Ms C Johal v Sandwell Metropolitan Borough Council: 1300079/2017
| Judgment Date | 09 December 2019 |
| Citation | 1300079/2017 |
| Published date | 27 January 2020 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case Number: 1300079/2017
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EMPLOYMENT TRIBUNALS
Claimant Respondent
Ms C Johal v Sandwell Metropolitan Borough Council
FINAL MERITS HEARING
Heard at:
Birmingham On:
4, 5 & 6 December 2018 and 2 to 6 & 9
to 11 September 2019 and in
chambers 12, 13 & 16 September 2019
Before:
Employment Judge Perry
Members: Mr MJ Bell
Mr D Faulconbridge
Appearances
For the Claimant: In person (assisted by Mr Howells, a friend of the claimant
during the hearing in December 2018)
For the Respondent: Mr T Sadiq (counsel)
JUDGMENT
It is our unanimous judgment that:-
1. The claimant’s complaints that she was unfairly dismissed pursuant to sections 98(4)
and 103A Employment Rights Act 1996 and that she was subjected to detriments
having made protected disclosures are not well founded and are dismissed.
2. The claimant was not discriminated against by the respondent by it failing to comply
with the duty to make reasonable adjustments pursuant to sections 20-22 and part 5
Equality Act 2010. That complaint is also dismissed.
3. The claimant’s complaint that she was dismissed in breach of contract (wrongfully
dismissed) is also dismissed.
REASONS
Unless the context suggests otherwise references in square brackets are to the page of the bundle or
if they follow a case reference or a document referenc e or a witness’ initials, the paragraph number of
that document (e.g. [initials/36], [ET1/8.2]). References in curved brackets are to the paragraph of these
reasons.
INTRODUCTION
1 This is a claim for wrongful dismissal, ‘ordinary’ unfair dismissal (s.98(4) Employment
Rights Act 1996 (ERA)) and that Ms Johal was unfairly dismissed having made
protected disclosures (s.103A ERA) and that the respondent failed to make reasonable
adjustments (s.20-22 Equality Act 2010 (EqA)).
2 It was presented on 9 December 2016 following early conciliation between 29
September and 12 November 2016, her dismissal thus appeared to be in time but any
complaints that occurred before 28 July 2016 may be out of time unless they formed
part of a course of conduct and/or the Tribunal exercised its discretion to extend time.
Case Number: 1300079/2017
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3 Given the claim includes both s.103A and s.98(4) complaints we should make plain
from the outset that there was no dispute Ms Johal had qualifying service to bring the
claim.
Context
4 At the core of this claim is a disciplinary investigation and procedure that the
respondent asserts arose out of a fraud/audit investigation that stemmed from
disclosures made by a whistleblower.
5 Ms Johal suggests that, at least insofar as that disciplinary investigation and procedure
related to her, that was because she had also raised protected disclosures and that
the respondent’s detrimental treatment of her, including its failure to make adjustments
for her medical conditions and her dismissal, were part of a conspiracy by a number of
the respondent’s staff linked to her disclosures and three earlier Tribunal claims she
had brought against the respondent.
6 Ms Johal asserts the main culprits in that conspiracy to be Mr Oliver Knight, Mr Peter
Farrow, Mrs Louise Knight, Mrs Baldish Bains, Mr Charlie Davey, Mr Stuart Lackenby,
Mr Satinder Sahota, Mr Lee Bentley, Mrs Maria Price and Mr Chris Ward [CJ/383]
alleging amongst other matters that her dismissal was pre-designed and evidence
fabricated to achieve it. When asked about these matters she did not include Mr Lee
Bentley whom she repeatedly referred to in her witness statement and throughout the
trial as being one of the main instigators of this.
The issues
7 The claim has been the subject of considerable case management to identify the
claims being pursued. The issues were identified across several case management
hearings. At a hearing on 10 March 2017 I indicated that Ms Johal had confirmed that
save for a failure to make reasonable adjustments complaint all other disability
discrimination complaints were argued as background only and were dismissed on
withdrawal.
8 As to the unfair dismissal claim I identified in my order that I made following the hearing
on 10 March 2017 the issues were as follows:-
8.1 Has respondent shown that the reason for the dismissal was one of the
potentially fair reasons for dismissal s.98(1)&(2) Employment Rights Act 1996.
To do so the respondent must prove that it had a genuine belief in the
misconduct.
8.2 Did the respondent hold that belief in the claimant’s misconduct on reasonable
grounds following a reasonable investigation? In coming to that belief did the
respondent act in the way a reasonable employer could have done? The burden
of proof is neutral. The claimant’s challenges to the fairness of the dismissal
are set above.
8.3 Was the decision to dismiss a fair sanction, that is, was it within the reasonable
range of responses for a reasonable employer?
8.4 If the dismissal was unfair, did the claimant contribute to the dismissal by
culpable conduct? This requires the respondent to prove, on the balance of
probabilities, that the claimant actually committed the misconduct alleged.
8.5 Does the respondent prove that if it had adopted a fair procedure the claimant
would have been fairly dismissed in any event? And/or to what extent and
when?
Case Number: 1300079/2017
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9 As to the breach of contract wrongful dismissal claim I recorded that she accepted she
had already been paid her full notice pay and the respondent has not sought to recover
the same. No award is thus pursued for wrongful dismissal but a declaration she was
wrongfully dismissed is pursued.
10 Ms Johal’s representative at that hearing was unable to clarify for me the nature of her
protected disclosure and failure to make reasonable adjustments complaints. These
were provided at a hearing before Employment Judge Cocks on 6 July 2007 by counsel
instructed by Ms Johal. They were set out at [201-207] and are attached. As they relay
the detail of the protected disclosures relied upon, the detriments that are alleged to
have ensued, the provision, criterion or practices (PCPs) , substantial disadvantages
and adjustment contended we do not repeat them here.
11 By the time of the hearing before us two impairments only were relied upon:-
11.1 Sacroiliac Joint Dysfunction, and
11.2 Anxiety & Depression
12 The respondent accepted that Ms Johal satisfied the definition of disability within s. 6
EqA in relation to those impairments but did not accept it had knowledge of the same.
Adjustments and the way the hearing proceeded
13 Following considerable case management, the claim was listed for a final hearing in
February 2018 before a panel chaired by Employment Judge Michael Butler. That was
postponed.
14 We should record that Ms Johal was given limited permission to amend her already
lengthy (74 page) witness statement by Judge Butler following the hearing in February
2018 to allow her to comment on any documents that it was anticipated would be added
to the bundle and to cross reference her witness statement to the bundle.
15 That relisted hearing came before this panel in December 2018. An application made
by Ms Johal at the start of the relisted hearing in December 2018 for her to record the
hearing was refused on the basis that cogent medical evidence identifying why that
recording was required and why alternatives such as her companion at that hearing,
Mr Howells, making a note for her, were not proportionate alternatives were not
addressed.
16 The hearing in December 2018 again had to be adjourned part way through her
evidence, Ms Johal having fallen ill and having had to attend hospital.
17 It was only after the panel sought assurances that Ms Johal was fit and able to
represent herself at a hearing scheduled to last 2 weeks and them having been
provided that the Employment Judge determined the hearing could proceed and only
then after a number of adjustments to accommodate Ms Johal having been made,
including the provision of an assistant to help her (including whist she was giving
evidence) locating pages, that that page references be given first to her and questions
be delayed until her assistant located pages for her, extra time, regular and extended
breaks.
18 In addition to regular breaks, any breaks sought by Ms Johal were granted and the
Tribunal also offered breaks when we felt Ms Johal, the witnesses, counsel or tribunal
generally, needed one.
19 At the conclusion of this hearing Ms Johal thanked the Tribunal for the way it had
conducted matters (as did Mr Sadiq). We are grateful to the respondent and Mr Sadiq
for the flexible approach they adopted in relation to the adjustments that were required.
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