Thank you very much for your reply and sorry for the delay in responding.
Regarding dealing with the respondents, as I said in one of my previous post my son has declined to talk with the respondents is due to their behaviour before, during and following the ET. So we are now waiting to receive a date for a remedy hearing.
The problem Ii have now is working out what remedies my son wants and I would really appreciate any advice regarding how we go about this. I have no problems regarding the reasonable adjustment side of it, but I am having major problems putting a figure on it. To be truthful I don't know where to start. The issues were as follows:
1. Mr P conducted an attendance review investigation with the claimant on the 1st November 2011 and this was seen at pages 363 - 366 of the bundle. Mr Pl ticked the boxes to indicate he had checked the claimants file going back 26 weeks and had also looked at the bigger picture going back more than 26 weeks. He would have seen the research about dyspraxia on his file a and the minutes of the meeting with M D and C O which we have referred to above. The tribunal have therefore found as a fact at paragraph 36 that Mr Pl would have had knowledge of the claimants disability and his evidence that he didn't have such knowledge is found to be inconsistent on the facts before us. The tribunal also raise an inference that Ms S knew of the claimants disability as she had meetings with Mr P to discuss the claimant and she had a meeting with the claimant to discuss his concerns about Mr P's conduct of that meeting with regard to Mr Pl asking him to get a fit note to return to work. The tribunal conclude therefore that Ms S had knowledge of the claimants disability and would have discussed Mr P's attendance review investigation both with Mr P and with the claimant. We conclude therefore that if Ms S did not know he could reasonably be expected to have known of the claimants disability in the workplace. We also conclude from paragraph 38 of our findings of fact that Ms S conceded she had discussions about H&S issues and about the claimant. It was also noted that it was the evidence of Ms S (although the tribunal found no corroborative notes of this) that she was involved in supporting the claimant in the workplace. We conclude from that that she must have known or have been reasonably aware that the claimant required support and had reasonable adjustments in the workplace due to his disability. We conclude that they both had actual or constructive knowledge of the claimant disability. What the tribunal did notice was some of the comments on the pages of the interview notes. For example Mr P at our paragraph 43 above was asked about the reference on page 347 to personality clashes and he explained to the tribunal that he felt there could be "a clash, the way he speaks, the way he talks and might sound to people..." This was a specific reference to the way he spoke in the interview process. Similarly Ms S had written at page 343 of the bundle notes "How he is seen,heard?"Ms S was asked about this comment by the tribunal and she could provide no explanation for these words (this is seen in our paragraph 45 and 47 of our findings of fact). It was evident to the tribunal that the 2 people who conducted the interview both independently made negative comments about the way the claimant spoke in the interview process. The tribunal have found as a fact that in the feedback interview we have concluded that the claimant was told that one of the reasons he was not promoted was due to his communication skills, even though this was denied by Ms S. We conclude from the evidence of both witnesses that they referred adversely to the way he spoke we conclude that that was one of the reasons the claimant was not promoted.
2. We now turn to the issue 24.3 namely the conduct of the meeting by Mr N on 13th February 2012. The tribunal made extensive findings on this meeting above at paragraphs 89 - 104. The tribunal would first like to make some background comments about the meeting. It was not disputed that this meeting was not within any of the respondents procedures and the claimant had no letter inviting him to the meeting. The claimant had no indication as to how the meeting would be conducted or what possible outcomes could have followed from the meeting. The claimant was allowed to take his mother in as a reasonable adjustment but it was noted that Mr N at times was irritated by the claimants mother and it was noted from the minutes that Mr N informed the claimant in the meeting that, were matters to proceed, he would not be able to take his mother to the meeting i future. We have referred to this in our paragraph 101 - 2 of our findings of fact where we conclude that Mr M N in a meeting that lasted over 4.5 hrs was seen to browbeat the claimant and his sole focus was for the grievances to be withdrawn. We also have concluded that the threat that the claimant in future was not allowed to take his mother to a meeting was tantamount to harassment related to a protected characteristic namely the claimants disability and as a result he would be subjected and the effect of this would be to create a hostile, degrading or offensive environment for the claimant.
3. It was also noted that the claimant was at times distressed in the meeting and this was not accurately recorded in the minutes (which were not agreed and we refer to the issue to the minute in our findings of fact at paragraph 4). We conclude overall looking at the manner in which the meeting was conducted, the length of time it took and the tenor of the exchanges that the meeting was tantamount to conduct that was harassment related to a protected characteristic and we conclude that Mr N did call the claimant immature in an attempt to put pressure on him to drop his grievances and whistle blowing complaints. Turning to the specific matter at 24.3.1 that the claimant alleged he was called "immature" in the meeting we have found as a fact and on the balance of probabilities that this is proven. Our conclusions are recorded in our findings at paragraph 94. We have concluded both from the tenor of the meeting and from the consistency of the claimants own evidence that he was at times called immature by Mr and as this would also be consistent by the hostile way in which Mr N was referring to the claimant in the meeting we therefore find the complaint well founded.
4. We conclude therefore on the tenor of the meeting and the way in which Mr N treated the claimant placed him under pressure to drop the grievance and the manner in which the hearing was conducted amounted to harassment as it was unwanted conduct and the effect of the treatment by Mr N, which was clearly related to the claimants disability (namely the way he spoke and presented himself), had the effect of violating the claimants dignity or created an intimidating, hostile and degrading humiliating offensive environment. We also conclude that it was reasonable for the claimant to conclude this taking into account our findings of fact.
5. Mr N was seen to say to the claimant in the meeting (and in the previous telephone conversation) that if he did not agree to drop the grievances, the disciplinary action will continue and he would remain suspended. The tribunal saw no evidence that warning the claimant he was likely to remain suspended could have been harassment or less favourable treatment because of a disability. The claimant had been suspended due to the incident on 1 February 2012 and this had not been resolved.
However the tribunal note that the grievances the claimant raised were about potential H&S breaches and allegations that managers failed to follow procedures. Mr N threatened that unless the claimant agreed to withdraw his grievances he would be suspended and face further suspension, disciplinary action and possible dismissal. The tribunal concluded that this was a detriment because the claimant had raised a number of whistle blowing complaints. The tribunal concluded this because we conclude that if the respondent had been genuinley concerned about the claimants behaviour they would have proceeded with disciplinary action, whether or not the grievances were withdrawn and would not have offered to drop the disciplinary action in this way. We also conclude that Mr N reference to the grievances and the disciplinary action being linked was unsupported by any evidence as we have found as a fact that the November grievances predated the suspension and the claimant informed Ms S that he was going to complain about her to Head Office due to her failure to take any action, before he was suspended. There was little evidence that he only raised these complaints because he faced suspension. We refer to paragraph 79 of our findings of fact and where the claimant in his grievance dated the 6th February made a specific reference to H&S issues and attempting to speak with Ms S before his suspension. We therefore conclude that the claimant was subjected to a detriment because he raised a protective disclosure and his complaint at paragraph 24.3.3 is well founded.
6. We have preferred the evidence of the claimant to Ms S in the light of many inconsistencies in Ms S's evidence. The tribunal conclude that the claimant has been treated unfavourably because of something arising in consequence of his disability. We have found as a fact and it is conceded by the respondent that it was a reasonable adjustment that the claimant could go to head office if he had a concern. Ms S was voicing publicly her disapproval of the claimant for doing so. We have already found as a fact that it was her view that the claimant had been dealt too leniently in the past with regard to his grievances and we have found as a fact that this was in reference to the 2009 incidents. It was the consistent evidence before the tribunal that Ms S was dealing more harshly with the claimant and attempting to discourage him from availing himself to the reasonable adjustments that were put in place in 2009. We thus conclude that the claimant was treated less favourably by attempting to avail himself of the reasonable adjustment. The burden of proof therefore moves to the respondent. Ms S has not shown that the treatment of the claimant was a proportionate means of achieving a legitimate aim; she provided no explanation for voicing these opinions or of concluding that the claimant had a legitimate concern about the rat infestation and he feared that his concerns on the 1st February would similarly be ignored. The claimants claim for discrimination arising from disability is therefore well founded.
7. We have also found as a fact that Mr B constructed the letter on the basis of the advise that emanated from Ms S as we have found as a fact that Mr B did not work with the claimant and could not have formed those opinions without her input. We conclude that this is discrimination arising from a disability because we conclude that the claimant has been treated unfavourably because of something arising in consequence of his disability. The unfavourable treatment is that Ms S took no care in going through the claimants file; she misrepresented the extent of the warnings against the claimant and failed to properly transpose into the email and form seeking advice from occupational health, the true state of affairs. It was also noteworthy that Ms S made no reference to Ms D's assistance or to the buddy provided by Jobcentre plus, and how this improved the claimants behaviour (see paragraph 31-2). We have already rejected the respondents evidence that this was a regrettable and genuine and honest mistake. These errors painted an entirely false and negative picture of the claimant and misinterpreted to a material degree his employment history. We conclude that it is forgivable to make one mistake on form of this sort but to make a number of mistakes as to the relevant factual matrix prior to seeking occupational health advice cannot be put down to a genuine mistake. The claimants claim in respect to 24.10 is therefore well founded.
In addition to the points above the EJ also noted that;
1.With regard to the meeting on the 13th February the respondent did not follow any procedures. It was not disputed that the notes had not been agreed and indeed Mr M N didn't even sign his own minutes. There was no procedure that applied to this meeting because it was outside of the disciplinary and grievance process
2. The tribunal now turn to matter 24.3.3 of the agreed issue namely that the claimant was threatened with further suspension. We also wish to deal with in the same point with 24.3.4 about the respondent not following the correct procedures. It was noted that the claimant was not suspended by Mr N and it was unfortunately a reality that the claimant had been suspended pending an investigation which was conducted by Mr L and Mr L had to continue with that investigation, under the respondents own procedures the claimant would remain suspended until either the investigation was completed and a disciplinary held or no case to answer was found or if the respondent decided not to proceed with the disciplinary.
Obviously there is a lot more to the judgement than what's here, but I think I've included the main bits.
Thank you very much for editing the post accordingly. Just out of interest, I thought that as the case was heard in public the judgement can be made public, is that correct or do I have that wrong? Also what can happen as a result of posting details of the case online? Can it interfere with the proceedings and in what way. Sorry for what might appear to be mindless questions but I thought that once a judgement was made nothing could change that . The reason I am asking is because I have been documenting the judgement online and I intend to do the same with the remedies. in the hope of helping others who find themselves in a similar situation to my son, in addition to helping students who have an interest in that area. .
Thanks in advance for any reply.