Mr J Robinson v NACRO: 1306218/2019
| Judgment Date | 26 November 2020 |
| Citation | 1306218/2019 |
| Published date | 02 December 2020 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number 1306218/2019
Type V
1
EMPLOYMENT TRIBUNALS
BETWEEN
Claimant AND Respondent
Mr J Robinson NACRO
JUDGMENT OF THE EMPLOYMENT TRIBUNAL
(RESERVED JUDGMENT)
HELD AT Birmingham ON 2, 3, 4 & 7 September 2020
EMPLOYMENT JUDGE GASKELL MEMBERS: Mr D McIntosh
Mr MZ Khan
Representation
For the Claimant: Mr B Frew (Counsel)
For Respondent: Mr G Graham (Counsel)
JUDGMENT
The unanimous judgment of the tribunal is that:
1 The Claimant was fairly dismissed by the respondent. His claim for unfair
dismissal is not well-founded and is dismissed.
2 The respondent did not, at any time material to this claim, act towards the
claimant in contravention of Section 39 of the Equality Act 2010. The
claimant’s complaints of direct disability discrimination; discrimination for a
reason arising from disability; and a failure to make adjustments pursuant
to Section 120 of that Act, are dismissed.
REASONS
Introduction
1 The claimant in this case is Mr James Robinson who was employed by the
respondent, NACRO, from 3 March 2001 until 20 March 2019 when he was
dismissed. At the time of his dismissal, the claimant was employed as a Support
Officer - East Midlands. The reason given by the respondent at the time of the
claimant’s dismissal was capability.
2 By a claim form presented to the tribunal on 31 July 2019, the claimant
claims that his dismissal was unfair and that he suffered unlawful disability
discrimination. The strands of discrimination alleged are: direct discrimination;
Case Number 1306218/2019
Type V
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discrimination for a reason arising from disability; and a failure to make
adjustments.
3 The respondent concedes that, at the material time, the claimant was a
disabled person. The relevant impairments being Sickle Cell Disease and
Retinitis Pigmentosa. The respondent admits that the claimant was dismissed but
maintains that he was dismissed for a reason relating to his capability and that
his dismissal was fair. The claimant denies direct discrimination; and maintains
that to the extent that the claimant’s dismissal was unfavourable treatment for a
reason arising from disability (the claimant’s inability to perform his duties safely)
such treatment was objectively justified. The respondent denies any failure to
make adjustments.
4 The parties agreed a List of Issues which was refined at a Preliminary
Hearing conducted by Employment Judge Cookson on 13 December 2019. The
List has been further refined during the course of this Hearing and the issues for
determination are set out later in this judgement.
The Evidence
5 The claimant gave evidence on his own account. He had made a witness
statement running to some 34 pages; he gave supplementary evidence-in-chief;
he was cross-examined; and we had the opportunity to ask questions. We heard
the claimant’s evidence first. The claimant called one witness - Mr Amritpal
Sandhu - who was employed by the respondent from October 2010 until June
2019. Both the claimant and Mr Sandhu attended the tribunal to give evidence in
person.
6 The respondent called two witnesses: Ms Dawn Abigail - Employee
Relations Adviser who provided HR support to Mr Bill Clark the respondent’s
Regional Manager whose decision it was to dismiss the claimant; and Ms Phyllis
Geraldine Clydesdale - Regional Manager (South) who heard the claimant’s
appeal. Ms Abigail gave evidence by video link; Ms Clydesdale attended the
tribunal to give evidence in person.
7 In addition, we were provided with an agreed trial bundle running to in
excess of 380 pages. We have considered the documents from within the bundle
to which we were referred by the parties during the course of the hearing.
8 The claimant was a most unsatisfactory witness whose evidence was
frequently inconsistent with contemporaneous documents and at times his oral
evidence, given under cross examination, was inconsistent with his witness
statement. The following are examples of the inconsistencies: -
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(a) On 18 June 2018, the respondent undertook a Disability Risk Assessment
and considered reasonable adjustments for the claimant. The assessment
was undertaken by Suki Aujla and Richard Baldwin; the claimant fully
participated in the assessment and signed it on the final page. The
claimant places considerable importance in that assessment in the
general pursuit of his claim. The assessment makes clear that on
occasion the claimant would have to be driven to work-related locations by
members of his family and it had been agreed that the family member
would park away from the specific property to be visited by the claimant to
ensure that the address of the property was not inadvertently disclosed to
the family member or anyone outside the respondent’s organisation. The
respondent’s witnesses explained that the reason for this was that all of
the respondents employees who actually visited properties needed to be
security cleared and that the address of the properties was highly
confidential. Despite having signed the risk assessment, when he gave
evidence, the claimant insisted that there were no security implications;
there was no reason for the general public not to be made aware of the
specific addresses; and that in fact his family members parked outside the
properties and not away from the properties as indicated in the
assessment.
(b) The respondent’s records indicate that the claimant’s first formal meeting
to discuss sickness absence occurred on 10 October 2018 when an OH
report (eventually received on 6 November 2018) was still awaited. The
claimant was insistent in his evidence that the meeting took place on 10
November 2018 and that the OH report had been available at the meeting.
There is no mention of this in the record of the meeting and yet at no
stage prior to giving evidence had the claimant ever pointed out this
omission. When giving evidence, the claimant asserted that either Ms
Abigail or Mr Clark had “doctored” the record. Later he retracted this
assertion.
(c) The second formal meeting took place on 4 January 2019. In his witness
statement, and in a grievance letter dated 23 January 2019, the claimant
asserts that he indicated at that meeting that he was fit to return to work if
adjustments were made. But, his oral evidence before the tribunal was the
by that date he was fit for work without adjustments being made.
(d) The claimant’s evidence before the tribunal was that when he received the
notes of the second formal meeting he contacted Mr Baldwin to tell him
that those notes were inaccurate. But there is no reference to this in his
grievance letter or in his witness statement.
(e) The claimant attended a third formal meeting on 5 February 2019. The
respondent’s case is that at that meeting he agreed that consideration
should be given to his grievance letter of the 23 January 2019. Later, the
claimant asserts that he did not agree; and that the grievance should have
been dealt with separately. We were directed to a letter dated 8 February
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