Mr J Campbell v Pennine Acute NHS Foundation Trust: 2410231/2018
| Judgment Date | 08 December 2021 |
| Citation | 2410231/2018 |
| Date | 08 December 2021 |
| Published date | 20 December 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case No. 2410231/18
1
EMPLOYMENT TRIBUNALS
Claimant:
Mr J Campbell
Respondent:
Pennine Acute NHS Foundation Trust
Heard at:
Liverpool (by CVP)
On: 12–19 July, 26 August and
28 September 2021
Before:
Employment Judge Benson
Mr D Wilson
Mr J Murdie
REPRESENTATION:
Claimant: Mrs J Campbell (Claimant’s wife)
Respondent: Ms R Kight, Counsel
JUDGMENT
The unanimous judgment of the Tribunal is that:
1. The claimant was a disabled person within the meaning of section 6 of the
Equality Act 2010 by reason of:
a. Chronic central serous retinopathy at all material times;
b. Back injury from 23 April 2017.
c. Anxiety and depression from January 2017.
2. The respondent has not discriminated against the claimant contrary to section
13 Equality Act 2010 because of any disability;
3. The respondent has not discriminated against the claimant contrary to section
15 Equality Act 2010 because of something arising as a consequence of any
disability;
4. The respondent has not failed in its duty to make reasonable adjustments for
the claimant contrary to sections 20 and 21 Equality Act 2010;
5. The respondent has not subjected the claimant to harassment related to any
disability contrary to section 28 Equality Act 2010;
Case No. 2410231/18
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6. The respondent has not subjected the claimant to victimisation contrary to
section 27 Equality Act;
7. The claimant was not subjected to any detriment contrary to section 47B
Employment Rights Act 1996 because he has made a protected disclosure;
8. The claimant was not dismissed pursuant to section 95(1)(c) Employment
Rights Act 1996;
9. The claimant was not unfairly dismissed contrary to section 94 or section 100
Employment Rights Act 1996.
10. All claims fail and are dismissed.
REASONS
Claims
1. By a claim form dated 19 April 2018, the claimant brought claims against the
respondent. Those claims were claims of disability discrimination (direct
discrimination), discrimination arising from disability, a failure to make
reasonable adjustments, harassment and victimisation. In addition, the
claimant contends that he was subjected to detriments having made protected
disclosures, and further, that he was constructively unfairly dismissed under
Section 100 (health and safety) and/or Section 98 of the Employment Rights
Act 1996. The respondent defends all claims, and case management
hearings took place on 18 July 2018 and 4 March 2019. The claimant
provided further particulars of his claim in the form of a Scott Schedule, and at
the outset of this hearing a draft List of Issues, prepared by Ms Kight, was
discussed and agreed between the parties and the Tribunal. That list as
agreed is set out below. There were some amendments made by Mrs
Campbell and these were incorporated into the list, after discussions with her.
Agreed List of Issues
Disability discrimination
Disability
2. The claimant pleads 3 different disabilities:
a. Chronic central serous retinopathy;
b. Back injury since December 2016;
c. Anxiety and depression since January 2017.
The respondent concedes that each of these impairments are
disabilities but disputes the date on which the claimant became disabled
by virtue of impairment (b).
Case No. 2410231/18
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Therefore, when did impairment (b) start to have a long term substantial
adverse effect on the claimant’s ability to carry out normal day to day
activities?
3. At the time of each alleged act of discrimination, did the respondent know or
ought reasonably to have known that the claimant was disabled by virtue of
the relevant disability?
The respondent concedes that it was aware that the claimant was
disabled by virtue of impairment (a) at all material times.
The respondent concedes that it was aware that claimant was disabled
by virtue of impairment (b) from 31st May 2017 when OH confirmed that
claimant’s back injury was a recurrence of his sciatica.
The respondent denies that it was aware or ought reasonably to have
been aware that the claimant was disabled by virtue of impairment (c)
prior to his resignation.
Direct discrimination/section 15 discrimination/Harassment/Victimisation
4. Did the respondent do any of the following acts:
a. Between 11.10.16 and 24.11.16: (ACT A)
i. Wayne Hobson told the claimant’s colleagues that he was going
to lose his job;
ii. Wayne Hobson told the claimant’s colleagues that Paul Corr
was gunning for him, and he needs to be careful;
iii. Wayne Hobson told the claimant’s colleagues that the claimant
was not doing himself any favours
b. On 14.12.16, Paul Corr did not act on concerns the claimant raised and
denied that he had raised them with him; (ACT B)
c. Between 20.12.16 and 23.04.17 Wayne Hobson calling the claimant
“glass back” and “hop-a-long” whenever he entered a room, shouting it
down corridors, laughing and inciting other porters to do the same;
(ACT C)
d. Between 10.01.17 and 14.03.17 the claimant was made by Wayne
Hobson and Paul Corr to work ad-hoc shifts on random days of the
week; (ACT D)
e. Following OH recommendations on 10.01.17 and 08.02.17 Paul Corr
did not complete a risk assessment for claimant meaning that his
manual handling difficulties and job risks were never identified or
addressed. (ACT E)
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