Mr M Litchfield Kelly v London Borough of Greenwich: 2303933/2019
| Judgment Date | 29 November 2021 |
| Citation | 2303933/2019 |
| Date | 29 November 2021 |
| Published date | 22 December 2021 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
Case: 2303933/2019
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EMPLOYMENT TRIBUNALS
Claimant Respondent
Mr M Litchfield Kelly
v
London Borough of Greenwich
Heard at: London South Employment Tribunal
On: 1 November – 9 November 2021
Before: EJ Webster
Ms S Dengate
Mr R Singh
Appearances
For the Claimant: In person
For the Respondent: Mr Magee (Counsel)
RESERVED JUDGMENT
1. The Claimant’s claims for direct disability discrimination are not upheld and are
dismissed.
2. The Claimant’s claims for discrimination arising out of his disability are not
upheld and are dismissed.
3. The Claimant’s claims for failure to make reasonable adjustments are partially
upheld insofar as is set out below.
REASONS
The Hearing
4. The hearing was heard in person save that one of the Tribunal panel (Mr Singh)
attended by way of CVP and one of the witnesses (Mr Hoggan) attended by
CVP. Both remote attendances were agreed to by both parties from the outset
of the hearing.
Case: 2303933/2019
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5. We were provided with a very large bundle of documents both digitally and in
hard copy. In addition we received 2 additional small bundles; one from each
party.
6. We had written witness statements for all the witnesses, all of whom also
appeared before the tribunal. We heard from:
(i) The Claimant
(ii) Mr D Hoggan (the claimant’s trade union representative) (DH)
(iii) Mr R Whaley (Head of Design and Commercial and the claimant’s line
manager at the time of dismissal) RW
(iv) Ms N Hogan (Deputy Head of Design and Commercial, temporary
manager of the Claimant ) NH
(v) Ms N Dawson (manager of the Corporate Employment Scheme for the
respondent) ND
(vi) Ms S Bristow (Design manager for the respondent) SB
(vii) Mr M Higgins (Principal HR Adviser for the respondent) MH
(viii) Mr S Godfrey (Assistant Director for Central and Corporate services for
the respondent) SG
(ix) Mr K Thangathurai (HR Manager and business partner for communities
and environment for the respondent) KT
(x) Ms F Kroll (senior manager for the respondent) FK
7. After reading the papers, the Tribunal suggested, and the parties both agreed,
that an individual employee working for the respondent, who was not giving
evidence, but was referred to frequently in the facts of the case, ought to be
anonymised in accordance with Rule 50 of the Employment Tribunal Rules due
to her personal background. She is therefore referred to as Witness A
throughout this judgment. As this had not been raised previously the witness
statements and papers were not redacted – however we all agreed that should
a member of the public or press wish to see any documents which referred to
her, they must be anonymised beforehand. In the event, any observers did not
request sight of any papers.
8. The Tribunal read the statements and papers on day one, heard evidence days
2-5 and submissions in the morning of day 6. The Tribunal deliberated on days
6 and 7.
9. Breaks were taken on a regular basis to assist all those involved and the
Tribunal worked with the parties to ensure that the claimant in particular was
able to prepare and ask his questions and submissions effectively. This
included sometimes assisting the claimant when he was cross-examining the
respondent witnesses.
The Issues
10. The List of Issues had been agreed at a previous hearing with EJ Bryant QC.
The claimant was legally represented at an earlier stage of these proceedings
and that legal representative had drafted the pleadings. At the outset of the
hearing the Tribunal agreed with the parties that these remained the issues and
Case: 2303933/2019
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we went through them in detail. The respondent raised concerns regarding the
s15 Equality Act 2010 claims and the Tribunal explained to the claimant the
steps required to establish discrimination in accordance with s15 Equality Act
2010 and asked him to consider the pleadings and whether they reflected the
claims he was bringing. He was asked overnight to confirm whether he intended
to bring the claims as pleaded and to clarify various aspects of these claims
and the reasonable adjustments claims. On Day 2 of the hearing he confirmed
that he wished to proceed with the pleadings as drafted by his then legal
adviser. He also provided the requested clarity which is reflected in the List of
Issues below.
11. Jurisdiction (Section 123 Equality Act 2010)
a. The date of receipt by ACAS of the EC Notification is 15 June 2019.
b. Is any act or omission relied upon by the Claimant in support of his claim
for disability discrimination, which occurred on or prior to 16 March 2019
out of time?
c. If so, was there a continuing act ending with an act/ omission that was
brought in time?
d. If not, is it just and equitable to extend time?
12. Disability (Section 6 EQA 2010)
a. Was the Claimant a disabled person at the relevant time? The Claimant
relies upon ADHD, EUPD, OCD, bipolar, severe anxiety and/or
depression.
The respondent has conceded that the claimant was disabled by reason of
these conditions at the relevant time.
b. If so, did the Respondent know or could it reasonably have been
expected to know that the Claimant was so disabled at the relevant time?
The Claimant will aver the Respondent had knowledge since March
2018.
The respondent denies knowledge of the disability and knowledge of any
substantial disadvantage.
13. Direct Discrimination (Section 13 EQA 2010)
a. Did the Respondent treat the Claimant less favourably than it would treat a
hypothetical comparator whose circumstances are not materially different to
the Claimant’s because of his disabilities (or any of them) by committing any
of the following acts or omissions?
(i) Ross Whaley overturning the Claimant’s agreed annual leave and
refusing the Claimant’s further request to take the leave in August 2018
(ii) Refusing to pay the Claimant for additional hours worked in September
2018
(iii) Ross Whaley’s complaint in September 2018 about the Claimant being
“unmanageable” and that he needed to “tow the line”.
(iv) Rose Whaley reprimanding the Claimant and reminding him that he
could be sacked at any time when he asked the Respondent to pay
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