Justify This 2008 - 2010 (Diabetes, Discrimination, Disability, Ableism, Disablism)

Copyright © 2016 by Nostaple Limited

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First Edition

Other books by Nostaple Limited:

The Justify This series:

Justify This 2006 - 2007

Justify This 2007 - 2008

Justify This 2008 - 2010

Justify This 2010 - 2011

Justify This 2011 - 2015

The Justify This series of books is a blow by blow account of one person's true story of alleged discrimination in the workplace, leading to legal cases against a multinational employer and international countries, through local courts, national courts, international courts, and the United Nations.

Table of Contents

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Chapter 12

Chapter 13

Chapter 14

Chapter 15

Chapter 1

All that is necessary for the triumph of evil is for good men to do nothing.

Edmund Burke, 1729-1797.

In 1966, I, Kenneth Robert McAlpine, was diagnosed with type one diabetes aged eighteen months. Despite having to inject myself with insulin twice a day, I had managed to obtain a degree in engineering and a master’s degree in computing, but for the last two years had been unemployed and fighting an unfair dismissal and disability discrimination claim in the Tribunal system.

During the last two years of working at Oracle, I had worked as an On Demand Service Delivery Manager, known as an oSDM, and was the seventh longest serving oSDM in a team of fourteen. I had worked with three other oSDMs on two of the largest accounts in Europe Middle East and Africa, The Environment Agency and General Electric accounts, which amounted to approximately sixty percent of the work covered by the fourteen oSDMs. As I was the only oSDM working simultaneously on both of these very large accounts, I asked my manager and director in December 2005 to be taken off one of the two accounts, as the workload and work conflicts were affecting my health.

In April 2006, unknown to myself, my manager, Phil Snowden, sent an email to a senior director, which Human Resources was copied on, and which read:

"With either option, there is the possibility of Kenneth raising the health/stress issue that he discussed with me in December – the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness.

Simone/Cathy – given the above, are there any other options to exit Kenneth from the organisation prior to the end of FY06? If a meeting to discuss this is the best option to move this forward, then please let me know, and I will organise such a meeting."

To which a Senior Human Resources manager, Catherine Temple, replied:

"As Kenneth is on the RIF list, I want to make sure we are not making matters more complicated by trying to bring him back into a customer facing role, which might lead him to go offsick again.

It might be more appropriate to action redundancy from the role he is currently doing (ie: no requirement for back office in the OSDM team). I have no timescales for when redundancies will be actioned at the moment, but assume it will be anytime around end FY06/beginning FY07."

I had taken just two days sick leave in the previous two years, the average person in the UK takes around eight days sick leave every year.

Towards the end of May 2006, I received a phone call from Phil Snowden to attend a meeting at the nearest office. At this meeting, with a senior director I had never met, I was informed I had been provisionally selected for redundancy. I was officially made redundant just over a month later.

I lodged a claim of unfair dismissal and disability discrimination with the Employment Tribunal in August 2006. During the next six months, the respondent would alter their original response a number of times, as they realised how much evidence I had to dispute previous attempts to discredit me. In other words, they were fishing for information before finalising their story.

It was also no surprise that I had received two offers to settle this before it went to a full Tribunal hearing, but both offers were below or around what I could expect for unfair dismissal alone, and the amount a Tribunal can award in discrimination claims is unlimited. So it was an easy decision to refuse both offers.

One thing about multinational companies and multinational legal firms is that there is no shortage of cash, so it was not a surprise when I learned that the respondent would be represented by a London Barrister at the Tribunal hearing in Glasgow.

To my surprise, part of the discrimination claim referred to as reasonable adjustments was thrown out at a Pre-Hearing Review in March 2007. I requested a review that was not granted, and then appealed the decision to the Employment Appeal Tribunal.

There was also a sist for mediation for fifty-one days, requested by the respondent, to allow the respondent and myself to try and mediate and reach a settlement. The respondent did not mediate during the whole fifty-one days.

At numerous points before the hearing, I had applied to the Tribunal for a default judgment or for the respondent to be debarred from the proceedings for various reasons.

Shortly before the main hearing was due to commence in early July 2007, there were problems with documents and evidence being altered, witness statements not being signed, and witness statements being far removed from the truth.

During the main discrimination hearing, which lasted three days, I read out my witness statement on the first day, the second day comprised of the respondent’s Barrister trying to discredit me in cross-examination, and the third day comprised of the respondent’s witnesses, my manager, Phil Snowden, my senior director, Nick Cooper, and senior human resources manager, Catherine Temple, as well as other witness statements.

The main discrimination judgment was dated the 13 September 2007. In the judgment that was delivered over thirty-eight pages, the Tribunal agreed with the story of the respondent that comprised mainly of four witness statements from witnesses employed by the respondent, despite hard factual evidence that disproved the story and the subsequent decisions made in the judgment.

The Tribunal had hard factual evidence that showed I had the job title Service Delivery Manager, had worked with the Global Service Desk and Customer Incident Managers (CIMs) for two years, I had taken just two days sickness absence in the previous two years, and also had hard factual evidence supplied by the respondent of disability discrimination that stated:

"With either option, there is the possibility of Kenneth raising the health/stress issue that he discussed with me in December – the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness.

Simone/Cathy – given the above, are there any other options to exit Kenneth from the organisation prior to the end of FY06?"

"As Kenneth is on the RIF list, I want to make sure we are not making matters more complicated by trying to bring him back into a customer facing role, which might lead him to go offsick again.

It might be more appropriate to action redundancy from the role he is currently doing...."

Despite this hard factual evidence, the respondent managed to create a story whereby I was in a one-off job role, that a senior manager I had never met before, Malcolm Thompson, placed me on the redundancy list, and who never knew of my diabetes. Malcolm Thompson never attended the Tribunal.

I also raised concerns before, during and after the Tribunal that the respondent had altered documents to suit their story, but the judgment stated that I was not a credible witness in many aspects of his evidence, and the Citizens Advice Bureau stated that this was the Tribunal calling me a liar. The Tribunal dismissed the concerns raised regarding altered documents:

We concluded from the above that the claimant's allegation was unfounded and that the respondent had not deliberately altered, amended or removed documentation from the bundle of productions

The Tribunal dismissed the unfair dismissal part of the claim:

We were satisfied the requirements of the respondent's business for employees to carry out the role the claimant did, had ceased or diminished with the introduction of the global service desk and CIMs. The claimant's role was redundant.

The Tribunal dismissed the disability discrimination part of the claim:

We were satisfied, based on the evidence before the Tribunal, that the reason for the claimant's selection for redundancy (the alleged less favourable treatment) was because the respondent's need for employees to carry out the limited oSDM role which the claimant performed, had ceased or diminished. The claimant had been unable to discharge the burden placed on him to show his selection for redundancy related to his disability, and in the circumstances that aspect of his claim must fail. We dismissed this claim.

After emailing Diabetes UK requesting help, I received an email reply on 10 October 2007 stating that Diabetes UK would pass it on to one of their lawyers who would act in a pro bono capacity and help me.

I immediately made contact with this pro bono lawyer in London and sent two lever arch folders full of witness statements and evidence as well as my story and where the various parts of this case were in the legal system.

The London lawyer, due to her background in healthcare and product liability litigation managed to get in touch with a lawyer in Glasgow who specialised in Employment Law and was willing to take my case on in a pro bono capacity.

Michael McLaughlin was the pro bono lawyer in Glasgow who was a senior partner in Biggart Bailli, a law firm with offices in Glasgow and Edinburgh, and I quickly had a three hour meeting to inform Michael of some of the details in this case, and to thrash out appeal points for the forthcoming reasonable adjustments hearing and the lodging of an appeal concerning the main disability discrimination appeal.

On 24 October 2007, I picked up the main disability discrimination appeal at Michael McLaughlin's Office and delivered it in person at the Employment Appeal Tribunal Offices in Edinburgh, a round trip of four hours, but worth every minute to make sure it was delivered in person.

The first point of this appeal concerned the emails written on 11 and 12 April 2006, which state that diabetes will result in long periods of absence in the future and to exit me from the business. This was direct disability discrimination as it was less favourable treatment on the grounds of disability.

The second appeal point again concerned the email of 12 April 2006 in that because this email states that I am to be exited from business some seven weeks before I was provisionally selected for redundancy, the redundancy process was a sham.

The third point of this appeal concerned witness collusion. Many of the witnesses had read each other’s witness statements, and as such could have tailored or fine tuned their story to match the stories of other witnesses.

The final appeal point stated that the 7 February 2006 Reduction In Force list had a column titled Required Exit Date that had a date filled in, and that if this was not altered evidence and was true the termination of my employment was preordained some four months before redundancy consultation had started.

After my initial meeting with the pro bono lawyer, Michael McLaughlin, an appeal was sent to the Edinburgh Employment Appeal Tribunal concerning the reasonable adjustments part of my case.

The appeal focussed on one extremely important point, as the Tribunal had dismissed my reasonable adjustments case because I had not lodged a grievance, and as I was dismissed, the statutory grievance procedure did not apply because the statutory dismissal procedure should have been followed. The reasonable adjustments case was also not time barred, as it had been an ongoing act of discrimination that started in December 2005 and was linked to my dismissal in July 2006 by the emails of 12 and 13 April 2006.

On 7 November 2007, I conducted my reasonable adjustments appeal hearing in front of Lady Smith who was acting as sole Judge in this hearing.

I outlined in my appeal that due to my reasonable adjustments discussion with my manager, Philip Snowden, in December 2005, and the reference to 'December' in the email which stated diabetes, future sickness absences and exit me from the organisation, the statutory grievance procedure did not apply as I was dismissed, and the reasonable adjustments claim could not be time barred as it was an ongoing act of discrimination that started in December 2005 and ended with my dismissal in July 2006.

The Judge, Lady Smith, dismissed the appeal and agreed with the original Employment Tribunal decision that the statutory grievance procedure applied.

The respondent had applied for costs of £10,000, and on 11 January 2008, a costs hearing took place at the Glasgow Employment Tribunal. The respondent claimed that my conduct during the case had been unreasonable and that my allegation that documents had been altered should alone result in a costs order against me.

Michael McLaughlin outlined that I had not acted unreasonably, and if any party had acted unreasonably it was the respondent. It was also not unreasonable to state that documents had been altered when they had been altered.

The Judgment of the Glasgow Employment Tribunal would be sent out in writing in the near future.

During January and February 2008 I continued to contact as many organisations and people who could help me as possible, but continually met with rejections or dead ends.

On 15 February 2008, I finally received the judgment of the Glasgow Employment Tribunal who had awarded expenses against me of £3,700, in effect fining me. An Employment Tribunal only awards expenses against a party in less than one percent of cases.

On 20 February 2008, after one month of trying to lodge an appeal to the Court of Session in Edinburgh in time, I decided to take this appeal to the European Court of Human Rights, as the Court of Session had sent me out three wrong forms and now wanted me to pay for lodging a late appeal that the Judges may not accept.

On 26 March 2008, I lodged an appeal against the award of £3,700 in costs against me to the Edinburgh Employment Appeal Tribunal. The appeal was based solely on the grounds of perversity.

The first appeal point concerned the award of £3,000 for not taking legal advice, and as you can represent yourself at Tribunals, I simply asked where in the Employment Tribunals Constitution and Rules does it state that a claimant must take legal advice.

The second point of the appeal concerned the award of £700 for stating that the respondent had altered documents, and as the judgment had stated that the respondent had not deliberately altered documents, I simply asked why the term not deliberately altered had been used, as this implies the respondent had altered documents.

On 29 April 2008, myself, my family and three lawyers had travelled through to the Edinburgh Employment Appeal Tribunal for the Rule 3(10) Hearing in front of Lady Smith alone, but we all learned ten minutes before the hearing was due to start that it had been cancelled.

Chapter 2

It was now the 29 April 2008, and that afternoon I was copied on an email sent to the Employment Appeal Tribunal from my pro-bono lawyer, Michael McLaughlin:

Dear Ms Tindall,

Next week is no good for me. I am on holiday Wednesday through Friday. In the week commencing 26 May I am available 27, 28 and 30 May morning and afternoon. The Monday is of course a public holiday.

Later that afternoon I sent the following reply to Michael McLaughlin:

Michael,

Much too long.

I believe that in the charter statement for the EAT it states that appeals will be heard within six months. As this appeal was lodged on 24 November 2007, six months from that date is 24 May 2008. The date must be before this date, otherwise I will be protesting in the strongest possible terms.

Let the EAT sort this out, their mismanagement, their problem.

Practice direction

(Employment Appeal Tribunal - Procedure) 2004

12. LISTING OF APPEALS

12.1 Estimate of Length of Hearing: .....Consequently appeals which run beyond their estimated length have to be adjourned part-heard (often with substantial delay) until a day on which the judge and members are all available.....

12.2 If the EAT concludes that the hearing is likely to exceed the estimate, or if for other reasons the hearing may not be concluded within the time available, it may seek to avoid such adjournment by placing the parties under appropriate time limits in order to complete the presentation of the submissions within the estimated or available time.

Looks like none of this was done today, and we paid the consequences.

Simply not good enough.

I then sent a correction email to Michael thirty minutes later:

Michael,

My mistake, I put November in instead of October, the appeal was lodged on 24 October 2007, so the 6 months charter was up on 24 April 2008.

Makes it worse for the EAT.

The next day I sent an email to the Office of my Member of Parliament:

Valerie,

Can you update me on the email below, have you still heard nothing concerning Diabetes UK and an Advocate/Barrister?

The Rule 3(10) Hearing at the EAT in Edinburgh yesterday was postponed at the last minute, after six people (including myself and my Solicitor) had traveled through to Edinburgh, so this buys a little more time (a couple of weeks).

Later that same afternoon, I sent an email to the Edinburgh Employment Tribunal:

Dear Sir/Madam,

I was through at the Edinburgh EAT, and spoke with someone from the ETS regarding a parties right to view the joint bundle of documents lodged with an Employment Tribunal. This is where I obtained your email address.

My claim was lodged with the Glasgow Employment Tribunal, and was heard in July/August 2007. In the written judgment, many of my document references were wrong.

This claim is now under various Appeals.

Because of this, I would now like the right to inspect the original bundle of documents that were lodged with the Glasgow Employment Tribunal, and compare these documents and references to the bundle of documents which I received and used during the Tribunal.

Can you inform me of what I should do, or what procedure I require to follow?

I quickly received the following reply from the Edinburgh Employment Tribunal:

Dear Mr McAlpine

Could you please provide the following information:-

1) Case Number;

2) At which Tribunal Office was your Tribunal heard;

3) Exact date of hearing;

4) Was your claim part of a multiple claim;

Michael McLaughlin also sent me an email reply that same afternoon, which read:

Kenneth,

Yes the practice direction was not complied with.

That same day, 30 April, I sent Michael a follow up email to a discussion we had before the cancelled Employment Appeal Tribunal hearing:

Michael,

As a follow-up to our discussion when we met yesterday, regarding the Phil Snowden email stating diabetes and future time off. As I confirmed to you yesterday, this email was supplied by Morgan Lewis on 9 February 2007 in a folder entitled RESPONDENT'S LIST OF DOCUMENTS SENT TO THE CLAIMANT ON 8 FEBRUARY 2007.

On the third and last day of the full tribunal, I asked Mr Snowden in the witness stand to read out the full paragraph in the email on Page 418 which starts With either option..., which Mr Snowden did, then I asked him to confirm if he had written this email, to which he replied Yes.

Don't know if this is of any importance, but just thought I would let you know.

Later that day, I sent an email reply to the information requested by the Edinburgh Employment Tribunal:

Karen,

1) 116267\2006

2) Glasgow Employment Tribunal.

3) 2,3 and 4 July 2007.

4) No.

I received the following email reply from the Office of my Member of Parliament:

Hi Kenneth

I tried to phone Donna Castle today but she is out on CIS training today and will call be tomorrow re your case. As soon as I speak to her I will let you know the outcome.

My lawyer, Michael McLaughlin sent me another email:

Kenneth,

I am still mystified that the tribunal appear not to have picked up on the words Exit Kenneth from the business some three lines later.

The Edinburgh Employment Tribunal sent me an email response to my enquiry:

Dear Mr McAlpine

Many thanks for your prompt response to my email.

As your case file is held in our Glasgow Office, I have passed this information to them. Someone will be in touch in due course.

I sent a quick email reply to Michael:

Michael,

I agree, but I'm even more mystified that the tribunal have more or less stated that if you are to be made redundant (ie: on a RIF list) that this gives an employer a right to discriminate against you, and it's okay, because you were allegedly going to be made redundant anyway.

Must be wrong in law, as well as an assault on liberties.

I know the DDA covers discrimination after dismissal, as well as prior to employment, which backs up my point.

On what had been a very busy afternoon of correspondence, I sent a further email to Pete Roberts at Lloyds regarding my claim of legal aid via my home insurance policy:

Dear Sir,

I received your last letter of correspondence dated 14 April 2008.

I have now waited a further 14 days.

I have not received further news for you shortly.

I will give you a further 24 hours, so if I have not received a substantial move forward on this claim by 16:00 on 1 May 2008, I will further update the Financial Ombudsman Service.

Two days passed before I sent an email to Michael McLaughlin:

Michael,

Has the EAT set any date for the postponed Rule 3(10) yet?

If yes, when is the new date?

If not, when are they likely to get around to doing this?

Do you have any issue with me contacting the Tribunal Service to raise my concerns as to the service and time delays?

I also chased up the Office of my Member of Parliament:

Valerie,

Anything from Diabetes UK yet?

If you have received nothing, I will meet with Katy soon and voice my utter displeasure at how long this whole sorry matter has taken.

Later that same day, Michael McLaughlin sent me an email he had received from the Edinburgh Employment Appeal Tribunal:

Kenneth,

FYI

Regards,

Michael

Dear Sir,

I will write to you as soon as The Honourable Lady Smith has fixed a date for the hearing.

Thank you for your prompt response.

Three days later I sent the following email to my mother and father:

The only piece of ‘evidence’ linking Malcolm Thompson, the Senior Director who allegedly place my name on a RIF list in February 2006 is Page 333 of the joint bundle of documents that the tribunal had in front of them.

Malcolm Thompson, who did not attend the tribunal, stated in a witness statement that he had placed my name on a RIF list in February 2006, but if you examine the ‘email chain’ from Pages 329 to 334, it becomes apparent that this was not, as the respondent would have you believe, one email chain, it was simply 3 or 4 unconnected emails pasted together to form an ‘email chain’.

SUBJECT, DATE, PAGE

[Strictly Confidential] RIF template - names…., 02-Feb-06, 329

//Customer Care Professional, 23-Mar-06, 332

FW: confidential, 21-Feb-06, 333

confidential, 04-Feb-06, 333

There was no possibility at all that the email on Page 332 is in any way connected to the email on Page 329. Firstly, the email on Page 332 has a completely different Subject heading //Customer Care Professional to the email on Page 329, but most importantly, the email on Page 332 is written SEVEN weeks AFTER the email on Page 329, so cannot possibly be an earlier email to Page 329, as it would have to pre-date Page 329 if it was part of one email chain.

The email on Page 333 with the subject heading FW: confidential is again totally unconnected to Page 329, as the email on Page 333 has a completely different Subject heading FW: confidential to both the email on Page 329 and the email on Page 332, but most importantly, the email on Page 333 is written almost THREE weeks AFTER the email on Page 329, so cannot possibly be an earlier email to Page 329, as it would have to pre-date Page 329 if it was part of one email chain.

The email on Page 333 with the subject heading confidential is again totally unconnected to Page 329, as the email on Page 333 has a completely different Subject heading confidential to both the email on Page 329 and the email on Page 332, but most importantly, the email on Page 333 is written TWO days AFTER the email on Page 329, so cannot possibly be an earlier email to Page 329, as it would have to pre-date Page 329 if it was part of one email chain.

So the attachment Template Oracle RIF Spreadsheet Support and OD (7th Feb 2006).xls was attached to the email //Customer Care Professional on 23 March 2006, and was nothing whatsoever to do with Malcolm Thompson as early as 2 February 2006.

Further evidence that these emails are completely unconnected is shown when the email on Page 332 is listed in another totally unconnected email chain on Page 402. This is the email chain where this email belongs, as the times and Subject heading are all correct.

The next morning I sent my lawyer the following email:

Michael,

I have read parts of the judgment and your Rule 3(10) appeal again, especially with regards to Malcolm Thompson and the RIF list in February 2006.

Can you give me your initial thoughts on reading Pages 329 to 334 of the judgment?

Just a couple of lines describing what your initial thoughts are when you have read these six pages.

Later that morning I received an email reply from the Office of my Member of Parliament:

Hi Kenneth

I left three messages for her last week and she did not once return my call. I have phoned her again today and left a message with a colleague of hers expressing my displeasure and asking that she phone me as soon as possible.

I am sorry this has not been resolved as fast as you would like, but I cannot exert any more pressure on an external agency such as Diabetes UK than I have at the moment.

I will hopefully be back to you before the close of business today.

I replied to this email:

Valerie,

Thanks.

I had exactly the same trouble with Diabetes Scotland, no replies.

Later that day I received an email from my lawyer, Michael McLaughlin:

Kenneth,

Are you referring to Lucy Crone's judgement? I am confused by reference to 329-334.

I immediately replied:

Michael,

No, the joint bundle of documents.

and, within minutes, received the following reply from Michael:

Kenneth,

Ah right you are

The next morning I received an email from Michael: