Justify This 2010 - 2011 (Diabetes, Discrimination, Disability, Ableism, Disablism)

Copyright © 2016 by Nostaple Limited

All Rights Reserved.

Disclaimer: This is not a work of fiction. As such, the publisher has made every effort to ensure the accuracy of the information within this book was correct at time of publication. The publisher does not assume and hereby disclaims any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from accident, negligence, or any other cause. The publisher will be pleased to make good any omissions or rectify any mistakes brought to the publisher's attention at the earliest opportunity. Any views and opinions expressed herein are fully endorsed by the publisher. The publisher will, at the publisher's own expense, defend any claim based upon any lawsuit brought against any content contained within this book.

Licensing Note: No part of this book may be reproduced in any manner without the express written consent of the publisher, except in the case of brief excerpts in critical reviews or articles. All inquiries should be addressed to Nostaple Limited, website click here.

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

"Let the first act of every morning be to make the following resolve for the day:

* I shall not fear anyone on Earth.

* I shall fear only God.

* I shall not bear ill will toward anyone.

* I shall not submit to injustice from anyone.

* I shall conquer untruth by truth. And in resisting untruth, I shall put up with all suffering."

Mahatma Gandhi, 1869-1948

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 eleven 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.

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 at all 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 Reduction In Force (RIF) 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 as such, 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 at 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 that the Tribunal believed 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.

Around two months later the Edinburgh Employment Appeal Tribunal for the Rule 3(10) Hearing on disability discrimination finally took place on 20 June 2008 with the judge Lady Smith sitting in judgment alone. This was a tense and terse hearing between the Solicitor, Michael McLaughlin, and Lady Smith, with the Solicitor, myself and family coming out looking shell shocked.

Early in August 2008, Diabetes UK sent me a letter clearly stating that they were unable to support me any further in my case.

On 12 August 2008, I lodged a reasonable adjustments case against the United Kingdom at the European Court of Human Rights. This case was mainly based on the right to a fair hearing when the previous reasonable adjustment cases had been thrown out because a grievance had not been lodged when a grievance was not required to be lodged because it was a dismissal and the dismissal procedure should have been followed rather than the grievance procedure.

Two days later the Information Commissioner's Office sent me a review of my complaint against their original decision in which they explained that they agreed with the earlier decision made by the Information Commissioner's Office that I was not entitled to any redundancy information, so I was, therefore, unable to uncover whether redundancy information had been sent to the Insolvency Service or not, and therefore whether there had actually been a collective redundancy, or if it was just me that had been made redundant due to my diabetes.

Around this time I was also looking to get representation from an Advocate (lawyer who has access rights in front of the highest judges in the highest court) for the appeal to the Court of Session, the highest court in Scotland, and paid for the services of law firm Hamilton Burns who requested the opinion of an Advocate.

On 18 August 2008 the Edinburgh Employment Appeal Tribunal refused me leave to appeal to the Court of Session, however, this is only a step that you have to go through to eventually appeal to the Court of Session, and doesn't mean that you cannot appeal.

Ten days later I received the Edinburgh Employment Appeal Tribunal judgment by Lady Smith on disability discrimination where she had dismissed all appeal points on the disability discrimination case and witness collusion, so now I had to appeal to the Inner House of the Court of Session, which I now did.

On 6 November 2008 the Edinburgh Employment Appeal Tribunal heard my appeal against the costs of £3700 awarded against me at the Glasgow Employment Tribunal by judge Lucy Crone. This hearing was heard by the President of the United Kingdom Employment Appeal Tribunal, who was based in London, but had flown up because Lady Smith was unavailable.

Later that same month I received the Advocates opinion which was completely negative on the chances of any of the eleven appeal points succeeding at the Court of Session, and had to pay £1000 for the opinion in writing.

It was now 2009, and the Edinburgh Employment Appeal Tribunal issued a judgment by the president of the United Kingdom Employment Appeal Tribunal, The Honourable Mr Justice Elias, who stated that the appeal had failed. The reason given was that I should have taken the free legal advice offered and paid for by Oracle Corporation UK Limited, and because I didn't, this was unreasonable behaviour punished by a £3000 fine. It has always been my argument, an argument that will never change, that no-one should, under any circumstance, accept legal advice from a lawyer paid for by your opponent. Whose interests would that lawyer really be representing?

On 10 February 2009 the Edinburgh Employment Appeal Tribunal refused me leave to appeal to the Court of Session regarding the costs appeal, so I most definitely appealed anyway.

Over the next few months, I wrote a few letters to the Scottish Parliament but received no help with the explanation that they could not get involved in judicial decisions. I also started to question why on earth Oracle Corporation UK Limited could be represented at a hearing in the Inner House of the Court of Session when I was appealing a decision made in a judgment by the Employment Appeal Tribunal?

I also asked my Member of Parliament for help, and she wrote to various government departments and ministers, including the Ministry of Justice in the United Kingdom parliament and Minister for Community Safety in the Scottish parliament, but no help was offered or given.

On 29 May 2009, I attended a very short hearing at the Inner House of the Court of Session, where I had to represent myself against the Advocate Douglas Fairley who was representing Oracle Corporation UK Limited. The three judges heard Mr Fairley for most of this time and informed me if I understood what I had to do at the next hearing, to which I replied yes.

At the next hearing at the Inner House of the Court of Session, a two-hour hearing, Mr Fairley, acting for Oracle Corporation UK Limited, addressed the Court in support of his objection to the competency of the application for one and a half hours, and I spoke for around twenty minutes. Another hearing was scheduled for a full day hearing, date to be arranged.

Chapter 2

It was now 27 January 2010 and I had travelled through to Edinburgh to the Court of Session for the final one-day hearing. This chapter and the following chapter are mainly based on the Law and Merits documents lodged with the Court of Session in 2009 and notes taken by Andrew McAlpine who attended the hearing.

COURT OF SESSION

INNER HOUSE

EXTRA DIVISION

Continued hearing of one day.

XA165/08

Appeal under section 37(1) of the Employment Tribunals Act 1996

Kenneth McAlpine v Oracle Corporation UK Limited

Appellant - Party litigant

Respondent - Mr. Fairley of Counsel; McGrigors Solicitors LLP

Judges:

Lord Clark

Lord Osborne

Lady Dorrian

Start Time: 10:40 a.m.

Lord Osborne, This is a continuation of what was earlier heard - respond to criticisms made.

Counsel asks for clarification as to how to proceed. Elaborate in a general outline, this is an Application for leave to appeal, same chronology with regard to substance. The test must show probable cause and a genuine point of law. I refer to Campbell v Dunoon Housing 1137 1st Column letter C (gives handout) where the court indicated that:

applicants for leave to appeal must generally show something of the nature of probabilis causa in relation to a genuine point of law which is of some practical consequence.

The original Tribunal claim was in two parts.

The first part was unfairly selected due to discrimination with regard to disability, type 1 diabetes, and the second part related to direct discrimination and indirect disability discrimination. The Tribunal found no causal connection (Counsel refers Judges to the Glasgow Employment Tribunal written judgement paragraph 178):

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.

Counsel also refers Judges to paragraphs 151 and 171 and the page 37 conclusions:

151. We next considered the claimant's argument that redundancy had not been the real reason for his dismissal and that in fact he had been selected for redundancy because he was diabetic and/or because he had requested changes to his workload because of his diabetes. We have set out in detail our considerations regarding these matters below. In summary, we were entirely satisfied that the claimant's selection for redundancy was based on the fact there was no longer a requirement for his role, and had nothing whatsoever to do with the fact of the claimant's diabetes or any changes that had been requested regarding his role.

171. The correct comparator in cases of direct discrimination is a person who does not have that particular disability, but whose circumstances are not materially different from those of the disabled person. We considered that an appropriate comparator in this case would be a person carrying out the same limited oSDM role as the claimant, whose circumstances in terms of health were not materially different from those of the claimant. We considered whether the respondent would have treated that person differently. We decided the respondent would similarly have selected that person for redundancy. We reached that decision after having been satisfied that the requirements of the respondent's business for employees to carry out the limited oSDM role had ceased or diminished with the introduction of the global service desk and the CIMs. We were entirely satisfied that it was the role which was redundant, and accordingly the person occupying the role -be that the claimant or a comparator - would be selected for redundancy. We decided, for these reasons, to dismiss the claim of direct discrimination.

Counsel states that the reason, less favourable treatment with regard to a limited oSDM role, is it must fail.

Counsel then turns to the leave to appeal:

Counsel, "The first ground is as per paragraph 4 of the Glasgow Employment Tribunal written judgment and as at appeal point 5.3 with regard to the combination of diabetes and high blood pressure, that cannot form......"

Lord Osborne, (interrupts), Appeal point elaborates further on?

Counsel, Yes, with regard to stereotypical assumption and is direct discrimination. The short answer is that it doesn’t matter, there is not any truth in it.

Lord Clark, Any truth is important.

Counsel, Both failed for the same reason.

Lord Clark, No factual basis re. generalised as to how he was treated as an employee.

Counsel, No evidence with regard that.

Lord Osborne, "Looking at paragraphs 151 and 171, 151 is clear in what is said."

Counsel, The real reason is with regard to the changes of workload, a different job, there was no longer a requirement for the role.

Lord Osborne, "Conclusion on a matter of fact, in paragraph 171 it is put differently."

Counsel, There must be a causal relationship.

Lord Clark, "It says that at paragraph 172, that is what I was saying earlier."

Counsel, "Paragraph 178 and the conclusions refer to the global element."

Lord Clark, "With regard to the second claim at paragraph 172 the Tribunal poses the question with regard to Clark v Novocold on the issue of causation and paragraph 178 is answering that question."

Counsel, "Answering it in the same way. The difficulty is with regard to probable cause and findings in fact. The last part of the Campbell v Dunoon Housing is a moot point. What Lady Smith says is that it has no possible chance of success. Paragraph 4 of the judgment and appeal points 5.2, 5.3 and 5.4 are with regard to sections of the Disability Discrimination Act. There is no probable cause given with regard to these appeal points and they are wholly disruptive."

Lord Osborne, 5.2, 5.3 and 5.4, the way it is put with regard to specific findings, it is not clear as to what findings, by whom and not in a position to make specific findings.

Lord Clark, Seems to be with regard to sending back to the Tribunal regarding their misdirection.

Counsel, Doesn’t matter, the moot point is in finding points of law. Appeal point 5.1 is with regard to the ET3, there is no error of law regarding accepting it before four days of evidence.

Lord Osborne, It is a procedural point but 1(5)b is not ET3.

Counsel, It was repealed, found a copy.

Counsel, "Rule 4(5) may include a response:

(5) A single document may include the response to more than one claim if the relief claimed arises out of the same set of facts, provided that in respect of each of the claims to which the single response relates:

(a) the respondent intends to resist all the claims and the grounds for doing so are the same in relation to each claim; or

(b) the respondent does not intend to resist any of the claims."