Mr A Macleod v Royal Berkshire NHS Foundation Trust: 3332631/2018 and others
| Jurisdiction | England & Wales |
| Judgment Date | 03 November 2023 |
| Date | 03 November 2023 |
| Published date | 03 October 2023 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
| Citation | 3332631/2018 and others |
Case Number: 3332631/2018
3320811/2019
3320812/2019
3328251/2019
Page 1 of 137
EMPLOYMENT TRIBUNALS
Claimant:
Respondent:
Mr A Macleod
v
Royal Berkshire NHS Foundation Trust
Heard at: Reading On: 31 January 2022
2 - 8, 10-15 February 2022
20, 21, 23 & 24 June 2022
7 & 8 November 2022
30 & 31 January 2023
3 February 2023
29 March 2023
13 June 2023
and in chambers:
1, 9 February, 22 June 2022
12, 14 June 2023,
4
, 5
, 26
-
28
July 2023
Before: Employment Judge Anstis
Mr C Juden
Mr F Wright
Appearances
:
For the Claimant:
In person
For the
Respondent:
Ms E Misra
(KC from
27 March
2023)
(counsel)
RESERVED JUDGMENT
1. The claimant was subject to direct disability discrimination by the respondent
in respect of comments made by Dr Barker during a meeting on 3 May 2018
(as described below).
2. The claimant’s other claims are dismissed.
Case Number: 3332631/2018
3320811/2019
3320812/2019
3328251/2019
Page 2 of 137
REASONS
A. INTRODUCTION
Introduction
1. The claimant was employed by the respondent as a Trauma and Orthopaedic
Consultant. His employment started in February 2008. We were told during
the course of the hearing that his employment has since ended, but these
claims are not about the termination of his employment.
2. The claimant brings claims of disability discrimination. He says that he has
autism and that this amounts to a disability under the terms of the Equality Act
2010. The respondent accepts that at all material times the claimant was a
disabled person by reason of autism. The claimant describes autism as “a
lifelong developmental disability that affects how people communicate and
interact with others”.
3. Adopting the claimant’s language, he describes individuals without autism as
being “neurotypical”. The claimant’s witness statement addressed broad
themes of the difficulties that people with autism have in a world that is
predominantly neurotypical. We will come later to the specific allegations of
discrimination that the claimant raises, but we acknowledge at the start of this
decision the considerable difficulties that people with autism can face in a
world that is predominantly neurotypical, as well as his general comments that
autism is a “spectrum” condition that can encompass a diversity of other
personal abilities and behaviours. We also note and acknowledge the points
made by the claimant in relation to “masking” – that is, an autistic person
attempting to adapt their behaviour to operate in a predominantly neurotypical
world, and the consequences that may follow from that.
4. Although autism is a lifelong condition, the claimant only received a formal
diagnosis of his condition later in life. The first record of this is a letter dated
12 June 2013.
5. The claimant’s claims were submitted on four different claim forms, recorded
under case numbers 3332631/2018, 3320811/2019, 33020812/2019 and
3328251/2019. There appears also to have been a fifth claim which was
rejected by the tribunal as being a duplicate of 3328251/2019. These were
consolidated by an order dated 12 April 2020 and, except for any arguments
in relation to time limits, we have treated them in the hearing of the case as if
they are one single case.
6. There are a number of later claims between the parties which are stayed, and
the claimant submitted further claims during the course of this hearing. In this
Case Number: 3332631/2018
3320811/2019
3320812/2019
3328251/2019
Page 3 of 137
decision we are solely concerned with the four claims that have been listed for
this hearing. Given that there are other claims we are particularly conscious of
the need in this judgment and reasons to keep to the matters at issue in the
claims before us, rather than seeking to make any wider comments or
observations on the relationship between the parties.
7. The claim form dates and relevant early conciliation dates are set out in the
table that follows, alongside the broad scope of the claim:
8. In each claim form, the claimant set out his claims in note or bullet point form
and, in consequence, the respondent’s replies have been equally brief. The
claims have been subject to extensive case management across a number of
hearings, culminating in an order of Employment Judge Gumbiti-Zimuto dated
18 November 2021 which permitted the claimant to amend his claim in the
terms set out in a list of issues and separate table of allegations presented at
that hearing. The list of issues and table of allegations are set out as
Appendix 1 to this decision. As will appear below, the interpretation of that
order has itself been in issue during the course of this hearing.
9. We noted during the February 2022 hearing that arising out of that process
we had a list of issues, but no indication of which of those issues derive from
which claim or which were added by amendment. We would need that in
order to consider any individual points in relation to time limits that may arise.
We asked the respondent to set out its position as to what was to be taken as
the date of presentation for each of the individual allegations, which it did in
the form set out in Appendix 2.
Case no.: Day A: Day B: Date of
ET1
General scope of
claim (as originally
submitted):
3332631/2018 20 June
2018
3 Aug 2018 6 Sept 2018 “events around October
2017”
3320811/2019 2 June 2019 1 July 2019 25 July 2019 On-going iss ues in
relation to re asonable
adjustments.
3320812/2019 15 April 2019 15 May 2019 26 J uly 2019 “two forma l investigations
my employer has placed
me under”
3328251/2019 21 Sept 2019 6 Oct 2019 29 Dec 2019 Further points in relation
to investigations.
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