Mr I Tapping v Ministry of Defence: 1402660/2019 and 1400338/2020
| Judgment Date | 08 November 2021 |
| Citation | 1402660/2019 and 1400338/2020 |
| Date | 08 November 2021 |
| Published date | 10 December 2021 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
Case No. 1402660/2019
1400338/2020
1
EMPLOYMENT TRIBUNALS
BETWEEN
Claimant Respondent
Mr I Tapping AND Ministry of Defence
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
HELD AT ON 4 to 7, 11 to 15, 18 to 22 and 15
to 27 October 2021
EMPLOYMENT JUDGE J Bax
Representation
For the Claimant: Mr I Tapping (in person)
For the Respondent: Mrs S Hornblower (counsel)
RESERVED JUDGMENT
1. The Respondent contravened section 39(2)(d) of the Equality Act 2010
and the Claimant succeeded in the following claims to the following
extents:
a. that the Respondent had failed to make reasonable
adjustments, between mid October 2017 and the end of January
2018;
b. in his claim of discrimination arising from disability, in relation
to the e-mail sent on 16 March 2018;
c. in his claim of harassment related to disability, on 14 September
2018;
d. in his claim of direct age discrimination, on 18 September 2018;
e. in his claims of victimisation, on 14 September 2018.
2. The claim of constructive unfair dismissal was dismissed upon its
withdrawal by the Claimant.
3. The claims of detriment for making protected disclosures were not
well founded and they are dismissed.
4. The claims of direct disability discrimination and harassment related
to age are dismissed.
Case No. 1402660/2019
1400338/2020
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REASONS
1. In this case t he Claimant, Mr Tapping, claimed t hat he had been
constructively unfairly dismissed and/or automatically unfairly dismissed
and/or subjected to a detriment for making protected disclosures. He also
claimed that he had been discriminated against on the grounds of disability
and age.
Background
2. On 2 3 April 2019, the Claimant notified ACAS about the dispute and the
certificate was issued on 22 May 2019. The Claimant presented his first
claim for age and disability discrimination and detriment for making
protected disclosures on 17 June 2019. The Claimant presented his second
claim on 16 January 2020 in which he claimed he had been constructively
unfairly dismissed and made further allegations of discrimination and
detriment.
3. The claim was subject to many case management hearings in order to
identify the issues and ensure that it was ready for a final hearing. At a case
management preliminary hearing on 27 September 2021, it was confirmed
that the core bundle was agreed. The Claimant had also provided
confirmation from his GP that he was sufficiently fit to attend and participate
in the hearing.
4. The parties consented to the claim being heard by a Judge sitting alone.
Written confirmation was received from the Claimant and the Respondent
on 27 September 2021.
The issues
5. The final list of issues was agreed at a Telephone Case Management
Hearing on 23 March 2021 and were confirmed as correct in the subsequent
case management hearings.
6. At the start of the final hearing the issues were discussed. The Respondent
referred to correspondence from the Claimant indicating that he was
withdrawing the claim of constructive unfair dismissal. The Claimant
confirmed that Employment Judge Midgley had suggested that he did not
need to arrive at the quantum of his claims by more than one route and
suggested that the claims could be reduced. The Claimant said that he
understood that the burden of proof was on him, it was difficult to provide
proof of the breach of contract and that he did not consider he was in an
Case No. 1402660/2019
1400338/2020
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adequate position to do so. He considered that there was only a nuance of
difference between the constructive dismissal claim and his other claims
and was conscious that care needed to be taken with the Tribunal time. I
queried with the Claimant as to whether he was sure that he wanted to take
such a step. The Respondent confirmed that there would not be a costs
application if the claim was withdrawn. The Claimant said he had balanced
it and would rather preserve court time and had decided not to pursue the
constructive dismissal claim and did not think much could be gained by
pursuing it. The Claimant withdrew the claim of constructive dismissal, and
it was dismissed. I observed that quantum might be affected, although
losses would flow from any detriment.
7. On 5 October 2021, the Claimant, by e-mail, sought to retract the
withdrawal. When the hearing was resumed it was explained that by
withdrawing the unfair dismissal claim the Claimant would not be able to
claim a basic award, however compensation for the d etriment and
discrimination claims would be based on losses flowing from any proven
allegations. It was explained to the Claimant that under rule 51, the Tribunal
had no power to set aside a withdrawal so as to re-activate the claim (Khan
v Heywood and Middleton Primary Care Trust [2007] ICR 24. This was not
a case where the decision had been taken in the heat of the moment and it
had been reasoned by the Claimant when he explained why he was
withdrawing it. Further the withdrawal was not immediately accepted, and
the Claimant was asked whether he was sure before he reconfirmed his
decision. The Claimant confirmed that he did not want to try and set aside
his withdrawal.
8. Before starting the timetabled reading of documents, the Claimant said that
his supplemental bundle of 979 pages was provided to fill gaps if documents
were missing and it did not need to be read. I was invited to read a short
extract from it. The Claimant, when giving evidence on the first day, was
asked why he had not said something in his witness statement, and he said
that it was explained in his supplemental bundle. The Claimant was asked
how the supplemental bundle should be treated and whether he was relying
on the contents as part of his witness statement. The Claimant, after the
lunch adjournment, confirmed that he was not seeking to rely on it as part
of his witness statement. It was also explained to the parties that the
questions asked and the answers given should be concise and that when
the Claimant was answering questions he should listen carefully and
answer the question asked.
9. When giving evidence the Claimant suggested that he made a further
protected disclosure on 2 November 2017. He accepted that he had not
raised it as a protected disclosure at the earlier case management hearings.
The Respondent made the point that this had been suggested in the context
of the first questions of cross-examination and if any amendment was
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