Mr Sujith ManuelClaimantNetduma Limited RECORD of a PRELIMINARY HEARINGRespondent
Before
Employment Judge M OrdIn person for claimantMr F Morton (instructed by Counsel) for respondentDate 21 May 2024
REASONS
[1]At the Hearing on 14 December 2023, listed to consider the seven matters originally identified by Employment Judge M Warren in the first Preliminary Hearing in this case on 5 May 2023 and which should have been dealt with at the Hearing before Employment Judge Forde on 25 August 2023 which were not, because – in the words of the Employment Judge – “The reason for this complete failure to progress matters lies, I find, with the Claimant. He has failed to prepare adequately for the Hearing, the purpose of which had been made clear to him by Employment Judge Warren on 5 May 2023…”[2]At the Hearing on 14 December 2023, having conducted a Case Management Hearing, I was prevailed upon to deal with the Respondent’s Application for Costs relating to the Hearing before Employment Judge Forde on 25 August 2023 and did so.[3]The Claimant’s Application to modify what he described as the “written decisions” document (i.e. the Record of the Preliminary Hearing and in particular the Case Management Summary following the Hearing on 14 December 2023) was made on the basis that there were six matters which were not included in the document.[4]Those matters related to whether or not there had been an Order for disclosure of Slack messages and emails, the presence or otherwise of Costs Warnings made by Judge M Warren and Judge Forde, what the Costs Warning Letter sent by the Respondent on 23 August 2023 related to, the fact that the Costs Warning Letter was not in the Bundle, the statement by the Respondent that the Claimant was dismissed in circumstances where there was a genuine redundancy situation and finally, that there was an absence of a termination Letter or dismissal Letter.[5]In relation to those matters, 5.1. The Respondent advised that they had agreed voluntarily to an Order for disclosure of Slack messages and emails. This, however, had no bearing whatsoever on the matters which were before me on 14 December 2023 and it was unnecessary to deal with any earlier Order and / or its compliance (the Claimant accepts that the Respondent has sent the relevant documents, albeit three days later than envisaged by the Order). I explained to Mr Manuel that the Case Management Summary is not a verbatim record of everything that was discussed at the Hearing on 14 December 2023, but deals with the salient points therein. The Claimant’s Application referred to Counsel for the Respondent (who also appeared before me today) claiming that there was “no Order for disclosure of Slack messages and emails” whereas Mr Mortin said that his comment was that the Respondent had voluntarily agreed to the making of such an Order. In any event, an Order was made and has been complied with. There is no need to alter or add to the Case Management Summary from December last year. 5.2. The Claimant says that at the Hearing in December 2023 Mr Mortin referred to Costs Warnings issued by Employment Judges M Warren and Forde which he says was incorrect. In fact, in paragraph 11 of Judge M Warren’s Case Management Summary he referred to putting the Claimant, “on warning that by continuing to oppose the Respondent’s Application [for an extension of time to file a Response] he placed himself at risk of facing an Order for Costs for [a] further Hearing, should the Respondents succeed in their Application”. Judge Forde, on 25 August 2023 referred to the reason for the failure to progress matters on that day as lying, “…with the Claimant. He has failed to prepare adequately for the Hearing, the purpose of which had been made clear to him by Employment Judge M Warren on 5 May 2023… Given the history of the matter and the Claimant’s conduct I expressed the view, publicly, that the Claimant’s conduct was unacceptable.” Further, he identified that the Respondent intended to make an Application for Costs against the Claimant in respect of its preparation and attendance at the Preliminary Hearing which was before him so that the Claimant was fully aware of the Respondent’s intention to apply for Costs and the Judge’s view of the cause of further delay in the case and that the Claimant’s conduct had been “unacceptable”. In any event, my Record of the Case Management (at paragraphs 30, 31 and 32) set out the matters that lay behind the Costs Order made. There was no reference to previous Costs Warnings and there is no need for the Record of the Preliminary Hearing to be altered in any way. 5.3. The Claimant suggested that Mr Mortin on behalf of the Respondent had referred to a Costs Warning sent on 23 August 2023 being about the Appeal which he had made in respect of the Rule 20 Application being allowed without a Hearing, whereas Mr Mortin said that the Costs Warning Letter was in relation to both the Appeal and failure to comply with Case Management Orders. This is the third occasion on which Mr Manuel has indicated that Mr Mortin was making statements to the Tribunal which were incorrect. I deal with that later. However, the Costs Warning Letter was not before me and the relevant matters were the contents of Judge Forde’s Case Management Hearing, the Application which the Respondent made after that Hearing (not a Costs Warning sent two days before) and the other matter set out in my Case Management Summary. The specific paragraphs of the previous Orders (recited above) were referred to. There is no reason whatsoever to amend the contents of the Case Management Summary. The matters which were taken into account when making an Order for Costs were fully set out in the Case Management Summary. 5.4. Mr Manuel suggested that I should include in the Case Management Summary the fact that the Costs Warning Letter was not in the Bundle. There is absolutely no reason to do so. The Costs Warning Letter was not before me and was not a factor in determining the Respondent’s Application. 5.5. The Claimant wished me to refer to the fact that the Respondent, at the Hearing before me, referred to the dismissal as being a genuine redundancy, whereas in their Response they claim he was dismissed on capability (incompetence). Mr Manuel is mistaken, because in paragraph 42 of the Grounds of Resistance attached to the Respondent’s Response they state the reason for dismissal as redundancy. In any event, I reminded Mr Manuel that he does not have sufficient service to bring a claim of “ordinary” unfair dismissal and there is no such claim before the Tribunal. He says that his dismissal was because he had made protected disclosures (and is seeking to add allegations relating to Health and Safety). It is for him to show that the real reason for dismissal was a reason which rendered his dismissal automatically unfair. However, contrary to the Claimant’s Application, the Response states that the Claimant was dismissed in circumstances of redundancy. 5.6. Mr Manuel wished me to add to the Case Management Summary the statement that no termination letter or dismissal letter was given. That was not a matter before me. It was wholly irrelevant to the matters which I was considering (which became limited to consideration of the then proposed amendments to the List of Issues and the Respondent’s Application for Costs).[6]For those reasons the Application to “modify the written decisions document” (i.e. to amend the Case Management Summary) is without merit and is refused.[7]In relation to the Application for Reconsideration of the Costs Award made in favour of the Respondent, this relates to the Award of Costs in relation to the Hearing before Employment Judge Forde.[8]Although he sought to add some extraneous and irrelevant points to his answer to my simple question as to what steps in furtherance of the claim he believed had been taken or made at that Hearing, Mr Manuel was forced ultimately to admit and accept that the answer was, nothing.[9]The reason why no progress had been made was clearly spelt out by Employment Judge Forde. It was because the Claimant had failed to prepare for the Hearing.[10]Mr Manuel says that I did not mention in relation to the Costs Application the “ten page response to the Costs Application” where he “pleaded the reasons why I believe the Costs Application shouldn’t be allowed”. Whilst the document itself was not specifically referred to by me, all information provided by the Claimant including that document and the additional submissions which he read out, were considered by me.[11]The Claimant says that the Respondent said their fee to Counsel was £1,250 but he believes that the appropriate fee for Counsel for the day would be £750 given Mr Mortin’s call. The sum of £1,250 was awarded by way of Costs which was determined by me to be the appropriate figure reflecting on both Counsel’s fees and Solicitor preparation time.[12]The Claimant says that I had failed to take account of the nature, gravity and affect of the relevant conduct (McPherson v BNP Paribas [2004] ICR 1398). The fact is the Hearing before Employment Judge Forde, listed for one full day on 25 October 2023 was an entirely wasted day due to the Claimant’s failure to prepare for the Hearing.[13]The Claimant complains that the Respondent had not complied with the disclosure Order on time (by three days) but that did not excuse his complete lack of preparation for the Hearing before Employment Judge Forde.[14]Further, the Claimant says – for the first time – that the information provided by the Respondent is lacking, but that was not a matter put before me on 14 December 2023.
The Law
[15]I am conscious of the relevant Law in relation to reconsideration. Under Rule 72 the first step I must take is to consider whether the Application has any reasonable prospects of success – i.e. whether the original Order is likely to be varied, revoked or amended.[16]In this case there is no reasonable prospect of any amendment, variation or revocation of the original Order. The matters which the Claimant has raised in his Application for Reconsideration do not touch and concern the reasons why the Order was made.[17]In any event, I have listened to Mr Manuel’s oral submissions (in addition to his written Application) on this matter. The oral submissions were repetition and expansion on the points advanced in writing. The interests of justice is the overriding point (Phipps v Priory Education Services Limited [2023] EWCA Civ.652), the overriding objective and the importance of finality in litigation.[18]Even if I had been minded to consider the Application formally on the basis that there was not “no reasonable prospect” of amendment, revocation or variation, nothing which the Claimant has advanced before me (and I gave him the opportunity to make submissions and he took that opportunity) would have resulted in any amendment to the Order made, or its revocation.[19]The Claimant’s Applications are without merit and are dismissed.[20]It is important for me to note that the Claimant – obliquely rather than directly – implied in his Application that Counsel for the Respondent had attempted to mislead the Tribunal by making false submissions. Any implication that that was the case is without foundation insofar as I have understood what the Respondent’s position has been throughout. A paradigm example is the Claimant’s allegation that Mr Mortin referred to a dismissal on the ground of redundancy when the Respondent had claimed to have dismissed the Claimant for incompetence, whereas in the Respondent’s Grounds of Resistance the stated reason for dismissal was redundancy. The Respondent’s Counsel is aware of his duties to the Tribunal, but is entitled at all times to put his Client’s case and arguments forward. He did no more nor less than that before me on 14 December 2023 and again in submissions (written and oral) made today. An allegation of misleading the Tribunal is a very serious one. It should not be made lightly and should not be made obliquely. It must be made with due consideration and be evidentially based. That is not the case here. 7 March 204
Background
[1]This Hearing was held to determine the question of whether or not the Claimant was at the material time a disabled person within the meaning of s.6 of the Equality Act 2010. The Claimant relied on two conditions: breathing issues which he says persisted from April 2021 following a mobile air conditioning unit fitted near to his place of work with a blower facing his desk; and various issues, sleeplessness, headaches, racing heart, anxiety, irritability and inability to interact with his children which he attributed to high blood pressure from June 2021 onwards.[2]The Claimant has provided three Impact Statements, although the second was completely repeated and added to in the third statement so it was not relied upon; copies of GP notes and Records; a summary letter from his GP Practice and a number of photographs of a blood pressure monitoring device taken on various dates.[3]The Claimant’s employment lasted from 9 February 2021 until 27 May 2022 and the relevant time, based on the Claimant’s evidence, therefore is April 2021 when he says he first experienced the symptoms following the installation of the air conditioning unit, until 27 May 2022 when his employment ended.[4]The definition of disability is set out in Section 6 of the Equality Act 2010 and I will not recite that here.[5]It is trite law that there does not need to be a diagnosis of any particular condition when considering the question of disability. The requirement is for the Tribunal to look at the impact any condition or conditions have on the Claimant to determine whether that impacts in a substantial way, i.e. more than trivial and whether that state of affairs had at the relevant time lasted, or was at the time likely to last for 12 months or more.[6]Based on the Claimant’s evidence, his answers given in cross examination and the contemporaneous documents medical and otherwise, I have found as follows. Findings of Fact and Conclusions[7]The first medical reference of the Claimant’s breathing difficulties relates to a dry throat in June 2021. The Claimant had received his first dose of vaccine for Covid-19 on 28 March 2021 and his second dose on 31 May 2021.[8]On 18 June 2021, presumably because of a contact from the Claimant to the Surgery, the Claimant was sent a video showing how to photograph his throat. On that day the GP observed no puss in the Claimant’s throat suggesting no infection and records this, “Throat, last Tuesday. Office multiple fans used. Dust blown goes into throat. Works in Cambridge. Uses air conditioning in car.” The GP also records, “No vomiting, just dry mouth caused by fans in car and AC since this week Tuesday”. Tuesday of that week was 15 June 2021.[10]On 24 June 2021, the GP reported the removal of the AC yesterday and that whilst that process had caused some problems, “… no more coughing today, no colour to it, no runny nose”, And “… speaking well and no breathing problems”, And “… sounds like the dust at work triggered Asthma”.[11]The Claimant was given a prescription for an inhaler. There is no evidence that the Claimant’s prescription for an inhaler was repeated and this appears to have been a short term solution to the then prevailing problem.[12]On 12 July 2021, the Claimant was reported to have said on several occasions that he did not have asthma. He reported that he had had a similar issue in February 2021 when clearing a spare room. The Claimant was considered by the GP to have a dust allergy.[13]The Claimant did not refer to his GP regarding this problem thereafter until 27 January 2023, when the GP recorded difficulty with the Claimant’s throat likely to have been caused by a viral infection.[14]The Claimant reports the following problems as a result of a dust allergy, or allergic reaction:- 14.1. First, he says that he must drive his car with the windows up and with the air conditioning on low; 14.2. Second, that whilst driving he cannot have a conversation because he will begin to cough; 14.3. Third, that he could not work in or go into the test room at work, whilst the regularity of his requiring to use that room is not clear, he referred to others as having to go to the room to switch machinery on and off for him; 14.4. Fourth, he cannot hoover at home and he is concerned not to be near any of his children if they are engaged in an activity that could cause dust to rise; and 14.5. Finally the Claimant referred to coughing if he is engaged in a lengthy meeting through Teams and attributed that to the fan in his laptop.[15]The Claimant made regular complaints to his workplace regarding dust, air conditioning and fans causing difficulties throughout the period up to the end of his employment.[16]The issues which he refers to persisted from April 2021 when the air conditioning unit was installed, until his employment ended. I accept that evidence.[17]Even if the symptoms did not arise until June 2021 when the Claimant first spoke to his General Practitioner, they were clearly likely to last for more than 12 months at that time. On the evidence presented I find that the Claimant has, as diagnosed by his General Practitioner, a dust allergy and therefore any exposure to dust is likely to trigger an onset of the problems which he has referred to.[18]This impacts on his day to day life in the ways which the Claimant has described to me and that impact is more than trivial. They are within the meaning of s.6 Equality Act 2010 substantial. The Claimant cannot engage in a number of noted activities, his home life is impacted and whilst he has established some work arounds to deal with the problem (including whilst driving as set out above), the impact on his ability to carry out normal day to day activities is impacted so that he was, at the material time, a disabled person within the meaning of Section 6 of the Act.[19]The Claimant also relies on a condition of high blood pressure as set out in the List of Issues, since December 2023. He says this has caused headaches, interrupted sleep, irritability and anxiety, with a racing heart.[20]The Claimant has reported in his Witness Statement one specific episode of sleep interruption or deprivation, on or about 15 June 2021. He referred to feeling, “… perplexed, disorientated and unable to do anything”, in the afternoons due to, “… sort of a chemical release from my heart”, and that he was unable to sleep until very late in the night because of, “… humiliation and shame, feeling hopeless…”[21]This follows, however, what he considers to be unreasonable demands from his Manager. Subsequently he felt uncomfortable with his heart pumping if he thought that the Manager was going to shout and “… call me like a dog to his glass room…”[22]He felt better in October 2021 when he received Spiritual Counselling which he said helped him to, “… get calm and get peace and proper sleep”.[23]He referred to the blood pressure issue and said that he was distressed after receiving a Costs warning letter from the Respondent, but that is a long time after his employment and not relevant for my considerations.[24]The General Practitioner notes regarding blood pressure record matters as follows, “On 14 February 2022 Mr Manuel says his blood pressure is rising because he was anxious and stressed at work and he had done blood pressure testing.”[25]On 25 February 2022, the average blood pressure reading was said to be 127/86.[26]On 1 March 2022, the Claimant reported his blood pressure as “good”.[27]On 7 March 2022, the Claimant was worried that his blood pressure was fluctuating.[28]When he was seen at the Surgery on 28 April 2022, he had no headache, he was reported to be under stress at work and seven days’ blood pressure monitoring was advised.[29]On 6 May 2022, the Claimant sent one day of his blood pressure reading to the GP. He said he was concerned about swelling in his feet and ankles as his shoes were tight, which he attributed to pressure or being overweight.[30]On 13 May 2022, the Claimant submitted seven days’ readings from his blood pressure monitor. The Nurse’s notes of that day records, “Examination: normal, home blood pressure average.”[31]There is no further reference to the GP for any reason until January 2023.[32]The impacts of alleged high blood pressure which the Claimant relies on, come from his third Impact Statement as follows: 32.1. Not being able to spend time with his children because of headaches; 32.2. Struggling to learn things, in particular he bought a number of courses for career development which he felt unable to complete; 32.3. Occasional headaches at work; and 32.4. Broken sleep. (the references to sleep have been recorded above)[33]The Claimant consulted his GP on the question of blood pressure on 23 August 2023. He was asked to monitor his blood pressure at home. That was the day he was due to provide medical information following the Order of Employment Judge M Warren in this case, which had been made on 5 May 2023.[34]The Claimant also has disclosed a number of photographs of home blood pressure readings taken on one day in November 2021 and thereafter, between 15 February and 3 May 2022. I repeat, on 1 March 2022 the Claimant recorded his blood pressure as “good”.[35]The Claimant’s reference to headaches with his GP is on 14 February 2022 when he is reported to have, “… had a bit of a sore head on Friday”. Friday was 11 February.[36]On 7 March 2022, he is reported as having, “headaches occasionally after work”, But on 28 April 2022, “no headache”.[37]Weighing all of that information together, the Claimant has not satisfied me that his headaches were long term. They were occasional and appear to have been limited to the period February to April 2022.[38]Further, the Claimant refers to the impact of a racing heart, the inability to interact with his children and anxiety. There is no evidence, other than the Claimant’s own reportage of any racing heart. I cannot therefore accept that this was an issue from which the Claimant suffered. It does not appear likely that someone suffering from a racing heartbeat would consult his GP about blood pressure, but fail to mention a racing heart.[39]He was asked about his blood pressure, which was by 1 March 2022 on his own report and on 13 May 2022 by the record of the Nurse who saw him that day, as “very good” and “average”.[40]The Claimant’s relevance to interaction with his children appears to be no more than a repetition of what he says in his concerns over dust allergy / breathing problems. No further details have been given.[41]Accordingly, the Claimant has not satisfied me that he was suffering from high blood pressure for a period of 12 months or more, or that he was likely to do so. Further, he has not satisfied me that any of the impacts which he has attributed to high blood pressure were substantial or long term. His blood pressure was a concern to him from November 2021, taking his evidence at its best, but was not reported to any GP until February 2022 and by May 2022 the position had resolved.[42]His anxiety was, I find, not caused by any condition but as a result of what he considered to be inappropriate interactions with his Manager. He has not established to my satisfaction that this was a disabling condition. It was short term in duration and related to a specific incident or incidents.[43]Accordingly, the Claimant was disabled at the material time by a virtue of breathing difficulties. The Claimant has not established that he was otherwise disabled at the material time.