in his evidence regarding two individuals’ purported acceptance that the Lencioni video was “inappropriate” and further submission that the Claimant’s evasive behaviour was a common theme in the these proceedings. We consider it an unfortunate mis-reading of the Claimant on her part. We refer in this Case Number: 3311627/2021 3306968/2022 5 regard to the Practice Guidance issued by the President of the Employment Tribunals on 22 April 2020; “Particular difficulties may arise when giving evidence in the tribunal....