Mr R Brooks and Mr GW Smith v The North England Conference of Seventh Day Adventists: 1303442/2019

Judgment Date28 May 2021
Citation1303442/2019
Published date10 June 2021
CourtEmployment Tribunal
Subject MatterPublic Interest Disclosure
Case numbers: V 1303442/19
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EMPLOYMENT TRIBUNALS
Claimants: (1) Mr R Brooks (2) Mr GW Smith
Respondent: The North England Conference of Seventh Day Adventists
Heard at: Birmingham (via CVP)
On: 3, 4, 5, 8, 9, 10, 11, 12, 15, 15, 17, 18, 19, 22, 23, 24, 25 March 2021 and 26
March 2021 (tribunal deliberations in chambers)
Before: Employment Judge Meichen, Mr S Woodall, Mr J Sharma
Appearances:
For the claimants: Ms S George, counsel
For the respondents: Mr A Sendall, counsel
JUDGMENT ON LIABILITY
(1) Mr Brooks was not disabled within the meaning of the Equality Act
2010 and so his claim for failure to make reasonable adjustments fails and
is dismissed.
(2) Mr Brooks made a protected disclosure on 4 December 2017.
(3) Mr Smith made protected disclosures on 14 and 15 December 2017.
(4) The claimants made their disclosures in good faith.
(5) The principal reason why the claimants were dismissed was that they
made protected disclosures and the dismissals were therefore
automatically unfair. The dismissals were also unfair on ordinary grounds.
(6) Mr Brooks contributed to his dismissal by his blameworthy conduct and
there shall be a 10% deduction to the basic and compensatory awards to
reflect that.
(7) Mr Smith contributed to his dismissal by his blameworthy conduct and
there shall be a 20% deduction to the basic and compensatory awards to
reflect that.
Case numbers: V 1303442/19
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(8) There was a percentage chance that Mr Smith could have been fairly
dismissed and a further 20% deduction to his compensatory award will be
made to reflect that.
(9) There was no percentage chance that Mr Brooks could have been
fairly dismissed and so there shall be no further deduction to his
compensatory award.
(10) The claimants were subjected to unfair disciplinary proceedings and
their concerns about the involvement of Alan Hush and Richard Jackson in
those proceedings were repeatedly ignored. These were detriments on the
ground that they made protected disclosures.
(11) The suspension of Mr Brooks was also a detriment but it was not done
on the ground that Mr Brooks made a protected disclosure.
(12) The claimants were wrongfully dismissed and are entitled to their
notice pay.
REASONS
Introduction
1. This hearing took place during lockdown and so it was converted to be heard
by CVP. All parties, witnesses and representatives were able to participate
remotely with no major issues.
2. A particular challenge however was the large number of observers who
wished to watch the hearing. At one stage we think we had around 186
observers, which may be a record for an Employment Tribunal hearing. The
amount of observers logging in to one CVP room caused a problem with the
CVP system. We sought advice from HMCTS staff with expertise in CVP and
they were able to work out a solution involving the linking of different CVP
rooms which meant everyone who wished to observe the hearing could do so.
3. The ability to accommodate a large number of observers can be seen as
another advantage of conducting hearings remotely, although we should
probably make clear that it may well not be possible to accommodate such
large numbers at every hearing as it took some time to set up the links for
different rooms.
4. Nobody suggested that the fairness of the hearing was adversely affected by
it being heard remotely and we were satisfied that there was no unfairness
caused.
5. We therefore record that this was a remote hearing which was not objected to
by the parties. The form of remote hearing was V: fully remote over CVP.
6. The claimants both gave evidence and were cross examined. The claimants
also provided witness statements from the following people: Patrick Lowe,
Beverley Brown, Caroline Poyser, Lorance Johnson, Charles Bramble, John
Case numbers: V 1303442/19
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Ferguson, Precious Kampengele. All of the witnesses with the exception of
Precious Kampengele gave evidence and were cross examined.
7. The respondent provided witness statements from the following people:
Richard Jackson, Alan Hush, Arunas Klimas, Andrea Robinson, Elaine
Palmer Taylor, Verona Roberts, Adriana Murray. All of the witnesses with the
exception of Verona Roberts gave evidence and were cross examined.
8. In respect of the two witnesses who did not give oral evidence we informed
the parties that we would adopt the same approach to both sides. We would
taken the statements into account but only attach such weight to them as we
felt was appropriate in light of the other evidence available and the fact the
witnesses had not attended to give oral evidence.
9. We started the case with an agreed bundle of 1081 pages. Unfortunately
there was a significant amount of further disclosure during the hearing and
this resulted in no fewer than five supplemental bundles being provided to us.
This was somewhat suboptimal in terms of case preparation but we formed a
clear view that all parties were doing their best to manage such a substantial
case during all the challenges associated with lockdown. The further
documents were provided to us in a proper format and everything was done
by agreement in a spirit of professional cooperation. That being the case we
focused on resolving the substantive issues before us.
The issues
10. The parties agreed a list of issues for us to determine which we attach as an
appendix to this judgment.
11. It was agreed that we would consider the liability issues first and consider
remedy at a later date if necessary. In the usual way we agreed that we would
consider Polkey and contributory conduct as part of our liability judgment. We
also suggested that it would be sensible to consider questions of alleged bad
faith at this stage. Even though that is technically a remedy issue it struck us
as sensible to consider it at this stage in a similar way to Polkey/contributory
conduct. Both parties readily agreed with this approach and so that’s what we
did.
12. In their closing submissions the respondent made significant concessions. In
particular the respondent conceded that both claimants had been unfairly
dismissed. We explain the extent of that concession below.
13. Both counsel helpfully provided detailed written submissions. There were
various delays in the hearing which meant that submissions were not
delivered until the final day. We therefore reserved our judgment.
Preliminary issue was Mr Brooks disabled?
14. There was one claim which Mr Brooks brought by himself. This was a claim of
a failure to make reasonable adjustments contrary to ss. 20 and 21 Equality
Act 2010.

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