Mr D Sappleton v The London Fire Commissioner: 2302517/2017 and 2303650/2018
| Judgment Date | 19 March 2021 |
| Published date | 28 May 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unlawful Deduction from Wages |
Case No. 2302517/2017V and 2303650/2018/V
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THE EMPLOYMENT TRIBUNAL
SITTING AT: LONDON SOUTH
BEFORE: Employment Judge Truscott QC
Ms L Grayson
Dr N Westwood
BETWEEN:
Mr D Sappleton
Claimant
AND
The London Fire Commissioner
Respondent
ON: 20, 21, 22, 25, 26, 27, 28, 29 January, in chambers 8 March 2021
Appearances:
For the Claimant: Ms G Churchhouse of Counsel
For the Respondent: Mr S Keen of Counsel
This has been a remote hearing which was not objected to by the parties. The form of
remote hearing was video. A face to face hearing was not held because it was not
practicable to do so.
JUDGMENT
The unanimous judgment of the Tribunal is:
(1) that the Claimant’s claim of disability discrimination contrary to section 13 of the
Equality Act is not well founded and is dismissed,
(2) that the Claimant’s claim of disability discrimination contrary to section 15 of the
Equality Act is not well founded and is dismissed,
(3) that the Claimant’s claim of failure to make reasonable adjustments contrary to
section 20 of the Equality Act is not well founded and is dismissed,
Case No. 2302517/2017V and 2303650/2018/V
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(4) that the Claimant’s claim of harassment contrary to sec tion 26 of the Equality
Act is not well founded and is dismissed,
(5) that the Claimant’s claim of victimisation contrary to section 27 of the Equality
Act is not well founded and is dismissed, and
(6) hat the Claimant’s claim of unfair dismissal brought under Part X of the
Employment Rights Act 1996 is not well founded and is dismissed.
REASONS
PRELIMINARY
1. The Claimant gave evidence on his own behalf and was represented by Ms G
Churchhouse, barrister. His witness statement was revised at paragraph 5 at the
commencement of the hearing and it is this evidence the Tribunal proceeded upon
subject to what is said in paragraph 7 hereof. She led the evidence of Mr O Modupe,
a co-worker. The Respondent was represented by Mr S Keen, barrister, who led the
evidence of Mr K McKenzie, Borough Commander, Mr G Thompson, Station
Commander, Ms S Banning, Area Admin Manager, Mr P Jennings, Assistant
Commissioner, Fire Safety, Mr D Amis, Head of Wellbeing responsible for Health and
Absence and Mr D Ellis, Assistant Commissioner.
2. The parties agreed that the correct name of the respondent is The London Fire
Commissioner.
3. There were four volumes of documents to which reference will be made where
necessary. There was an agreed chronology and cast list.
4. It was agreed that, due to shortage of time, the hearing would address liability
only.
5. The Claimant had two previous sets of proceedings against the respondent.
The first set, case number 2301851/2015, was heard in May 2016 before Employment
Judge Spencer, Dr S Chacko and Mr G Henderson and judgment was sent to the
parties on 2 August 2016. The Tribunal dealing with that claim is referred to as the
2016 Tribunal. The Claimant succeeded in part on a claim for harassment, his claims
of direct discrimination, victimisation and trade union detriment were dismissed. The
second set of proceedings, case numbers 2301013/2016 and 2301481/2017, was
heard in December 2017 before Employment Judge Elliott, Ms J Forecast and Mr J
Gautrey and judgment was dated 6 December 2017. The Tribunal dealing with that
claim is referred to as the 2017 Tribunal. The claims for sex and race discrimination,
including victimisation, breach of contract, disability discrimination and unlawful
deductions from wages were dismissed.
6. In this, the third set of proceedings, the Claimant, by his witness statement,
seeks to re-litigate a number of issues that have already been the subject of a
determination between the parties, in particular, by the 2017 Tribunal. The following
passages of the Claimant’s statement provide examples of issues that have already
been the subject of findings by the previous tribunals:
Case No. 2302517/2017V and 2303650/2018/V
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a) Paras. 5: alleges that harassing hand gestures were made by an officer.
This was rejected by the 2017 Tribunal (at para.135) [1176],
b) Paras.6 to 27: give an account of the Claimant’s return to work in 2016 and
up to May 2017 that is replete with criticisms of the Respondent. This conflicts
with the findings made by the 2017 Tribunal which held that the Respondent
had dealt with the Claimant’s attempts to return to work, lawfully, reasonably
and fairly.
c) Paras. 75 to 78: the Claimant asserts that the Respondent should have
realised that his absences were improving and relies (in para.77) on assertions
that were rejected by the 2017 Tribunal. The 2017 Tribunal concluded, based
upon the medical evidence (including that of Dr Bashir), that the Claimant was
unlikely to be able to return to an operational role (see for example para. 358
to 360) [1210];
d) Paras. 122 to 133(b) and 134 deal with the Claimant’s consultation with Dr
Bell on 21 October 2016 [1679] and the previously dismissed cases of
harassment against SM Hilary and SM Morton. The Claimant now seeks to rely
on the transcript of Dr Bell to overturn the findings of the 2017 Tribunal. He
also makes assertions about harassment allegations that have been dealt with
(paras.81 to 88 [1168-9] and paras. 349 to 353 [1209] of the 2017 Tribunal’s
decision).
7. On the first day of its hearing, the 2016 Tribunal was faced with a problem
arising from the fact that the Claimant’s statement included new material that was not
referred to in the list of issues [1135, para.6]. The Tribunal decided that the process
of excising passages from the Claimant’s statement was very likely to be so laborious
as to be impractical. Instead of embarking upon that exercise, it said that it would not
consider matters that had not been identified in the list of issues. This Tribunal when
faced with similar circumstances requested that the Claimant consider revising his
witness statement. Apart from the minor change noted in paragraph 1 hereof, no such
revision was forthcoming although it would not have been a laborious exercise to do
so. This Tribunal decided to address only the issues which were agreed for this hearing
and not address material/issues that the Claimant should have raised previously or
issues and causes of action that the Tribunal has already determined. This replicated
the approach of the 2016 Tribunal and is supported in law is set out in the legal section
of this judgment.
8. In the course of the hearing, there was an application on behalf of the Claimant
to exclude corrected transcripts of recordings of a number of meetings which had been
lodged by the Respondent from the bundle. The Tribunal rejected the application in
the interests of justice. The Tribunal could not see how, if it was to consider the
recordings of what took place at those meetings, it could fairly do so solely on the
basis of selections from the recording made by the Claimant. The Claimant had been
in possession of the recordings and was in a position to check the corrected
transcripts. The Claimant complained, in particular, about the late introduction of the
transcript of Dr Bell, but as he had the original audio recording and had a number of
days before the commencement of the hearing, he was in a position to confirm its
accuracy. It may also be that the recorded meetings would be covered in any argument
for the Respondent set out at paragraph 6 hereof or objectionable on other grounds.
This Tribunal does not repeat but does endorse the comments by the 2017 Tribunal
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