NOTICE OF APPEAL FROM DECISION OF EMPLOYMENT TRIBUNAL

Transcription

1 IN THE LONDON CENTRAL CASE NO: /2014 EMPLOYMENT TRIBUNAL BETWEEN: MR E LEARMAN Appellant -and- BIOMED CENTRAL Respondent 12 th December NOTICE OF APPEAL FROM DECISION OF EMPLOYMENT TRIBUNAL 1. Mr Edward Learman, 32 Kemerton Road, London SE5 9AR 2. Any communication may be sent to this home address or the appellant may be contacted by mobile phone or a direct landline I, the appellant, would wish to submit a formal appeal to the judgement that was made at the London Employment Tribunal on 29 th October 2014 and the written reasons which were sent on 4 th November 2014 in accordance with the 42 days time limit. I wish to make an appeal to the decision that the Respondent did not know and could not have reasonably been expected to know of my disability. 4. The parties involved in the proceedings before the employment tribunal were Ms Emily Knight and Ms Kate Balmer, acting counsel of Clyde and Co representing the respondent Biomed Centra, Clyde & Co Llp, The St Botolph Building, 138 Houndsditch, London EC3A 7AR. 5. Copies of the following are included in this appeal; a) the written record of the employment tribunal s judgement signed by the Judge Miss D Henderson on 29 th October 2014 and the Tribunal Office 4 th November 2014; b) the claim (ET1); c) the response (ET3).

2 6. The appellant was not submitted an application for a review of the judgement. 7. The grounds upon which the appeal is brought are that the employment tribunal erred in law in that the respondent did not know and could not have reasonably been expected to know of the Claimant s disability. 7.1 Paragraph 14 of the reasons for the decision were based on the witness statement of Ms Shon who had denied to have prior knowledge of the Claimant s symptoms of depression or that I had made her aware of my condition between the dates I had suggested in Paragraph 2 of my Disability Impact Statement. Following the judgement, I had sought advice and am now in the process of retrieving documents from a third party organisation, SKYPE, which is relied upon by Production Editors as a means of communication. In May 2013, there was a conversation with my former, Ms Shon, in which I describe my condition which contradicts the witness statement before the date that I was believed to have contacted her and the HR team about my condition and desire to submit a flexible working hours application in October This contradicts paragraph 10 of Ms Shon s witness statement in which she pronounces that she was only made of aware of my concerns about the FraX premutation and symptoms of depression in November 2014, this was despite her admission during the cross examination that I had made her aware of the FraX premutation during June and July 2013, but not details of my history of longterm depression or any mental impairment that would effect my day to day activities. 7.2 In paragraph 16, document evidence containing a GP report and an assessment report from an Occupational Health Therapist requested by the HR Advisor Lisa Marie Reddon that was relied upon by Ms Reddon and Ms Shon during the decision to implement a Performance Improvement Plan (Capability Policy) and to deny the submitted flexible working application. This evidence was reviewed by the Tribunal without examining where these incidents took place simultaneous to a disciplinary procedure for allegations of misconduct and inappropriate towards Ms Shon that was coordinated by Ms Reddon during November and December 2013, and where this appeared to show a bias since these procedures were implemented while I had been in discussions with Ms Shon and Ms Reddon about both the medical reports and a possible

3 overlap between the disciplinary procedures in formal discussions and communications (paragraphs 10, 14, 16 and 17 of the Disability Impact Statement. Paragraphs 20, 21 and 29 of the judgement reasons.) 7.3 In the judgement reasons, Paragraph 17 describes the implementation of the Performance Improvement Plan (Capability Policy), but does not examine or take into account the evidence or reasons which Ms Reddon and Ms Shon implemented the disciplinary procedure simultaneous to the PIP agreement, or my concerns and refusal to sign the PIP mentioned in paragraphs 6 13 of my Disability Impact statement, and that of the statements made by Ms Reddon and Ms Shon about these procedures and the allegations of misconduct (paragraphs of Ms Reddon s witness statement and paragraphs 9-42 of Ms Shon s witness statement). 7.4 For the purposes of the hearing, the Respondent s solicitors and myself had agreed to the terms suggested by the judge that it was worthwhile examining the two main issues (ie. whether I could qualify as disabled under the definitions specified by the Equality Law Act and if it was reasonable to expect the Respondent to have been aware of this) before proceeding further with the incidents concerning the disciplinary procedures and the details which resulted in my dismissal. The incidents of misconduct and the disciplinary procedures that took place simultaneous with the evidence from the Respondent s solicitors, that they could not have been expected to be aware of this, had formed part of my case for discrimination based on the how the disciplinary procedures were implemented simultaneous to the requests for medical reports and my desire to submit a flexible working hours application. Where the tribunal had only focused its examination on evidence and communications I had made to the Respondent concerning my condition and the medical reports this consequently ignored part of my claim for discrimination that the Respondent had deliberately ignored my objections about these medical reports and the issues following the rejection of the flexible working application in favour of the disciplinary procedures and summary dismissal. 7.5 My decision to agree to this course of action had been as a result of a lack of legal guidance where I had represented myself without legal aid. I was not familiar with the procedures

4 involved in the tribunal hearing, and felt at a disadvantage to the expertise and knowledge presented by the Respondent s solicitors who benefited from my lack of foresight and consequently were able to demonstrate that they could not have been aware of my disability based substantially on the witness statement provided by Ms Shon and Ms Reddon who had paradoxically been responsible for bringing the allegations of misconduct against me which I was dismissed for but which had not been examined during the hearing. I assert the fact that since Ms Shon was in close communication with the named parties called forth as witnesses, Mr Peter-Paul Delsmon, Ms Frances Firth, Ms Reddon and Mr Nick Damianou, at the time of the disciplinary procedures, the dismissal and the discussions I d requested concerning the flexible working hours application in aid of my mental health issues, that this represents a clear bias by which scrutiny of Ms Shon s actions and that of the other parties could be avoided as a result of Ms Shon s assertion that I had not attempted to make her aware of my long term depression or mental impairment. 7.6 In paragraph 27-35, the judge identified discrepancies with the medical report from the GP and the OHT report the neither myself or these reports could be relied upon for accurate diagnosis about my symptoms, despite my concerns about the reports in paragraph 29, but, paragraph it was reasonable for the Respondent to rely upon their medical expertise at that time. However, I assert that I had attempted to make the Respondent aware of these discrepancies and the unreliability of the medical reports in Paragraph 21 and 29 of the judge s reasons. I had also drawn attention to the discussions with the HR team over an appeal for the decision against my flexible working hours application, paragraph 17 of the disability impact statement, in which I was forbidden from discussing the OHT report and where concerns about this were also disregarded by Ms Reddon during a meeting in January 2014 and denied by her under cross examination during the hearing, paragraph 20 of the judgement reasons. This was despite my suggestion that details about my long term depression and medication had been mentioned in the geneticist s diagnosis about the FraX Premutation from Guy s and St Thomas s hospital which I had provided to the Respondent during November 2013 and claimed to have made Ms Shon aware of during June and July 2013 but which she d denied.

5 7.7 The Judge s decision concludes in paragraphs 35 and 36 of the reasons, that on the basis that the Respondent had requested a report from the OHT which I agreed to release to the HR team despite my concerns over the ineptitude of this assessment, which the HR team had ignored, it was therefore reasonable for the Respondent to rely upon this report. I had attempted to make the tribunal aware of the fact that I was not aware at the time that the purpose of the OHT was to determine that my condition constituted a disability under the Equal Law act, this was in spite of the tribunal s assessment that the OHT report and GP report could not be relied upon as an accurate diagnosis of my condition, paragraph s 23, 25, 26 and 27 of the reasons. The details reviewed by the tribunal in paragraphs 17 and 20 determine that the HR team had contacted the OHT with information about the medical condition with the GP report, however, from my assertion and the conclusion drawn by the tribunal, the OHT did not request any previous medical history and had suggested that I was not disabled without further consultation, despite that both the letters from the GP report and the geneticist s report about the FraX Premutation mention the medication and history of long term depression, and that considerations should be have made. The judge s conclusion was that the Respondent would have no reason to override the medical reports from the OHT and the GP that I did not have a medical condition or disability that effected my day to day activities, despite that the issues concerning the multiple disciplinary procedures were never examined in relation to my claim for discrimination arising from a disability even where these procedures occurred simultaneous to the medical reports which were relied upon by the HR team whom had administered these procedures. Dated: 12/12/2014 Signed: