

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

"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:

This email has been sent on behalf of Michael McLaughlin who is currently out of the office, returning on Monday 12 May:-

Kenneth,

I write to advise you that Monday 14 July at 2.30pm has been set as the date for the Hearing in this matter.

That same day, I sent an email to the Edinburgh Employment Appeal Tribunal:

Dear Madam,

I am writing to you as the Appellant in this appeal, as my Solicitor is currently on holiday.

Firstly, the hearing in this matter was cancelled at the very last minute by the EAT.

I believe that the Charter Statement of the EAT states that appeals will be heard within six months, this appeal was lodged on 24 October 2007, so the six months was up on the 24 April 2008, and the hearing was already scheduled one week late over the six month Charter Statement.

The reason for the appeal, scheduled to be heard on 29 April 2008 at 2:00pm, being postponed by the EAT, was given as the appeal being heard that morning had overrun. According to the EAT Procedure 2004 that should not have happened:

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.

As a consequence of the hearing on 29 April 2008 at 2:00pm being postponed by the EAT, through no fault of the Appellant parties, I am going to lodge a complaint with the Tribunal Services, as the new date for the hearing postponed on 29 April 2008 is now the 14 July 2008, almost NINE months after the date when the original appeal was lodged.

That is simply unacceptable in any service.

I noticed that my Solicitor had provided dates to the EAT in May 2008 when my Solicitor was available for a new date for the postponed hearing, so I require full reasons as to why dates in late May 2008 were unsuitable to the EAT, the COMPLETE month of June 2008 was unsuitable in its entirety, and any dates in the first half of July 2008 were unsuitable?

Mr K R McAlpine (Appellant)

I received a very quick email reply:

Dear Sir,

Your comments have been noted and will be dealt with as soon as possible.

I sent a quick follow up reply:

Dear Madam,

In your reply, can you also provide the following information:

1: Who took the ultimate decision to postpone the Rule 3(10) Hearing scheduled to take place on 29 April 2008 at 2:00pm?

2: How many hearings have been postponed, as a percentage, over the previous year?

3: Who should I contact if I am still unhappy?

Mr K R McAlpine (Appellant)

Very late that same evening I sent the following email to my lawyer:

Michael,

Please see the original e-mail in its entirety.

Just realised that the respondent has whited out the following on  Page 461 of the tribunal bundle of documents:

"I will send by post copy of your Compromise Agreement and Leaver's checklist tomorrow morning."

I was selected for redundancy on Tuesday 30th May 2006.

Look at the date on the email below, Wednesday 31st May 2006.

Surely can't be right, a Compromise Agreement and Leaver's checklist, 1 day after being 'selected for redundancy'?

After sending my email reply I immediately received an automated email reply stating that Michael McLaughlin would not be available for five days.

The next day I sent an email to Diabetes UK:

Hi,

Can you please forward this message to Donna Castle of Diabetes UK.

Donna,

I called you today, Thursday 8 May 2008, and left a vmail.

Can you contact me, either by phone, or by reply to this email.

That afternoon, I received an email reply from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

Your emails have been passed on to the complaints department in London. They will be writing to you in due course.

On 9 May 2008, I sent the following email to the Office of my Member of Parliament:

Valerie,

Diabetes UK phoned me at 4pm.

The person I was speaking to was Claire (French-Blake I believe her second name is).

Diabetes UK have released money to pay for membership of the free representation unit (fru), Claire has filled out the relevant forms, and already sent them away. Hopefully once they become a member (days rather than months), Diabetes UK should be in a position to obtain an Advocate.

Claire has said that she will phone me again either Monday or Tuesday.

If there is anything else, please do not hesitate to contact me.

Three days later, my lawyer emailed me:

Kenneth,

Did Lesley forward this to you last week?

Michael

Dear Sir,

The Honourable Lady Smith is not able to be released from the Court of Session on 26 May.

Alternative dates and times are as follows: 2pm 14 July, 2.30pm 17th or 18th July or any time 29th or 30th July.

If you could respond as soon as possible so I can confirm the time and date with Lady Smith that would be most helpful.

Later that day I received an email from Michael regarding the whitening out of "I will send by post copy of your Compromise Agreement and Leaver's checklist tomorrow morning.":

Kenneth,

Please tell me you made a song and dance about that at the hearing and that you lodged the original email contrasting the two?!

The next morning I received the following email from Michael McLaughlin:

(Sent on behalf of Michael McLaughlin)

Kenneth,

I have received a copy of the Appeal Tribunal's letter to you of 12 May 2008. I trust you pointed out to them that the Practice Direction indicates that in circumstances such as these, the EAT has no option but to adjourn the morning hearing so that the afternoon hearing can take place. For some reason Lady Smith and the EAT departed from the Practice Direction and it would appear that this issue has simply been skirted around. I trust you focused on that particular issue in your letter?

We are being offered 18 and 20 June. I am available on both dates. 20th is my preference. I trust that I can simply confirm to the EAT and we will go with 20 June?

I sent an email reply to my lawyer regarding the whitening out of "I will send by post copy of your Compromise Agreement and Leaver's checklist tomorrow morning.":

Michael,

Apologies, but my broadband has not been working since saturday, but is fixed now.

Yes on both counts.

I lodged the original document with the respondent as part of my bundle.

I noticed that it had been changed, so lodged it at the start of the tribunal in the plastic folder that was handed to the tribunal before the start and which listed all the 'altered' documents.

I also sent another email to Michael McLaughlin that same morning regarding the offer of 20 June:

Michael,

Yes, thanks.

I have written a complaint to the tribunal, and received the following reply:

"Dear Sir,

Your emails have been passed on to the complaints department in London. They will be writing to you in due course."

I also sent another email to Michael:

Michael,

Yes, I did point out all of the below in your email.

20 June 2008 will be ok, still a bit later than expected, but better than 14 July 2008.

As my lawyer, Michael McLaughlin, had been away on holiday, I sent another email regarding the evidence on pages 329 to 334 of the joint bundle of documents that showed four separate emails:

Michael,

This seemed to get lost over the last five days.

Can you give me your one or two line initial thoughts on reading Pages 329 to 334 of the joint bundle of documents?

I also sent an email to an expert document analysis company:

Dear Sir/Madam,

I am a person (note: not a Company or Solicitor) involved in a civil matter.

Can you provide me with a quote for the following document analysis:

1) 6 pages (all photocopies) to determine if 4 emails in these six pages are part of one email chain, or separate unconnected emails.

2) 2 pages (both photocopies) to determine if handwriting is written by the same person on both pages.

Can you also tell me if you can read whited out sections of writing from a photocopy.

I also sent the same email immediately to a company who are experts in digital evidence.

Within a couple of hours I received the following reply:

Hello Kenneth,

Many thanks for your enquiry. Unfortunately we only deal with document analysis on documents that are held in a digital format.

Can I suggest you look at the website www.legalhub.co.uk - this has a register of all UK experts which may help.

I received a forwarded email from the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

The case will be listed on 20 June 2008, not before 2pm.

On 14 May 2008 I sent the following email to Michael McLaughlin:

Michael,

This could be crucial for the Rule 3(10) Hearing.

Can you give me your one or two line initial thoughts on reading  Pages 329 to 334 of the joint bundle of documents?

The next morning I received a reply from Michael:

Kenneth,

I'll have a look at that today and come back to you.

I sent another email to the Information Commissioners Office:

Dear Sir/Madam,

Can you provide me with the current status of the Case Reference Number RFA0194650.

The last correspondence I received from the ICO was dated 14 April 2008.

I finally received an email from Michael regarding the evidence on  pages 329 to 334 of the joint bundle of documents that showed four separate emails:

Kenneth,

The words "planning to let go" are fairly incriminating but the email relates it both to low performance and /or "the re-structuring of the business" so at best this would help in our argument on an unfair redundancy dismissal but does not appear to bolster the discrimination argument? What do you say these exchanges demonstrate?

On 15 May 2008 I received an email from Michael McLaughlin regarding the whitening out of "I will send by post copy of your Compromise Agreement and Leaver's checklist tomorrow morning.":

Kenneth,

Do I have a copy of the original that you lodged and does your witness statement make reference to being presented with a Compromise Agreement 1 day after the commencement of consultation.

Later that day I sent the following email reply to Michael regarding the evidence on  pages 329 to 334 of the joint bundle of documents that showed four separate emails:

Michael,

This is the email chain that links Malcolm Thompson with the RIF list.

Now, start at page 329 and note down the email dates and subject headings, then give me your thoughts.

I received the following email reply from Michael to that last email:

Kenneth,

I'm afraid you are going to have to talk me through it. The various emails are not necessarily linked and where does linking Thompson with the RIF list take us. He maintains that he was involved in the process from February.

I sent an email reply to Michael regarding the whitening out of "I will send by post copy of your Compromise Agreement and Leaver's checklist tomorrow morning.":

Michael,

"Do I have a copy of the original that you lodged"

If you haven't, and I doubt you have, you can either print out the email (part of this email chain), or I can scan the original and send it to you.

"does your witness statement make reference to being presented with a Compromise Agreement 1 day after the commencement of consultation."

In my witness statement, it makes reference to this document:

The document (Reference: Claimant's Bundle, Document 57, Page 75 OR Reference: Joint Bundle, Bundle of Documents Volume III, Document 89,  Page 460), was the Provisional redundancy  document sent by Catherine Temple to the Claimant on 31st May 2006

Although I don't point out that it is an altered document, I did present a folder at the start of the tribunal to all tribunal members and the respondent with the  altered document and the original document.

I also sent an email reply to Michael McLaughlin regarding the evidence on  pages 329 to 334 of the joint bundle of documents that showed four separate emails:

Michael,

Exactly.

These emails are not linked (perhaps apart from "confidential" and "RE: confidential", and the "confidential" emails were only to do with two promotions and the talent spreadsheet. This "confidential" email was sent from Nick Cooper to Malcolm Thompson who then sent it on to Catherine Temple.

The "confidential" email ends at this point.

The "Customer Care Professional" email, which is dated 23 March 2006, has the RIF list attached and states "I am sending you the full emea RIF list", and this email was NOT sent to Malcolm Thompson.

If you require further proof, look at  Page 402. This is the email chain that the "Customer Care Professional" email belongs to.

This proves two things:

1. That the RIF list didn't start to circulate in UK until 23 March 2006.

2. and most importantly, there is no evidence to link Malcolm Thompson receiving the RIF list in February 2006, or at all.

Ever feel you have been conned?

I received a quick email response from Michael regarding the whitening out of "I will send by post copy of your Compromise Agreement and Leaver's checklist tomorrow morning.":

Kenneth,

Please scan it and send it to me.

I then sent the following email to Michael regarding the whitening out of "I will send by post copy of your Compromise Agreement and Leaver's checklist tomorrow morning.":

Michael,

My original attached.

This email may have been cut and pasted by myself into a word document, and sent as an attachment to the respondent. This would explain the layout difference.

On 16 May 2008 I sent the Edinburgh Employment Tribunal:

Karen,

Regarding your email below, I have not received any correspondence from the Glasgow ET in the last 16 days regarding this matter. As such, I do not have a contact, apart from yourself regarding this matter.

Can you chase this from your end.

I quickly received an email reply to this email:

Dear Mr McAlpine

As your case is being dealt with in Glasgow and your case file is held there, I am unable to help you with this enquiry. Once again I will forward your email to our Glasgow Office. Should you wish to make further enquiries please telephone 0141 204 0730 where a member of staff will be able to assist you.

Later that same day I did eventually receive an email reply from the Glasgow Employment Tribunal regarding the inspection of the bundle of documents lodged with the Employment Tribunal:

I write to advise you that the Employment Judge (Ms Crone ) who chaired the hearing has your request in this matter.

I hope to have an answer back to you early next week.

Later that evening I sent my lawyer another email regarding the evidence on pages 329 to 334 of the joint bundle of documents that showed four separate emails:

Michael,

I really don't think you are getting the significance of this, so again please find below an explanation:

Document 53, "Template Oracle RIF sheet Support and OD", pages 329 to 339.

This document has been fabricated. It is a fabrication of evidence.

In the joint Bundle of Documents used at the Tribunal there are six pages, numbered 329 to 334. These six pages were part of "Document 53" entitled "Template Oracle RIF sheet Support and OD" which was produced by the Respondent for the joint Bundle of Documents used at the Tribunal.

Within the six pages, there are four emails, dates and subject headings are:

DATE, SUBJECT

2 February 2006, [Strictly Confidential] RIF template - names and details needed from Support and OD

23 March 2006, //Customer Care Professional

21 February 2006, FW: confidential

4 February 2006, confidential

There are a number of inconsistencies in this document, which, because it has been lodged as one document, is meant to look like one email chain. These inconsistencies are:

In any email chain, all emails must pre-date each other, see  page 316 as an example.

An attachment to an email is listed at the end of the email normally, and is always listed inside the email, ie: between "From:" and the end of the email, see  page 404 as an example, so that you know who the attachment was from, and which email is was part of.

The dates make it impossible for these four emails to be part of one email chain, ie: the first email is dated 2 February 2006, but the second email is dated 23 March 2006, so the second email does not pre-date the first email?

There are three completely separate subject headings, which signify three completely separate emails. Why change the subject at all?

Taking this email chain from the top:

 Email 1, "[Strictly Confidential] RIF template - names and details needed from Support and OD", 2 February 2006.

The first alleged email in this email chain has the subject "[Strictly Confidential] RIF template - names and details needed from Support and OD" and was sent on 2 February 2006. This email was sent from Gay Brogden. This email was sent to a list of people, NONE of which was Malcolm Thompson or Catherine Temple.

 Email 2, "//Customer Care Professional", 23 March 2006

The second alleged email in this email chain has the subject "//Customer Care Professional" and was sent on 23 March 2006. This email contained an attachment "Template Oracle RIF Spreadsheet Support and OD (7th Feb 2006).xls", which is the RIF list. This email was sent from Gay Brogden. This email was sent to Catherine Temple.

Comments

Email 2 is impossible as email 2 does not pre-date email 1, which it would have to, and it does not contain the same subject title. Malcolm Thompson has not been copied on either email 1 or 2, so has not received the attached RIF list. There is no evidence at all now that Malcolm Thompson received the RIF list, either in this document, or in the joint Bundle of Documents used at the Tribunal. Why would the respondent, at great risk to themselves, fabricate this evidence, if it didn't matter?

If Malcolm Thompson did receive the RIF list in February 2006, why fabricate evidence, why not just produce the original email? Perhaps because it would only leave hearsay, rather than any hard evidence, and perhaps because Malcolm Thompson's name does not appear again until mid April 2006 during discussions on exiting Kenneth McAlpine due to his diabetes?

 Emails 3 and 4 with the subject "confidential" are also impossible as emails 3 and 4 do not pre-date email 1, which they would have to, and they do not contain the same subject title.

On 20 May 2008 I sent an email to Michael McLaughlin:

Michael,

I raised the matter of emails in Document 53 with the Tribunal via an email request for an order on 24 May 2007, before the start of the full tribunal on 2 July 2006.

The letter reply from the Respondent is attached in two pages.

The response by the respondent to the emails contained in the joint bundle of documents used at the tribunal, Document 53, pages 329 to 339, is contained in point 1.

This response only confirms what I have thought all along, these are three totally unconnected emails, pieced together to link the reorganisation (CIM and Service Desk) to RIF list to Malcolm Thompson. They are totally unrelated, but are all under Document 53 of the bundle, and because of this, are a fabrication of evidence, the purpose of which was to connect the reorganisation to RIF list to Malcolm Thompson.

My summary of the THREE separate paragraphs are:

First paragraph just confirms that the 4 February 2006 email with subject "confidential", sent from Nick Cooper to Malcolm Thompson, was forwarded on 21 February 2006 with subject "FW: confidential" from Malcolm Thompson to Catherine Temple. The email dated 4 February 2006 with subject "confidential" contained three attached documents "two promotion proposals" and the "October 2005 UK OSDM talent spreadsheet".

Second paragraph just confirms that the 23 March 2006 email with subject "//Customer Care Professional" was sent by Gay Brogden to Catherine Temple. This email contained the attachment "Template Oracle RIF Spreadsheet Support and OD (7th Feb 2006).xls".

Third paragraph just confirms that the 2 February 2006 email with subject "[Strictly Confidential] RIF template - names and details needed from Support and OD" was sent from Sue Scates to "all Heads of Lines of Business" but not to Malcolm Thompson.

So, the respondent has confirmed that these are three completely separate emails, not an email chain, spanning some one and a half months, all under ONE document, namely Document 53, and the respondent has patched together these three emails to link Malcolm Thompson with the RIF list in the reorganisation in February 2006, in other words the respondent has fabricated this evidence, as it does not exist together in the real world?

One important quote in the attached letter is "(although she has no copy records to support this)". This, plain and simply, speaks for itself.

So, this whole judgement revolved around the reorganisation linked to February 2006 linked to Malcolm Thompson and the RIF list, which is now proven to be invented, no evidence, just hearsay on the part of a witness.

This is not only getting exponentially worse for the Respondent on a weekly basis, but is also exponentially worse for the Tribunal, who not only believed this, but refused orders to disprove this, despite anomalies being pointed out regarding emails.

I sent another email to Michael later that day:

Michael,

Can I instruct you to request that Lady Smith, at the Rule 3(10) Hearing, refers this claim to the Procurator Fiscals Office (or some other Office) or the Police, due to the suspected criminal matters that require investigation, so far:

* Alleged Collusion.

* Alleged Fabrication of evidence.

* Alleged Alteration of evidence.

* Alleged Perjury.

which have all resulted in perverting the course of justice?

"there is not in our judgment, any distinction as to the level of sentence to be drawn according to whether the proceedings contaminated were of a civil or criminal nature."

\- Court of Appeal

Your thoughts please.

Michael quickly sent me two email replies:

Kenneth,

There never has been any documentary evidence linking Thompson to the RIF list. That is the point that I have been making all along. 329-334 is evidence of absolutely nothing. You call it fabrication. It is such a poor attempt that it is barely an attempt at all. In order to go to the lengths of a deception one usually would require pursuit of some gain or positive outcome. They had none in this case because they didn't even draw the ET's attention to that document so it was all rather a waste of time.

The Respondent's witnesses should have been cross-examined about all of this. That was the way to bring this evidence out. It doesn't appear to have come out at all in evidence.

and

Kenneth,

I'm not going to do that. Let's get the appeal in. That is our goal and that is what we are trying to achieve and we should focus on that objective for now.

The next morning I received a letter from the Glasgow Employment Tribunal:

Dear Sir

Employment Tribunals (Scotland)

Mr KR McAlpine -v- Oracle Corporation Uk Limited

Case No: 116267/2006

I refer to your claim and to your email dated 16 May 2008 to the Edinburgh Tribunal Office regarding inspection of the bundle of documents lodged with the Employment Tribunal office for the hearing of your case last year. The email was passed to the Employment Judge (Ms Crone) who has asked me to respond as follows:

1. There was no suggestion at the commencement of the hearing that the claimant did not have a complete set of productions as provided by the respondent to him and the members of the Tribunal.

2. The claimant did seek to produce two additional folders of productions, but the Employment Judge refused this request for the reasons set out on  page 4 lines 42-50 of the Judgment.

3. The email of 30 April 2008 to the Edinburgh ET does not provide any detail of the document references you believe to be wrong .It would be helpful if you can provide this information, which would allow the productions to be checked and copies of the particular documents to be forwarded to you if appropriate.

This information would also allow full consideration to be given to your request.

We await hearing from you further in this matter.

A copy of your emailed letters and this letter have been sent to the respondent's representative for their information.

On reading the above letter from the Glasgow Tribunal, I found some answers to the three points strange, as I didn't even remotely ask a question along those lines. I decided that I was going to email Michael McLaughlin to see if he could write to the Tribunal for me to inspect the bundle of documents, because I was now convinced that the Glasgow Tribunal had something to hide.

On 21 May 2008 I sent an email to the Office of my Member of Parliament:

Valerie,

Ruth French from Diabetes UK has just called me, and I have suggested that I send you an email and copy Ruth on this email.

From our last meeting with Katy Clark MP, I noted that there was a couple of points to come out of the meeting, namely:

1. I require representation from either an Advocate or Barrister, this has to be in place as soon as possible.

2. Katy Clark MP requested a letter from Diabetes UK supporting my case, so that Katy could use this letter in future discussions with any other MPs or organisations.

Can we concentrate on points 1 and 2, and get these points resolved as soon as possible, that should go a long way to solving this case.

Please use this email as the main form of communication, copying myself in any emails or attached letters.

I emailed Diabetes UK later that day:

Ruth,

I was extremely disappointed in your call to me this morning, for the following reasons:

* The fru do not represent cases in Scotland.

* You then proceeded to provide a couple of possible organisations that I contact (most of whom I had already contacted) for possible representation.

The main part of this discrimination claim revolves around two emails (two pages) which in summary, state as follows:

"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...."

and

"which might lead him to go offsick again.

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

These emails do not state "Kenneth McAlpine", "prolonged period of time off due to illness" and "redundancy".

These emails do state, quite clearly, "diabetes", "prolonged period of time off due to illness" and "redundancy".

In essence, if this judgment is allowed to stand, it will be used by other employers and lawyers as a ruling in law which allows diabetics to be made redundant, fairly, because diabetes "result in a prolonged period of time off due to illness".

I am utterly astounded to this day, at the lack of any meaningful support from Diabetes UK, who expect me to either represent myself in the highest courts in the land, or the European Court, or pass the finding of representation onto myself.

Because of this, I will expect an answer to the following question (Yes or No):

Is Diabetes UK fully supporting my case, including finding representation (Advocate or Barrister) to get the decision overturned?

Chapter 3

It was now 22 May 2008 and I sent the following email to my lawyer, Michael McLaughlin:

Michael,

Can you write to the Glasgow ET and request that I inspect the joint bundle of documents.

The reasons for this are numerous, including references to documents were wrong in the judgement, I also want to check that the bundle of documents in my possession are the same as the bundle in the Tribunals possession for all future appeals, and in case it is referred to another party or higher court.

What is a claimant/appellants rights in this matter?

After I sent this email, I sent another email to Diabetes UK:

Ruth,

Part of my claim for reasonable adjustments was thrown out at the Pre-Hearing review stage, which meant that it became a separate appeal, which has now gone beyond the Court of Session, who didn't hear this appeal because they sent out the wrong forms to me twice, and they wouldn't accept my appeal because of this administrative error.

This now means that the next court is the European Court, and because it is the European Court, it is not English or Scottish Law, so the FRU should be able to provide some form of representation in this court.

Can you check with the FRU and get back to me with their response?

If they state that I am in Scotland, hence they cannot represent me, the FRU could still do this for Diabetes UK, a part of which I am a member.

I also sent a follow up email to the Glasgow Employment Tribunal:

Dear Sir/Madam,

Please find document attached regarding this e-mail trail.

Mr K R McAlpine

Dear Sir/Madam,

Mr K R McAlpine v Oracle Corporation UK Limited

Case Number: 116267/2006

In reply to your letter dated 21 May 2008:

1 & 2. I have no idea why you have raised these points at all, as this was not contained, at all, or even hinted at, in my original email request.

3. Copies of pages.

3.1 Please send copies of the following pages from Volumes I, II, III:

16, 19, 22, 24, 25, 71, 87, 102, 105, 111, 245, 247, 248, 249, 250, 251, 252, 258, 275, 287, 315, 329, 330, 331, 332, 333, 334, 336, 340, 376, 402, 418, 423, 431, 433, 438, 452, 458, 461, 464, 510, 511, 512, 513, 515.

3.2 Please send copies of the following pages from witness statements:

The signed by hand page of each witness statement.

If any witness statement is not signed by hand, a copy of the page with the typed name and statement of truth.

Nicholas Cooper witness statement, pages 4 and 11.

Catherine Temple witness statement, pages 3 and 4.

Malcolm Thompson witness statement, page 3.

The last email I sent that day was to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

Can you provide me with an update on the current status of this Costs Appeal.

The last correspondence I have had from the EAT is dated 26 March 2008 and listed below.

The next morning I sent the following email with attached letter to Michael McLaughlin:

Michael,

Please see attached document.

Dear Michael,

Mr K R McAlpine v Oracle Corporation UK Limited

We are writing to you to instruct you to obtain the services of an Advocate.

We feel that it is now the right time to bring an Advocate on board, as there is a lot of reading required, in order for an Advocate to be brought fully up to speed in all matters.

Whilst this will not affect your work up to, and including the Rule 3(10) Hearing, we recognise that we only have 42 days to lodge an appeal to the Court of Session, and it would be prudent if an Advocate was on board as soon as possible, so that the Advocate can read the 'judgement' and the bundle of documents and attend the Rule 3(10) Hearing and is fully prepared if and when this happens.

We also have lodged an appeal regarding the costs hearing on 23 March 2008, and have had no correspondence regarding this matter at all.

We also have an application to the European Court regarding the reasonable adjustments claim, which the Advocate can help with over the next couple of months.

We do have some other organisations that are searching for an Advocate or Barrister at present, and these avenues have not been exhausted yet, so please check with myself first when you have identified an Advocate, before giving this Advocate any instructions.

I received an email from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

Our records show you are represented by Messrs Biggart Baillie Solicitors. All correspondence relating to this case will be sent direct to them.

I also received an acknowledgement to the email that I had sent to the Glasgow Employment Tribunal the previous day, stating that my email was receiving attention.

Later that morning I sent the following email to Michael:

Michael,

Have you received any correspondence regarding the matter of a costs appeal (see email below).

Although you are not representing me regarding this appeal, I do not know why any correspondence regarding this appeal would be sent to you.

Can you check whether you have received any correspondence, and also notify the EAT that you are not representing me in this appeal, and that all correspondence be sent to my address.

I then sent the following email reply to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

You have made a wrong 'presumption'.

This appeal was lodged by the claimant, contained only the claimant's address, and did not contain any documentation, contact information, or details pertaining to Messrs Biggart Baillie.

You can conclude from the above that Messrs Biggart Baillie are not representing the claimant at all regarding this costs appeal, the claimant is representing himself.

Can you send asap, any correspondence regarding the costs appeal since 23 March 2008.

I also trust that any time limits will be extended due to this administrative error.

Mr K R McAlpine

That same morning I received an email from Diabetes UK:

Dear Kenneth

Thank you for your email and your previous email sent on Wednesday.

I am sorry that you feel so disappointed by the assistance Diabetes UK has been able to offer you so far. We recognise that as the major charity in the UK representing people with diabetes, you would expect us to assist you with your case. It is an expectation we would like to meet and it is precisely for this reason, as well as our desire to see an end to discrimination against people with diabetes, that the advocacy service was set up. However, it is still in its infancy and although we hope to be in a position whereby we employ legal staff to take on cases directly, we're not there yet.

To answer your question, yes, we will do all we can to provide you with support and as I mentioned during our telephone conversation, we will gladly try to see if we can find a barrister or legal advocate who can represent you and work on a pro bono basis. Thank you for copying me in on the email you sent to your local MP's office; I have assumed that you would like us to go ahead with our search for a barrister/legal advocate before hearing back from Katy Clark and either myself or Clare will be in touch with you again soon regarding this.

I have contacted the Free Representation Unit and their response was that, unfortunately, they can not offer assistance to people taking cases to the European Court.

At lunchtime that day, I received an email from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

We have not been advised of any change in representation.

Can you please confirm if Messrs Biggart Baillie are still representing you as we can only hold one address for service on our system and all letters concerning this case have been sent to Messrs Biggart Baillie.

Within an hour I sent the following email reply:

Dear Sir/Madam,

There are two completely separate appeals.

Messrs Biggart Bailli are representing me in my discrimination and unfair dismissal appeal, which is the subject of a Rule 3(10) Hearing on 20 June 2008. All correspondence regarding this appeal should be sent to Messrs Biggart Bailli.

Kenneth McAlpine is representing himself in his separate costs appeal. All correspondence regarding this appeal should be sent to Kenneth McAlpine.

Mr K R McAlpine

That afternoon I received the following email from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

Your email is being dealt with. The EAT will be writing to parties in due course.

I then sent a follow up email to Diabetes UK regarding my Member of Parliament requesting a letter from Diabetes UK supporting my case, so that Katy could use this letter in future discussions with any other Members of Parliament or organisations:

Ruth,

Have you sent Katy Clark MP the letter as outlined in point 2 of the email below.

I then received an email from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

I can confirm your Notice of Appeal dated 25 March 2008 was received by this office and is in time.

Due to an administrative error, the case has not yet been entered on the system.

We will be sending an acknowledgement letter in due course.

Our apologies for any inconvenience caused.

The plot just seems to get thicker and thicker. My Costs Appeal was sent on 23 March 2008 to the Edinburgh Employment Appeal Tribunal, who received it and printed it out. As the email above clearly states, "Due to an administrative error, the case has not yet been entered on the system", and I can only surmise that it has just been entered in the system today, 23 May 2008. It will now take at least a month to go through the sift process, and at least another month before the Edinburgh Employment Appeal Tribunal write to parties and set a date for the hearing some six months in the future.

On 26 May 2008 I received the following letter through the post:

Dear Sir

I refer to the above matter and Notice of Appeal lodged on 26 March 2008.

I can confirm this appeal was lodged in time and has now been referred to the Judge for sift.

Our apologies for the delay in this appeal being set up and any inconvenience this may have caused.

The next morning, my lawyer, Michael McLaughlin, sent me the following email:

This email doesn't seem to have been delivered - hope you receive this one.

This email has been sent on behalf of Michael McLaughlin:

Kenneth,

It is self-evident that documents 329 – 334 are not linked in a chain. Their times are different, their dates are different and the subject matters are different and none of it hangs together. I picked up that much from my first glance. What I am struggling to understand is why it is that you say that document 53 must be one continuous chain of communications. The exchange included between Nick Snowden and Malcolm Thomson doesn't even relate to the RIF list rather it is about candidates for promotion as far as I can see.

You are right to identify that document 53 is entitled "Template Oracle RIF Sheet Support and OD" but so what? You say this is fabricated evidence. It is not fabricated in the slightest it is self-evident that the emails do not run together. I'm not sure that Oracle pretended otherwise. I am not really sure why these documents where lodged. I struggle to see their importance to the Respondents other than demonstrating that there was some emails correspondence in or around early February regarding the RIF list. It certainly doesn't help the Respondent prove that Thompson was involved because he is not a recipient of any of these emails. Frankly this exchange of emails does nothing beyond proving that there was a document in existence named the RIF list.

The tribunal Judgment places no reliance on this exchange of documents. The judgement doesn't refer to it. In deciding that Malcolm Thompson did place your name on the RIF list in the course of February 2006 the employment tribunal have relied upon his witness statement combined with Cathy Temple's. You will see the criticisms and comments I have made in my note of appeal about that evidence.

To summaries therefore documents 329 – 344 don't prove that Malcolm Thomson did have an involvement in the RIF list in February nor did he prove that he did not have an involvement. They prove that such a document did exist and nothing beyond that. If your point is that chunks may have been taken out of documents 329 -344 and that those chunks may have been helpful evidence for your case, it is far too late in the day to do anything about it.

On 27 May 2008 I received an email from Diabetes UK:

Hi, Kenneth

Clare will be contacting Katy Clark and will look into finding a barrister/legal advocate who can work on a pro bono basis.

Clare has now returned to work if you would like to contact her although you are, of course, welcome to contact me directly if need be.

Around lunchtime I sent Diabetes UK another email:

Ruth,

Can you pass this on to Clare, it sounds like the Free Representation Unit (FRU in England and Wales):

Free Legal Services Unit

During the period of devilling, trainee Advocates carry out work for the Free Legal Services Unit (FLSU). This is part of the Faculty's long-standing commitment to providing access to justice for everyone in society. The FLSU enables qualified persons to provide advice and representation to clients of Citizens Advice Bureau and other advice agencies from across Scotland. (In order to devil a person has to first undergo a period of training in a solicitor's office.)

This is part of the Faculty of Advocates, and could be a good contact for this case.

This may have to go through Diabetes (Scotland).

I received the following email from my lawyer:

Dear Sirs

I understand from Mr McAlpine that he has lodged an appeal against the Employment Tribunal's decision to make an award of expenses in the amount of £3,000. For the avoidance of any doubt, I am not instructed by Mr McAlpine in relation to his appeal against the expenses judgment. The only ongoing matter before the EAT in which I am instructed is Mr McAlpine's appeal against the substantive decision of the Employment Tribunal at Glasgow from July 2007 which has been set down a for Rule 3(10) Hearing on 20 June 2008.

The next day I sent an email to three expert document analysis companies:

Dear Sir/Madam,

I have a number of questioned documents which I would like to submit to an expert for analysis.

These documents span over six pages, are allegedly one document (one email chain), but look as if they are made up of 3-4 separate emails.

I would have two questions regarding these six pages:

1. Are these emails one email chain, or an unrelated set of emails?

2. According to these emails, did one specific person receive one specific attachment (name and attachment will be supplied)?

Can you provide me with a rough estimate of cost to provide an expert witness written report?

Early on 30 May 2008 I sent an email to Michael McLaughlin:

Michael,

Can you provide me with an update on my instruction to search for an Advocate?

Can you also provide me with a timescale?

Later that morning I received the following letter from the Glasgow Employment Tribunal:

Dear Sir,

I acknowledge your letter/email dated 22 May 2008 and state as follows:-

An Employment Judge (Ms Crone) to whom this matter was referred has asked that you clarify why you wish copies of these pages (Your email of 30 April 2008 referred to 'many of my document references were wrong').

Please reply in writing within seven days.

Later that afternoon I received an email from Diabetes UK which had an attached application form for The Free Legal Services unit of the Faculty of Advocates.

The next day I sent the following email to the Glasgow Employment Tribunal:

Dear Sir/Madam,

Case Number: 116267\2006

I am writing in reply to your letter dated 30 May 2008.

You have quoted in this letter (Your email of 30 April 2008 referred to 'many of my document references were wrong').

This quote infers that I, the claimant, got the document references wrong, which is completely wrong.

The full quoted sentence was 'In the written judgment, many of my document references were wrong."

I did not write the judgment.

I will now clarify why I wish copies of these pages.

In the written judgment, many of my document references were wrong.

One example is in the judgment at  paragraph 93 it states "(i) volume 3 page 105".

In the joint bundle of documents,  volume 3 does not start until page 385?

For this reason I will require a copy of page 105 and a copy of the correct page that should have been referenced, and copies of all other document references which are wrong, and copies of the correct pages that should have been referenced.

This list of all pages, wrong and correct references, has already been supplied.

Two days passed before I sent Diabetes UK a follow up email:

Clare,

I have sent you down two letters as follows:

Sent on evening of Friday 30 May 2008, a signed and dated by hand last page of the FLSU form, you should receive this today or tomorrow.

I noticed on Sunday 1 June 2008 that there is another page, which I signed and dated by hand and sent to you, you should receive this on Tuesday or Wednesday.

I have attached a word document with all the FLSU questions and answers, which you should be able to quickly fill in on the form that you have.

Any sections that have a large amount of text, you can write 'see separate sheet', and cut and paste and print out the large amount text.

If there is anything missing, or if I can help further, let me know.

Hope this helps.

Later that morning I received a reply from one of the expert document analysis companies:

Dear Mr. McAlpine,

Thank you for your enquiry requesting a quote for handwriting examination of questioned documents. To be able to provide you with the requested quotation, it would be helpful if you could telephone me and discuss your requirements.

I immediately sent the following email reply back:

Ian,

Thanks for your email.

I hope you don't mind, but I though it would be a lot easier to explain if I attached one set of six pages and explain what sort of information I require.

If you can do this work, then please provide me with a quote for a written report analysing and answering the two questions below.

The attached document contains six pages which were lodged as evidence under one document (note singular use of the word document).

1. Do  pages 329 to 334 form one email chain, or are they an unrelated set of three or four emails?

2. Did "Malcolm Thompson" receive the attachment "Template Oracle RIF Spreadsheet Support and OD (7th Feb 2006).xls" according to these emails?

I realise that the answers to the above two questions are really self evident, but as you are probably well aware, the legal system has to be pointed in the right direction, and an expert witness report will paint a thousand words.

If you cannot do this work, do you know of any other expert witness who would be able to perform this type of work.

I may have similar kinds of work in the near future, as I am presently analysing 850 pages worth of evidence.

That afternoon I received an email from my lawyer, Michael McLaughlin:

Kenneth,

As I did not act for you in the tribunal it is probably best if you write in and request the documents. They will not hand them over to me unless you confirm that I am instructed to receive them. You will be quicker asking for them directly.

I have dictated a response regarding the instruction of an advocate and you should get that this afternoon.

I immediately replied to this email stating that I would write in and request the documents.

I also received another email from Michael later that day:

Kenneth,

I acknowledge receipt of your letter dated 23 May 2008.

This is certainly an unusual request. Forty Two days is usually more than ample time for an Advocate to understand the legal and factual issues that arise in the appeal to the inner-house. That would certainly be the case if we were in a position to instruct the Advocate immediately upon receiving the decision of Lady Smith from the 3(10) Hearing.

If you instruct the Advocate to read the relevant and necessary papers in advance of the 3(10) Hearing and also suggest that the Advocate attend the 3(10) Hearing then you will of course have to pay for the Advocate's time in carrying out these tasks. There is a chance that we might be successful at the 3(10) Hearing and therefore you would have incurred costs to an Advocate which were unnecessary. My gut feeling is also that any Advocate that we contact about progressing with an appeal to the inner-house will tell us that the 42 day period was more than adequate to master the papers and draft an appeal.

As regards the identity and experience of the Advocate, as you will imagine, the more experienced the Advocate in Employment Law and in general, the higher the daily rate that you will be charged by the Advocate. That is clearly a matter for you and I will take your guidance on the level of experience you wish the Advocate to have.

Advocates are often reluctant to accept instructions direct from litigants themselves and it is likely that the Advocate will insist that you instruct me to act as an instructing solicitor. I will of course attempt to instruct an Advocate who will agree to accept instruction directly from you but I think most advocates would insist upon having an instructing solicitor. I have to say in this case some form of in-put from me would probably benefit the Advocate greatly given the fact that I have drafted the appeal and the note of arguments for the 3(10) Hearing. I have also a fairly good working knowledge of the evidence that was lead and the issues in the case generally.

As you will doubtless appreciate, I am not in a position to act as instructing solicitor on an appeal to the inner-house with the Court of Session on a pro-bono basis and therefore you would have to factor into your thinking costs related to me in acting as the instructing solicitor.

My advice would be for us to identify an Advocate of suitable experience and knowledge in Employment Law who would be willing to accept instruction (directly from you or otherwise) who we could instruct immediately upon receipt of Lady Smith's decision whether that be on the day or in writing at a later date.

I look forward to hearing your views on this email.

I later forwarded this email to my mother and father:

Mum/Dad,

Your thoughts and reply on below.

I notice that Michael did not take on board, or comment, on getting an Advocate for the appeal to European Court and costs appeal to EAT.

Early evening I received a reply from one of the expert document analysis companies:

Dear Mr. McAlpine,

I am sorry it has taken me a while to respond but i have found it necessary to discuss the matter with colleagues, particularly those within our Computer Forensics Department.

Essentially, due to the nature of your enquiry a handwriting expert would not be able to assist in providing expert evidence to answer the questions you asked of us. However after consultation with one of our computer forensics experts, we believe that we could offer an opinion on whether or not the email as presented to us is a single email chain or a number of separate emails that have been cut and paste into one document. To comment further upon this we would need hands on access to the documents you hold.

Similarly we will be able to comment on Brogden sending the Template Oracle RIF Spreadsheet Support & OD to Temple and provide an opinion on whether or not Thompson forwarded the spreadsheet to Temple.

Regarding costs to engage our services as requested, i have attached our standard terms of business. We would estimate that to conduct an analysis on recovered documents and produce a report minimum likely fees would be £437.50 Attendance upon you by a Senior Consultant to recover the documentation charged at an hourly rate of £160.00.

Should handwritten document examination become appropriate our Handwriting expert's fees are £175 per hour.

Please advise if you wish to proceed.

I immediately sent an email reply to the expert document analysis company:

Ian,

Thanks for getting back so soon.

I only have photocopies of these emails as they are presented to you in the word document that I sent you.

Would that make any difference to the analysis and report?

Would you still be able to accurately answer both of the questions?

Early the next morning I received another email from the expert document analysis company:

Dear Mr. McAlpine,

It is because you hold photocopies i have assessed that our Handwriting Expert would be unprepared to express an opinion as they rely on original documents when conducting examinations and thus therefore sought the opinion of our Computer Forensics Department.

Our analysis and report would be based upon the paper documents you present to us and our Computer Forensics Department would express an opinion on these documents as they interpret them.

I sent Michael McLaughlin the following email:

Michael,

Let's go for the following:

"My advice would be for us to identify an Advocate of suitable experience and knowledge in Employment Law who would be willing to accept instruction (directly from you or otherwise) who we could instruct immediately upon receipt of Lady Smith's decision whether that be on the day or in writing at a later date."

But with the following provisos:

1: It is an Advocate who specialises in Discrimination first and foremost, and Employment Law.

2: I would obviously prefer the Advocate to take instruction directly from myself (straight from the horses mouth to coin a phrase).

3: The Advocate should also be instructed to accept the reasonable adjustments and costs appeal.

The target should be to have identified an Advocate who is willing to accept instruction in this claim by 20 June 2008.

I quickly received an email reply from Michael:

Kenneth,

Thank you for your email of earlier today, the terms of which I have noted. I have a couple of Advocates in mind who specialise in Employment Law although they do bits and pieces of other work. I will contact their Clerks to find out their availability to spend some time post 20 June getting to grips with the papers and issues.

I note that you also want the Advocate also to accept instruction in the reasonable adjustment and costs appeal. You need to be clear about the way Advocates approach these matters. An Advocate will first and foremost peruse the papers and all relevant documentation to satisfy him or herself that there is in fact a stateable appeal. If like me, the Advocate is of the view that no stateable grounds exist they will refuse to accept the instruction. It is not for me to second-guess what an Advocate might make of the prospects of success of the reasonable adjustments and costs appeal. It may be that they disagree with my view and are prepared to state that appeal before the inner-house and EAT respectively. One thing you have to bear in mind is that you neither have the time nor the money to shop around Advocates until you find one who is prepared to advance the reasonable adjustments and costs appeal.

There will be some initial work from me in sourcing the Advocate, discussing the case with them and bundling together all of the papers should that become necessary. Even if the Advocate is prepared to accept instruction directly from you, I would imagine they would at least wish to have one consultation with me present given that the main appeal on the 3(10) decision will be an argument in support of my note of appeal. The Advocate will clearly wish to discuss with me the terms of the note which have been subject to the criticism of Lady Smith. For that reason, I now intend to open a separate file on which I will log time for work carried out in connection with the instruction of Counsel. Time on that file will be charged at my normal hourly rate of £225 per hour plus VAT. There will be no significant charges in the short term and if the Advocate instructed is prepared to deal directly with you then obviously the charges will not mount up.

I am reluctant to levy any charges on you at all but as you probably understand, I have spent a considerable amount of chargeable time pursuing the main appeal, probably a lot more than you or I ever anticipated would be necessary and it is for that reason that I require to charge for additional matters in which you require my assistance.

If you have any issues in opening a separate chargeable file for instruction of Counsel, please telephone me to discuss this or set out your views in writing.

I quickly replied to Michael:

Michael,

One thing to bear in mind is that the appeal to the European Court does not concern the reasonable adjustments, although it does.

Let me explain.

The appeal that will go to the European Court, will go to the European Court of Human Rights.

It will not be based on whether or not I have a stateable case for failure to make reasonable adjustments, it will be on the mistakes, errors and maladministration of the various tribunal and appeals associated with the reasonable adjustments, culminating in the Court of Session sending the wrong appeal form to me twice, and not accepting the appeal which was lodged in time but on the wrong form that the Court of Session sent to me. That is just the last Article 6 (1) breach of my human rights, among others.

I also recognise that I do not require an Advocate to lodge this appeal, if you lodge it yourself, the Court appoints an Advocate/Barrister for unrepresented parties if the appeal is accepted.

I later sent an email to Diabetes UK:

Clare,

Can you send me (via email or via post) a copy of the letter that you sent to my MP outlining the support from Diabetes UK for my case.

I then replied to the last expert document analysis email:

Ian,

I am presently giving careful consideration to your offer.

I am through at Edinburgh on 20 June 2008, and would be available from 10am to 1pm on that date, or later that afternoon (after 3:30pm). I can bring through the copies of the documentation that I have, and other questioned documents which I would like to show someone with regards to proving their authenticity.

Would it be possible to arrange a meeting at your Edinburgh Office on the 20 June 2008 at an appropriate time, with a view to handing over the documents that we have discussed, and to discuss with someone other questioned documents and what you can prove from these other questioned documents?

Then I received a short email from my lawyer:

Kenneth,

Your comments below tend to call into question whether or not you wish me to open discussions with an Advocate at all. Would you please clarify the position. Do your comments relate solely to the reasonable adjustments case?

Later that afternoon I received an email reply from the expert document analysis company:

Dear Mr. McAlpine,

Would it be more convenient to you to meet in London, where our support services, including computer forensics, are based? I am also based in London.

In addition, it may be that on hearing about the wider picture in relation to your matter, our experience in identifying and gathering evidence in support of litigation may be of use to you.

I look forward to hearing from you.

I then replied back to Michael McLaughlin:

Michael,

Please do not play mind games.

I have clearly stated that the appeal to the European Court is not about whether the reasonable adjustments is a stateable case or not, it is to do with the way that the reasonable adjustments has been handled by the legal system, and the human rights that have been denied.

If this appeal is successful, one of the reparations is that the reasonable adjustments may have to go in front of a new tribunal, in which case it will be open to discussion whether it is a stateable case.

"Do your comments relate solely to the reasonable adjustments case?"

Yes.

Do I want you to speak to an Advocate regarding the appeal to the European Court?

Yes.

I also sent another email to Michael:

Michael,

On another topic regarding anything to do with the reasonable adjustments, whether it be discussions with an Advocate or any other party, I want to be present or copied on any correspondence regarding reasonable adjustments.

The reason for that is simple, if it is just yourself who enters into discussions with an Advocate or any other party regarding the reasonable adjustments, that would be utterly unfair, as your view is that it is not stateable at all.

I would want to put my view forward on the reasons why I believe that it is very stateable.

If it is only yourself who can give instructions to the Advocate, then you can appreciate my dilema.

I later received the following email from Michael:

Kenneth,

I am very disturbed by your tone. Please phone me at 4.30pm.

Michael McLaughlin had taken offence to my email earlier that day which started "Please do not play mind games".

I called him, and we had a frank discussion concerning what he said and what I said.

I made it clear to him that I wanted to be involved in everything concerning any reasonable adjustments correspondence, as he had dropped that, and would not be the best person to put anything forward to the Advocate.

I also made it clear to him that his email disturbed me, asking "whether or not you wish me to open discussions with an Advocate at all" as there was no hint that I stated that at all, although "I also recognise that I do not require an Advocate to lodge this appeal, if you lodge it yourself, the Court appoints an Advocate/Barrister for unrepresented parties if the appeal is accepted" may have confused him.

I think he was extremely surprised that the reasonable adjustments had gone this far, which concerned me, was he 'hoping' like Judge Crone and Lady Smith, that it would just disappear?

I never apologised for stating "Please do not play mind games.", as to me, he was, and he didn't apologise either, so we put it down to a misunderstanding on both our parts.

The next morning I received another email from the expert document analysis company:

Dear Kenneth,

Sorry for the delay in reply the office has been closed for holidays.

I think it would be a good idea if we discuss this over the phone, as I need further details in order to give you a quote.

The next morning I received an email from Diabetes UK:

Here you go Kenneth!

Letter attached read:

Dear Katy,

I am writing to you on behalf of Mr Kenneth R McAlpine.

I will be acting as Mr McAlpine's advocacy worker for the next couple of months and will do all I can to assist him in his current situation. We are unable to comment on the merits of individual cases as we are not legally trained but we do believe that all people with diabetes should enjoy the same rights as those who do not have diabetes. If Mr McAlpine has been discriminated against by his employers as a result of his diabetes, then we support him fully in his court case.

Currently many people with diabetes are discriminated against in such areas as employment, Diabetes UK would like to see equal treatment for people with diabetes across all sectors with the removal of barriers restricting opportunities and access. We support the broad principle of case by case (individual) assessment, carried out with appropriate flexibility and sensitivity. Application of this practice would protect the rights of people with diabetes as well as the safety and rights of others in society.

On 4 June 2008 I received the following letter from the Glasgow Employment Tribunal:

Dear Sir/Madam

Employment Tribunals (Scotland)

Mr KR McAlpine -v- Oracle Corporation Uk Limited

Case No: 116267/2006

Your email of 31 May was referred to the Employment Judge (Ms Crone) who has asked me to make the following response.

1. Your email of 31 May referred to the "list of all pages, wrong and correct references, has already been supplied". The Employment Judge understood this to be a reference to the email of 22 May where a copy of 45 pages from the productions was requested.

2. The Employment Judge noted that of the 45 pages requested, only 15 pages were referred to in the Judgment.

3. The Employment Judge requested administration to produce the documents against the references in the Judgment. The Employment Judge was advised by administration that productions are kept for a period of six months following promulgation of a Judgment. A search was conducted for the productions, and all folders of productions - with the exception of Volume 2 - were recovered. Accordingly, the Employment Judge has been unable to check references and documents from Volume 2.

4. The Employment Judge noted, with regard to pages 418, 423 and 452 of Volume 3 that the reference accurately reflects the document produced.

5. The Employment Judge noted, with regard to pages 71, 87, 105 and 111 of Volume 3 that the reference to "page" is incorrect, because the reference should be to the document produced at tab 71 etc. of Volume 3.

6. The Employment Judge noted the submissions made by the claimant, when referring to these productions, were addressed and considered by the Tribunal in its Judgment.

7. The Employment Judge noted your request for copies of various pages from the witness statements. The Employment Judge wishes to know why you seek these copies.

8. The Employment Judge can confirm the witness statements of Nicholas Cooper, Fiona Vickers, Simone Harch, Malcolm Thompson, Fran Winter, Richard Marsden and Avil Gaur were signed. The witness statements of Philip Snowden and Catherine Temple included a "statement of truth".

That same morning I also received a letter from the Edinburgh Employment Appeal Tribunal:

Dear Sir

Mr Kenneth McAlpine v Oracle Corporation UK Ltd

I am writing with reference to your Notice of Appeal in the above case from the Decision of an Employment Tribunal sitting at Glasgow and promulgated on 13 February 2008.

Under Section 21 of the Employment Tribunals Act 1996, this Appeal Tribunal only has jurisdiction to hear appeals from Employment Tribunal Decisions on questions of law, i.e. where it is argued that the Tribunal made some mistake in its interpretation or application of the law in reaching its decision. This means that it is not the function of this Appeal Tribunal to re-hear the facts of a case or to review an Employment Tribunal's decision on those facts.

The appeal has been referred to The Honourable Lady Smith in accordance with Rule 3(7) of the Employment Appeal Tribunal Rules (amended) 2004 and in her opinion your Notice of Appeal discloses no reasonable grounds for bringing the appeal. She states:

An appeal lies to this Tribunal only in respect of an error of law. In making an award of expenses, the Employment Tribunal had regard to the relevant provisions of the 2004 Rules and exercised the discretion conferred on them by those rules. Contrary to the import of the notice of appeal, they did not award the first element of expenses because the claimant had failed to take legal advice but because, overall, he had acted unreasonably. They were entitled, on the facts, to take that view. Further, the distinction that the claimant seeks to draw between 'not altering' and 'not deliberately altering' is of no relevance to the issue that the Tribunal had to consider regarding the second part of the expenses award. They make quite plain their reasons for that award, particularly at paragraph  134 and  135 where they reached a conclusion that was, again, open to them on the facts. The Tribunal then proceeded to make an award of expenses which was modest in the circumstances. No reasonable grounds are advanced in support of this appeal and rule 3(7) applies.

For the above reasons the learned judge considers that this Appeal has no reasonable prospect of success and that, in accordance with Rule 3(7), no further action will be taken on it.

Your attention is drawn to Rules 3(8) and 3(10) of the EAT Rules. A copy of Rule 3 is enclosed with this letter.

Chapter 4

It was now approaching holiday season, when on 4 June 2008 I sent the following email to my Member of Parliament:

Valerie,

In case you have not received a copy of the letter from Diabetes UK, please find it attached.

I trust that this is the letter that Katy required at our last meeting, in order for Katy to action some of the other topics that were discussed at our meeting.

Later that day I received an email from one of the expert document analysis companies:

Dear Mr McAlpine

I have just returned after a period away and Ian Bennett has copied me the correspondence between yourselves (as below). Obviously we are anxious to help you but firstly we require to know full detail of who our client will be in order to conduct usual conflict checks. So I wonder if you would confirm please:

* Whether the work will be on behalf of a company and if so which?

* Whether the work would be on behalf of yourself personally and if so can we have your full detail (including address, telephone numbers etc) please?

* Which individual/s or company you / your company are acting against?

I look forward to hearing from you.

I immediately replied to this email:

George,

To answer your questions:

The work would be on behalf of myself personally.

Mr Kenneth McAlpine

<address removed>

The company that I am acting against is Oracle Corporation UK Limited.

If required, I could instruct my Solicitor or Advocate to request the work.

About an hour later I received the following reply from the expert document analysis company:

Dear Kenneth

Thank you. Could I also ask for your phone number in order that we may call to discuss requirements?

I also received an email from my lawyer, Michael McLaughlin:

Kenneth,

Further to our telephone conversation yesterday afternoon I hope that I have cleared up any misunderstanding about the issue of instruction of an Advocate. I now understand that you wish me to have an Advocate on standby for 20 June in order to consider the papers and prepare an appeal to the inner-house of the Court of Session to what we anticipate as Lady Smith's decision that our appeal of the full Tribunal hearing be rejected. You also want him to consider the papers relative to the reasonable adjustments claim and you also want him to be instructed to progress the appeal which you have lodged against the Tribunal's cost award in favour of Oracle.

You have expressed concerns that if you do not have direct access to the Advocate in relation in particular to the reasonable adjustments claim then he may not be properly instructed. I think you have a legitimate concern now considering that I have not been involved in progressing matters in relation to the reasonable adjustments claim since it was rejected at the 3(10) Hearing by Lady Smith. I suggested therefore that you put together a bundle of papers for Counsel in relation to the reasonable adjustments matter. You asked me for some guidance as to how to do that. The first thing that you should do is set out a procedural chronology recording the procedural history of the reasonable adjustments claim dating from its inclusion in the ET1 to the PHR where it was thrown out, right through the ET and to the Court of Session and its current procedural status.

You should also draft a summary of your factual and legal case in relation to reasonable adjustments. Ideally this should not run to any more than 2 sides of A4 because you simply want to set out a summary of the position rather than all of the detail. Also include a paginated bundle of documents that you say relate to the reasonable adjustments claim and set those out in chronological order with a chronological index. The more ordered the papers are the less time that Counsel will spend having to unravel the papers and that will ultimately save you money in the long run.

In the meantime, I will make contact with the Faculty of Advocates with a view to identifying an Advocate who would be willing and available to take on these matters immediately after the 3(10) Hearing.

I have however received a telephone call from a Carol Ferguson Walker of the Faculty of Advocates this morning in relation to your claim. I have telephoned her back but could only leave a message on her voicemail. Do you know why she might be calling me?

I immediately sent an email reply back to Michael:

Michael,

Thanks for that.

"Do you know why she might be calling me?"

I do not know exactly, so I can only go on presumption. This could be in connection with one of the other parties that I outlined to you in my first letter regarding an Advocate. It could be in connection with Diabetes UK, who are actively supporting and working on obtaining an Advocate.

The last email I received that day was from the expert document analysis company:

Dear Kenneth

Thank you. I am just leaving the office for an appointment but will call you tomorrow.

The next day I received an email from my lawyer:

Kenneth,

I have now had a telephone conversation with Carol Ferguson Walker who is a solicitor employed by the Faculty of Advocates. She has indeed been contacted by Diabetes UK with a view to them assigning you an Advocate to take forward your various heads of claim. I simply advised her of the nature of my involvement and I also appraised her of the current procedural position in relation to the reasonable adjustments claim, the expenses judgement and the full judgement of the tribunal. She indicated that they may wish to wait to see the outcome of the 3(10) Hearing on 20 June before making any definitive decision about whether or not to provide you with an Advocate.

My understanding is that Carol will deal directly with Diabetes UK on the process that will follow from now.

On 5 June 2008 I sent the following email reply to Michael McLaughlin:

Michael,

Thanks for that.

On another topic, I have received a letter from the Glasgow ET this morning which is attached. The background to this is in my original email to the Glasgow ET, I requested copies of various pages referenced in the judgement (full judgement dated 13 September 2007), because the references in this judgement were wrong. I also requested the signed by hand page from each of the witness statements, as the claimant has a number of witness statements not signed by hand.

I thought I would supply you with the Glasgow ET response, as you may find parts relevant.

That afternoon I received an email from my Member of Parliament:

Hi Kenneth

Yes we received the same letter yesterday also. Katy has asked me to ensure that you have passed all relevant paperwork to us and she will write on your behalf.

If you can think of any information which you feel we should have, can you please let me know.

I also sent a further email to Michael McLaughlin:

Michael,

I have now had time to read and reflect on your email, and I am somewhat confused regarding the position of the Faculty of Advocates.

As you know, and as the Faculty of Advocates know, I am unrepresented for both the reasonable adjustments and costs appeals.

Knowing this, why would the Faculty of Advocates be waiting on the outcome of the Rule 3(10) Hearing, as the two scenarios are unrelated:

Scenario 1 - Rule 3(10) Hearing - Appeal dismissed

* Still unrepresented for the reasonable adjustments appeal.

* Still unrepresented for the costs appeal.

* Dismissal of my full appeal at the Rule 3(10) Hearing will 'strengthen' my requirement for an Advocate, but will 'weaken' the desire of the Faculty of Advocates to take my claim on?

Scenario 2 - Rule 3(10) Hearing - Appeal accepted

* Acceptance of my full appeal at the Rule 3(10) Hearing will not require me to have an Advocate, as you will be handling the Rule 3(7) hearing?

* Still unrepresented for the reasonable adjustments appeal.

* Still unrepresented for the costs appeal.

Hopefully you can understand my complete confusion as to the position of the Faculty of Advocates in this matter?

I have also received a letter from the EAT this morning dismissing my costs appeal, and I now have a further 28 days to lodge an application for a Rule 3(10) Hearing.

We (my family) will not let any one of these three appeals go, so I would continue your search for an Advocate for all three appeals, and will expect you to have identified an Advocate who can take instruction on all three appeals by 20 June 2008, in case we have to pay for any appeals.

I sent the following email reply to my Member of Parliament that same day:

Valerie,

Can you let me know which paperwork you currently have, as this will help me understand what paperwork you may require.

State the title, date, and number of pages, for any document. I should be able to determine from this information, what documents you have in your possession, and which documents you may require.

Can you let me know who Katy is going to write to on my behalf.

The most up to date information that I have is as follows:

Diabetes UK have contacted the Faculty of Advocates who have in turn contacted my Solicitor. Currently the Faculty of Advocates have stated to my Solicitor "She indicated that they may wish to wait to see the outcome of the 3(10) Hearing on 20 June before making any definitive decision about whether or not to provide you with an Advocate."

I have, this morning, received a letter from the Employment Appeals Tribunal in Edinburgh stating that they have dismissed my costs appeal (from the judgement awarding costs of £3700 against me). I had to write this appeal myself, as my Pro-Bono Solicitor only agreed to take on my unfair dismissal and discrimination appeal. I am unrepresented in this appeal, and now have 28 days from yesterday to lodge a second appeal (has to be done by 2 July 2008).

My reasonable adjustments appeal to the Court of Session was not accepted due to maladministration on the part of the Court of Session (the Court of Session sent the wrong forms twice to me, and didn't accept the wrong forms being lodged). I require an Advocate as soon as possible to try and lodge another appeal to the Court of Session, otherwise I will lodge an appeal to the European Court of Human Rights for all the procedural errors which have resulted from this appeal. I am unrepresented in this appeal.

The next morning I received an email from Michael McLaughlin:

Kenneth,

Further to your email of 5 June 2008 I do indeed understand your confusion about why the Faculty of Advocates would be waiting on the outcome of the Rule 3(10) Hearing. Please be clear, I did not contact them, they simply contacted me. To avoid any further confusion I will stay out of Diabetes UK search for an Advocate for you.

You will appreciate that I had to be somewhat careful in what I had said about the instruction of an Advocate because if Diabetes UK or the Faculty become aware that you or your family have funds to instruct an Advocate then I suspect any prospect of you obtaining an Advocate from the free representation unit would disappear completely. You will have to ensure that you comply with the terms of the free representation unit and I am not in a position to advise you on their rules regarding a Claimant's ability to pay. Incidentally, you should bear in mind that any free representation via the Faculty of Advocates may result in you having to instruct an Advocate who has little or no employment law experience. With free representation it is very much a question of taking what's on offer. My experience with the free representation unit and other such bodies (and I do not mean this in any way as any criticism) is that more junior Advocates who do not have a lot of chargeable work on their plates tend to offer their services to the free representation unit. By virtue of that, inevitably you end up with the services of an Advocate who, however, bright and capable, is ultimately inexperienced.

I note that you wish me to have identified an Advocate for 20 June 2008 who can take forward all three matters. I will do that. I cannot, however, guarantee that they will take all three matters forward because, as I have already explained, an Advocate requires to satisfy him or herself that there is a stateable case or appeal before they will advance that case or appeal.

That afternoon I decided to send another email to my Member of Parliament:

Valerie,

You, and Katy, may be interested to know that the Equality and Human Rights Commission (EHRC) are currently deliberating whether or not to accept my claim.

With this in mind, I thought that it may be worth providing the contact details of the EHRC, as I believe that the EHRC have legal representation within the EHRC.

Here are the details :-

Equality and Human Rights Commission

The Optima Building

58 Robertson Street

Glasgow G2 8DU tel. no. 0141 228 5910

Lynn Welsh is their Head of Legal or Head of Strategic Litigation.

It may be worth sending them a letter, or contacting them by phone to lend some weight and possibly gain the support and legal expertise that the EHRC could provide.

I also decided to send a similar email to Diabetes UK:

Clare,

I believe that my father contacted you this morning regarding the EHRC.

The Equality and Human Rights Commission (EHRC) are currently deliberating whether or not to accept my claim.

With this in mind, I thought that it may be worth providing the contact details of the EHRC, as I believe that the EHRC have legal representation within the EHRC.

Here are the details :-

Equality and Human Rights Commission

The Optima Building

58 Robertson Street

Glasgow G2 8DU tel. no. 0141 228 5910

Lynn Welsh is their Head of Legal or Head of Strategic Litigation.

The EHRC also have another address for England and Wales, which I'm sure you can obtain from their website.

It may be worth sending them a letter, or contacting them by phone to lend some weight and possibly gain the support and legal expertise that the EHRC could provide.

As the EHRC specialise in discrimination and violations of human rights (one of which is not to be discriminated), and have their own experienced legal experts who provide free representation, this could be an even better source of free representation for not just myself, but future diabetics in a similar position.

The EHRC, I believe, are not a subscription based organisation, but take cases on a case by case basis.

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

Michael,

Perhaps you can use this at the Rule 3(10) Hearing, or a future Rule 3(7) Hearing:

The respondent submitted an ET3 form, the respondent answered the following questions as follows:

2.3 If the claim, or part of it, is about a dismissal, do you agree that the claimant was dismissed? Yes

If 'Yes', please now go straight to section 2.6

2.4 If the claim includes something other than dismissal, does it relate to an action you took on grounds of the claimant's conduct or capability? No

If 'Yes', please now go straight to section 2.6

2.5 Has the substance of this claim been raised by the claimant in writing under a grievance procedure? No

2.6 If 'Yes', please explain below what stage you have reached in the dismissal and disciplinary procedure or grievance procedure (whichever is applicable).

The respondent's ET3 form should not have been accepted, as the respondent has answered Section 2.3 'Yes', so should have went straight to Section 2.6, and should not have answered Sections 2.4 or 2.5?

Perhaps this may also change your evaluation, and discussions with an Advocate, on the reasonable adjustments, as this was struck out for not raising a grievance.

Immediately after sending this email to Michael McLaughlin, I received an automated email reply stating that Michael McLaughlin would be unavailable for the next seven days.

Later that afternoon I sent an email reply to the Glasgow Employment Tribunal regarding the letter I had received from them on 4 June 2008 regarding missing evidence and wrong evidence references in the judgement:

Dear Sir/Madam,

With reference to your letter dated 4 June 2008, please find below my responses:

1. That is correct.

2. As stated in the previous email, for every one document that has a reference wrong, the wrong page number referenced and the correct page number that should have been referenced will be required, which will double the amount of pages, ie: if there were 15 pages referenced wrong, the claimant will require 15 pages referenced wrong plus 15 pages that should have been referenced which equals 30 pages. The remaining pages were referenced in either the judgment or witness statements, but not by page number.

3. A number of questions have now arisen:

3.1 Can this tribunal quote the exact procedure or law which states "productions are kept for a period of six months"?

3.2 What is the exact procedure or law with regards to productions when judgments are being appealed?

3.3 Why were two out of three folders of productions still available, but the third (volume 2) was not?

3.4 Can this tribunal request a full copy of volume 2 from the respondent?

4. Can the tribunal quote the following information from Submissions Claimant's (paragraphs  92  to  105):

4.1 How many document references were correct in Submissions Claimant's?

4.2 How many document references were wrong in Submissions Claimant's?

5. Can the tribunal confirm, a simple yes or no answer, were references to 71, 87, 105 and 111, among others, wrong?

6. Do these wrong document references make it impossible for anyone reading this judgment to check the documents referred to in the judgment?

7. For the reasons stated in 2, "The remaining pages were referenced in either the judgment or witness statements, but not by page number"

8. A number of questions have now arisen:

8.1 Why were unsigned by hand witness statements accepted by this tribunal?

8.2 Can this tribunal confirm, a simple yes or no answer, whether each unsigned by hand witness statement was written and/or read by the witness, and whether the witness agreed to the contents of this witness statement?

8.3 Can this tribunal confirm that they have a signed by hand witness statement from Nicholas Cooper?

Four days after sending my EHRC email to Diabetes UK, I received an automated email reply stating that Clare ffrenchBlake from Diabetes UK was on leave until 23 June 2008.

On 10 June 2008 I received a letter from the Information Commissioner's Office:

Dear Mr McAlpine

Thank you for your letter and enclosures of 4 March 2008 and emails of 27 March 2008, 21 April 2008 and 15 May 2008 concerning Oracle Corporation UK Ltd. Please accept our sincere apologies for the delay in this response which is due to the large volume of correspondence currently being received by this Office.

The Information Commissioner's Office is an impartial organisation which oversees and ensures compliance with, amongst other legislation, the Data Protection Act 1998 (the DPA). The DPA has eight principles of 'good information handling'. These give people specific rights in relation to their personal information and put certain obligations on those organisations that are responsible for processing it.

Where we receive a data protection complaint we are under a duty, in most cases, to make an 'assessment'. This assessment is our view as to whether it is likely or unlikely that an organisation has complied with the DPA in the situation that has been described to us.

If we consider it is unlikely that an organisation has complied with the DPA, we will let you know and will decide what action, if any, to take. Whilst we cannot award compensation, we will educate the organisation to help them understand their obligations and advise them to take steps to comply with the law in the future. More information about our role is enclosed.

As I understand it, you are concerned that Oracle Corporation have not provided you with the information which you asked for in your letter which you appear to have sent to them on 13 November 2007.

It would appear helpful if I explain that under section 7 of the DPA the individual has the right to make a subject access request to a data controller (which will usually be an organisation) for a copy of any information which constitutes their personal data. A data controller can charge a fee of up to £10 to administer a subject access request. Upon receipt of a subject access request and fee the data controller is obliged to respond promptly or in any event within 40 days.

Whilst there is no specific way in which a subject access request must be made, a mention from an individual that they are exercising their rights under the DPA, for example a mention of the fee, subject access, the DPA or a legal obligation to have a copy of the information should be sufficient.

Unfortunately however in this instance it is our view that your letter of 13 November 2007 would not appear to constitute a subject access request made under the DPA.

I note that you have referred to section 35(2) of the DPA in your letter of 13 November 2007 however I should make it clear that section 35 is unrelated to the subject access provisions of the DPA which are found in section 7. Section 35(2) of the DPA refers to an exemption which says that personal data are exempt from the non-disclosure provisions of the DPA where a disclosure is made in connection with legal proceedings. This section enables (but does not compel) a data controller to disclose an individual's personal data, for the purpose outlined above, where they have not obtained the consent from the individual in question.

In any event it is important to understand that the subject access provisions of the DPA (found in section 7) only provide the individual with a right of access to a copy of information which constitutes their own personal data. Personal data are defined in the DPA as 'data which relate to a living individual who can be identified from those data'. As you will appreciate the information which you have asked for in your letter to Oracle Corporation of 13 November 2007 would not appear to constitute your personal data as defined above.

As you will appreciate therefore unfortunately the DPA would not provide you with a right of access to the information which you seek, which means that Oracle Corporation would not be under any obligation in data protection terms to provide you with such information.

Accordingly from the information you have provided there is no strong indication that Oracle Corporation UK Ltd has failed to comply with the DPA in this case. This is because you do not appear to have exercised your rights under section 7 of the DPA and the information which you have requested would not appear to constitute your personal data. In light of this it is our assessment that it likely that Oracle Corporation UK Ltd has complied with the DPA in this case.

Finally I note that you may have concerns regarding the Oracle Corporation's handling of redundancies and your tribunal case. It is important to understand that the Information Commissioner's Office can only comment on data protection matters therefore as you will appreciate we are unable to comment on such concerns as they fall outside of our remit. You may wish therefore to seek independent legal advice in relation to your concerns.

As we have now made our assessment, the matter is considered as closed. We are sorry that the Data Protection Act is unable to be of assistance to you on this occasion.

The next day I received an email from the Glasgow Employment Tribunal:

I write regarding your message of 9 June 2008.

The Employment Judge (Ms Crone) who chaired the hearing and has considered your previous correspondence is on leave.

I have passed the matter for consideration to another Employment Judge and will revert to you ASAP

Very late that evening I received an email from a Ruth French at Diabetes UK:

Dear Kenneth

Thank you for your email to Clare. You may have received the automatic response stating that she is currently on Annual Leave and in her absence, I am covering her work. Regrettably, I have been out of the office or tied up in meetings the last couple of days but just wanted to reassure you that I am aware that your case is due to go to court very soon and will follow this up tomorrow (Thursday).

The next day I received another email from Ruth French at Diabetes UK:

Dear Kenneth

Further to my email yesterday, I just wanted to provide you with an update.

I have been in touch with the Faculty of Advocates who were approached to see if they could take on your case. It seems that they have been waiting for clarification of various issues from your solicitor before they can progress with this any further.

I have also been in touch with the EHRC and am waiting for them to return my call. If I don't hear back from them soon, I will contact them again.

I will continue to update you as information arises but please feel free to contact me in the meantime. My direct line number is given below.

On 13 June 2008 I received another email from Ruth French at Diabetes UK:

Dear Kenneth

I have spoken to the EHRC today but was unable to discuss your case with them as they don't have your consent to do this. They are going to send you a consent form and if you would like to send this back to them, they can then talk to us.

I will call you next week to see how you're getting on and update you with any further developments.

I immediately sent an email reply to Ruth French at Diabetes UK:

Ruth,

Ok, I will watch out for the consent form and complete and send to them immediately.

Three days later I received an email from Michael McLaughlin:

Kenneth,

Please note Carole's email. Would you give me a phone at some point this afternoon.

The next morning I received a letter from the Glasgow Employment Tribunal:

Dear Sir

ACKNOWLEDGEMENT OF CORRESPONDENCE Employment Tribunals Rules of Procedure 2004

Further to my email dated 11 June 2008,the matter has been considered by an Employment Judge (Ms MacLean);she has said that a number of your questions in your emailed letter of 9 June will have to await Ms Crone' return .She has instructed me to comment as follows in respect of question 3 as follows:-

3.1 Parties are asked to remove and retain their copies of the productions at the conclusion of the hearing .One set of the productions remain with the case papers until the period for lodging an appeal has expired .

3.2 If an appeal is raised a set of the productions are retained until the appeal has been exhausted.

3.3 Volume 2 can not be located it ought to have been placed with the other retained folders.

3.4 It is not normal practice to do so.

On 17 June 2008 I received the following email from Michael McLaughlin:

Kenneth,

I have been on holiday for the last week as you may have gathered.

I refer to your email of Monday 9 June 2008 regarding the apparent contradiction in the respondent's completion of the ET3. It may seem peculiar to you but answering yes to section 2.3 and then proceeding to answer 2.4 and 2.5 will not preclude the Employment Tribunal from accepting an ET3. The form is badly designed. Some claims (such as your one) can be about dismissal and a number of other matters, some of which involve conduct or capability. For example reasonable adjustments. Logic dictates that answering 2.3 would not necessarily preclude a Respondent from responding to 2.4 and 2.5 also despite the instruction to skip those questions.

Later that morning I sent an email reply to Diabetes UK:

Clare/Ruth,

Thank you for your work on obtaining an Advocate.

My initial claim in 2006 has over the last 2 years been split into various claims/appeals by the legal system, namely:

(1) Failure to make reasonable adjustments appeal.

(2) Unfair dismissal and disability discrimination appeal.

(3) Costs appeal.

(4) Other matters.

I have representation from my pro-bono Solicitor at the Employment Appeals Tribunal on 20 June 2008 for (2). Should this appeal be dismissed, then I will require an Advocate, and I will let you know as soon as I know.

With regards to (1), (3) and (4), I will require representation from an Advocate as soon as possible, as (1), (3) and (4) are separate appeals and I do not have any representation, as my pro-bono Solicitor only agreed to take on (2).

I have attached five documents which my pro-bono Solicitor asked me to prepare, so that an Advocate (or any other party) can quickly review as a summary. If any party who is interested in representing me for (1), (2), (3) or (4) requests information, then hopefully these documents can be sent to explain these matters.

The documents are connected to the various claims/appeals as follows:

(1) Failure to make reasonable adjustments appeal ("Reasonable Adjustments" and "European Court of Human Rights").

(2) Unfair dismissal and disability discrimination appeal ("Full Appeal").

(3) Costs appeal ("Costs").

(4) Other matters ("Other Matters").

I hope this is useful.

That same afternoon I sent an email reply to Michael McLaughlin:

Michael,

If the claimant (Kenneth Robert McAlpine) had made one 'contradiction' in his ET1, I am 100% sure that the respondent's legal team would have been crawling all over the 'contradiction' like maggots, and would have got the whole claim thrown out.

The form is not badly designed, it is simplicity in itself, with very straightforward questions, and mainly 'Yes' or 'No' responses required.

In Section 2, it is again simplicity in itself, either an employee is employed, or they are not, 'Yes' or 'No' required.

If an employee is employed then the Statutory Grievance Procedure applies, if an employee is not employed then the Statutory Dismissal Procedure applies.

Both Procedures cannot apply at the same time, otherwise chaos reigns. The law is perfectly clear on that.

http://www.bailii.org/uk/cases/UKEAT/2007/0630_06_2603.html

At paragraph 29 of this EAT judgment, it states:

"I agree with the analysis adopted by Judge Richardson in the Jones case. I do not think it could have been intended to have an overlap of procedures arising out of the same action. It would create considerable difficulties if the dismissal procedure had to be complied with for the purpose of dealing with the act of dismissal itself whilst issues relating to the manner or reason for the dismissal, such as whether it was in breach of any discrimination provisions, had to be the subject of a separate grievance and be resolved according to a different set of procedural rules. I see no merit at all in having the complaint about dismissal being carved up in this way, with different procedures having to be utilised for different elements of the employee's complaint."

There is absolutely no excuse for the respondent not following Section 2 of the ET3 correctly, after all, it was completed by a legal professional who's job it is to make sure that procedures and forms have been followed.

The only reason the respondent had to fill out the ET3 wrong, was that they knew they had not followed the Statutory Dismissal Procedure at all (eg: Leaver's checklist and Compromise Agreement sent one day after claimant selected for redundancy), so had to try and rely on some other means, the Statutory Grievance Procedure, but this should not have applied at all.

One other reason why this tribunal and judgment was perverse.

Why are you not using this ET3 error?

That evening I received the following email reply from Michael McLaughlin:

Kenneth,

I have nothing further to add to my email of yesterday.

The next day I sent an email to the Glasgow Employment Tribunal:

Dear Sir/Madam,

Case Number: 116267\2006

With reference to your letter dated 17 June 2008, I am writing to advise you that there are currently three appeals ongoing for this one claim in higher courts.

As you have confirmed in your letter dated 17 June 2008 "3.2 If an appeal is raised a set of the productions are retained until the appeal has been exhausted.".

You have also stated that the full set of productions have not been retained "3.3 Volume 2 can not be located".

May I suggest that you write to the respondent as soon as possible and ask them to supply Volume 2 in its entirety, so that the tribunal have a full set of productions until all appeals have been exhausted.

I will of course expect to examine all productions as soon as a copy of Volume 2 has been supplied.

Can you inform me when a copy of Volume 2 has been supplied, and when I can view the full set of productions.

I immediately received an automated email reply outlining that the Glasgow Employment Tribunal Office had received my email and that it was receiving attention.

On 18 June 2008 I sent the following email to Michael McLaughlin:

Michael,

I will be out all day on Thursday 19 June 2008.

Regarding the Rule 3(10) Hearing, at the end of this Hearing, and no matter the outcome, can you request a full written Judgement of the Rule 3(10) Hearing. This has to be done orally at the Hearing I believe, and I want everything documented.

If the Rule 3(10) Hearing is successful, can you also request that the future appeal is fast-tracked, as enough time has been lost already by the EAT.

I will meet you in the Appellants room before 2pm.

The next day I received an email from Diabetes UK:

Dear Kenneth

Thank you for the update.

I have been in touch with the Faculty of Advocates again who have confirmed that they are still awaiting information from your solicitor and would also need to know the outcome of the tribunal first before they can take things any further.

I hope that everything goes well at the Employment Appeal Tribunal tomorrow.

It was now 20 June 2008 and the day had arrived for the hearing of the appeal of the unfair dismissal and disability discrimination case at the Edinburgh Employment Appeal Tribunal:

DISABILITY DISCRIMINATION

Date: 20 June 2008 (the previously Rule 3(10) hearing regarding disability discrimination was cancelled at very short notice)

Time: Not before 2:00pm

Duration: 1 hour

Judge: Lady Smith

Party: Mr K R McAlpine (represented by Michael McLaughlin, Biggart Bailli acting in a Pro Bono capacity)

Present: Andrew McAlpine, Jean McAlpine.

Start of Hearing

The Solicitor, Michael McLaughlin, set out the basis of the appeal. It relates to the Glasgow Employment Tribunal having reached certain critical findings of fact, which, on the overwhelming evidence before it, were conclusions that no Tribunal properly directing itself would have come to. The Glasgow Employment Tribunal reached factual conclusions, which were not permissible, and in so doing it erred in law. He cited criteria used in perversity appeals, namely 'contrary to the uncontradicted evidence' or 'no evidence at all', by referring to an example of case law judgment.

The Judge, Lady Smith, stated that this was clearly wrong. It did not refer to two types.

The Solicitor cited two other examples with regard to setting the scene for the four grounds of appeal. The key fact was, therefore, a need to elaborate.

The Solicitor began to outline the first of the four grounds of appeal.

Appeal Point 1

There was no evidence that Malcolm Thompson put me on RIF list.

The Solicitor begins to elaborate that Malcolm Thompson placed the claimant on the Reduction In Force (RIF) list. The Tribunal's acceptance of this part of the respondent's evidence is at risk, and enlarges on this with regards to Malcolm Thompson's thought process at the time of doing so. Page 34  paragraph 167 of the Written Judgment, which began "We were referred to Mr Thompson's witness statement", accepted that Malcolm Thompson had placed the claimant on the RIF list not knowing that he was a diabetic. The Solicitor at paragraph 7.16 of his Paper Apart pointed out apparent contradictions, which were not taken into account, and he also pointed out that Mr Thompson was not called as a witness to give his evidence as his witness statement was taken as read. He could not, therefore, be cross-examined by anyone and there was no other evidence led, which could account for the Tribunal finding this fact.

The Judge retorted that parties were in agreement with regard to the concession of taking the witness statements as read, therefore, can't take that from the Tribunal's judgement as there was no objection to the witness statement being taken as read.

My Solicitor commented that they were taken as read due to the time constraints on the Tribunal.

The Judge angrily retorted "How can I take that from you when you were not present?", to which my Solicitor commented, "I didn't get that choice."

Michael McLaughlin was visibly stalled by the Judge and did not continue with this first ground of appeal.

My immediate thought was that this is nonsense.  Paragraph 8(d) of the judgment stated "The respondent had, by agreement, produced witness statements. The Chairman directed the statements would not be taken as read, but upon reconsideration - given the claimant's evidence took more than one day to complete, and there was time overnight to read the statements -directed they would be taken as read. There was no objection to this"

It was obvious that it was directed by the Glasgow Employment Tribunal Judge.

Now the legal definition of 'direct' is:

"To order or cause a person or entity to carry out a course of action; more generally, to govern an enterprise or activity. Of a judge, the giving of a verbal instruction to a witness or jury to behave in a certain way, as in, "the witness is directed to answer yes or no to the questions" or "the jury is directed to disregard the defendant's outburst."

So the Glasgow Employment Tribunal Judge "directed they would be taken as read", so there was no chance of any objection to this verbal instruction.

Lady Smith, however, maintained that it was clear that there was an agreement that all evidence in chief would be taken as read.

Appeal Point 2

The discriminatory emails of 12 and 13 April 2006.

The documentary evidence of the emails of 11 and 12 April 2006, listed at pages 81 and 82 of the Rule 3(10) bundle, formed the basis of this ground of appeal. The Tribunal dealt with this in short order, page 34  paragraph 168 of the Written Judgment, with regard to Phil Snowden knowing or not knowing that there was a RIF list and that the claimant's name was on it.

The Judge commented "Nothing with regard to diabetes.", to which my Solicitor argued that the emails were about 'how can we get rid of him?' and Malcolm Thompson was a recipient of both emails. Lady Smith further commented that Phil Snowden does not know about the RIF list. Catherine Temple in her witness statement pointed this out in the part that reads "Where candidates for redundancy are sought, this is done on a highly confidential basis and it is likely that whilst Malcolm sought to identify candidates for redundancy in consultation with Phil or Nick, he would not specifically have told them that candidates were being sought." , and that the RIF list was formed in February 2006.

Michael points out that Catherine Temple, in that passage from her witness statement, with regard to it being highly confidential when seeking candidates for redundancy, implied that Malcolm Thompson may well have consulted Nick Cooper and Phil Snowden about the claimant prior to putting him on the RIF list. Lady Smith retorted "Can't stand that sentence with regard to it being highly confidential when seeking candidates for redundancy.", and Michael quickly replied, "They were discussing the claimant as a generality."

The Judge further retorts "Not sure how this can point you to anything.", but Michael further explains that Malcolm Thompson was holding a confidential list, yet they were saying that the claimant didn't do the full role, which the Tribunal accepted. Malcolm Thompson said that the claimant "should be able to handle" the role and, if not, then it was a "capability issue". There is a variance between Malcolm Thompson position when he put the claimant on the RIF list in February and his position now in April that it is a "capability issue".

The Judge, obviously not wanting to comment on the conflict between witness statements and hard factual evidence, changed tact by stating "The issue is the role. What's so awful about that?", but Michael, not wanting to give up on the point, further states "It completely reverses the reasoning.", to which Lady Smith replies "What's wrong there?"

Michael elaborates that they have characterised the role and this contradicts why the claimant was put in the role in the first place. When you factor in the contradiction of April 2006  emails which stated "names to add on the Oracle RIF list" and the email reply "Done" with the alleged RIF list in  February 2006, the hard factual evidence all led by the respondent, there is a significant contradiction. Lady Smith retorted "Is it? Catherine Temple testified with regard to the claimant being on the list in February and what you are now saying doesn't mean the claimant's name wasn't on the original list.", but Michael points out "If the claimant was on the list then there is no need to put him on it again. You have to read the e-mails in conjunction with each other."

The Judge strangely comments "There is no need to. He is still on the list.", to which my Solicitor points out "In the email from Phil Snowden the comment is made about the claimant with regard to "exit Kenneth from the organisation"."

Lady Smith adds "Mr. Snowden did not make up the list.", but Michael enquires "He begs the question.", but the Judge trying to deflect this contradiction again states "Malcolm Thompson is the keeper of the list and it has nothing to do with the disability.", but Michael confidently rebuts that argument by stating "The disability part only passes the first list part, the second part leads to dismissal.", to which the Judge meekly and confusingly replies "The claimant had a unique role, which made his position very difficult.".

This appeal point finished with Lady Smith commenting that these emails do not point to anything other than the claimant being on the RIF list.

Appeal Point 3

No genuine consultation by respondent.

Michael McLaughlin started the third appeal point by referring to paragraph 7.9 and paragraph 7.15 of the paper apart. This part of the appeal stated that the respondent could have made no genuine efforts at consultation when I was first notified of my provisional selection for redundancy on 30 May 2006 due to the 12 and 13 April 2006 emails that stated Diabetes, offsick a lot in the future, exit him from the organisation. The decision to dismiss had been taken at least seven weeks prior to me being notified of my provisional selection for redundancy.

The Judge starts by commenting "7.9 is taking us back to diabetes issue.", and my Solicitor adds "7.15 has this in mind with regard to unfair dismissal.". Lady Smith then agrees that 7.9 and 7.15 is a stateable appeal. Michael continues that it is clear that the provisional selection for redundancy process did not start until  30 May 2006. The RIF list has the claimant potentially redundant long before that date because it clearly states an exit date under the column entitled  'required exit date' in the RIF list from February 2006. The Judge commented "You are constrained by the Tribunal Written Judgment.", but Michael points out that the decision had been taken by the respondent to which the Judge replies "The Tribunal have made their findings on consultation.".

My Solicitor, now sensing an opening replies "The claimant will not be redeployed. There was action on redundancy and the Tribunal were bound to conclude that on the 13 April 2006 the respondent had resolved that he would be  dismissed. The Tribunal do not then identify that they were bound to conclude that the redundancy consultation was a sham.", but the Judge counteracts with "Individual consultation usually takes place once the notification of provisional selection for redundancy is made.". Michael continues "Redundancy was a certainty once the telephone call was made to the claimant.", but the Judge sensing that winning the argument on this appeal point would result in appeal point two having to be won as well, changes tact and states "The claimant wouldn't speak on the telephone with regard to his consultation, and one email doesn't indicate that the decision has been taken in a perversity case.", to which the Solicitor continues "The sequence of the emails suggest that Malcolm Thompson initiated the email exchange and that there is a clear flow and sequence leading to redundancy.", but the Judge further retorts "Not final absolutely. This is not the way to approach it, as one who is neutral.", and Michael not wanting to give up on the point adds "The advice from Human Resources was to let it run its course. The Tribunal does not take this into cognisance. There is an appeal on stateable grounds. 'What if' is the Polkey argument.", but the Judge adds "It is not Polkey. As much as possible was done.", and Michael ends this appeal point argument by summarising "It is evident that seven weeks after the email exchange that the consultation was a sham.".

Appeal Point 4

Witness Collusion.

Michael McLaughlin now moved on to the final appeal point and opened by commenting that Rule 27(4) of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 is with regard to Witnesses and states:

27.- (4) The tribunal may exclude from the Hearing any person who is to appear as a witness in the proceedings until such time as they give evidence if it considers it in the interests of justice to do so.

It is evident that witnesses had sight of the other Witness Statements. At Rule 27(4) there is the discretion to exclude witnesses.

Lady Smith countered by stating, "Doesn't have to. Absolutely sure with regard to evidence being heard. This is lacking credibility. Witnesses gave oral evidence.", to which my Solicitor stated, "It is apparent that they had sight of each others Witness Statements and that the discretion to exclude should have been exercised for the reasons stated."

The Judge continued in another tact "They could have been cross-examined on this when they were giving their oral evidence. I am not understanding this. Should the Tribunal have discounted the witnesses evidence? The witnesses were available for cross-examination. If this is not put to the witnesses, how can the Tribunal decide for themselves?"

At this point of the hearing, I wrote a two-word note and showed it to Michael, it simply stated "Witness Contamination". Michael challenged the Judge by stating that witnesses had been contaminated, and as such they knew each others stories and there was no point in cross-examination, as all witnesses already had their 'story' straight. The Tribunal had obviously read the witness statements as their judgement is primarily based on witness statements.

Michael continued by commenting "There is no scope for such inconsistencies.", to which Lady Smith retorted "How is the Tribunal obliged if not challenged.". I was hoping that Michael may have commented by stating that they should have done their job properly, but at this point, I think Michael knew that nothing was going to turn this 'Lady'.

The Rule 3(10) hearing came to a limp and exasperated end by Michael stating "The summary is that there are four separate grounds of appeal and that orders should be made progressing and accepting the appeal."

Lady Smith retired to Chambers for around 10 minutes, and then returned to read the verbal judgement:

A summary of the verbal judgement of Lady Smith started by stating that the background to this appeal was dismissal followed by an ET1 and DDA forms to Tribunal. The issues with regard to determination are about selection plus statutory procedures and consultation. Both had been dismissed by Tribunal.

The claimant was in an oSDM role, he was not happy with his work. He informed Phil Snowden that he was diabetic and he told Nick Cooper that he did not wish to do the full On Demand Service Delivery Manager role. He was told that he did not need to carry out parts of his work. Then there was the merger with Siebel, the impending changes to Customer Incident Managers and that these changes removed this role. There were 121 redundancies. A RIF list had been compiled by Malcolm Thompson, a Senior Director of Nick Cooper. Alternative employment was being sought through Human Resources. There were the Phil Snowden referrals and Catherine Temple's off sick referral, but both gave evidence and were not challenged to any great extent.

The claimant's case was that he had been selected because of his diabetes, but it had been his role and not diabetes that had been the contributory factor. Considered if reasonable with regard to a pool for selection for redundancy. Consultation was limited, by post or email, and had been reasonably tried.

Perversity was at the heart of the appeal and was summarised in paragraph 7.17.

Lady Smith reached a view that there are no reasonable grounds of appeal under this Rule 3(10) hearing.

With regard to Mr McLaughlan a summary of his four submissions was as follows:-

1. No evidence with regard to the claimant being put on the RIF list by Malcolm Thompson.

2. That the three emails showed that the claimant had been dismissed because of his diabetes, plus the 2 April 2006 email from Debbie Gardner confirmed that the claimant had been put on the RIF list then.

3. That the consultation process was not genuine.

4. That evidence should have been discounted because of witness collaboration.

Lady Smiths view of the four submissions were as follows:-

1. At  8(d) of the Tribunal Written Judgment, it stated that the Chairman had directed that all of the Witness Statements would be taken as read. The next paragraph of the Written Judgment was with regard to agreement that all be taken as evidence in chief.

2. Inference drawn by Mr. McLaughlan is not the only inference to be drawn. I could not see that the emails referred to showed anything about the dismissal. Tribunal did not have regard to this either in their consideration of the emails. The claimant was on the RIF list.

3. It is not arguable that there was no adequate consultation. It could have been done by email but it was reasonable. There was no proof that a decision had been taken before hand.

4. With regard to the witness collaboration and to the assertion that the Tribunal should have discounted such evidence, witness could have been challenged.

Conclusion:-

In Perversity appeals, the bar is set high.

I cannot accept this appeal.

Paragraph 7.17 reaches no reasonable grounds of appeal.

Appeal Dismissed.

Chapter 5

It was now Monday 23 June 2008, and I sent an email to Diabetes UK early:

Clare/Ruth,

The decision of the Employment Appeals Tribunal was to dismiss the appeal.

I will now require an Advocate for all future appeals.

The first deadline is to lodge an appeal for costs by the 2 July 2008.

I also sent an email to my lawyer before 9 am:

Michael,

Can you give me your thoughts on the events that took place at the Rule 3(10) Hearing?

Straight after sending that email, I also emailed my Member of Parliament:

Valerie,

The decision of the Employment Appeals Tribunal was to dismiss the disability discrimination appeal at the Rule 3(10) Hearing on 20 June 2008.

I will now require an Advocate for all future appeals, and have contacted Diabetes UK.

I will attend one of Katy's surgeries on 27 June 2008 to discuss further options with Katy regarding this decision.

Within an hour and a half of sending the email to my lawyer, I received the following reply:

Kenneth,

You asked for my thoughts on the events that took place at the Rule 3(10) Hearing.

Ultimately you were unsuccessful and that is clearly disappointing although not altogether unexpected given that Lady Smith had clearly spent a considerable amount of time reading the Note of Appeal and background documentation before the 3(7) letter was sent to us.

As regards the manner of our defeat, as you are aware my view has always been that our strongest argument was in relation to the failure of Thompson to give evidence and the implications of that for the conclusions of the tribunal. If we were successful in persuading Lady Smith that there was no evidence whatsoever before the tribunal to entitle them to conclude that Thompson put you on the RIF list in February at a time when he didn't know you had diabetes then the rest of the case would unravel and the rest of the appeal points would have been significantly reinforced. It was therefore pretty much fatal for us that Lady Smith took the view that in you 'agreeing' that the witness statements of the Respondents could be taken as read that meant that Thompson's evidence was 'in' without challenge. Given that she felt compelled to conclude that Thompson's evidence was 'in' then that meant our strongest ground of appeal simply disappeared and the other grounds of appeal would not benefit from the reinforcement that I was talking about.

Perhaps I should explain what I mean by reinforcement. What ultimately undermined our arguments in relation to the exchange of emails in April was that Lady Smith was able to rely on the tribunal's conclusions about you being on the RIF list thanks to Malcolm Thompson. If we had won on our primary argument then Lady Smith was bound to conclude that the tribunal couldn't factor in the RIF list to its analysis of what the emails of April meant. You will see therefore that if argument one succeeded argument two would have significantly more weight ultimately that didn't happen.

You are aware that Lady Smith reemphasised (as if either you or I needed it) that seeking to argue an appeal on the grounds of factual perversity is a high bar indeed. You will have noted her comments that in relation to the emails of April she has to be satisfied that there was only one permissible conclusion available to the tribunal and in failing to take that only available conclusion they erred in law. Lady Smith was at pains to point out that Mr Thompson's evidence in, there was clearly another alternative explanation for the emails. That explanation was that Thompson's initiating email of 11 April was about trying to identify ways of keeping you in the business even if that meant making you do the OSDM job that you didn't want. The fact that Thompson's evidence was 'in' enabled her to conclude that he was not tainted by the "diabetes" and "exit from business" comments made by Phil Snowdon.

She also made it clear that the absence of any response from Malcolm Thompson to Sue Scales' email about not overcomplicating matters meant that it was open to the tribunal to conclude that Thompson did not necessarily go along with the suggestion that the redundancy just be allowed to run its course. In short there was another explanation open to the tribunal.

As regards the sham consultation and failure to offer alternatives Lady Smith made the point that the tribunal were not bound to conclude that redundancy was a foregone conclusion. I have to say this is the area which I disagree most strongly with Lady Smith. If Malcolm Thompson did respond to Sue Scales to advise her that he agreed with the plan of simply allowing the redundancy to run its course then Oracle were highly unlikely to volunteer that particular email. In addition I think we were entitled to argue that the absence of a response from Thompson meant his consent. Lady Smith appeared to be of the view that Thompson may well have disagreed with Sue Scales and therefore the consultation that was kicked off by her on 30 May was not necessarily a sham.

You will have been aware that it did weigh heavily against us that she concluded that you refused to participate to any meaningful extent in the consultation process.

Regarding the fourth ground of appeal she simply failed to understand the point that I was making namely that the tribunal's approach to the witness statements created circumstances whereby it was possible for the Respondent's witnesses to collude in respect of the preparation of their evidence so as to guarantee absolute consistency. She seemed to be of the view that this was simply a matter for cross-examination. My point wasn't that there had been collusion. Despite the fact that you and I think that there has been, it is not evident from the face of those witness statements that there has been collusion. My point was that there was scope for collusion to have taken place and that that was the fault of the tribunal. Suffice to say she didn't take that point on board.

As you know you have 42 days from Friday 20 June in which to seek leave of the EAT to appeal Lady Smith's decision to reject the appeal. In order to do that you have to set out the point of law that you are going to advance before the inner house. I imagine that Lady Smith will refuse any application for leave to appeal and accordingly you will have to seek leave to appeal the EAT's decision from the inner house itself.

I attach a copy of my email to Carole Ferguson-Walker the terms of which are doubtless self-explanatory.

The next day I sent the following email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

Reference: UKEATPAS/0130/07/MT

The claimant was represented by Mr Michael McLaughlin of Messrs Biggart Bailli at the Rule 3(10) Hearing held on Friday 20 June 2008 at 2pm.

After the Rule 3(10) Hearing, Mr McLaughlin requested a copy of the Judgement in writing.

I should point out at this stage that Mr McLaughlin will be unable to represent myself at future appeals, so as the appellant in this case, I am requesting that a copy of the Judgement be sent to:

Mr K R McAlpine

<address removed>

This will enable the appellant to pass a copy of this Judgement onto any interested parties.

I also emailed Diabetes UK again, as it was only 8 days until an appeal had to be lodged at the Edinburgh Employment Appeal Tribunal regarding a costs appeal:

Clare/Ruth,

Has there been an decision made by the Faculty of Advocates, Free Legal Services Unit yet?

If not, what is the likely timescale as to when a decision will be made?

My first deadline is to lodge a Rule 3(10) appeal for costs by the 2 July 2008.

Later that day I received an email reply from Diabetes UK:

Hi Kenneth,

I hope you got the email I sent you earlier? There has been no decision made by the FRU, they are still waiting to hear back from your solicitor. I cannot contact the Equality and Human rights Commission until you have sent them your consent form? Let me know if you have done so.

That same afternoon I received an email from Michael McLaughlin:

Kenneth,

As per our telephone conversation.

Regards,

Email attached read:

Dear Mr McLaughlin

Many thanks indeed for your assistance

Regards

Carole

Dear Mrs Ferguson-Walker,

Further to our recent telephone conversation and subsequent exchange of emails I write to confirm that we were unsuccessful in persuading Lady Smith that my Note of Appeal contained stateable grounds of appeal and accordingly the EAT has rejected it.

Mr McAlpine now has 42 days from Friday 20 June in which to seek leave to appeal to the Court of Session from the EAT. You have indicated in previous correspondence that you would await the outcome of the 3(10) Hearing before exploring the possibility of securing the services of Counsel for Mr McAlpine in order to seek leave to appeal to the Court of Session and to lodge and run that appeal. For the avoidance of any doubt Mr McAlpine also has two other outstanding appeals which he wishes Counsel instructed to deal with. One is from an award of expenses made by the Employment Tribunal in Glasgow which is currently with the EAT. The other relates to the EAT's interim judgement striking out the part of Mr McAlpine's claim which related to the Respondent's failure to make reasonable adjustments in terms of the Disability Discrimination Act. In relation to this third matter that was Mr McAlpine did lodge an appeal with the EAT but that was rejected pursuant to Rules 3(7) and 3(10). Mr McAlpine attempted to lodge an appeal of the EAT's decision to the Court of Session but for reasons that Mr McAlpine will explain that has not happened and I understand that Mr McAlpine is pursuing a remedy in respect of the reasonable adjustments claim via the European Court of Human Rights.

Essentially my involvement in the matter is now at an end however if I can provide you with any background information or clarification I would be happy to do so.

I have sent a copy of this email to Mr McAlpine and you should deal directly with him in relation to the sourcing of Counsel to advance the three separate appeals that are ongoing.

I immediately sent an email reply to Diabetes UK:

Clare,

As per our telephone conversation, please find below my brief summary of the Rule 3(10) Judgement.

My Solicitor argued four grounds of appeal.

Ground 1

There was absolutely no evidence that Malcolm Thompson put Mr McAlpine on the Reduction In Force (RIF) list in February 2006.

Dismissed.

Judgement of the Tribunal was that the Tribunal directed that all witness statements were to be taken as read. There was no objection to this.

Ground 2

Emails of 12 and 13 April 2006 stating diabetes leads to future sickness absence.

Dismissed.

These emails do not point to anything other than Mr McAlpine being on the RIF list.

Ground 3

There was no genuine consultation by the respondent. The respondent sent a "Leaver's Checklist" to Mr McAlpine one day after selecting him for redundancy.

Dismissed.

This point is not arguable; see paragraphs  155-156 of the Judgment.

Ground 4

Witness Collusion

Dismissed.

Even if witness collusion could be deduced, the witnesses were not cross examined on this point.

The last email I received that day was from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

We acknowledge receipt of your e-mail the contents of which have been noted. We will amend our records to remove Biggart Baillie from the record & all future correspondence in this matter will be sent to you at the address below.

The next day I sent the Edinburgh Employment Appeal Tribunal a simple email regarding the costs appeal, so as not to be time barred by running out of time:

Dear Sir/Madam,

Reference: UKEATPAS/0051/08/MT

The Appellant, under Rule 3(10) of the EAT Rules, is writing to express dissatisfaction with the reasons given by the judge in your correspondence dated 4 June 2008.

Please accept this as an application for a Rule 3(10) Hearing.

Two days later I received a letter from the Edinburgh Employment Appeal Tribunal:

Dear Sir

Mr Kenneth McAlpine v Oracle corporation UK Ltd

I refer to the above matter and your letter dated 25th day of June 2008. This letter has been treated as an application under Rule 3(10). The hearing will be before a judge sitting alone at which the Appellant only will be heard.

This matter will now be referred to the EAT List Office for listing of the forthcoming hearing. The Appellant is therefore requested to provide their available dates during the next 12 months. It is also important that we are advised of Counsel's details (if you instructed) at the same time to avoid difficulties or conflicts with the future hearing. A response is required within 7 days from the date of this letter; late responses will not be considered. If you do not provide this information, a date will be fixed without further reference to you.

If you have any queries regarding the listing of this matter then you should contact the EAT List Office.

On 27 June 2008 I received another email from Diabetes UK:

Hi Kenneth,

I got in touch with the Equality and Human Rights Commission, and they said that they sent you a permission form last week so hopefully you will have got that by now? Ruth said she emailed you about it, but our system is always a bit wonky! I can't proceed with anything there until they have your written consent, but as far as I am aware you can call them if you would like? I am afraid I am still waiting for an answer from the FRU; I have been calling them everyday to try and hurry them up, and will call them this afternoon to try again. I am sorry there isn't a lot of progress; I really am doing everything I can from my end. I will let you know as soon as I have any info Kenneth.

That same day I sent an email reply to Diabetes UK:

Clare,

I phoned Equality and Human Rights Commission around 10:45am today, as I received their consent form today, and the form stated that I could give permission over the phone, which I have done.

You, or at least Ruth should be able to speak to the Equality and Human Rights Commission now.

I also spoke to my MP this morning, who is going to call the FLSU today.

On 2 July 2008, the same day that time was up for lodging an appeal at the Edinburgh Employment Appeal Tribunal regarding costs, I sent an email to Diabetes UK:

Clare,

Diabetes UK first contacted the Free Legal Services Unit of the Faculty of Advocates on 5 June 2008.

The Free Legal Services Unit stated that they would make a decision after the 20 June 2008.

Almost one calender month has passed since the first contact.

I have heard nothing.

When do you expect a decision from the Free Legal Services Unit?

That same morning I sent another email to the Glasgow Employment Tribunal regarding missing evidence, viewing all evidence, and correcting evidence references in the judgement:

Dear Sir/Madam,

Case Number: 116267\2006

I have not received any correspondence since 17 June 2008 regarding this matter.

When can the Glasgow Employment Tribunal expect to have obtained a copy of the 'lost' Volume 2 from the respondent?

When can Mr McAlpine expect to view the full set of productions (including Volume 2).

Also, in your letter dated 4 June 2008 it states "requested administration to produce the documents against the references in the judgment", when can I expect to receive these documents?

I have not received satisfactory answers to the following questions, so I will ask again for an answer to the following questions:

4. Can the tribunal quote the following information from Submissions Claimant's (paragraphs  92  to  105):

4.1 How many document references were correct in Submissions Claimant's?

4.2 How many document references were wrong in Submissions Claimant's?

5. Can the tribunal confirm, a simple yes or no answer, were references to 71, 87, 105 and 111, among others, wrong?

6. Do these wrong document references make it impossible for anyone reading this judgment to check the documents referred to in the judgment?

8. A number of questions have now arisen:

8.1 Why were unsigned by hand witness statements accepted by this tribunal?

Mr K R McAlpine

Later that morning I received the following email from Diabetes UK:

Hi Kenneth,

It's still under consideration with their legal team. They could only get started last week as it took them quite a while to get a reply from your solicitor. I have been in contact with them regularly and have a meeting with them this Friday so I will see what they say then. I understand that your getting frustrated but I am doing everything I can Kenneth, I can't bully them too much, otherwise they will just say no! You are not technically legible for their support due to the large amount of savings you have, so the fact that they are actually considering it is a big favour in itself. As always I will let you know as soon as they tell me anything. I will also let you know what happens at the meeting on Friday.

That afternoon I sent the following email reply to Diabetes UK:

Clare,

I have been dealing with Diabetes UK, who have been dealing with various other parties (eg: Free Legal Services Unit, etc) for over 6 months now.

The legal system constantly has deadlines for appeals, normally 42 days.

I still have no representation, and various appeal deadlines have come and gone, and I have had to put appeals in myself, otherwise everything would fail (ie: no appeal by deadline = no case).

Another appeal deadline has come and gone today, and I had to put the appeal in myself.

I am not a Lawyer, Barrister or Advocate.

Diabetes UK became a member of the Free Legal Services Unit to protect Diabetes (note, not Diabetics) against discrimination, not to protect Kenneth McAlpine, or any other member, against discrimination, but to protect the disability itself against discrimination.

This is the whole crux of the matter.

You, Diabetes UK, being a member of the Free Legal Services Unit, are requesting help regarding diabetes (the disability) and discrimination. Kenneth McAlpine (and his savings) are completely irrelevant to this situation. If this judgement is allowed to stand, it affects diabetes (the disability) in particular, and as a consequence all diabetics, not just Kenneth McAlpine, and employers and lawyers will make reference to this judgement for years/decades to come, sack the diabetic by just saying they are going to be offsick alot in the future.

In summary, the Free Legal Services Unit should be representing Diabetes UK (and the disability of Diabetes) in this matter. Kenneth McAlpine is irrelevant.

Two days later I sent another email to Diabetes UK:

Clare,

Can I have a summary, in writing, of your meeting with the Faculty of Advocates Free Legal Services Unit.

In particular, I would like the following:

1: The name(s) of the people from the Faculty of Advocates Free Legal Services Unit that attended the meeting.

2: The views of the Faculty of Advocates Free Legal Services Unit on my claims.

3: The views of Diabetes UK on the views of the Faculty of Advocates Free Legal Services Unit on my claims.

I also sent a similar email to the Faculty of Advocates Free Legal Services Unit:

Dear Madam,

Further to the Faculty of Advocates Free Legal Services Unit meeting with Diabetes UK on Friday 4 July 2008, can I have a summary, in writing, of your meeting with Diabetes UK.

In particular, I would like the following:

1: The name(s) of the people from the Faculty of Advocates Free Legal Services Unit that attended the meeting with Diabetes UK on Friday 4 July 2008.

2: The views of the Faculty of Advocates Free Legal Services Unit on my claims given to Diabetes UK.

3: Any correspondence (emails, letters, etc) from Michael McLaughlin (Solicitor) to the Faculty of Advocates Free Legal Services Unit regarding my claims.

On 7 July 2008, I received the following email from Faculty of Advocates Free Legal Services Unit:

Dear Mr McAlpine

Thank you for your email. The unit will consider the requests that you have made and revert to you in response.

That same day I received the following email from Diabetes UK:

Hi Kenneth,

The FRU are going to be sending me their decision in writing, and I will pass it on to you when it is received. As to your questions;

1. I can't give you his name Kenneth; it goes against the data protection act, just like the equality and Human rights people wouldn't talk to me without your permission. I will ask him if he gives his permission, and if so I will let you know.

2. They can't support you for three reasons. Firstly they physically don't have anyone available who can support your case. They have three employment barristers, and they are all half way through big cases. Secondly, they don't think your case is runnable, I think that means that they think that your case isn't strong enough and will lose. I am not 100% sure though as I am not legally trained, but I am sure it will be better explained in their letter. And thirdly, you have too much money in your savings to be in any way eligible for free representation. I am afraid this will probably apply to any free representation or pro bono solicitor in Scotland.

3. As I mentioned, I am not legally trained, neither is any one else here, so we can't give you an opinion on their refusal to support you. I can't say that it is a strong or weak case, that they are right or wrong, I just don't know Kenneth.

I am sorry at the result Kenneth, I wish it could have been different; it's no fun for me to have to say that I can't help you, but I really have exhausted every possible avenue with this case. I wish you luck, and I hope your case comes to a good ending for you.

Hmmm, my immediate reaction was why did the Faculty of Advocates Free Legal Services Unit let an advocate travel all the way down to London and back, a round trip of approximately 1000 miles or 1600 km, for a meeting with Diabetes UK, when Diabetes UK only pay around thirty-nine pounds a year to the Faculty of Advocates Free Legal Services Unit. A whole day for an Advocate to travel to a meeting to tell them effectively "No". Why didn't they just lift the phone, take a few minutes to explain "No", then the advocate could have spent a full day working.

The next day I received a letter from the Glasgow Employment Tribunal:

Dear Sir

ACKNOWLEDGEMENT OF CORRESPONDENCE Employment Tribunals Rules of Procedure 2004

Your email of the 2nd July was referred to Employment Judge Crone who has asked me to reply as follows:

(i) The Employment Tribunal Service have not requested a copy of volume 2 of the productions from the respondent.

(ii) The purpose of the previous correspondence was to identify your concerns regarding productions in order to consider your request to view a full set of productions. It would appear from that correspondence that concerns relate to a small number of productions only.

(iii) The letter from the tribunal dated 4th June 2008 explains the position with regard to the pages of production in volume 3 which you queried.

(iv) Your questions regarding witness statements were also addressed in the letter of the 4th June 2008. If you wish to challenge the way in which the Employment Tribunal dealt with the witness statements, this should be a matter of appeal before the Employment Appeal Tribunal.

As no one seemed to be interested in getting me an Advocate that I was willing to pay for myself, I decide to contact a number of other legal firms in the surrounding area, and subsequently sent out a number of email enquiries.

At this point I had been continuing to act for myself, and performed countless searches on the Internet for any information regarding disability discrimination. Earlier that year I had discussed the legal implications of a stereotypical assumption with my pro bono Solicitor who was not impressed. However, I was aware that I had to lodge an appeal, possibly myself, if I could not obtain the services of an Advocate, so I again accessed the Disability Rights Commission Code of Practice for Employment and Occupation that states:

4.8 Consequently, if the less favourable treatment occurs because of the employer's generalised, or stereotypical, assumptions about the disability or its effects, it is likely to be direct discrimination. This is because an employer would not normally make such assumptions about a non-disabled person, but would instead consider his individual abilities.

I was now becoming increasingly aware that this had to form the basis of my main disability discrimination appeal point.

On 11 July 2008 I sent the following email to the Court of Session, the highest court in Scotland, regarding an appeal against the Edinburgh Employment Appeal Tribunal throwing out the disability discrimination appeal:

Dear Sir/Madam,

I am an Appellant representing myself who wishes to appeal to the Court of Session, a judgment from the Employment Appeals Tribunal.

Can you send out all the relevant form(s) for an appeal to the Court of Session from the Employment Appeals Tribunal, with any instructions on how to complete those forms to the following address:

Mr K McAlpine

<address removed>

I will be unavailable from 12 July to 27 July 2008 inclusive.

Late July 2008, I received a letter dated 17 July 2008 from the Faculty of Advocates Free Legal Services Unit:

Dear Clare,

Thank you for your application on behalf of Mr. McAlpine to the Free Legal Services Unit. I refer to your recent meeting with a member of our Committee and would confirm that the application has been carefully considered but that the Unit is unable to provide the assistance requested.

The reasons for this are as follows:

(1) This applicant's case has been identified as raising issues of discrimination which only a small number of the counsel on our panel would be able to deal with. Those counsel are presently not in a position to assist with this case.

(2) The Unit is not satisfied that all the grounds which the applicant seeks to argue are stateable.

(3) The Unit has questions about why the applicant cannot fund at least part of the cost himself, having regard to the resources disclosed in the application.

Whilst we appreciate that Mr. McAlpine will be disappointed with this outcome, we would point out that the Unit relies on the voluntary services of Advocates and has very limited resources. This means that it has to be selective in the cases in which it can offer assistance and regrettably cannot help in every case.

Late July 2008 I also received a letter from the Faculty of Advocates Free Legal Services Unit:

Dear Mr McAlpine,

Thank you for your email of 4 July 2008 in connection with the Faculty of Advocates Free Legal Services Unit meeting with Diabetes UK on Friday 4 July 2008.

I can confirm that the meeting was attended by a member of the FLSU Committee and that a summary of what was discussed has been forwarded to Diabetes UK as discussed with them. I am sure that they will be able to provide you with a copy of that.

The FLSU had two emails from Mr McLaughlin, and copies of those are enclosed.

Enclosed were the emails from Michael McLaughlin to myself dated 24 June 2008, and an email autoreply from Michael McLaughlin to Carole Ferguson-Walker.

On 29 July 2008 I received the following letter from the Edinburgh Employment Appeal Tribunal regarding the costs appeal:

EMPLOYMENT APPEAL TRIBUNAL

Appeal No: UKE ATP AS/0051/08/MT

IN THE MATTER of an Appeal under Section 21(1) of the Employment Tribunals Act 1996 from the decision of an Employment Tribunal sitting at Glasgow and entered in the Register on the 13th day of February 2008.

BETWEEN: Mr Kenneth McAlpine Appellant

and

Oracle corporation UK Ltd Respondent

NOTICE OF HEARING RULE 3(10) APPLICATION

TAKE NOTICE that this Appeal will be in the List for hearing before the Employment Appeal Tribunal sitting at 52 Melville Street, Edinburgh EH3 7HF at 12:00 pm on the 6 November 2008.

The estimated duration of the hearing is no longer than 1 Hour and you are required forthwith to notify the Registrar of any matters that may affect the length of the hearing.

Dated the 29th day of July 2008

Two days later I sent an email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

Please find attached a document seeking leave of the EAT to appeal to the Court of Session.

Yours faithfully,

Attached document read:

EMPLOYMENT TRIBUNAL REFERENCE: 116267/2006

EMPLOYMENT APPEAL TRIBUNAL REFERENCE: UKEATPAS/0130/07/MT

APPLICATION FOR PERMISSION TO APPEAL TO THE COURT OF SESSION IN THE EMPLOYMENT TRIBUNAL OF SCOTLAND

KENNETH McALPINE (the Appellant)

-v-

ORACLE CORPORATION (UK) LIMITED (the Respondent)

NOTE OF APPEAL

Under the Employment Appeal Tribunal Practice Direction (Employment Appeal Tribunal - Procedure) 2004, section 21.3, this document should be treated as an application to the EAT for permission to appeal to the Court of Session.

One of the main points of law to be advanced and the grounds are as follows:

Whether the statement:

"the combination of diabetes and high blood pressure - which could result in a prolonged period of time off due to illness."

is direct discrimination as stated in the Disability Discrimination Act 1995, Part II, Section 3A(5), which states:

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

The Appellant requested a written judgement at the Rule 3(10) hearing on 20 June 2008, which has not been supplied as of 31 July 2008. When the Appellant receives a written judgement, other points of law may be identified and advanced from the written judgement.

On 1 August 2008 I sent an email to Diabetes UK:

Clare,

The Faculty of Advocates have notified me that I should contact Diabetes UK to request the information that they have sent to Diabetes UK regarding the meeting between Diabetes UK and the Faculty of Advocates.

I trust that this information will be posted to myself asap, as requested below.

Later that morning I received the following reply to that email:

Hi Kenneth,

I will put it into the post for you today.

I was now trying to get another lawyer and had arranged a meeting on 4 August 2008, but simply could not afford to go with this lawyer.

On 5 August 2008 I received a letter from the Information Commissioners Office:

Dear Mr McAlpine,

Thank you for your case review and service complaints form dated 31 July 2008.

The matters you raise will be passed to a manager in the Casework and Advice Division who should send you a detailed response within 28 calendar days. If for some reason they are unable to do so, we will let you know what is happening and when you will receive a full response.

That same afternoon I sent an email to Diabetes UK regarding the letter dated 17 July 2008 from the Faculty of Advocates Free Legal Services Unit:

Dear Madam,

I have now received a copy of the letter from the FLSU to Diabetes UK.

I have a number of questions:

(1) Why did the FLSU express any opinion on the success or failure of the grounds of appeal when the FLSU did not have anyone who could assist with this case?

(2) Why did the FLSU express any opinion on the success or failure of the grounds of appeal when the FLSU had questions concerning funding?

(3) What grounds of appeal did the FLSU deem as not stateable?

I also sent another email to Diabetes UK:

Clare,

I have now received the letter from the FLSU to Diabetes UK.

Can Diabetes UK confirm in writing that they are no longer providing any support for my case.

I then emailed Michael McLaughlin:

Michael,

I will be in the Glasgow area on Thursday 7 August 2008.

As your involvement in my case has now concluded, can I pick up the following from Biggart Bailli Reception on Thursday 7 August 2008:

* 2 Lever Arch folders containing all 850 pages of documents, as well as the Tribunal Judgment.

* Any correspondence between yourself and any other parties concerning this claim.

I almost immediately received an email reply from Michael:

Kenneth,

I am not around on Thursday but will make sure that these things are left at reception for you.

The next day I received a final letter from the Faculty of Advocates Free Legal Services Unit:

Dear Mr McAlpine,

I refer to your email to Carole Ferguson-Walker dated 5 August 2008 and advise that the unit has no further comment to make on the matter.

I contacted a number of Solicitors and arranged various meetings or sent further emails with additional information, but not one would take up the case or even get an advocate involved. I found that very strange as I was willing to throw what money I had at them, and my view was that this was one of the easiest cases to win as everything was in writing which they had all read.

On 8 August 2008 I received a letter from the Edinburgh Employment Appeal Tribunal regarding seeking leave to appeal to the Court of Session:

I refer to the above matter; your e-mail of 31st July 2008 is receiving attention.

Two days later I received the final letter from Diabetes UK:

Dear Kenneth,

This is just to confirm, as requested, in writing that Diabetes UK's Advocacy Service is regretfully unable to support you any further with your case.

Although we have investigated every possible avenue of support for you that we have been able to find, it seems that your level of savings render you ineligible for free legal assistance from any of the agencies contacted.

We wish you luck in your future endeavours and if we can help you in any other matters, please do get in touch.

Chapter 6

On 12 August 2008 I completed and sent the following application to the European Court of Human Rights regarding the reasonable adjustments case:

I. THE PARTIES

A. THE APPLICANT

This section was filled in with the name and contact details of Kenneth Robert McAlpine who was representing himself.

B. THE HIGH CONTRACTING PARTY

This section was filled in with the country the United Kingdom.

II. STATEMENT OF THE FACTS

* Tribunal Claim (25 August 2006)

Mr Kenneth Robert McAlpine raised a Tribunal claim on 25 August 2006 at the Glasgow Employment Tribunal against Oracle Corporation UK Limited. This claim concerned unfair dismissal and disability discrimination. The case number is 116267/2006.

Mr McAlpine confirmed that part of his claim, the only part which relates to this appeal, would be pursued under "failure to make reasonable adjustments" (The Disability Discrimination Act 1995, Section 3A(2)).

* Pre-Hearing Review (9 March 2007)

At a Pre-Hearing review held at the Glasgow Employment Tribunal on 9 March 2007, Mr McAlpine pleaded as follows:

"The outstanding issues for the Pre-Hearing review are as follows:

2. If so, a determination by the Tribunal as to whether the Claimant's claim that the Respondent failed to make reasonable adjustment to his workload in December 2005 is out of time, and if so, whether it is just and equitable to extend time for making such a claim.

The Claimant will plead as follows:

2.1 The e-mail (Document 1) written on 12th April 2006 makes reference to the discussions in December 2005 regarding the request that the Claimant made for reasonable adjustments, and as such, directly links the request for reasonable adjustments, made in December 2005, to the Claimant's selection for redundancy, made on 30th May 2006, and subsequent redundancy, made on 10th July 2006. The Claimant was first made aware of this e-mail (Document 1) on 9th February 2007. As such, the claim for reasonable adjustments in December 2005 should not be time barred; and/or

2.2 The Disability Discrimination Act 1995 states in Schedule 3, Part 1, Section 3 (3)(b) "Any act extending over a period shall be treated as done at the end of that period" (Document 2). The Claimant produced the Environment Agency Monthly Report from July 2004 to June 2006, and worked on the General Electric contract from November 2005 until 10th July 2006 (Documents  6 and  7) which is not disputed by the Respondent, and is not a series of one-off unrelated acts, and hence must be deemed as a continuous act which extends from December 2005 to June 2006. As such, the claim for reasonable adjustments in December 2005 should not be time barred (Documents 3, 4 and 5), as 'the end of that period' is June 2006; and/or

2.3 With reference to 2.2, the last failure to make reasonable adjustment act was committed on 5th June 2006 (Document 6 and 7). As such, the claim for reasonable adjustments should not be time barred."

At a Pre-Hearing review held at the Glasgow Employment Tribunal on 9 March 2007, the judgment of the Tribunal was:

"that the claimant had not complied with Section 32 Employment Act 2002 in respect of raising a grievance regarding the complaint of an alleged failure to make reasonable adjustments.

the claim of disability discrimination in respect of an alleged failure to make reasonable adjustments is struck out under Rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, as having no reasonable prospect of success"

In the reasons given in the above judgment,  paragraph 6 states:

"The respondent further confirmed they, and the claimant, were in agreement that the issue of time bar should be reserved to the hearing on merits."

Why was the reasonable adjustments claim thrown out at the Pre-Hearing Review, before considering the issue of time bar at the hearing on merits?

* Request to Review Pre-Hearing Judgement (26 March 2007)

A request to review the Pre-Hearing Judgement was submitted by Mr McAlpine on 26 March 2007.

* Dismissal of Review of Pre-Hearing Judgement (28 March 2007)

The request to review the Pre-Hearing Judgement, submitted on 26 March 2007, was refused on 28 March 2007.

* Employment Appeal Tribunal Appeal (24 April 2007)

Mr Kenneth Robert McAlpine raised an Appeal on 24 April 2007 at the Edinburgh Employment Appeal Tribunal against the decision of the Glasgow Employment Tribunal to strike out the failure to make reasonable adjustments part of the claim at the Pre-Hearing Review on 9 March 2007. The reference number is UKEATPAS/0040/07/MT.

* EAT Rule 3(7) (25 May 2007)

The Edinburgh Employment Appeal Tribunal, on 25 May 2007, stated the following:

"An appeal lies to this tribunal only in respect of an error of law. Nothing said in the grounds of appeal points to the Chairman having erred in law either in the pre-Hearing Review judgment or in her decision on the application for review. The grounds of appeal seek to argue a new case, but without any apparent relevance to the discreet issue that the Tribunal had to determine. This appeal has no reasonable grounds within it and Rule 3(7) applies."

* Application for EAT Rule 3(10) Hearing (19 June 2007)

Mr Kenneth Robert McAlpine applied for a Rule 3(10) Hearing at the Edinburgh Employment Appeal Tribunal against the decision of the Edinburgh Employment Appeal Tribunal on 25 May 2007.

* Hearing on Merits (2,3,4 July 2007 and 6 August 2007)

At the hearing on merits held at the Glasgow Employment Tribunal on 2, 3, 4 July 2007 and 6 August 2007, the Tribunal did not discuss the issue of time bar, and in the judgement, there is no reference to failure to make reasonable adjustments and time bar.

* EAT Rule 3(10) Hearing (7 November 2007)

This judgement is simply perverse for the following reason:

It is completely and utterly irrelevant whether the claim for failure to make reasonable adjustments was a 'separate' claim, or 'part' of his claim.

The facts speak for themselves, and the following questions apply equally whether the claim was a 'separate' claim or 'part' of a claim:

1) Did the claimant request reasonable adjustments in December 2005?

Yes.

2) Was the claimant selected for redundancy on 30 May 2006, and made redundant on 10 July 2006?

Yes.

3) Did the email on 12 April 2006 state "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." and "exit Kenneth from the organisation"?

Yes.

The request in "December" 2005 was used in April 2006 to link the request for reasonable adjustments to the redundancy ("exit Kenneth from the organisation"), and because the claimant's disability "diabetes" was used, The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3 (3)(b) applies.

The reasonable adjustments claim became a 'separate' appeal because the Tribunal struck out that part of the claim at the Pre-Hearing Review.

* Court of Session

Mr Kenneth Robert McAlpine appealed to the Court of Session against the decision of the Edinburgh Employment Appeal Tribunal on 7 November 2007.

Form 41.19 was sent by the Court of Session to Mr Kenneth Robert McAlpine, who completed Form 41.19 and sent this completed form to the Court of Session in time.

Application to Court of Session is refused as the application should have been lodged on Form 40.2, as stated by the Court of Session via email.

Application to Court of Session is then stated as having to be lodged on Form 41.2, as stated by the Court of Session via email..

Application to Court of Session is then stated as having to be lodged on Form 40.2, as stated by the Court of Session via email..

It is now too late to lodge an appeal to the Court of Session, as stated by the Court of Session via email and my original application to the Court of Session on Form 41.19, which was lodged in time, was refused.

III. STATEMENT OF ALLEGED VIOLATION(S) OF THE CONVENTION AND/OR PROTOCOLS AND OF RELEVANT ARGUMENTS

Convention for the Protection of Human Rights and Fundamental Freedoms

Article 6 (1)

Article 6. Right to a fair trial

1 In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

I have not had a "fair hearing" by an "impartial tribunal".

The respondent submitted an  ET3 form, the respondent answered the following questions as follows:

2.3 If the claim, or part of it, is about a dismissal, do you agree that the claimant was dismissed? Yes

If 'Yes', please now go straight to section 2.6

2.4 If the claim includes something other than dismissal, does it relate to an action you took on grounds of the claimant's conduct or capability? No

If 'Yes', please now go straight to section 2.6

2.5 Has the substance of this claim been raised by the claimant in writing under a grievance procedure? No

2.6 If 'Yes', please explain below what stage you have reached in the dismissal and disciplinary procedure or grievance procedure (whichever is applicable).

The respondent's ET3 form should not have been accepted, as the respondent has answered Section 2.3 'Yes', so should have went straight to Section 2.6, and should not have answered Sections 2.4 or 2.5?

If the judgement had taken the answers to these fundamental questions into consideration then it would have invoked Regulation 6(5) of the Employment Act 2002 (Dispute Resolution), which states:

"Neither of the grievance procedures apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

Why was the reasonable adjustments claim thrown out at the Pre-Hearing Review on 9 March 2007, before considering the issue of time bar at the Hearing on Merits on 2, 3, 4 July 2007 and 6 August 2007?

Why was the reasonable adjustments review of Pre-Hearing Judgement on 28 March 2007 dismissed?

Why was the reasonable adjustments appeal, Rule 3(7), at the Edinburgh Employment Appeal Tribunal on 25 May 2007 dismissed?

Why was the reasonable adjustments appeal, Rule 3(10), at the Edinburgh Employment Appeal Tribunal on 7 November 2007 dismissed?

Why was the reasonable adjustments appeal at the Court of Session, which was lodged in time, not accepted, even although the administration error was the fault of the Court of Session, and twice the wrong Forms in which to lodge the appeal were sent by the Court of Session to Mr Kenneth Robert McAlpine?

Article 14

Article 14. Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Why was Mr Kenneth Robert McAlpine's reasonable adjustments claim struck out at the Pre-Hearing Review on 9 March 2007, without considering whether the Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3 (3)(b) applied?

By not applying the law and procedures, "the rights", fairly on Mr McAlpines behalf, have the authorities discriminated against Mr McAlpine on the gounds of his disability and the law and procedures which apply to protect the rights of that disability?

Article 17

Article 17 . Prohibition of abuse of rights

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

By not applying the appropriate law and procedures correctly, "the rights", fairly on Mr McAlpines behalf, have the authorities engaged in any activity or act aimed at the destruction of the rights of Mr McAlpine.

Why was the ET3 Form submitted by the respondent accepted by the Tribunal when it had clearly been completed wrongly?

Why was the reasonable adjustments claim thrown out at the Pre-Hearing Review on 9 March 2007, before considering the issue of time bar at the Hearing on Merits on 2, 3, 4 July 2007 and 6 August 2007?

Why was the reasonable adjustments review of Pre-Hearing Judgement on 28 March 2007 dismissed?

Why was the reasonable adjustments appeal, Rule 3(7), at the Edinburgh Employment Appeal Tribunal on 25 May 2007 dismissed?

Why was the reasonable adjustments appeal, Rule 3(10), at the Edinburgh Employment Appeal Tribunal on 7 November 2007 dismissed?

Why was the reasonable adjustments appeal at the Court of Session, which was lodged in time, not accepted, even although the administration error was the fault of the Court of Session, and twice the wrong Forms in which to lodge the appeal were sent by the Court of Session to Mr Kenneth Robert McAlpine?

Why has the Glasgow Employment Tribunal 'lost' Volume II of the evidence, when all of the evidence should be kept for the duration of all appeals?

IV. STATEMENT RELATIVE TO ARTICLE 35 § 1 OF THE CONVENTION

Final decision (date, court or authority and nature of decision):

20 February 2008, Court of Session - Application, Court of Session sent wrong application form, twice, would not accept my original application, time ran out for application, and would not meet with me to discuss.

Other decisions (list in chronological order, giving date, court or authority and nature of decision for each of them):

9 March 2007, Glasgow Employment Tribunal, Reasonable Adjustments struck out

2,3,4 July 2007 and 6 August 2007, Glasgow Employment Tribunal - Hearing on Merits, Reasonable Adjustments and time bar not discussed.

25 May 2007, Employment Appeal Tribunal - Rule 3(7), Reasonable Adjustments appeal dismissed.

7 November 2007, Employment Appeal Tribunal - Rule 3(10), Reasonable Adjustments appeal dismissed.

Is there or was there any other appeal or other remedy available to you which you have not used? If so, explain why you have not used it:

House of Lords.

An appeal to the House of Lords is optional.

I have suggested this to my Member of Parliament (MP) but have not received any reply regarding this matter.

V. STATEMENT OF THE OBJECT OF THE APPLICATION

Mr McAlpine would be grateful if this Court could rule on whether or not Mr McAlpine's human rights have been violated under Article 6(1), Article 14 and Article 17.

Rule on a remedy for the two years of stress and anxiety that this has caused my young family and myself. If it helps the Court, the original claim was for € 897,183 (£ 707,000). The original claim was for unfair dismissal and disability discrimination (direct discrimination and failure to make reasonable adjustments). The maximum award for unfair dismissal is approximately € 73,602 (£ 58,000). The maximum award for discrimination is unlimited. If the € 73,602 (£ 58,000) is taken from the total € 897,183 (£ 707,000), this would leave € 823,581 (£ 649,000). As both direct discrimination and failure to make reasonable adjustments claims are equally unlawful and unlimited in any compensatory award, it may be appropriate to split the sum of € 823,581 (£ 649,000) between the two discrimination claims. This would arrive at a figure of € 411,790 (£ 324,500).

VI. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS

Have you submitted the above complaints to any other procedure of international investigation or settlement? If so, give full details:

No.

VII. LIST OF DOCUMENTS (NO ORIGINAL DOCUMENTS, ONLY PHOTOCOPIES, DO NOT STAPLE, TAPE OR BIND DOCUMENTS)

a) Employment Tribunal Pre Hearing Review Judgment, 9 March 2007 (8 pages).

b) Employment Tribunal Hearing Judgment, 2, 3 & 4 July and 6 August 2007 (38 pages).

c) Employment Appeal Tribunal Rule 3(7) Judgment, 25 May 2007 (2 pages).

d) Employment Appeal Tribunal Rule 3(10) Judgment, 9 January 2008 (5 pages).

e) Court of Session e-mails, various dates (9 pages).

f) ET3 Form, 25 September 2006 (1 page).

g) Employment Tribunal letter, 4 June 2008 (1 page).

h) Meeting with Katy Clark MP, 9 May 2008 (1 page).

VIII. DECLARATION AND SIGNATURE

Signed Kenneth McAlpine and dated 12 August 2008.

Around about this time I had a meeting with Hamilton Burns, a legal firm in Glasgow. At this meeting I used the following document as an agenda:

Please find a very brief summary of where these various appeals are, what is required, and a brief summary of the various appeals.

* Reasonable Adjustments Appeal

ET Case Number: 116267/2006

EAT Case Number: UKEATPAS/0040/07/MT

The human rights part of this claim has been appealed to the European Court of Human Rights regarding various violations that took place during my ET claim, EAT appeal and Court of Session appeal.

The European Court of Human Rights received this appeal on 14 August 2008.

The legal part of this claim has not been appealed to the European Court of Justice, but I would like advice on whether this may be able to be appealed to the Court of Session, House of Lords or European Court of Justice.

I will require an Advocate to represent me at the European Court of Human Rights and/or the Court of Session, House of Lords or European Court of Justice.

* Disability Discrimination and Unfair Dismissal Appeal

ET Case Number: 116267/2006

EAT Case Number: UKEATPAS/0130/07/MT

I have received an Order from the Edinburgh EAT dated 18 August 2008 refusing leave to appeal to the Court of Session.

This has now to be appealed to the Court of Session by an Advocate.

* Costs Appeal

ET Case Number: 116267/2006

EAT Case Number: UKEATPAS/0051/08/MT

A Rule 3(10) Hearing has been listed for 6 November 2008 at 12:00 at the Edinburgh EAT.

I will require representation by either a Solicitor or an Advocate.

* Reasonable Adjustments Appeal

At a Pre-Hearing Review held at the Glasgow Employment Tribunal on 9 March 2007, The Chairman struck out the failure to make reasonable adjustments for the following reason:

"that the claimant had not complied with Section 32 Employment Act 2002 in respect of raising a grievance regarding the complaint of an alleged failure to make reasonable adjustments."

The respondent submitted an ET3 form, in their ET3 form the respondent answered the following questions as follows:

2.3 If the claim, or part of it, is about a dismissal, do you agree that the claimant was dismissed? Yes

If 'Yes', please now go straight to section 2.6

2.4 If the claim includes something other than dismissal, does it relate to an action you took on grounds of the claimant's conduct or capability? No

If 'Yes', please now go straight to section 2.6

2.5 Has the substance of this claim been raised by the claimant in writing under a grievance procedure? No

2.6 If 'Yes', please explain below what stage you have reached in the dismissal and disciplinary procedure or grievance procedure (whichever is applicable).

The respondent's ET3 form should not have been accepted, as the respondent has answered Section 2.3 'Yes', so should have went straight to Section 2.6, and should not have answered Sections 2.4 or 2.5.

If the judgement had taken the answers to these fundamental questions into consideration then it would have invoked Regulation 6(5) of the Employment Act 2002 (Dispute Resolution), which states:

"Neither of the grievance procedures apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

The Chairman should have considered whether the failure to make reasonable adjustments was time barred or not according to The Disability Discrimination Act 1995, Schedule 3, Part I, Section 3(3)(b):

(b) any act extending over a period shall be treated as done at the end of that period;

The claimant requested reasonable adjustments on 16 December 2005, take me off one of the two large accounts that were causing workload conflicts.

The reference to "Discussions in December" and "exit Kenneth from the Organisation" in the email from Phil Snowden on 12 April 2006 constitute an act extending over a period, which shall be treated as done at the end of that period, the end period being the redundancy of Kenneth McAlpine. As such, the claim for failure to make reasonable adjustments should not be time barred.

The respondent, from 16 December 2005 (Reasonable adjustments request) to 10 July 2006 (Kenneth McAlpine's redundancy), never took me off either of the large accounts, which also constitutes an act extending over a period.

* Disability Discrimination and Unfair Dismissal Appeal

This should be very easy to win.

One of the main points of law to be advanced and the grounds are as follows:

Whether the phrase:

"the combination of diabetes and high blood pressure - which could result in a prolonged period of time off due to illness."

constitutes a stereotypical assumption according to the Disability Rights Commission, Code of Practice, Employment and Occupation, Section 4.8, which states:

4.8 Consequently, if the less favourable treatment occurs because of the employer's generalised, or stereotypical, assumptions about the disability or its effects, it is likely to be direct discrimination. This is because an employer would not normally make such assumptions about a non-disabled person, but would instead consider his individual abilities.

and as such, is direct discrimination as stated in the Disability Discrimination Act 1995, Part II, Section 3A(5), which states:

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

The stereotype here is "diabetes" (or "disability"), and the assumption is that this will lead to "a prolonged period of time off in the future".

Kenneth McAlpine only had around 2 days sick leave in two years, as conceded by the respondent. Consequently, this assumption is not even based on fact. The average UK employee takes 11 days sick leave each year.

For the above reason, it is a stereotypical assumption, which is direct discrimination.

The Disability Discrimination Act 1995, Part II, Section 3A(4) states:

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

The Tribunal should not have allowed the respondent any defence of justification.

Footnote:

The respondent was allowed a defence of justification, and subsequently stated that the person (Malcolm Thompson) who put the claimant on the RIF list (Reduction In Force list) was not aware of the claimant's disability, and it was not therefore discrimination.

Even with this defence, the Tribunal still got it wrong, as the employer knew of Kenneth McAlpine's disability, but more importantly, assuming Kenneth McAlpine was placed on the RIF list and hence selected for redundancy, the redundancy was discrimination, as both employees who wrote the discriminatory emails were aware of Kenneth McAlpine's disability:

"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"

And in the very next email from Catherine Temple, Senior HR Manager:

"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"

The argument here is that the selection for redundancy may, or may not have been discrimination, but the redundancy certainly was discrimination, as employees can be taken off the RIF list, and this employer did take some employees off the RIF list, but not Kenneth McAlpine for the discriminatory emails above.

* Unfair Dismissal

This should be very easy to win.

The first indication that Kenneth McAlpine had that he had been selected for redundancy was at a meeting on 30 May 2006, when he was handed a letter dated 30 May 2006 at this meeting which stated that Kenneth McAlpine had been selected for redundancy.

There was no "Step 1: statement of grounds for action and invitation to meeting", and "Step 2: meeting" took place without Step 1, according to the Statutory Dismissal Procedure.

* Costs Appeal

The respondent was awarded costs of £ 3,700 at an Expenses Hearing held at the Glasgow Employment Tribunal on 11 January 2008.

The claimant, Kenneth McAlpine, has not just been directly discriminated against, but has now had to pay £ 3,700 to be directly discriminated against.

The judgement of the Tribunal, dated 12 February 2008, ordered the claimant to pay expenses of £ 3,700 to the respondent.  Paragraph 112, stated:

"We concluded the claimant had acted unreasonably in (i) refusing the respondent's offer of settlement; (ii) maintaining an unrealistic figure for settlement and (iii) refusing to enter into discussions. We concluded that underpinning these three matters was the claimant's refusal to accept the respondent's offer of a contribution towards the cost of legal advice: his refusal was unreasonable and led to him acting unreasonably with regard to each of the above points."

"We decided, in the circumstances of this case, to make an award of expenses in the sum of £ 3,000."

It does not state in "The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004" that a claimant must take legal advice.

It is not unreasonable not to take legal advice, especially legal advice paid for by the respondent. The Tribunal system was set up so that employees could get access to the legal system and justice without requiring a Solicitor.

The claimant sent a letter on 1 May 2007 to both the Tribunal and the respondent, which stated:

"As the Respondent has had 51 days in which to arrange and take part in mediation, and has not done so, and has now somehow construed to blame the Claimant for this failure, the Claimant would now not wish to enter into mediation, especially when it is only some 11 days before the full tribunal, but as a further gesture of goodwill, will consider any settlement offer made before the full tribunal. This will allow the respondent to save the costs involved in mediation, and will not place any potential barriers to cancelling the full tribunal scheduled date of 2 July 2007."

The claimant was also ordered to pay expenses of £ 700 to the respondent, for alleging that the respondent had altered, amended or removed documents.

The respondent has clearly altered, amended or removed parts of documents and, it would now appear, has also fabricated documents.

* Other Matters

The following matters have taken place during the case, and can be proved:

Witness Collusion

Witness Perjury

Altered Evidence

Fabricated Evidence

Kenneth McAlpine will require advice on the following:

Whether these matters constitute perverting the course of justice.

Whether these matters constitute perjury.

Whether these matters constitute both or something else.

Whether these matters should be reported to the Police.

Whether these matters should be put in front of the Court of Session.

Whether these matters should be put in front of the High Court.

These matters will require an in-depth study of witness statements and evidence.

End of document.

Around the middle of August 2008 I had searched the Internet and found information regarding direct disability discrimination and the making of stereotypical assumptions.

The Court of Appeal's decision in Clark v TDG Ltd t/a Novacold 1999 IRLR 318, discussed above in Chapter 6 , effectively makes it easier for applicants under the DDA to show that they have been treated less favourably. Following the Clark decision, it seems likely that many more DDA claims will now turn on the question of whether less favourable treatment is justified.

Less favourable treatment is only capable of being justified if the reason for it is both material to the circumstances of the particular case and substantial – s.5(3).31

According to para 4.6 of the Code of Practice, this means that the reason has to relate to the individual circumstances in question and not just be trivial or minor.

Tribunal decisions suggest that an employer will fail to show that the reason for the less favourable treatment is material to the circumstances of the case if he makes an inaccurate or stereotypical assumption about the employee's condition, as opposed to looking closely at the employee's circumstances. For example, the defence of justification was not available to the employer in the case of Cox v Careeragent Ltd t/a Bells Toyota (unreported, ET Case No.1700896/98). In that case the applicant was diagnosed as having a malignant tumour. On the same day that the applicant informed his employer about the diagnosis, the employer dismissed him on the basis that he could not afford the applicant to be absent from work for a lengthy period. The tribunal upheld the application, finding that the employer had no basis for assuming that the applicant would require a substantial amount of time off – the decision to dismiss was not related to the material circumstances of the case.

In Miller v Bobbington Estates Ltd (unreported, ET Case No.5200636/99) the employer's less favourable treatment was not justified because the reason for it was not substantial. In that case the applicant, who had a spinal condition which regularly caused her to experience back pain, was dismissed from her job as assistant to the Flight Information Service Officer at a small airport. The reason for dismissal was that her employer believed that she was unreliable since she had taken time off work owing to her back problems. The tribunal held that the applicant had taken off no more time than an able-bodied employee with a short illness would have done. The tribunal thought it extremely unlikely that such an able-bodied employee would have been dismissed in those circumstances. On that basis, they concluded that the reason for dismissal could not be said to be substantial as required by s.5(3). Accordingly, the dismissal was not justified.

My interpretation of the above was that the defence of justification was not available to an employer if the employer made the assumption that the employee would have future sickness absence.

This should have resulted in Oracle and Morgan Lewis not being able to concoct any story to justify the two emails, as the Tribunal should have stated that there was no defence of justification, and should have stated that they were not listening to any defence ("story") to justify the stereotypical assumption.

On 14 August 2008 I sent an email to Michael McLaughlin:

Michael,

I presume that you will receive the judgment of the Rule 3(10) Hearing at the Edinburgh EAT on 20 June 2008.

When you do, can you post it to me immediately, at:

<address removed>

I also sent an email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

Reference: UKEATPAS/0130/07/MT

Case: 116267/2006

As my Solicitor will not be able to represent me in any future appeal to the Court of Session, can you send the Rule 3(10) Judgment to the following address:

Mr K McAlpine

<address removed>

Also, when will this Judgment be ready?

Within half an hour I received an email reply from the Edinburgh Employment Appeal Tribunal:

Receipt acknowledged

The draft judgment is with the judge for approval and will be sent to you shortly

I then forwarded this email to Michael McLaughlin:

Michael,

FYI.

You should not now receive the Judgment, but if you do receive in error please send on to me at my address.

I will scan and email a copy to you for your own review.

Later that afternoon I received an email reply from Michael:

Kenneth,

That is noted.

Thanks. I would like to read it.

I then received an email reply from one of the lawyers I had arranged a meeting with regarding seeking an Advocate for all the appeals and other matters:

Dear Mr McAlpine,

I refer to our recent meetings. I regret that my advice to you on Monday 11th August 2008 was not what you may have hoped to hear, but I must give you my opinion based on my knowledge of your case; though I understand there may be a great deal of further evidence and information which was not made available to me.

In any event, you advised me that you have instructed a number of solicitors, which makes the situation untenable. I have not heard further from you since our meeting of 11th August and I assume that you have no further instructions. Your fee of £100 including VAT has been received with thanks and I shall simply now close your file.

I am pleased to have been of assistance to you.

I immediately sent an email reply:

Dear Sir,

"I assume that you have no further instructions"

That is correct.

"In any event, you advised me that you have instructed a number of solicitors, which makes the situation untenable."

This is not correct, I stated that I have been looking for, and talking to, a number of Solicitors, none of which were instructed as of 11 August 2008.

On 19 August 2008 I sent an email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

I have still not received the Judgment for this case, this is now nearly 9 weeks after the hearing.

What exact date can I expect this judgment?

Later that morning I received an email reply from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

I am afraid the Judgment is not ready to be issued as yet, however we should be able to issue it shortly.

Whilst making up my appeal to the Court of Session, I revisited the job role that I had stated in my ET1 form, the first form lodged at the Tribunal to start the whole process off, and again compared this with the respondent's response in their ET3 form. The Tribunal should have been well aware of this point and should have paid attention to this if they had been doing their job properly at all:

In the respondents ET3 it states:

3.3 Is the Claimant's description of their job or job title correct?

Yes

In my ET1 it states:

4.2 Please say what job you do or did?

Service Delivery Manager

On 23 August 2008 I sent another email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

I have still not received the written Judgment for this case and it is now into the 10th week after the hearing.

What exact date can I expect this Judgment?

I was now looking into collective redundancy on the web, as the respondent had stated at the Tribunal that because of the number of redundancies the Employee Consultation Forum (employee representatives) had been involved, and as far as I could determine, in a collective redundancy the following happens:

1. Employee representatives are informed of how many are to be made redundant.

2. The employee representatives apply selection criteria to determine who is to be provisionally selected for redundancy.

3. Lists of employees are identified in 2 who are provisionally selected for redundancy.

If this was the case, it begged a question, why were Phil Snowden, Nick Cooper, Malcolm Thompson and Catherine Temple discussing whether to make me redundant in April 2006, if that was the sole domain and purpose of the employee representatives?

Three days later I sent another email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

I have still not received the written judgment from the hearing held on 20 June 2008.

I now wish to lodge a formal complaint.

Please supply me with the contact details of who I should complain (the name, address and email address).

On 26 August 2008 I sent the following email to the Court of Session in Edinburgh, the highest court in Scotland:

Dear Sir/Madam,

Can you please provide a list of all formal documents which have to be lodged with the Court of Session when appealing a decision from the Employment Appeal Tribunal.

Please provide all form names and/or numbers (ie: Form 40.2) and whether all forms can be downloaded from the Court of Session website.

Is there anything else that should be lodged?

The next day I received a reply from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

Your complaint should be addressed to:

Mr S Mennie

Customer Services Manager

Employment Appeal Tribunal

Audit House

58 Victoria Embankment

London EC4Y 0DS

Or by e-mail, marked for the attention of Mr S Mennie Customer Services Manager, to:

LondonEAT@tribunals.gsi.gov.uk

That same day I received an email reply from the Court of Session:

Thank you for you're e-mail regarding an Employment appeal Tribunal. We do strongly advise that you seek legal advice if you want to proceed yourself.

Before you bring your appeal to the Court of Session you are going to need leave to appeal to the Employment Appeal Tribunal.

This involves informing the Employment Appeal Tribunal that you are appealing their decision to the Court of Session. Once this is done I advise you to make an appointment with one of my colleagues as the procedure for lodging an appeal can be a complicated process.

Please contact us once you have spoken to The Employment Appeal Tribunal on 0131 240 6741 and ask for Lorraine Alexander who will make an appointment for you within this department

Irene Cranston

Later that day I sent an email complaint to the London Employment Appeal Tribunal:

Dear Sir,

I now wish to lodge a formal complaint regarding the time it has taken, and is still taking, to produce a short written judgment on the hearing held at the Edinburgh EAT on 20 June 2008.

I am still awaiting this judgment, as you can see from the email trail below.

I trust that you will look into this as soon as possible.

Within minutes I received an email reply from the London Employment Appeal Tribunal:

Receipt of this email is acknowledged and is receiving attention

EAT

Chapter 7

On 27 August 2008, I received the following email from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

Please find attached an electronic version of the EAT Judgment. A sealed hard copy will be sent to you in the post tomorrow.

Yours faithfully

The attached judgment read:

Appeal No. UKEATPAS/0130/07/MT

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

At the Tribunal

On 20 June 2008

Before

THE HONOURABLE LADY SMITH

(SITTING ALONE)

MR K McALPINE (APPELLANT)

ORACLE CORPORATION UK LIMITED (RESPONDENT)

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION – APPELLANT ONLY

APPEARANCES

For the Appellant MR K McLAUGHLIN, Solicitor Messrs Biggart Baillie Solicitors, Dalmore House, 310 St Vincent Street, Glasgow G2 5QR

SUMMARY

Perversity appeal. Rule 3(10) hearing. Reasons for dismissal. Tribunal satisfied that genuine reason was redundancy and not disability. Claimant seeking to have a different view taken of the evidence but on no view could the grounds of appeal pass the perversity hurdle.

THE HONOURABLE LADY SMITH

1. This is an application under rule 3(10) of the EAT rules.

Background

2. The background is that the claimant's employment ended on 28 June 2006 when he was dismissed on the grounds of redundancy. In terms of his ET1 he claimed in respect of unfair dismissal and also sought to advance a claim under the Disability Discrimination Act 1995. A hearing took place in Glasgow before the Employment Tribunal there on 2, 3, 4 July and 6 August 2007. The chairman was Ms L J Crone sitting with members and the judgment was registered on 13 September 2007.

3. The issues that the Tribunal was required to and did determine at that hearing were as regards the unfair dismissal case, whether the claimant was correct in his assertion that there should have been a pool for selection for redundancy and also whether there had been a failure to follow the statutory procedures including whether there had been adequate consultation. So far as disability discrimination was concerned, there was an issue whether, in the claimant's case, he had been selected for redundancy because of his disability and/or because he had requested a reduction in his workload was well founded. Both claims were dismissed.

4. The Tribunal was satisfied that the respondents had demonstrated that the reason for dismissal was redundancy, contrary to the assertion of the claimant in that regard.

The facts

5. Put briefly, the facts found by the Tribunal which led to the foregoing conclusion were as follows. Although the claimant was employed as an on demand service manager, there were many elements of that role which he did not carry out. In December 2005, the claimant had indicated to his senior manager, Mr Snowden, that he was not happy with his work. The element of his job which involved him being responsible for incident management for the Environment Agency account was thereafter deleted from his responsibilities.

6. At a meeting when the above was discussed, Mr Snowden learned for the first time that the claimant was a diabetic. At a meeting that took place a few days later between the claimant and his line manager, Mr Cooper, there was discussion about what the claimant would do when the Environment Agency account matured, as it was put. The respondents would have been looking for him to take on a full oSDM role but he did not want to do that. He indicated that he would look for other roles in the organisation. The claimant was also told that he need not carry out work for another client in the first few days of each month when he was preparing the Environment Agency report, the claimant having indicated that he felt his workload was excessive.

7. In January 2006 it was announced that there was to be a merger between the respondents and CBL. That was going to result in reorganisation. A new service desk was to be set up to cover all on demand service delivery. There were also to be customer incident managers for all large accounts. The above changes effectively removed the need for the claimant's role. The only part of his role that would remain would be the preparation of a monthly report and there was no need to have an employee who was employed only to carry out that task. A need for redundancies was recognised. Ultimately, 121 employees were made redundant across the UK.

8. In February 2006, a reduction in force list, referred to as an "RIF list" in the Tribunal's judgment, was compiled by Mr Malcolm Thompson who is Mr Cooper's line manager. The claimant's name was put on to it in February 2006 on the findings of the Tribunal. He did not at that time know that the claimant was a diabetic. He knew that the claimant had concerns about being stressed and had discussed it with his manager.

9. Some time early in 2006 the claimant had been in touch with HR as had Mr Snowden regarding seeking alternative employment for him. There was an exchange of emails involving Mr Snowden, Ms Temple of HR and Mr Thompson in April 2006 in which Mr Thompson raised the possibility of two options for the claimant by way of alternative employment. Mr Snowden also referred to the claimant's diabetes and high blood pressure and both he and Ms Temple referred to the possibility of him going off sick if he were allocated to either option. The claimant had not, though, had previous sickness absence of any significance. Ms Temple and Mr Snowden both gave evidence which was accepted by the Tribunal that the references to the sickness absence were an error. Mr Snowden was not, at the time of the email exchange about the options for alternative work aware that the Claimant was on the RIF list.

The Claimant's Case

10. The Claimant's case, as I have indicated was that he was selected for dismissal on account of his being diabetic or because he had asked for a reduction in his workload due to diabetes. The Tribunal did not accept that that was so. At  paragraph 151 they said: "... 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."

11. Having found that the reason was redundancy, the Tribunal went on and considered whether the respondents acted reasonably in dismissing for that reason. The claimant had argued that the there should have been a pool and selections for redundancy made from that pool. The Tribunal rejected that argument essentially because the pool would have been a pool of one, the claimant. He did not carry out the full on call service manager role. He only carried out limited aspects of it and he was the only person in that position. As regards consultation, the Tribunal found that although consultation had been limited, that was because the claimant had refused to speak or meet. He would not participate, other than by post or email. The Tribunal was satisfied the respondents had done as much as was reasonably possible to consult with him.

12. A Notice of Appeal against the Tribunal's judgment was lodged on 24 October 2007. Although of some length it essentially advances perversity as the ground of appeal in this case. At the heart of the Notice of Appeal is that the Tribunal reached factual conclusions which were not permissible. Before me today, Mr McLaughlin refined matters somewhat to show that there were four essential features to that Notice of Appeal. The Notice of Appeal had flagged up, in terms, that the Tribunal had relied on what was contained in witness statements of a witness who did not give oral evidence at the hearing submitting that the content of the statements was not admissible evidence. At the end of the Notice of Appeal a summary was given of what was being advanced by way of grounds of appeal. That is in paragraph 7(17) of the Notice of Appeal at page 56 of the bundle.

13. Having carefully considered the papers submitted and the Notice of Appeal in Chambers I reached the view that the Notice of Appeal submitted no reasonable grounds for bringing the appeal and the reasons for reaching that view were intimated in a letter dated 19 December 2007 to which I would refer for its terms. Following receipt of that letter, the claimant sought a hearing under and in terms of Rule 3(10) of the Employment Tribunal Rules and that is the hearing that took place today.

14. In a careful and clear presentation, Mr McLaughlin advanced four submissions which, he said, showed that it was appropriate to make further orders in this appeal. He said there were four aspects to it. Firstly, there was no evidence available to the Tribunal on the basis of which they could conclude that the claimant was put on the RIF list by Mr Thompson. Secondly, the three emails of 11, 12 and 13 April 2006 between Mr Thompson, Ms Temple and Mr Snowden were of such weight as to show the Tribunal could only have concluded, firstly, that the claimant was dismissed because of his diabetes; and secondly that the decision to make him redundant had been made before any attempt at consultation was made. Reference was also made to an email of 2 April 2006 not apparently referred to in evidence and not, so far as I can see, founded on by the claimant in his submissions which Mr McLaughlin submitted show that the Claimant was not on the RIF list until 2 April 2006. Thirdly, the respondents' efforts at consultation were, it was submitted, not genuine. The decision to make the claimant redundant had been taken before then. Further, more effort could have been made. Fourthly, the Tribunal should have discounted the evidence of Mr Cooper, Mr Snowden and Ms Temple because a reading of their written statements led to the conclusion that they must have consulted with each other when preparing them.

Conclusions

15. As regards the first of these four matters, Mr McLaughlin had approached this matter on the basis that Mr Thompson's witness statement was not evidence in the case. However, I note from  paragraph 8(d) of the Tribunal's judgment: "The respondent had, by agreement, produced witness statements. The Chairman directed the statements would not be taken as read, but upon reconsideration - given the claimant's evidence took more than one day to complete, and there was time overnight to read the statements - directed they would be taken as read. There was no objection to this."

16. Then at  paragraph 11 the Tribunal set out the following: "We should state that in addition to the evidence we heard, we were also referred to various witness statements including the claimant's witness statements; Mr Andrew Hammett, who had been working for the Environment Agency in January 2005 as Technical Manager; Mr Philip Snowden; Mr Nicholas Cooper; Ms Catherine Temple; Ms Fiona Vickers, an oSDM with the respondent, who also has type 1 diabetes; Ms Simone Harch; Mr William Gemmell, who informed the claimant of his potential redundancy; Mr Richard Marsden, who was an oSDM on the AEA account and Mr Fran Winters, who was lead oSDM on the GE account."

17. It is clear from a reading of those two paragraphs that, so far as the Tribunal were concerned, there was agreement that all the Respondents' witness statements, which included Mr Thompson's witness statement, could be taken to be the evidence-in-chief of those witnesses. There is accordingly no foundation for the first ground of appeal.

18. So far as the second matter is concerned, the inference that Mr McLaughlin seeks to draw from the emails is not the only inference that can be drawn. Mr Thompson's email is entirely consistent with the claimant being on the RIF list confidentially prior to then and him acting appropriately in looking at whether there were any ways of retaining the claimant in the oSDM role. The second email is entirely consistent with Mr Snowden not being aware of him being on the RIF list and I do not see that the passage in Ms Temple's statement referred to by Mr McLaughlin points to the contrary.

19. Further, Ms Temple's email of 13 April 2006, does not, as was suggested, show conclusively that the decision to dismiss had been made by then. It goes no further than raising suggestions and the response to it is unknown. That response cannot be assumed to be to the effect of which Mr McLaughlin argued. Further, the Tribunal did have regard to that email of 13 April 2006 and they explain their approach to it in a manner which, on the evidence, was open to them at  paragraphs 59 and 60. So far as the email of 2 April 2006 is concerned, even assuming for the moment that Mr McLaughlin is right in suggesting that it shows that the claimant did not arrive on the RIF list until 2 April 2006, that makes no difference. He was on the list prior to any exchanges which mentioned his health. He was on the list prior to intimation of his potential redundancy being made to him.

20. So far as the third matter is concerned, it is not arguable. I would refer to the Tribunal's findings and explanation at paragraphs  155 to  156 that the respondents could not reasonably have been expected to take any further steps. Mr McLaughlin suggested that they could have emailed. That is beside the point. The test is whether what they did was reasonable, not whether there was anything else that could possibly have been done. Further, those paragraphs do not, for reasons that I have already indicated, require to be viewed against the only conclusion available to the Tribunal being that a decision to make the Claimant redundant had been taken before then.

21. Then so far as the fourth matter is concerned, it seems that the line of argument was that since the three witnesses, Mr Snowden, Ms Temple and Mr Cooper, had been excluded from the hearing before giving oral evidence to protect, in the usual way, against them being influenced when giving their evidence by what others had said, the Tribunal should have discounted what was in their statements because, on reading them, it was evident that they must have been influenced by each other's statements when preparing their own. Even if that can be deduced from those statements, and I am not sure that it can, the witnesses could have been cross-examined on the matter and challenged on that basis. They evidently were not. I cannot accept that there is any rule of law that required the Tribunal in those circumstances to discount their evidence.

22. This is a perversity appeal. The bar is set high for such appeals, as I have previously indicated. Notwithstanding Mr McLaughlin's very professional and laudable attempt to show that there is an arguable case that it has been surmounted in this case, I cannot accept that that is so. No further action will be taken in this appeal.

Out of politeness I sent a copy of the EAT Judgment to Michael McLaughlin.

The next day I sent an email to the lawyer Niall Mickel at Hamilton Burns:

Dear Niall,

Your Reference: NM/LG/C8958/1

Please find attached to this email the Employment Appeal Tribunal judgment from the Rule 3(10) Hearing held on 20 June 2008.

This should be the final document which you are waiting for in order to instruct the Advocate for an opinion on this case.

If you require any further assistance with this case, or any further scanned documents please do not hesitate to contact me.

That same morning I sent an email to the Court of Session:

Dear Sir/Madam,

I called the 0131 240 6741 number provided by you for Lorraine Alexander, but this was not the correct direct dial number.

Can you provide me with the direct dial number for Lorraine Alexander.

On 28 August 2008 I received an email from the Tribunal Service regarding my complaint about how long the Edinburgh Employment Appeal Tribunal had taken to issue a judgement regarding the unfair dismissal and disability discrimination case:

Dear Sir

I refer to your email dated 27th August 2008.

I confirm that the judgment in respect of the Rule 3(10) hearing on 20th June 2008 was sent to you on 27th August.

Oral Judgments are both typed in draft and placed in final format in our London office as there are currently no typing facilities at EAT Edinburgh

I apologise for any delay which may have been occasioned thereby.

Yours Faithfully

The Court of Session called me on the morning of 29 August 2008. They sent out the appeal application forms that day, and they also set up a meeting on Monday 1 September 2008 at 2pm.

Even although discrimination is an unfair dismissal on its own, I did not want this to detract from the unfair dismissal that I was subjected to by the respondent not following the statutory redundancy procedure. So I decided to investigate the statutory redundancy procedure again:

REDUNDANCY PROCEDURE

Employees are entitled to be consulted, through representatives, about proposed redundancies. However, employers should first consider whether there are any alternatives to redundancy and if so what these are. If there are no alternatives the following steps should be taken:

Consultation

Employers should decide on the number of employees to be made redundant and, if more than 20, must undertake collective consultation. The employer must consult Elected Representatives about collective redundancies where it is proposed to make 20 or more redundancies at one establishment within a period of 90 days or less.

Selection for Redundancy

The criteria used to select employees for redundancy should be as objective as possible. Consider last in first out, skills and performance, attendance and disciplinary record, experience and aptitude. Consider whether each criterion should have equal weight.

In considering the pools from which employees will be selected for redundancy, consideration must be given to the type of work carried out by the employees including whether jobs are interchangeable, whether other groups of employees are doing similar work to those in the group from which selection is proposed to be made and whether an employee's inclusion in a pool is consistent with his or her previous position.

The employer must then ensure that the individuals chosen to make the selections for redundancy are properly capable of assessing the individuals in the pools for selection and ensure that they have been given guidance on how to apply the selection criteria.

Announcement to Workforce

At the outset of the redundancy programme it is advisable that a general announcement about the proposed redundancies is made to confirm the reasons for the proposed redundancy exercise and to confirm that no decisions will be taken without full consultation with employees in the areas affected. This announcement can either be by way of general letter or general meeting. There should then follow individual letters to employees in the areas affected inviting voluntary redundancies

Individual Consultative Meetings

Notwithstanding any obligations for collective consultation employees should also be consulted on an individual basis.

Employees should be advised fully as to how their position may be affected, the way in which they may be selected for redundancy, how the redundancies are to be carried out including the period of time over which it is proposed the redundancies are to be implemented. Employers should ensure employees have a full opportunity to make representations.

There should be an initial meeting with each employee to explain that the employee is considered to be a potential candidate for redundancy. The selection criteria should be explained to the employee. The employer should also indicate what consideration has been given to the possibility of alternative employment and if none is available this should be explained to the employee.

There should then if possible be a second meeting ideally at least two weeks after the first meeting. At this meeting the employee should be given the opportunity to submit any further representations that have occurred to him or her since the initial meeting. Further individual consultative meetings may be necessary depending upon what the employee says and time constraints.

Individual Periods of Notice

Individual notices of dismissal may not normally be issued to employees in a collective redundancy situation until the consultation process has been completed in accordance with these statutory requirements (unless the "Special circumstances" defence exists. The required notice period will depend on what an individual's contract of employment provides for, subject to the minimum periods set out in section 86 of the Employment Rights Act 1996.

Alternative Employment

Employers should try to offer suitable alternative employment if available and this should be discussed in the individual consultative meetings with the employees as well as in the collective consultative meetings with the Appropriate Representatives.

Confirming Redundancies

If possible individuals should be advised of the decision to make them redundant in a brief meeting. This can be then confirmed in writing. Employers should ensure employees are given their full contractual notice or they receive an appropriate payment in lieu. Employers may also wish to consider providing assistance in looking for a new job by liaising with employment agencies/job centers

REDUNDANCY CHECKLIST

1. Are redundancies necessary?

2. How many redundancies are there to be. Are there more than 20 within 90 days or less?

3. Consult Employee Representatives if more than 20 redundancies proposed.

4.

(a) Decide upon appropriate selection criteria/pools for selection and the selection panel.

(b) Commence consultation with Employee Representatives.

(c) General announcement to the workforce (invite voluntary redundancies).

(d) Notification to Department of Employment.

5. First individual consultative meeting. Discuss alternative employment if there is any.

6. Apply the selection criteria.

7. Further individual consultative meeting to advise employees on provisional selections. Has anything been said to change the position? Is further individual consultation necessary? Is there a need to reconsider the application of the criteria?

8. If employees take up offers of alternative employment, remember the statutory trial period of 4 weeks.

9. Confirm the redundancies to the employees concerned in writing. Ensure proper contractual notice is given or employees are given an appropriate payment in lieu. Confirm redundancy entitlement. Remember the employee is entitled to reasonable time off to look for work if he or she is working during their notice period. Consider help for employees to look for new employment.

On 29 August 2008 I sent the following email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

I have received the written judgment by post this morning (electronic copy attached).

The written judgment is not signed by hand by the Judge, please send a copy of the judgment, signed by hand by the Judge as soon as possible.

I trust that the date from which I have to appeal to the Court of Session will be 42 days from when I receive a copy of the judgment signed by hand by the Judge.

Can you confirm that a copy of the judgment, signed by hand by the Judge, will be sent, and that the date from which I have to appeal to the Court of Session will be 42 days from when I receive a copy of the judgment signed by hand by the Judge?

Mr K McAlpine (Appellant)

That same morning I received the following email reply from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

Please note that Judgments of this Court are not signed by the relevant Judge. The Judgment sent to you bears the seal of this Court.

You should contact the Court of Session in relation to any further application for leave to appeal.

Yours faithfully

I immediately replied to this email:

Dear Sir/Madam,

"Please note that Judgments of this Court are not signed by the relevant Judge."

Please see attached Word document for the last Judgment I received, signed and dated by hand by the Judge.

I will require a signed and dated by hand Judgment, to indicate that the Judge has read, agreed and acknowledged (signed and dated by hand) to the contents of this Judgment, before I appeal to the Court of Session.

Mr K McAlpine (Appellant)

I then received a quick reply from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

The document of which you have provided a copy is part of the reasons for an Order refusing leave to appeal.

I can confirm that Judgments of this Court are not signed by the Judge.

The date of the hearing is indicated on the Judgment and by the Court seal the date the Judgment is issued is also indicated.

Yours faithfully

I quickly sent another email reply to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

"The document of which you have provided a copy is part of the reasons for an Order refusing leave to appeal."

No it is not, it was a transcript of a verbal Rule 3(10) Judgment, exactly the same scenario as this Judgment.

I will require a signed and dated by hand Judgment, to indicate that the Judge has read, agreed and acknowledged (signed and dated by hand) to the contents of this Judgment, before I appeal to the Court of Session.

Mr K McAlpine (Appellant)

I quickly received another email reply from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

I am unable to add anything further to the e-mails sent earlier today other than to say that the Judgment which was sent to you is in the same format as all other Judgments from Employment Appeal Tribunal hearings and that no further Judgment will be issued by this court.

Yours faithfully

I decide at this point to send an email to the Tribunal Services:

Dear Sir,

I am now becoming extremely concerned that I am not receiving a signed and dated by hand transcript of the verbal Judgment delivered by the Judge at the Rule 3(10) Hearing held on 20 June 2008.

The reasons for my concerns are as follows:

I received a signed and dated by hand transcript of the verbal Judgment delivered by the Judge at the last Rule 3(10) Hearing held on 7 November 2007.

Why am I not receiving a signed and dated by hand transcript of the verbal Judgment delivered by the Judge for the Rule 3(10) Hearing held on 20 June 2008?

Until I receive a signed and dated by hand transcript of the verbal Judgment delivered by the Judge at the Rule 3(10) Hearing held on 20 June 2008, I have no proof that this Judgment has been transcribed correctly, without error, and that the correct Judge has read, agreed to, and signed off that the contents of the transcribed Judgment are correct.

Every Judgment that I have received from the ET and EAT (4 in total) has been signed and dated by hand by the respective Judge.

Can you please look into this as soon as possible, and supply a signed and dated by hand transcript of the verbal Judgment delivered by the Judge at the Rule 3(10) Hearing held on 20 June 2008.

Mr K McAlpine (Appellant)

I quickly received the following email from Tribunal Services that afternoon:

Dear Sir

I refer to your email correspondence with Mr Newton at Edinburgh EAT, which has been copied to this office, concerning judgments issued by the Employment Appeal Tribunal.

I can substantively add nothing further to the explanation that you have received from Mr Newton other than to reiterate that judgments from full, preliminary and interlocutory hearings at both London and Edinburgh EAT are not signed by the hearing judge. The hearing judge reads and approves all judgments in draft; the judgments are subsequently perfected and sealed and dispatched to the parties.

The copy decision/reasons signed by the presiding EATS judge forwarded by you to Mr Newton relates to an application on paper for leave to appeal from a judgment of the EAT. An EAT order in chambers would have been issued dismissing the application in which circumstances it is usual for the order to be accompanied by brief written reasons for the decision

Yours Faithfully

I was now utterly confused with regards to whether or not a Judge signs a judgment, and whether I had received an Employment Appeal Tribunal order rather than a judgment, as a judgment has to be attached to an application to the European Court of Human Rights, so I sent the following email to Tribunal Services:

Dear Sir,

Thank you for the explanation.

I have attached an email from Tuesday 11 December 2007, where it clearly states:

"I will request a transcript of the judgment without further delay.

Regards,

Meg Tindall"

So, is the document, some 5 pages, which I previously sent the last page to you dated 21 December 2007, and signed and dated by hand by the Judge:

1: A transcript of the Judgment (in which case, where is the EAT order, with reasons, dismissing the application for leave to appeal to the Court of Session)?

2: An EAT order, with reasons, dismissing the application for leave to appeal to the Court of Session (in which case, where is the transcript of the Judgment)?

3: A combination of both.

If it is 1, then it should not have contained any refusal to appeal to the Court of Session, as the Judge would not have known about any plans to appeal to the Court of Session at the Hearing.

If it is 2, then the appellant has not received any transcript of the Judgment, which was requested.

If it is 3, then the appellant has not received a true transcript of the Judgment, which confuses matters completely.

So, what did the appellant receive signed and dated by hand on 21 December 2007?

Mr K McAlpine (Appellant)

It was now 31 August 2008 and I was becoming anxious about getting an appeal lodged with the Court of Session within the time limit. I was due to drive through to the Court of Session tomorrow to speak to someone who worked in the Administration Department, and who would hopefully inform me of the correct forms and rules and procedures to follow when lodging an appeal.

I spent the rest of the day finalising some appeal points and researching one new appeal point regarding the witness statements being taken as read.

The Cambridge English dictionary defines 'take it as read' to accept that something is true without making sure that it is.

How can a tribunal direct that one parties witness statements be taken as read, without either directing that all parties witness statements be taken as read, or no parties witness statements be taken as read.

The Judge should either have directed at the very start of the tribunal that all witness statements be taken as read, or that no witness statements be taken as read.

The fact that I had the opportunity to cross-examine only 3 out of about 9 witnesses would seem to be irrelevant, because the Judge directed that all the respondents witness statements are taken as read, so are true, but has not directed that my witness statements are taken as read, so are still open to question.

I decided under these circumstances to add the following appeal point "The appellant would request a specific finding on whether directing that all of one parties witness statements are "taken as read", is inequitable, and as such is unfair, and whether this constitutes a violation of The European Convention on Human Rights, Article 6(1)."

On 1 September 2008 I had a meeting with Lorraine Alexander at 2pm in the Court of Session. During this meeting I was shown the process of lodging an appeal with the Inner House of the Court of Session. It was not an easy process to someone with no experience, but it wasn't impossible.

The next day I sent another email to Tribunal Services:

Dear Sir,

Can you provide an answer to the email sent on 29 August 2008 at 16:28.

I have to know whether I have:

1: A Judgment from 21 December 2007?

2: A note from the 21 December 2007?

3: A combination of the two from 21 December 2007?

This is extremely important, as the EAT clearly indicated that this was "a transcript of the judgment", and this judgment was included as a judgment in appeals to higher courts, where it is now currently part of an appeal lodged at the European Court of Justice.

Mr K McAlpine

I immediately received an automated email reply stating that Simon Mennie was out of the office until 15 September 2008.

Upon surfing the web, I came across an article regarding Oracle layoffs in early 2006. What was notable from the article was that there would be "No layoffs in sales, support, or consulting.". I worked in support. The article also went on to state that due to Oracle Corporation buying Peoplesoft and Siebel, most of the layoffs would involve employees who worked for either Peoplesoft or Siebel. I neither worked for Peoplesoft or Siebel. A small amount of Oracle employees would be affected, but this seemed to be in development where Peoplesoft and Siebel developers would replace Oracle developers because the Peoplesoft and Siebel developers had developed a better product, hence the reason for Oracle to buy them.

On 3 September 2008 I sent the following email to the Court of Session as a follow up to my meeting with Lorraine Alexander:

Dear Sir/Madam,

Thank you for the meeting with Lorraine Alexander on Monday 1 September 2008 at 2pm at the Court of Session.

Although the letter I received from the Court of Session on the morning of Monday 1 September 2008 stated that the Rule of Court that I should use for the appeal was Rule of Court 41.19, I thank you for correcting the letter and pointing out that the Rule of Court that I should use for the appeal was Rule of Court 41.20, and Form 40.2 should be used for the appeal.

You also pointed out various forms of process which should also be submitted with my appeal.

On that basis, could you confirm the following:

1: That all forms attached to this email are the only forms which I have to submit?

2: Are any forms missing?

3: Are any forms attached to this email not required?

4: Is the form "Inventory of Process" in the right format, and is the content correct?

4: Are the forms "Interlocutor Sheet", "Motion Sheet" and "Minute of Proceedings" in the correct format?

5: Are the forms "Interlocutor Sheet", "Motion Sheet" and "Minute of Proceedings" submitted blank apart from the formatted headings?

6: Is the form "Appeal" in the correct format?

7: Is the form "List of Respondents" in the correct format?

8: Is the form "List of Documents" in the correct format, and does this just contain a numbered list of document evidence submitted for my appeal?

One last question, do I have to submit documents (evidence) at the start of my appeal, or can this be submitted at a later date?

The next day I received another email from Tribunal Services:

Dear Sir

I refer to your emails dated 29 August and 2nd September concerning judgments issued by the EAT

The decision signed by the judge and dated 21st December 2007 and sealed on 9th January 2008 accompanied an EAT order sealed on 9th January 2008 refusing an application for leave to appeal (lodged at the EAT on 18th December 2007) from the dismissal of the appeal PAS/0040/07 at a Rule 3(10) hearing on 7th November 2007.

The application, being made subsequent to the Rule 3(10) hearing and on paper, was considered by the judge in chambers. The note constitutes the judge's written reasons for refusing the leave to appeal application as the accompanying order makes clear in its second paragraph.

It does not constitute the Rule 3(10) hearing judgment which would have been delivered orally in open court on the day of the hearing. As indicated in previous correspondence, EAT judgments from hearings whether reserved to be handed down at a later date, or delivered orally on the day of the hearing, are not signed by the hearing judge.

Yours faithfully

On 4 Sep 2008 I sent the following email reply to Tribunal Services:

Dear Sir,

Ok, so where is the Rule 3(10) transcript of the Judgment promised in the attached email 4 December 2007?

"The application, being made subsequent to the Rule 3(10) hearing and on paper, was considered by the judge in chambers"

The Rule 3(10) Hearing was held on 7 November 2007.

The application, as you have so clearly stated in your email, was made on 18 December 2007.

So, the application was not made subsequent to the Rule 3(10) hearing.

As I am appealing these judgments to higher courts, and higher courts require the judgments of lower courts, don't you think that I should have the written judgment from the EAT in order to satisfy this fundamental requirement, and as requested by myself and promised by the EAT in the attached email 4 December 2007?

Or, will the 'Note' of reasons for refusing the leave to appeal application suffice as a 'judgment' for the higher courts?

Mr K McAlpine

Later that same day I received an email from the Court of Session:

In relation to the questions that you have sent all parts of process are in the correct format the only additions that are required to be made are as follows:

List of documents should be headed up as appendix and should list all documents i.e employment appeal tribunal decision etc

Schedule of respondents should include intimation to the employments appeal tribunal

The appendix should comprise of documents shown in Rule of court 41.2 and form 40.2 should be completed in terms of the type of appeal you are wanting

Any further productions can be lodged at a later date as an additional appendix

Lorraine Alexander

The next day I found the following case on the internet, and sent this to my parents:

Teacher appeal over tribunal case

A maths teacher who was not awarded compensation after winning a case for unfair dismissal has taken his claim to Scotland's highest court.

Ian Kerr, 63, labelled the employment tribunal he faced in 2005 a "shambles" as he appealed against its decision.

The former teacher at Aberdeen's Hazlehead Academy was speaking at the Court of Session in Edinburgh.

He resigned from his post after complaining about alleged leniency in the marking of pupils' exam papers.

Mr Kerr took Aberdeen City Council to an employment tribunal more than two years ago, claiming unfair dismissal.

He won his case but was not awarded any compensation or "remedy".

Mr Kerr, who now lives in Dundee, told police that former colleagues who gave evidence at the hearing committed perjury.

It emerged on Monday that officers from Tayside Police had questioned teachers from the school and education officials about Mr Kerr's claims.

Police said afterwards they found no evidence of any crime being committed and that no further action would be taken.

The tribunal judgment stated Mr Kerr had not behaved professionally and had used insulting language towards a council official investigating his complaint.

But he claims the evidence about his alleged conduct was false and that correct procedures were not followed at the hearing.

Representing himself in court, the teacher argued before Lords Osborne, Kingarth and Wheatley that the tribunal was a "procedural shambles".

He claimed that documentary evidence suggesting that witnesses for the other side had lied was never properly examined.

'Personal attack'

He told the judges: "On the seventh day of the hearing, I had presented new evidence which I believe represented the fact that proved that two witnesses of the respondent's had blatantly lied under oath."

Those witnesses, he said, were never called back to give evidence to the tribunal.

Mr Kerr added: "While remedy is the area that essentially I'm appealing against, what I would want to focus on is the fact that the credibility of the witnesses who were used in support of remedy was never tested.

"I was never allowed to test the credibility in totality. That's the major area of my argument."

He claimed, on the balance of probabilities, that the judgment had been decided upon before written submissions were handed in.

"My impression was the tribunal was latterly going through the motions," he said.

He has also raised concerns about the evidence given to the tribunal about his abilities as a maths teacher.

Mr Kerr said the "poorly presented" judgment contained an "unsolicited personal attack on myself, with not a shred of evidence".

The hearing, which has been set down for two days, continues.

Three days later I sent an email to my Member of Parliament:

Dear Valerie,

Please find attached minutes of our meeting on 5 September 2008.

Can I cancel the meeting with Katy Clark at 1pm today, as I have put all outstanding actions on hold until I have had a chance to speak to a Solicitor concerning whether or not these actions can take place while appeals are ongoing.

I will write to Katy Clark once I have had a chance to raise these matters with a Solicitor.

Another three days passed before I received the following email reply from my Member of Parliament:

Dear Mr McAlpine

Sorry I did not respond to you timeously. I had forwarded you email to Katy for her information and advice. Unfortunately, I had to leave the office unexpectedly and I could not reply to you before 1pm. I am sure you are aware that cancelling the meeting today was absolutely fine and caused no problems.

When you have had an opportunity to raise these matters with your solicitor, please contact Katy and we will arrange a suitable date, time and venue to meet to discuss your case further.

Hoping this is of assistance.

Later that day I received an email from the lawyer Ross McKenzie of the law firm Hamilton Burns:

Dear Mr McAlpine

I write to confirm that I have taken receipt of the papers you passed in to the office in the course of last week, and further to acknowledge receipt of your payment to account of £1000.

I can confirm that I have now prepared a brief for Counsel to peruse and provide an opinion on. As per the terms of our meeting on 11 August 2008 and further to my correspondence to you dated 15 August 2008, it is my understanding that we require the opinion of Counsel as to whether the grounds of appeal in respect of the Reasonable Adjustments appeal should be allowed to be heard, although late, given the difficulty you had with the Clerk of Session in attempting to determine the time limits and forms required for such an appeal to be lodged. We then require the opinion of Counsel as to the prospects of such an appeal succeeding at the Court of Session. I note from the papers you have provided that you require an appeal to be lodged to the Court of Session in respect of an order from Edinburgh EAT refusing leave to appeal. I further note that you require representation at a Rule 3(10) hearing on November 6 2008. Please be advised that these are matters that we shall have to discuss and take instructions upon separately to the principal matter in respect of which we have sought Counsel's opinion.

I trust all of the above is in accordance with your instructions, however please do not hesitate to contact me should you have any queries. Upon receipt of Counsel's Opinion I shall of course contact you to take further instructions.

Chapter 8

It was now 9 September 2008, and I received the following email from Oracle Corporation UK Limited regarding a subject access request (SAR):

Hi,

I've forwarded your SAR to UK Human Resources. I presume they will be in contact with you within a few days. If they do not respond let me know and I'll follow it up.

The next day I sent another email to the lawyer Niall Mickel at the law firm Hamilton Burns:

Dear Niall,

Can you provide me with a very brief update on where this case is at present, and when an opinion from Counsel will be received.

A few hours later I received an email reply from Niall:

Dear Mr McAlpine,

I write regarding the above and further to your recent email.

I have forwarded your request for an update to Ross Mckenzie, one of my assistants who will deal with it directly.

It might be helpful if you would address all future correspondence to Mr McKenzie directly, as he is the designated Solicitor attending to your case and in turn your questions will hopefully be dealt with in a more efficient manner.

I also received another email from Ross McKenzie at the law firm Hamilton Burns within an hour:

Mr McAlpine,

Further to your email to Mr Mickel earlier today, please find below the email I sent to you earlier this week. We would anticipate having the opinion of Counsel in the course of next week at which point we shall revert to you for your continuing instructions.

Later on, that day I received another email from the lawyer Ross McKenzie:

Mr McAlpine,

Further to my email earlier this afternoon, please find attached the memorial for the opinion of Counsel that we have prepared. You will note from it's terms that it refers specifically to the issue of the striking out of the reasonable adjustment argument and whether this aspect of your case should be able to be appealed to the Court of Session although late and if so, what the prospects of success are of such an appeal. Please be advised that all the documents you have made available to us shall be made available to Counsel to enable the opinion to be provided. We would be obliged if you could peruse the memorial and confirm by return that you are content for us to instruct Counsel to proceed with his opinion based upon this memorial.

Please feel free to contact me should you have any queries regarding this.

Kind Regards

Attached document read:

MEMORIAL FOR THE OPINION OF COUNSEL

MR KENNETH MCALPINE

CLAIMANT

ORACLE CORPORATION UK LIMITED, having their registered office Oracle Parkway, Thames Valley Park, Reading, Berkshire, RG6 1RA

RESPONDENT

1. The Memorialist is Kenneth McAlpine residing at <address removed>.

2. The memorialist presented a complaint to the Employment Tribunals Service on 25 August 2006 claiming that his dismissal from the employment of Oracle Corporation UK Limited had been unfair and that he had been discriminated against contrary to the Disability Discrimination Act. A Case Management Discussion took place on 20 October 2006 when the Chairman decided to arrange a further Case Management Discussion to clarify the issues and also to arrange a pre-hearing Review to determine whether the claimant had complied with the statutory grievance procedure in respect of his claim that there had been a failure to comply with a request to make reasonable adjustments.

3. At the pre-hearing Review Hearing on 9 March 2007 before Ms L J Crone, it was decided that the memorialist had not complied with Section 32 of the Employment Act 2002 in respect of raising a grievance regarding the complaint of an alleged failure to make reasonable adjustments and this aspect of the memorialist's claim was struck out. It is the memorialist's position that the Chairperson erred in reaching this decision. The basis of this assertion is that the Respondent's submitted an ET3 form which stated under Section 2.3 that the respondent's agreed that the Claimant was dismissed. By virtue of section 2.3 of the ET3 form, such an affirmative response directs the Respondent to section 2.6. In the present case, the Respondent proceeded to complete section 2.4 and 2.5, the latter of which stated that the Claimant had failed to raise a grievance procedure.

4. On March 26 2007 the memorialist requested a review of this decision of the 9 March 2007. This review request was refused by The Employment Tribunals (Scotland) on 28 March 2007. Thereafter, on 26th April 2007 the memorialist submitted a note of appeal to the Employment Appeals Tribunal. The Honourable Lady Smith opined that the notice of appeal disclosed no reasonable grounds for bringing the appeal and the memorialist was advised that no further action would be taken on 25 May 2007. The memorialist submitted an application under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 for further action to be taken on his notice of appeal. This application was refused on 7th November 2007. The memorialist thereafter sought leave to appeal the Judgement of the Employment Appeal Tribunal on 7 November 2007. The Honourable Lady Smith refused the memorialist leave to appeal to the Court of Session in a note dated 21 December 2007.

5. The memorialist sought to appeal the decision of the Honourable Lady Smith but failed to lodge the appeal within the 42 days required under Rule of Court 41.20 due to conflicting information provided to the memorialist from the Assistant Clerk of Session in email correspondence.

6. The opinion of Counsel is respectfully sought as to the prospects of the memorialist's appeal being received although late under Chapter 2 of the Court of Session Rules.

7. In the event that Counsel is of the opinion that the memorialist's appeal should be received although late, the opinion of Counsel is respectfully sought as to the prospects of success of such an appeal against the decision of the Honourable Lady Smith dated 21 December 2007.

8. The opinion of Counsel is further sought as to whether the memorialist has further recourse to the European Court of Human Rights in respect of this matter.

IN RESPECT WHEREOF

Hamilton Burns & Company

Solicitors

Five days later I sent an email to my parents concerning some news that I had found on the internet:

Breaking Oracle facing £370,000 sex discrimination claim

IT saleswoman says it went on 'at the highest level'

Published: 29 October 2004 15:19 GMT

An IT sales executive is claiming £370,000 from software vendor Oracle after winning a sex discrimination case against the company.

Karen Carlucci, an IT sales account manager at the company's Reading-based UK headquarters for 10 years, won the sex discrimination case at an employment tribunal earlier this year after exposing a "boys club" culture in which she was subjected to sexist emails and sexist behaviour from her male bosses.

After making a formal complaint of sex discrimination to Oracle she was told by her manager: "Is this how you want to be remembered?" and after returning to work following maternity leave for the birth of her second child she said a restructure forced her into a lesser job and so resigned.

At a remedy hearing at Reading employment tribunal this week over the costs to be awarded, Carlucci claimed the stigma of a sex discrimination case and the fact she is 38-years old with two children prevents her from obtaining a similar position and salary within the IT industry with a new company.

At the time she left Oracle she was on £63,500 basic salary with on target earnings (OTE) of £125,000. She is claiming loss of future earnings and aggravated damages totalling £370,000.

James Laddie, counsel for Carlucci, told the tribunal it "beggars belief" that Oracle is claiming the bringing of a sex discrimination case on her record would not have a negative impact on her future job prospects.

In his final submission, Laddie outlined a "deliberate policy of exclusion at the highest level" and cited the "high-handed and arrogant" conduct of Oracle throughout the hearings including repeated non-disclosure of documents and emails vital to the case. "The respondent's [Oracle's] witnesses lied all the way through the liability proceedings," he said.

Laddie told tribunal chairman Richard Byrne: "This is not a common or garden sex discrimination case. It is a single individual taking on a global organisation. The effect on Ms Carlucci has been severe and long-lasting."

Daniel Stilitz, counsel for Oracle, dismissed Carlucci's £370,000 claim as "perverse" and described Carlucci's attempts to mitigate her loss by trying to find a new job after leaving Oracle as "abject". He said Carlucci's record in IT sales would make her an attractive candidate. "To suggest it renders someone unemployable is not the case," he said.

Oracle has since spent £100,000 training 200 managers on equal opportunities but Carlucci is also still seeking a public apology from the company.

The employment tribunal is expected to reach a final decision on compensation by the end of November.

The next day I received an email from a Member of the Scottish Parliament:

Kenneth,

First, let me apologise for the delay in following up your email, following the exchange my office had with your mother.

Could you confirm whether there have been any subsequent developments in the matter since your email?

As you know, given that the legal process is well underway there is a limit to what advice I feel able to offer.

If at some point you feel I can be of further assistance, please get in touch.

Best,

Two days later I sent an email to the lawyer Ross McKenzie at the law firm Hamilton Burns:

Dear Ross,

I finally managed to track down and fix the problems regarding emails. My email hosting company (Yahoo and BT) have a spam filter, and all of your emails and that of Niall and anyone else from Hamilton Burns were being identified as Spam and not being forwarded to my email address. I have now hopefully corrected the problem.

Firstly, as agreed at our meeting on 11 August 2008, in order to keep alive my Reasonable Adjustments appeal, I have lodged an appeal to the European Court of Human Rights regarding the Reasonable Adjustments claim. This was received by the European Court of Human Rights on 14 August 2008. The Reasonable Adjustments appeal is therefore not a high priority at this time.

Can you also provide me with a brief estimate of how much money the three (Reasonable Adjustments, Unfair Dismissal/Disability Discrimination, Costs) cases will cost?

As outlined and discussed at our meeting on 11 August 2008, the main Disability Discrimination and Unfair Dismissal appeal is a very high priority. Most of the documentation that you have is regarding the main Disability Discrimination and Unfair Dismissal case. It was my understanding that this was the appeal which you were seeking an opinion from Counsel?

You should proceed to prepare an opinion for Counsel on the main Disability Discrimination and Unfair Dismissal appeal. This has to be lodged with the Court of Session no later than Monday 29 September 2008 (Refused leave to appeal from EAT was on 18 August 2008).

I have prepared an appeal to be lodged, so if you do not think that you can meet these timescales, then you can instruct me to lodge this appeal to keep this part of the claim alive. Counsel or yourself can alter this appeal at a later date. I have attached the grounds of the appeal to this email, and this will give you a better understanding of what is required to be appealed. I have also copied and amended your Reasonable Adjustments Memorial to a Disability Discrimination Memorial, to give you a quick summary of the timescales and matters to be appealed.

Can you also confirm that the Advocate will be a specialist in Discrimination and Employment matters?

Can you also confirm whether we can just engage Counsel, as time is quickly running out?

I would divide my time approximately as follows, 70% on the main Disability Discrimination and Unfair Dismissal case, 20% on Reasonable Adjustments case, 10% on Costs case.

I have read your brief to Counsel regarding the reasonable adjustments claim, and I would like you to point out or strengthen where appropriate, the following to the Advocate in addition to your notes:

1) The claimant (Mr McAlpine) had been dismissed, so the statutory grievance procedure never applied, the statutory dismissal procedure applied.

2) The claimant, using the Disability Discrimination Act 1995, Schedule 3, Part I, Section 3(3)(b), was still entitled to bring failure to make reasonable adjustments into the tribunal claim, as the request to make reasonable adjustments was used to form the basis of my redundancy, and is therefore an act extending over a period of time (December 2005 to my redundancy in July 2006). The end period being my redundancy.

3) If no reference to "diabetes" and "December" had ever been made, and the claimant (Mr McAlpine) had not been made redundant, then the claimant (Mr McAlpine) would not have been able to bring failure to make reasonable adjustments into the tribunal claim, and the statutory grievance procedure would have applied.

If the judgement had taken the answers to these fundamental questions into consideration then it would have invoked Regulation 6(5) of the Employment Act 2002 (Dispute Resolution), which states:

"Neither of the grievance procedures apply where the grievance is that the employer has dismissed or is contemplating dismissing the employee."

The Chairman should have considered whether the failure to make reasonable adjustments was time barred or not according to The Disability Discrimination Act 1995, Schedule 3, Part I, Section 3(3)(b):

(b) any act extending over a period shall be treated as done at the end of that period;

The claimant requested reasonable adjustments on 16 December 2005, take me off one of the two large accounts that were causing workload conflicts.

The reference to "Discussions in December" and "exit Kenneth from the Organisation" in the email from Phil Snowden on 12 April 2006 constitute an act extending over a period, which shall be treated as done at the end of that period, the end period being the redundancy of Kenneth McAlpine. As such, the claim for failure to make reasonable adjustments should not be time barred.

Please do not hesitate to contact me anytime, as I have everything to do with these cases at hand or in my head.

On 19 September 2008, I sent another email to the lawyer Ross McKenzie at the law firm Hamilton Burns

Ross,

Please find attached an electronic version of the Rule 3(10) Hearing (held on 20 June 2008) Judgment.

Shortly after this email, I sent another two emails to Ross McKenzie attaching the Employment Appeal Tribunal requesting leave to appeal to the Court of Session and the Employment Appeal Tribunal refusal of leave to appeal to the Court of Session.

Five days later I sent another email to my parents:

FYI.

The other Mrs Smith, Mrs Anne Smith, advocate, is still married to Mr David Smith, now the chairman of the leading Scottish firm of lawyers, Shepherd & Wedderburn. Mrs Anne Smith is now Lady Smith.

A Canon of Judicial Conduct, not unlike the Canons of Judicial Conduct promulgated by the American Bar Association, is enacted by the Scottish Parliament. Such a canon could encompass rules that a judge should be a political and cronyistic eunuch. A judge must not have particularly close contact with anyone who regularly appears before him. That a judge must resign from their professional body and that a judge must not solicit for funds for any educational, religious, charitable, fraternal or civic organisation or use or permit their name of the use of their office for that purpose. That the same position of strict neutrality is adopted by the judge's spouse; in short the position of Lady Smith's husband as the chairman of Shepherd & Wedderburn solicitors, I believe taints the perceived if not the real impartiality of Lady Smith.

Morgan Lewis & Bockius

Postal Address:

Condor House

5-10 St. Paul's Churchyard

London

EC4M 8AL

England

Shepherd and Wedderburn LLP

Postal Address:

Condor House

10 St. Paul's Churchyard

London

EC4M 8AL

England

The next day I sent an email to the lawyer Ross McKenzie at the law firm Hamilton Burns:

Dear Sir,

The last date for lodging an appeal to the Court of Session regarding this case is fast approaching (29 September 2008).

I am also aware that the September weekend holiday is this weekend.

In order to keep the main part of this case and appeal alive, I plan to do the following, travel through to the Court of Session on Friday 26 September 2008 and lodge 6 copies of the attached appeal with relevant copies of forms of process and Judgments, which will amount to 100 pages per copy.

If the Advocate is of the opinion that this case has reasonable prospects of success, then I believe that the Advocate can change the appeal which I will lodge on Friday 26 September 2008.

If you require to contact me, I will be available all day Thursday 25 September 2008 by landline or email. I plan to lodge the appeal at the Court of Session around 2pm on Friday 26 September 2008, and can be contacted on Friday 26 September 2008 via my landline.

On 28 September 2008 I sent an email to the Court of Session:

Dear Madam,

Thank you for accepting the appeal lodged in person by myself at the Court of Session on Friday 26 September 2008.

As intimated by yourself, please find attached the minor amendments to certain sheets you outlined on Friday 26 September 2008, which are as follows:

1: LIST OF RESPONDENTS sheet to include Employment Appeal Tribunal as respondents and Oracle Corporation UK Ltd as interested party.

2: INVENTORY OF PROCESS sheet to be renumbered, I have also included a renumbered Interlocutor sheet, motion sheet and minute of proceedings sheet.

3: APPENDIX sheet to include a more detailed description of documents, and to include entry for Employment Appeal Tribunal Appeal (Note of Argument).

4: I have also attached the main appeal document (Note of Argument) lodged with the Employment Appeal Tribunal by my Solicitor.

I have also sent a cheque for the value of £170.00.

The next day I emailed the Court of Session again:

Dear Madam,

I have to pay by cheque a fee for lodging an appeal at the Court of Session.

This appeal was lodged in the General Department.

Can you provide the following details:

Who should I make the cheque payable to?

To what name and address should I send the cheque to?

I quickly received an email reply from the Court of Session:

Hi,

Just to let you know that your appeal has now been put forward and all that I need from you is the signed part of your appeal to be signed and certified a true copy and signed and dated 26/09/2008 and returned with the cheque to

Court of Session

11 Parliament House

Parliament Square

Edinburgh

EH1 1RQ

The cheque should be made out to Scottish Court Service

Hope this helps!

On 30 September 2008 I received an email from Chris Gavin at Oracle Corporation UK Limited regarding my subject access request (SAR):

I just checked with Human Resources who are currently drafting a response. Once again, if you've still heard nothing and the deadline approaches, feel free to contact me again.

I received an email from my parents on 1 October 2008:

Equality body 'failing disabled'

Sir Bert Massie is critical of the Equality and Human Rights Commission

The new Equality and Human Rights Commission is not doing enough for disabled people, the chairman of its now-disbanded predecessor has said.

Sir Bert Massie, who was chairman of the Disability Rights Commission (DRC), is now a transition commissioner in the year-old EHRC.

He told the BBC the new body was failing to build on the work already done by the DRC in its last year.

But the EHRC says it is more important to fight for equality "holistically".

Baroness Campbell - who heads the EHRC's Disability Committee - says the commission is now taking "a more holistic approach to taking down barriers" rather than concentrating on the individual equality strands.

'Groundwork done'

The EHRC assumed the responsibilities of three former commissions - covering race, gender and disability - on 1 October last year.

It has also added sexual orientation, age, religion and belief, and human rights to its brief.

Sir Bert says the DRC laid a lot of groundwork for the new commission to build on.

"We did all the work for them - all they had to do was carry it on," he said.

He says that the EHRC took longer than was necessary to get new systems up and running.

But his main criticism is that some people in the EHRC are "intoxicated" by the idea of "cross-strand" work at the expense of the important issues that affect only one minority - in this case, disabled people.

'Too many strands'

He also accuses the new equality body of under-resourcing its disability specialists.

"They had to have a disability committee because the DRC had lobbied so well to have it made a statutory committee - the only strand that has one," he said.

He acknowledges that Lady Campbell's committee is doing some good work to push forward the disability agenda.

"But there's a whole range of issues which are of concern to disabled people which the new commission isn't really pushing at all - and it's unlikely to push because it doesn't have the staff with the right sort of expertise."

Sir Bert believes that he is viewed by some in the EHRC as wanting to "hark back to the past".

On the contrary, he says, he wants to make the commission "fit for the future".

And he argues that cross-strand work is nothing new and had already been done by the DRC.

He concludes that his term of office - which expires next year - will have been "singularly unsuccessful".

"If I was making an impact, that commission on disability would be humming with activity, with life, with vibrancy. But it isn't, and I haven't."

His concerns are echoed by others in the disability movement.

Alice Maynard - who chairs pan-disability charity, Scope - says there was always a fear that disability issues would lose momentum under a single equality commission.

"Sadly, the perception among the disabled people is that the drive towards disability equality has hit the buffers," she said.

She is calling on the EHRC to now "show its muscle and demonstrate its willingness to become a passionate advocate for disabled people".

Lady Campbell believes that many of those in the disability lobby who criticise the EHRC are still mourning the loss of the single-strand commission.

"What people struggle with is that we aren't the DRC," she said.

And she says that much of the work being done by the EHRC has a disability implication.

"For instance our work on power and women had a strong [disability] element to it."

She says that people need to be more considered with their criticism.

Five days later I received an email from the lawyer Ross McKenzie at the law firm Hamilton Burns:

Dear Mr McAlpine,

Opinion of Counsel re prospects

I refer to the above and to previous communications. I write to confirm that, further to our telephone conversation, I understand that you were proceeding to lodge the grounds of appeal against Lady Smith's decision to refuse leave to appeal to the Court of Session in order to ensure that the appeal is not time barred. Perhaps you could confirm by return that you did indeed lodge the appeal.

I can confirm that the grounds as prepared by you have been passed to Counsel Erroch for his consideration together with all the papers that you previously provided. As discussed previously, upon receipt of the opinion as to prospects from Counsel Erroch we shall issue a copy to you and thereafter take your continuing instructions in respect of this matter.

In the meantime please do not hesitate to contact me should you have any further queries.

I immediately replied that email:

Dear Sir,

I can indeed confirm that the appeal was lodged in person in the Court of Session on 26 September 2008.

The reference is XA165/08.

On 8 October 2008 I sent the following email to Financial Ombudsman Service:

Dear Sir/Madam,

Please find attached a letter regarding the continuing complaint to the Financial Ombudsman Service.

FOS Reference Number: 7621674/AR/CCHR

Thanks,

Attached document read:

Dear Sir/Madam,

I am writing to you with regards to the last response received from Lloyd's on 30 April 2008. As outlined in the letter from Lloyd's, I now have to contact the Financial Ombudsman Service within 6 months from the date of the last letter from Lloyd's, which is dated 30 April 2008. I have now given Lloyd's over 5 months to pursue any further investigations and write any further letters, but have received nothing since 30 April 2008.

I now wish to pursue this matter further with the Financial Ombudsman Service.

To update all parties on where this Employment Tribunal claim is:

* The first part of this claim is now with the European Court of Human Rights.

* The second part of this claim is now with the Court of Session.

* The costs awarded against me are now with the Employment Appeal Tribunal.

With regards to the last letter that was received from Lloyd's on 30 April 2008, I have a number of comments to make:

1. This is not just an unfair dismissal claim, but is also a disability discrimination claim, which has an unlimited ceiling on the value of the award.

2. Biggart Baillie LLP were representing me on a Pro-Bono basis, so would not have wasted their time and expense 'chasing a lost cause'. They would also not have 'went out on a limb' stating, on a Pro-Bono basis, that Miller Samuel gave "incorrect advice", when both Law Firms are less than a mile apart.

3. The "incorrect advice" offered by Miller Samuel had a direct impact on the prospects of this claim succeeding at the Employment Tribunal, as I had to represent myself against a number of London Barristers and Lawyers.

4. The "incorrect advice" offered by Miller Samuel was that no grievance had been lodged, and as such, the claim had no prospect of success, and that I should therefore accept an offer of settlement of £28,000 from my ex-employer. This advice was plainly wrong in law. I had been made redundant, so there was never any requirement to raise a grievance.

5. The value of the claim lodged at the Employment Tribunal was approximately £707,000.

6. The value of the claim as estimated by the Respondents Solicitors was just under £100,000.

7. The Respondents Solicitors have spent £117,000 defending this claim up to the Employment Tribunal.

One part of the letter received from Lloyd's on 30 April 2008 which I am utterly astounded by, is the statement "to revert to them should the application prove successful". This is utterly unacceptable from any insurance company, as Lloyds don't want to pay for any of the costs involved in fighting this case, but want to get involved after the case has been won. If any of the appeals are successful, the higher court will either overturn the decision at the appeal, or, even if it is reverted back to a much lower court, the lower court is not going to rule against the much higher court. So if any of the appeals at the much higher courts are won, the case is won, and Lloyds have not paid a penny for their "incorrect advice".

It is nothing but a win – win situation for Lloyd's, without any 'risks'.

That is utterly unacceptable for anyone who pays insurance.

Insurance Meaning and Definition

(n.) The act of insuring, or assuring, against loss or damage by a contingent event; a contract whereby, for a stipulated consideration, called premium, one party undertakes to indemnify or guarantee another against loss by certain specified risks.

I immediately received the following email autoreply from the Financial Ombudsman Service:

Thank you for your email. We'll be in touch shortly with a more detailed reply.

On 11 October 2008 I received the following email reply from the Financial Ombudsman Service:

Dear Mr McAlpine

Thank you for your letter attached to the email. I have noted your comments on your file.

Could you please return your complaint form and relevant correspondence received from Lloyds, including the letter stating the 6 month time limit, to us. We will then be in a position to proceed with the complaint.

Kind regards

David Elwis

Consumer Consultant

Financial Ombudsman Service

Three days later I sent another email to the lawyer Ross McKenzie at the law firm Hamilton Burns:

Dear Sir,

I have recently received a letter from the EAT regarding my Costs Appeal, and was wondering when I would receive the opinion of the Advocate on whether or not the Advocate is taking this case on?

On 17 October 2008 I sent the following email to the Edinburgh Employment Appeal Tribunal regarding the costs appeal:

Dear Sir/Madam,

Your Reference: UKEATPAS/0051/08/MT

Further to your letter dated 10 October 2008, the Appellant (Mr K R McAlpine) has already lodged an appeal and documents (see email below), and will be using this appeal and documents, unchanged, for the forthcoming Rule 3(10) Hearing.

Five days later I sent the following email to my parents as we were all concerned with not having representation at either the Court of Session or the European Court of Human Rights:

Mum/Dad,

Due to the inability of certain Solicitors and Law Firms in Scotland to even provide a paid opinion, I just thought I would clear up the 'debate' on whether or not you can represent yourself:

http://www.scotcourts.gov.uk/session/index.asp

Usually a case will be presented by an advocate, who is also referred to as "counsel", but a case may also be presented by a solicitor-advocate. Advocates are members of the Faculty of Advocates and have a status and function corresponding to that of a barrister in England. Advocates once had an exclusive right of audience in the Court of Session but, since 1990, they share that right with solicitor-advocates. Solicitor-advocates are members of the Law Society of Scotland. They are experienced solicitors who obtain an extension of their rights of audience by undergoing additional training in evidence and in the procedure of the Court of Session. In addition a practitioner from another member state of the European Union may appear for a client in the circumstances prescribed by the European Communities (Services of Lawyers) Order 1978. An individual who is a party to a case may conduct his own case but a firm or a company must always be represented by counsel or by a solicitor-advocate.

The last sentence clears up self representation in the Court of Session.

http://www.echr.coe.int/ECHR/EN/Header/The+Court/Procedure/Basic+information+on+procedures/

3. Individual applicants may present their own cases, but legal representation is recommended, and indeed usually required once an application has been communicated to the respondent Government. The Council of Europe has set up a legal aid scheme for applicants who do not have sufficient means.

It will either be self representation or representation via the Council of Europe legal aid scheme (if required).

The next day I received an email from the Edinburgh Employment Appeal Tribunal:

Dear Sir,

Thank you for your e-mail the contents of which have been noted. We have printed a copy of your bundle for the Judge.

On 24 October 2008 I sent the following email to the lawyer Ross McKenzie at the law firm Hamilton Burns:

Dear Sir,

Further to our initial meeting on 11 August 2008, and my transferring £1000 into your Firm's account on 26 August 2008, and with reference to the email below, sent on 14 October 2008, and our telephone conversation on 22 October 2008, I have still not received any update on when I should expect the opinion of the Advocate.

As this is now approaching one quarter of a calendar year since we first met regarding this matter, can you please provide an update on when I can expect the opinion of the Advocate?

I received the following email reply from Ross McKenzie later that day:

Dear Mr McAlpine,

Further to our telephone conversation on 22 October 2008, I can advise that I have been able to speak with Counsel this afternoon. He has advised me that he has prepared the majority of the opinion and should have it completed by next week. He has Court commitments on Monday however he is free Tuesday and Wednesday so we can anticipate having the opinion by the middle of next week.

It would appear that the delay has arisen due to Counsel's court commitments together with the fact that I advised Counsel that you had lodged the appeal to the Court of Session. Counsel had originally been instructed to provide opinion prior to the appeal being lodged. With the appeal being lodged timeously, Counsel presumed that the opinion was no longer urgent. I have now explained to Counsel that we require the opinion as soon as possible and as such, Counsel shall endeavour to provide same by next week.

On 3 November 2008, some ten days later, I received another email from Ross McKenzie:

Dear Mr McAlpine,

Further to previous email correspondence I write to advise that I had a discussion with Counsel on Friday afternoon to enquire as to the progress of the opinion on the basis that Counsel had previously advised that he anticipated having the opinion available by the middle of last week. Counsel advised that the preparation required in drafting the opinion has been more encompassing than he anticipated however his preparation is complete and he is in the process of writing up the opinion this week. He did advise that his preliminary view was unfavourable in that he did not foresee the Court of Session permitting leave to appeal and further that if such leave to appeal was granted, he did not foresee any appeal succeeding. This is the preliminary view of Counsel and we shall have to consider the terms of his opinion fully. I would hope to be in a position to provide you with a copy of the opinion early this week and I will ensure that I speak to Counsel in the course of today or tomorrow to get a more exact timescale.

Please feel free to give me a call should you have any queries regarding the above.

I immediately sent the following email reply to Ross McKenzie:

Dear Sir,

I will await the opinion of Counsel in writing.

It was now 6 November 2008 and the Employment Appeal Tribunal Rule 3(10) hearing in Edinburgh on the costs appeal

Date: 6 November 2008

Time: 12:00pm

Duration: 1 hour

Judge: The Honourable Mr Justice Elias (President)

Party: Mr K R McAlpine (representing himself)

Present: Jean McAlpine, Andrew McAlpine, Janette Murdoch.

I was surprised that Lady Smith was not the Judge for this appeal, and that it was Mr Justice Elias, the President of all the Employment Tribunal's in the UK.

After formalities, I read out my short appeal in front of Mr Justice Elias:

7. The grounds upon which this appeal is brought are that the employment tribunal erred in law in that (here set out in paragraphs the various grounds of appeal).

7.1 This appeal will be based solely on the grounds of perversity.

7.2 In the "JUDGMENT OF THE EMPLOYMENT TRIBUNAL" copied to parties on 13 February 2008, it states in  paragraph 112 as the main reason for awarding costs of £3000 against the claimant:

"We concluded that underpinning these three matters was the claimant's refusal to accept the respondent's offer of a contribution towards the cost of legal advice: his refusal was unreasonable and led to him acting unreasonably with regard to each of the above points."

Where in "The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004" does it state that a claimant must take legal advice?

If it does not state in "The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004" that a claimant must take legal advice, is it unreasonable not to take legal advice?

7.3 In the "JUDGMENT OF THE EMPLOYMENT TRIBUNAL" copied to parties on 13 February 2008, it states in  paragraph 125:

"The Judgment, at page 38, recorded the Tribunal's specific finding that the respondent had not deliberately altered documents in order to gain an advantage at the Hearing."

Why was the term "not deliberately altered documents" used in the "JUDGMENT OF THE EMPLOYMENT TRIBUNAL" copied to parties on 13 February 2008, instead of "not altered documents"?

Because the term "not deliberately altered documents" was used in "JUDGMENT OF THE EMPLOYMENT TRIBUNAL" copied to parties on 13 February 2008, it was clear to the Tribunal that documents had been altered, so if it was so abundantly clear to both the appellant and the Tribunal that documents had been altered, without incurring any costs in determining that documents had been altered, why did the respondent have to incur costs of £700 to determine that documents had been altered, and why should the appellant pay for these costs?

I explained to the Judge that part or all of point 7.3 formed part of an appeal to the Court of Session regarding unfair dismissal and disability discrimination, and we decided that it would be better if the Judge did not rule on point 7.3 if it was in a higher court.

At the end of the hearing I requested a transcript of the judgment.

On 17 November 2008 I received an email from the lawyer Ross McKenzie from the law firm Hamilton Burns:

Dear Mr McAlpine,

Just a quick note to let you know that I this morning received Counsel's opinion. Unfortunately I do not have an electronic copy of it, so I have issued a copy to you in first class mail. You should be in receipt of the copy in the coming days. Upon receipt, please contact me when you can in order that we may discuss the terms of the opinion.

I look forward to hearing from you.

Three days later I emailed the lawyer Ross McKenzie from the law firm Hamilton Burns:

Dear Mr Mackenzie,

I still have not received the copy of Counsel's opinion, and my post has been delivered for Thursday 20 November 2008. First class mail has a timescale of next day delivery.

If I have not received the copy of Counsel's opinion by 11am Friday 21 November 2008, can you leave a copy of Counsel's opinion at your reception, and someone will pick this up in the afternoon of Friday 21 November 2008.

That same day I emailed the Financial Ombudsman Service:

Dear Sir/Madam,

I sent the email with attached letter to you on 8 October 2008, but have not received any reply.

Can you confirm that the Financial Ombudsman Service is dealing with this?

Chapter 9

On 21 November 2008, I received a letter from the legal firm Hamilton Burns:

20 November 2008

FIRST CLASS MAIL

Mr Kenneth McAlpine

<address removed>

Dear Mr McAlpine

Appeal to the Court of Session Opinion as to prospects

We refer to the above and to previous correspondence.

We enclose herewith the copy Opinion we have received from Counsel Erroch of even date. As per the terms of our Mr MacKenzie's email communication with you we would be obliged if you would contact us upon receipt of this correspondence in order that we might discuss the terms of the Opinion with you.

We look forward to hearing from you.

OPINION OF COUNSEL for

KENNETH McALPINE

in relation to an appeal to the Court of Session

in causa

Kenneth McAlpine

Claimant

against

Oracle Corporation UK Ltd

Respondents

I refer to my letter of instruction in the above matter and am asked for my opinion on the prospects of success in relation to Mr. McAlpine's appeal to the Court of Session.

As Agents are aware, the history of this matter is rather complex and I have had to spend considerable time marshalling the facts before reaching a concluded view on matters. It is perhaps of assistance to set out the principal facts to enable one to look at matters in the round. I shall refer to relevant documents by tab number in accordance with the brief of papers sent to me.

1. The Tribunal Application

Mr. McAlpine made an application to the Employment Tribunal (tabs 3 and 13). The application was received by the Tribunal on 25th August 2006. He claimed unfair dismissal by way of redundancy and disability discrimination. The respondents' response form (tab 14) denied disability discrimination and denied unfair selection for redundancy. It also gave notice that the respondents would argue that there was a failure on the part of Mr. McAlpine to follow the statutory dispute resolution procedures.

2. Preliminary judgement

A pre-hearing review was held on 9th March 2007 (tab 5). Mr. McAlpine represented himself and the respondents were legally represented. At the pre-hearing review, that part of the claim relating to a failure to make reasonable adjustments in terms of the Disability Discrimination Act was struck out on the basis that Mr. McAlpine had failed to follow the statutory grievance procedure. The remainder of the claim of unfair dismissal and disability discrimination was left to proceed to a hearing on the merits.

3. Application for review of preliminary judgement

Mr. McAlpine applied for a review of the preliminary judgement on the ground that new evidence had been obtained (tab 6). The application was refused (tab7) on three grounds (i) that the evidence produced was not new evidence (ii) that the e-mail exchange made no reference to reasonable adjustments and (iii) the claimant had previously indicated (in his claim form) that he had put matter in writing by e-mail of 2nd June 2006.

4. Appeal to the EAT in relation to preliminary judgement

The application for review having been unsuccessful, Mr. McAlpine sought to appeal to the EAT. Lady Smith refused the application as having no reasonable prospects of success (tab 9). Mr. McAlpine then invoked rule 3(10) to secure a hearing. A Note of Appeal was submitted by Biggart Baillie (tab 10). A hearing took place on 7th November 2007 at which the appeal was refused.

5. Application for leave to appeal to Court of Session

Following upon refusal of the appeal, Mr. McAlpine sought leave to appeal to the Court of Session. Lady Smith refused leave to appeal on 21st December 2007, her Note being issued on 9th January 2008 (tab 11), which is taken as being the effective date of the refusal.

Thereafter, it appear that Mr. McAlpine has considered seeking leave directly from the Court of Session (tab 13) but I have not had sight of any documents indicating that this has been proceeded with. In any event, the law is now quite clear on the applicability of the grievance procedure to claims under the DDA. I am of the opinion that the Tribunal and the EAT reached the correct decision in relation to this matter. I would not have recommended further appeal to the Court of Session.

6. Determination of the principal application

The Tribunal sat on 2nd, 3rd and 4th July and 6th August 2007 to determine Mr. McAlpine's application, that is to say to consider the merits of his ET1 under deletion of the heads of claim referred to at 2 above. The judgement of the tribunal is lengthy (tab 15) and runs to 181 paragraphs. I shall return to aspects of it below. Mr. McAlpine was unsuccessful. Judgement was issued on 13th September 2007.

7. Application for review of principal judgement

Mr. McAlpine applied for review of the judgement (tab 16). This application was refused by the Tribunal as having no reasonable prospects of success "because the points raised are all points that were made or could have been made at the hearing we have set out our reasons why we preferred particular evidence." (tab 17).

8. Appeal to the EAT in relation to principal judgement

Mr. McAlpine then appealed to the EAT. His application was refused by Lady Smith on 19th December 2007 (tab 19). I infer that Lady Smith had before her the document produced as tab 20, which is a 15-page set of submissions. The ground of refusal was that the essence of the appeal was an attempt to persuade the EAT that the Tribunal should have taken a different view of the evidence; and that no discreet error of law was identified.

Thereafter, Mr. McAlpine exercised his right under rule 3(10) to proceed to an oral hearing before Lady Smith. At that hearing he was represented by Mr. McLaughlin of Biggart Bailie. Mr. McLaughlin focused the appeal on four issues. These were (i) that there was no evidence before the Tribunal from which it could conclude that Mr. McAlpine was put on the RIF list by Mr. Thomson; (ii) that the e-mails of 11th to 13th April 2006 showed that the Tribunal could only have concluded that he was dismissed because of his diabetes and, further, that there was no consultation before the decision was made to make him redundant; (iii) that such consultation as there was not genuine; and (iv) that evidence given by certain witnesses (Cooper, Snowden and Temple) should have been discounted. It appears to me that Mr. McAlpine was well-represented at the appeal and that everything which could have been said was said. Nontheless, the appeal failed. Lady Smith's judgement appears at tab 21 A.

9. Application for leave to appeal to the Court of Session

Mr. McAlpine then sought leave to appeal the decision of the EAT to the Court of Session (tab 2IB). That application was refused on 18th August 2008 (tab 21C) on the basis that, in Lady Smith's opinion, the claimant was attempting to re-examine the evidence rather than to raise a question of law.

Despite the refusal of leave to appeal to the Court of Session, it remains possible for an appeal to be taken there. In terms of section 37(10 of the employment Tribunals Act 1996:

"an appeal on any question of law lies from any decision or order of the Appeal Tribunal to the relevant appeal court with the leave of the Appeal Tribunal or the relevant appeal court."

Thus, where the EAT refuses leave to appeal, it is competent for an appellant to seek leave from the Court of Session itself. This Mr. McAlpine has now done. I have had sight of his aide memoire (tab 2ID) which has now been converted into an Application for Leave to Appeal in the form prescribed by form 40.2 of the Rules of the Court of Session. Leave to appeal is not automatically granted. The circumstances in which leave will be granted were considered for the first time in Campbell and Others v Dunoon and Cowal Housing Association [1992J LRLR 528, where it was held that a party applying for leave "must generally show something of the nature of probabilis causa in relation to a genuine point of law which is of some practical consequence." In other words, he must convince the Court at the hearing of application for leave that the appeal has at least a prospect of success.

I shall now look at the salient points of the appeal in turn to see if there is probabilis causa.

10. The Grounds of Appeal

Firstly, it must be borne in mind that the Court of Session will only entertain an appeal which contains points of law. It will not entertain appeals which raise points of fact unless the Tribunal has made findings in fact which are contradictory to the evidence; or has made findings in fact without any evidence at all to support them; or has wilfully misconstrued the evidence. In such circumstances, the manner in which the Tribunal has dealt with the facts before it will be so clearly wrong that it constitutes an error of law.

Secondly, an application for leave to appeal should make specific reference to the points of law where it is contended that the EAT had fallen into error. The present application does not, on the face of it, refer wholly to the EAT judgement. As such, that poses a difficulty for the claimant. However, more latitude will be allowed to him appearing as a part litigant than would be allowed to Counsel appearing, so I shall proceed on the footing that the Court will consider the submissions advanced. The principal points of the appeal are these:

a. The appellant seeks a finding on whether the ET 3 should have been accepted by the Tribunal (para. 5.1)

He does not specify on what ground he says it should not have been accepted. In any event, the question of whether or not it should have been accepted is past issue. Such a matter should have been raised at a pre-hearing review or at least a case management discussion prior to the original hearing. In a case which has had a pre-hearing review, a full hearing, an application for review and an appeal before the EAT, the Court of Session will not entertain such a question being raised at this stage.

b. The appellant seeks a determination on whether the Employment Tribunal and the EATs findings were prohibited by the DDA 1995 and the respondents were fully aware of the appellant's disability (para 5.2).

This is not a finding the Court will make. The basis on which it is sought is too wide. There is no identification of which particular findings are said to be contrary to which sections of the DDA.

c. The appellant seeks a determination (para 5.3) as to whether "the combination of diabetes and high blood pressure which could result in a prolonged period of time off due to illness" is direct discrimination; and whether discrimination has taken place.

This is not a matter which was raised in the argument before the EAT. It is not competent now to raise it before the Court of Session.

d. The appellant seeks a determination on whether being on the Reduction in Force List "takes precedence" over the DDA or whether the DDA takes precedence over a RIF list.

The answer is that the DDA takes precedence, but the question is not one which the Court of Session will answer without being told in the Grounds of Appeal (a) how that relates to the case and (b) how the Tribunal and the EAT fell into error in the matter. If it was not raised before the EAT (and it appears not to have been) it cannot be raised now.

e. The appellant seeks a finding that the Tribunal's finding that he performed only a small part of the oSDM job was contrary to the evidence (para. 5.5)

This part of the appeal is capable of being construed as a point of law. Once again, however, it does not appear to have been raised in the EAT and, for that reason, it unlikely to be entertained by the Court of Session. Furthermore, the Tribunal reached that finding (see para 144 of the judgement) on the evidence of the claimant himself and of Mr. Snowden and having referred to various witness statements. In that light, it is a finding in fact which I find difficult to see as being perverse on the evidence before the Tribunal. Another Tribunal may well have reached a different conclusion but, from a legal point of view that does not, unfortunately, mean that this Tribunal was wrong in law.

f. The appellant seeks a finding on whether a direction that witness statements from the respondents should be taken "as read" is inequitable (para 5.6)

The Court does not make findings about equities, only about errors in law. However, this matter does raise a question in law which is of some interest. It is the practice in England, both in the civil and the criminal courts, for parties to exchange witness statements and for the givers of the statements to be cross-examined on their statements.

In Scotland, in the courts at least, witness statements are not used. There has been an increasing tendency for witness statements to be admitted in Tribunal proceedings, so long as the opposing party is allowed to cross-examine on them. In the present case there was no such opportunity. However, at the commencement of the original hearing before the Tribunal, the question of the witness statements was raised and it was agreed that they would be taken as read - see para 8(d) of the judgement. That being so, what the appellant is seeking to do is to appeal against his own acquiescence in that course of action. The appellant could have insisted on cross examining these witnesses (see para 21 of the final EAT judgement) but did not. The Court of Session will not entertain an appeal on these grounds.

g. The appellant seeks a finding on whether or not witness collusion took place (para 5.7) and whether there has been perjury (para 5.8).

These are questions of fact not of law. Neither the Tribunal nor the EAT made any finding on the matter which is capable of appeal to the Court of Session.

h. The appellant seeks a finding on whether or not documents have been altered or fabricated (paras. 5.9 and 5.10)

These are questions of fact and not law. The Court of Session will not disturb the Tribunal's specific finding that the respondent did not deliberately alter documents, particularly given that he did not put to any witnesses his contention that documsnts had been altered (paras 87 to 91 and 125, 126 and 181 of the original judgement).

i. The appellant seeks a finding that the Tribunal acted contrary to the law in allowing the respondents to seek dismissal of part of his claim following his oral withdrawal of part of his claim (para. 5.11). The appellant withdrew that part of his claim relating to injury to health at the hearing. This is dealt with at paragraphs  8(f) and  126  to  136 of the judgement.

This is a matter of law. I am of the opinion that the Tribunal fell into error on the basis that rule 25(4) provides that an application by a respondent for dismissal following upon withdrawal by an applicant of all or part of his claim must be made in writing. However, there are two difficulties. Firstly, it is clear that that part of the claim was only dismissed because the applicant, having been told of his options, decided to withdraw it (para 129 of judgement): in a sense, he is therefore appealing against something which was brought about by his own actions. Secondly, this was not raised before the EAT; and thirdly, given the Tribunal's findings on the matter of Disability Discrimination, it is of academic interest only. The Court of Session, in its appellate capacity, will only entertain questions of practical import. This is not one.

11. Conclusion

I have considerable sympathy for the appellant, who has fought a difficult case substantially unaided. He was ably assisted by legal representation before the EAT, but to no avail. Essentially what he now seeks to do is to revisit the original Tribunal's factual findings on the evidence before it. Unfortunately, the rules governing the hearing of appeals do not allow the Court to reconsider evidence, except in the clearest cases of perversity. This case, as the EAT held, is not one of these. I am sorry to conclude with my opinion that there are no reasonable prospects of success on appeal.

For the sake of completeness, although I am not specifically requested to advise on the matter of the award of expenses against him, I note that this too is under appeal, (tabs 22 to 26). The hearing before the EAT was due to take place on 6th November 2008. If, by the date of issuing of this Opinion, that appeal has gone against Mr. McAlpine, I would not recommend further appeal in the matter. In that event, the Court of Session would be looking at a case where the preliminary judgement, the principal judgement and the expenses judgement have been subjected to review, written appeal to the EAT and further oral appeal to the EAT. The attitude of the Court in such circumstances would be unlikely to be sympathetic I would counsel Mr. McAlpine that any contra-award of expenses against him in the Court of Session would be substantially greater than the £3,700 awarded by the Tribunal.

THE OPINION OF

Bruce Erroch, Advocate

Advocates Library

Parliament House

Edinburgh

11th November 2008

Later that morning I sent an email to my parents:

Mum/Dad,

Interesting to note that Hamilton Burns stated on 17th November 2008 that they had sent out the opinion. Look at the date on the cover letter.

Onwards and upwards.

Around lunchtime I received the following email from the lawyer Ross McKenzie of the law firm Hamilton Burns:

Dear Mr McAlpine,

I note from your email that you have yet to receive Counsel's opinion. I suspect you should receive it today, Friday 21/11. Failing which I can certainly leave a copy at reception for collection at your convenience.

Please let me know if you do not receive the opinion today.

After a few hours of receiving the Advocates opinion, I sent my parents another email:

Mum/Dad,

My initial reaction on the "Advocates" opinion.

Point 5

This is wrong, as the statutory grievance procedure never applied, only the statutory dispute procedure ever applied, as I was redundant when I raised the claim.

Point 10

a

I should not have raised the ET3, the ET3 being accepted was the Tribunals error.

b

Maybe too wide, but I have stated "as the Respondent (Oracle Corporation UK Ltd) was fully aware of the Appellant's disability"

c

Nonsense, Michael's EAT appeal stated "(5) The dismissal was therefore unfair in terms of s 98 of the Employment Rights Act and in breach of sections 3A(1) and 3(5) of the DDA".

d

This seems to be nonsense, both the ET and EAT have ruled that being on a RIF list takes precedence over the DDA.

e

This was an impermissable finding according to the ET3 and was not open to either the ET or EAT.

f

Advocate has failed to grasp this concept, it is irrelevant whether it was agreed, you cannot stated that all of one sides witness statements are taken as read, without stating that all of the other sides is taken as read.

g

It was raised at the EAT, and in the EAT Judgment. Smith stated something in her judgment like witness collusion could not be proved to have taken place.

h

It may not have been the witnesses that altered the documents, so why would I have questioned them?

i) "This is not one", utter nonsense, even the Advocate agrees it can be appealed.

Kenneth

Three days later I sent an email to my Member of Parliament:

Dear Madam,

"As this is an ongoing appeal, can we have a meeting with the Justice Minister and Disability Minister to discuss this case?"

Can you inform me via email when the dates of the meeting with the Justice Minister and Disability Minister have been arranged.

If you require me to attend your Office, please let me know in advance.

Later that day I sent an email to the lawyer Ross McKenzie of the law firm Hamilton Burns:

Dear Sir,

Please find attached my observations on Counsel's opinion.

Yours faithfully,

Attached document read:

PRIVATE AND CONFIDENTIAL

Dear Sir/Madam,

With reference to your letter dated 20 November 2008, and the opinion from Counsel Erroch, please find my observations enclosed herewith.

You may share these observations with Counsel Erroch as I know that such case sensitive matters must be kept strictly confidential within the Client/Solicitor/Counsel relationship.

Does Hamilton Burns WS agree with Counsel's opinion?

Please reply in writing only.

Yours sincerely,

* Paragraphs 1 to 5

Reasonable Adjustments Appeal.

This appeal was lodged with the ECHR in August 2008.

This appeal is against the actions or inactions of the Civil Legal System in Scotland.

With regards to the appeals that have been through the Civil Legal System in Scotland, I make the following points as observations:

Counsel would be well aware that the Claimant, when submitting the claim on 25 August 2006, was redundant. As the claimant was redundant, neither the statutory dispute resolution procedures nor the statutory grievance procedure applied. As the Claimant was redundant, the statutory dismissal procedure is the only procedure that applied.

The DDA allows discriminatory acts that have taken place longer than 3 months to be heard because any act extending over a period of time is deemed to have ended when the last act complained of was done. The fact that the claimant discussed reasonable adjustments with his Manager and Director in December 2005, that his Manager on 12 April 2006 then made reference to said discussions in December, linking it with his diabetes, a prolonged period of time off and to exit him from the organisation, and that it ended with the claimant being exited from the organisation, proves that this was an ongoing act of discrimination from December 2005 to the Claimant's redundancy.

* Paragraph 8

I am concerned by the statement "which is a 15-page set of submissions" as the document which was before Lady Smith was 16 pages.

Counsel would be aware that a rule 3(10) hearing only allows one hour to advance complex arguments and that Chairman's interventions restricts that considerably.

* Paragraph 10

I will state, before discussing all the salient points in paragraph 10, that I am deeply, deeply concerned at the 'opinions' expressed by an Advocate of the Courts.

a. Counsel is blaming the Claimant for a mistake by the ET in accepting an ET3 that is manifestly wrong, and should never have been accepted. The acceptance of an ET3 is solely the domain of the ET. The fact that the ET accepted an ET3 which stated that both the statutory dismissal and statutory grievance procedures applied, when it can only be one or the other which can apply in law is fundamentally wrong.

b. This point is not too wide, it is clear and concise. The respondent "Oracle Corporation UK Ltd" knew of the claimant's disability, and the claim clearly states "Kenneth McAlpine v Oracle Corporation UK Ltd", Counsel even states this in the opening page of this opinion.

Malcolm Thompson allegedly did not know of the Claimant's disability, but the claim is not "Kenneth McAlpine v Malcolm Thompson".

c. With reference to Counsel's "This is not a matter which was raised in the argument before the EAT." In the "Paper Apart to Form EAT 1" lodged at the EAT on 24 October 2007 it clearly states in paragraph 7.17 and paragraph 7.4 that this was raised as a matter before the EAT. Various snippets are listed below:

Para 7.4

In addition, he maintained his selection on the basis of his diabetes was direct discrimination in terms of the DDA. The Appellant also maintained that the true reason for his selection for redundancy was the likelihood that he would be off sick for long periods then in so concluding the Respondent had treated him less favourably.

Para 7.17

(5) The dismissal was therefore unfair in terms of s 98 of the Employment Rights Act and in breach of sections 3A(1) and 3A(5) of the DDA.

In Para 7.4, there are two aspects of less favourable treatment which were advanced before the EAT, one was that "diabetes = prolonged period of time off due to illness" and the other is that this lead to redundancy.

d. In the "Paper Apart to Form EAT 1" lodged at the EAT on 24 October 2007 it clearly states in paragraph 7.17 and at various points in the appeal that this was raised as a matter before the EAT. Various snippets are listed below:

Para 7.17

(3) The dismissal of the Appellant was not by reason of redundancy but by reason of his disability and the absences that may cause. The redundancy procedure was a sham.

(4) If the dismissal was by reason of redundancy, the reason for the selection of the Appellant was the fact of his having diabetes and the belief of the Respondent that this would lead to prolonged absences.

Furthermore, with regard to Counsel's "....the question is not one which the Court of Session will answer without being told in the Grounds of Appeal....", Counsel must be aware that, because of the length of time to Instruct and to form an Opinion, the Appellant had to convert his aide memoire into an Application for Leave to Appeal to the Court of Session and to submit it before the expiry date. This was done on the understanding, at the Court of Session Civil Law reception desk, that more details would be added to the Grounds of Appeal at a later date.

e. With regard to Counsel's "In that light, it is a finding in fact which I find difficult to see as being perverse on the evidence before the Tribunal".

In the ET 1 lodged at both the ET and EAT, it clearly states:

4.2 Please say what job you do or did. Service Delivery Manager

In the ET 3 lodged at both the ET and EAT, it clearly states:

3.3 Is the claimant's description of their job or job title correct? Yes

There was much evidence before the Tribunal that clearly showed that the Claimant's job title for the two years up until redundancy was "Service Delivery Manager" and that he was an experienced "Service Delivery Manager" within a team of "Service Delivery Managers".

The Claimant also cross-examined both his Manager and Director at the ET, who both confirmed that the Claimant's job title was "Service Delivery Manager".

I find this an extremely disturbing finding, when it was abundantly clear to the ET and the EAT, as well as to Counsel, that the Respondent has agreed with the Claimant that the Claimant performed the job of "Service Delivery Manager", that the ET, EAT and Counsel can find to the contrary.

Does hard factual evidence not count in Scottish Law? The Tribunal's findings on this most important fact are clearly contrary to the evidence it had available at the Hearing.

f. Firstly, it was on the third day of the original Hearing and not at the commencement of the original Hearing that it was agreed that they should be taken as read, without any explanation as to the consequences of this, for the reasons of time constraints in completing the Hearing.

Secondly, the appellant did cross-examine these witnesses on the witness stand, and asked some extremely pertinent questions of these witnesses, such as confirming the existence and author of the 12 April 2006 email, as well as the Claimant's job title. The fact that the appellant did not have the opportunity to cross-examine principal witness Malcolm Thompson on the witness stand is of extreme significance.

What is extremely disturbing here is that the Tribunal directed that all the Respondents witness statements would be taken as read, but none of the Claimant's witness statements were taken as read. This is not equitable, it is not even bias, it goes way beyond any of these concepts, as it is clearly stating that they, the Tribunal, do not believe a word of the Claimant's witnesses, but believe every word of the Respondent's witnesses, in other words, we believe every word of all the respondent's witnesses, but have grave concerns about all of the Claimant's witnesses.

If witness statements are to be taken as read, this must be a direction that is made at the start of a hearing and the consequences explained, not after the Claimant's witnesses have given evidence, and the Respondent's witnesses have still to give their evidence, which is then taken as read?

That is a fundamental example of inequality.

Counsel has had the privilege of reading the appeal lodged in the Court of Session, the grounds of which could be added to by learned Counsel, so will be well aware that every point appealed contains a UK Law or Rule or Regulation as well as every point being appealed contains an ECHR Article. So if the Court of Session ignores any point, it will be appealed to the ECHR.

g. The ET had all the witness statements in front of them, the ET read all the witness statements, and it is clearly obvious that the ET have based their Judgement on these witness statements, so it is clearly obvious that the ET have read that witness collusion has taken place.

In the "Paper Apart to Form EAT 1" lodged at the EAT on 24 October 2007 it clearly states in paragraph 7.17 "The ground of appeal relative to the collaboration of witnesses 'unseats' the entire Judgement". The EAT Judgement on 24 September 2008 also contains a ruling on witness collusion, clearly stating "I cannot accept that there is any rule of law that required the tribunal in those circumstances to discount their evidence".

Question: Why are witnesses precluded from any Court until these witnesses have given evidence?

27(4) The tribunal may exclude from the Hearing any person who is to appear as a witness in the proceedings until such time as they give evidence if it considers it in the interests of justice to do so.

Surely, in the interests of justice, the same must apply to the collaboration of witnesses prior to making up their own witness statements.

h. Counsel is making a huge assumption here, that "witnesses" altered or fabricated documents, was it "witnesses"?

This is precisely why the Claimant did not question "witnesses" on altered or fabricated documents. Until some form of investigation is conducted to determine who altered or fabricated documents, everyone is innocent until proven guilty.

With regard to the Tribunal finding of "not deliberately alter documents", I find this a disturbing and nonsensical statement to make. Firstly, the word "deliberately" does mean that documents were altered, but the Tribunal is totally unperturbed by altered and fabricated evidence?

If the EAT, Counsel and the Court of Session are similarly unperturbed by altered and fabricated evidence, then the right to a fair hearing and justice are simply words or ideals which are not practiced in the Scottish legal system. I am sure that the ECHR will be interested in this view, but I have given the Court of Session a chance to refer it to the Procurator Fiscal as it is "a matter which strikes at the very heart of Justice".

i. With regard to Counsel's "This is not one"

Again, I find this statement, from an Advocate of the Courts, to be extremely disturbing for the following reason:

If a person does not follow the law, the full weight of the law will punish that person.

However, if a Tribunal does not follow the law, nothing is done?

The reason the Claimant withdrew the personal injury part of the claim, was that the Chairman stated that if that head of claim was withdrawn, the Claimant would be able to pursue a separate personal injury claim in a Court of law, but only if the Respondent did not apply for dismissal. The respondent did apply for dismissal, but verbally, and this was not correct in law. Therefore, if the Respondent's dismissal application should not have been accepted verbally, the Claimant then can pursue a separate personal injury claim in a Court of law.

* Expenses

With regards to the award of expenses against the Claimant:

The Claimant should never have lost this case.

The Respondent has perverted the course of justice.

The Scottish Civil Legal system has somehow managed to fine a disabled person who was clearly discriminated against.

This will be raised in the Court of Session. If the Court of Session wants to substantially fine further a disabled person who was clearly discriminated against, then that is up to the Court of Session.

If the Court of Session does substantially fine further a disabled person who was clearly discriminated against, then this will be appealed to the ECHR.

* In Summary

This whole saga will eventually be made public worldwide as it is very much in the public interest to do so, as there are 600 million people worldwide with a disability, and when friends and family as well as other members of the public with a vested interest in disabilities are included, this figure could easily reach over 2 billion, all of whom will be most interested to learn that the Scottish Legal system have ruled that any person with a disability will have prolonged periods of time off due to illness. The last time I checked, no human was capable of predicting the future.

On 25 November 2008 I sent the following email to another document analysis expert:

Dear Sir,

I have had to represent myself in a large disability discrimination claim, which has now been lodged at the Court of Session.

The Respondent, based in the South of England, has altered and fabricated a number of documents in order to pervert the course of justice, and I have now asked that the Court of Session pass this to the Procurator Fiscal Office.

It is obvious that these documents have been altered, but the tactics of the Respondent have been some of the most unsavory I am sure that the Scottish legal system have ever encountered. So much so, that I was fined £3,700 expenses, part of which was for alleging that documents had been altered and fabricated.

This is why I require the opinion of an expert in the field of document analysis, as a report for the expert will leave little, or no doubt, to the Court of Session that the Respondent has altered and fabricated documents.

Do you accept work from myself, or do I have to go through a Solicitor?

That same day I received the following email reply from the document analysis expert:

Dear Mr McAlpine,

I would be able to assist in such a case, but as I do not deal with private persons, I would require you to approach me through a solicitor, who having legal knowledge, would in the end be easier for me and also save time and expense.

That same day I had researched the publicly available information that Shepherd and Wedderburn had only three office locations, and emailed this information to my parents:

Edinburgh

1 Exchange Crescent

Conference Square

Edinburgh

EH3 8UL

Glasgow

155 St. Vincent Street

Glasgow

G2 5NR

London

Condor House

10 St. Paul's Churchyard

London

EC4M 8AL

On 28 November 2008 at 11:15am I had another meeting with my Member of Parliament. Present at the meeting were Katy Clark MP, her secretary and myself.

The meeting opened with me giving a copy of the last email from myself to Katy Clark MP asking for an update.

Long explanation from Katy Clark MP and sometimes Valerie concerning Tribunal system being devolved.

Katy would therefore have to write to Scottish Justice Minister, and Scottish Disability Minister, as London Ministers would just state that it is a devolved issue.

They may not reply if it was from Katy Clark MP.

I stated that if Tribunal system was totally devolved, then why could an English Judge sit in Scottish Appeal Tribunals?

A pause for though.

Another long explanation about Judges having to sit on lots of different matters.

Stated that I would write to any Members of the Scottish Parliament and Members of the United Kingdom Parliament myself.

Katy agreed that this was my right, but she stated that she didn't think I, or her, would get a meeting, or even a reply.

Discussed why these Members of the Scottish Parliament and Members of the United Kingdom Parliament had their own Departments, and what they were doing in existence?

Outlined again my problems with the Scottish Legal system, especially Scottish Legal system ruling that it agreed that people with disabilities would be off sick in the future, and that I could now not get any representation in the Scottish Legal system. Also outlined that there are 600 million people with disabilities worldwide, and many of them and their family and friends would disagree.

Informed them that if I or they wrote, and we didn't receive any reply, I will write to all disability organisations/groups worldwide.

Stood up to leave.

Katy/Valerie requested how I had got on with Advocate.

Informed them that Advocate had stated that I had no chance, and that I would take this up with the Advocate at a later stage.

Katy may write to some of the Ministers, I suspect that it will only be relevant Scottish Minister(s).

Later that day I sent an email to the press office of the employment tribunals:

Dear Sir/Madam,

Can you answer the following question please, as I have had a meeting with my MP today, and the answer to this question is causing confusion:

Are Employment Tribunals (or any Tribunals) a devolved issue, or are all Tribunals a part of Central Government, and as such, not devolved?

I also sent the same email to Michaela Strange at the Tribunals Department

On 30 November 2008 I went on to the Scottish Legal Complaints Commission (SLCC) website and found the following information:

Scottish Legal Complaints Commission

ABOUT THE SLCC: Who We Are

Overview

The SLCC is a neutral body, created under the 2007 Act to operate independently of the legal profession. Furthermore, although it has legal status, it is not to be regarded as "a servant or agent of the Crown", and so is also independent from Government.

The SLCC has both public body and private body characteristics. Public in the respect that it is not a Government department (or connected to one), and isn't staffed by civil servants, but is still subject to requirements relating to freedom of information, standards in public life, and The Human Rights Act 1998. And private in the respect that the SLCC has responsibility for certain aspects of its own finances, such as setting its annual budget, and will not be funded by the public (instead it will be funded by levies on the legal profession).

Membership of the SLCC

To further enhance its independent status, the 2007 Act places some requirements on the SLCC as to how it is composed. In general, the SLCC is made up of both non-lawyer members and lawyer members, and currently must consist of a person to chair it and 8 other members. These members are ultimately appointed by Scottish Ministers, and although the Ministers may change the number and balance of the members, they must always ensure that the majority (including the chairing member) are non-lawyer members. Membership of the SLCC is for 4 to 6 years depending on the position held, and members can be removed by the chairing member (with the consent of the Lord President of the Court of Session) or disqualified for a number of reasons laid down in the 2007 Act.

Responsibilities of the Members

All members of the SLCC are expected to act in the best interests of the SLCC, and must respect and act in accordance with a number of requirements, including:

* The Legal Profession and Legal Aid (Scotland) Act 2007;

* The governance arrangements of the SLCC;

* The declaration and registration of members' interest;

* The SLCC processes, standards and rules;

* The SLCC financial, operational and personnel policies.

Furthermore, because the SLCC has an important function in serving the public in Scotland, its members are expected to follow the Seven Principles of Public Life set out by the Committee on Standards in Public Life. These are:

I. Selflessness: Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or their friends.

II. Integrity: Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

III. Objectivity: In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merits.

IV. Accountability: Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

V. Openness: Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

VI. Honesty: Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interests.

VII. Leadership: Holders of public office should promote and support these principles by leadership and example.

Members of the SLCC are also expected to declare any interest that may conflict with their duties, and must not hold any political post or engage in any political activity or matter that directly affects the SLCC.

Our Members

Lawyer members

David Smith

David Smith is a retired solicitor. He was a commercial property partner with Shepherd and Wedderburn LLP for 34 years, including 6 years as Chairman. He has extensive experience of client relations, professional negligence and risk management.

Chapter 10

On 30 November 2008, I found the following information on the internet:

Financial Services Authority Register

Contact for: 111491 - Shepherd & Wedderburn

Contact for Complaints: David Smith

Address: Shepherd & Wedderburn

Saltire Court

20 Castle Terrace

EDINBURGH Midlothian

EH1 2ET

Page last updated 30/11/2008 00:00:00

My immediate thought was why is David Smith a contact for complaints at Shepherd and Wedderburn regarding Financial Services Authority Register complaints, when it is stated on the Scottish Legal Complaints Commission website that he is retired?

Later that morning I also found some publicly available information on my Member of Parliament, Katy Clark, and some questions raised in the UK Parliament concerning the employment judge Lucy Crone, who was the judge on the reasonable adjustments, unfair dismissal, disability discrimination and cost cases:

MP - Katy Clark

Wikipedia

Early life

She went to Ayr Grammar Primary School, then Kyle Academy, Overmills Road, both in Ayr. Clark was educated at the University of Aberdeen, receiving an LLB in 1990.

She was the chairwoman of the Labour club there. She received a Diploma in Legal Practice from the University of Edinburgh in 1991. She is a solicitor, in Edinburgh and Musselburgh from 1991-8, turned legal officer with UNISON in London, from 1998-2005. She joined the Labour Party at the age of seventeen and is a member of the TGWU and UNISON Union.

1998 to 2005 Legal Officer with UNISON

Lucy Crone (Glasgow Employment Tribunal Judge)

Public Appointments

Phil Gallie (South of Scotland) (Conservative): To ask the Scottish Executive whether Lucy Crone, recently appointed as a part-time chairman of Employment Tribunals, is a member of the Law Society of Scotland and what credentials she holds with respect to practising in Scottish law.

(S1W-12076)

Phil Gallie (South of Scotland) (Con): To ask the Scottish Executive whether Lucy Crone, recently appointed as part-time chairman of Employment Tribunals, holds a position with UNISON and whether this has any implications for her ability to be a neutral chairman on employment matters.

(S1W-12077)

Mr Jim Wallace: Appointments to the Panel of Chairmen of Employment Tribunals in Scotland are made by the Lord President of the Court of Session. The information requested is not held by the Scottish Executive. Ministerial responsibility for Employment Tribunals rests with the UK Government.

1998 to 1999 Legal Officer with UNISON

My immediate thought was why did my Member of Parliament, Katy Clark, not declare a conflict of interest when Katy Clark and Lucy Crone were both legal officers with Unison in 1998 and 1999. I believe Unison only has a handful of legal officers. How motivated would Katy Clark be to go up against Lucy Crone? Also, regarding the questions asked in the UK Parliament, was Lucy Crone competent to be a judge in Scotland?

Later that same afternoon I sent the following email to the lawyer Ross McKenzie at the law firm Hamilton Burns:

Dear Sir,

Can you please recover all documents and folders that I supplied to you regarding Case: NM/LG/C8958/1, as I would now like to take possession of these documents and folders again.

Can you advise when all said documents and folders are ready to be picked up, and I will arrange pick up at your Offices.

That evening I sent an email to the Financial Ombudsman Service:

Dear Sir/Madam,

I sent the emails below with attached letter to you on 8 October 2008, but have not received any reply.

Can you confirm that the Financial Ombudsman Service is dealing with this, and when I should receive a reply or at least a confirmation letter?

I immediately received an automated email reply from the Financial Ombudsman Service stating that they would be in touch shortly with a more detailed reply.

I also received an automated email reply from the Department for Work and Pensions that informed me that the Department was dealing with my email sent to Johnathan Shaw who was the Disabilities Minister, and to expect a response within approximately 20 working days.

The next day I received an email from the lawyer Ross McKenzie at the law firm Hamilton Burns:

Dear Mr McAlpine,

Further to your email of 30 November 2008, please note that your documents can be uplifted at your convenience. If you let me know when you intend to collect them, I will ensure that they are at our reception for your uplift.

Separately, and further to your email of 24 November regarding the opinion of counsel, I can confirm that we have responded via correspondence as requested by you. We shall await your further instructions in this regard.

Around lunchtime I sent an email to the Ministry of Justice, a department of the UK Government:

Dear Madam,

I am writing to notify you of the following:

I have one claim in the European Court Human Rights and two claims in Court of Session (Court of Appeal).

I have had to represent myself, as I have tried to get legal representation for all of these claims, without any success.

My employer (American Company based in South of England) stated, in writing, that my disability (Diabetes) would result in prolonged future sickness absence and to exit me from the Organisation. I had 2 days absence in the previous 2 years, and an extremely good attendance record over the previous six years. The average UK employee takes 11 days absence per year. My ex-employer also hired six new employees into the job which I was performing within two months of making me redundant.

These claims have been through the ET and EAT, all of which have been dismissed.

I have also been ordered to pay costs of £3,700 for the 'privilege' of being directly discriminated against.

You could not write this if you tried.

I have contacted my local MP, who has been of very little help.

I still remain unrepresented, and have recently wasted £1,000 on Advocates fees.

There are approximately 600 million people worldwide with a disability, and if you include family and friends this figure could easily reach well over two billion people with a vested interested in learning that the UK has ruled that anyone with a disability is going to have prolonged future sickness absence. That would of course make then unemployable, as well as affect many other areas of their life.

I will watch this space with interest to see how this develops in the future.

Shortly after lunchtime I sent an email reply to the lawyer Ross McKenzie at the law firm Hamilton Burns:

Dear Sir,

Thank you.

Someone will pick up these documents at your Reception either tomorrow, or Wednesday 3 December 2008.

The next day I received the following email from the Financial Ombudsman Service:

Dear Mr McAlpine

Thank you for your email we recently received.

Please find below a copy of the email response we issued previously from your email sent to us in October.

As you can we require the complaint form to be returned along with a copy of the Society of Lloyds final response which mentioned the 6 months to contact the Financial Ombudsman Service.

Once we have received the correspondence, we will be in a position to investigate the matter further.

I immediately replied to the Financial Ombudsman Service email:

Dear Sir,

This has been an ongoing complaint for a number of months.

In my email of 8 October 2008, I supplied you with "a copy of the Society of Lloyds final response which mentioned the 6 months to contact the Financial Ombudsman Service", so you have a copy of this response.

Can you advise what document you are referring to "we require the complaint form to be returned", as this is an ongoing complaint, and a complaint form was completed to start this whole complaint?

On 3 December 2008 I received the following letter from the law firm Hamilton Burns:

Dear Mr McAlpine

Appeal to the Court of Session

We write with regard to the above and further to your letter to us of 24" November 2008, the contents of which we note.

It might be helpful for you if we explained that given we had instructed Counsel consequent to your specific instructions to us and as such we are professionally bound by Counsel's view. Accordingly we would not be in a position to comment upon Counsel's opinion although should you wish your observations forwarded to him for comment we are more than happy to do this. Please note however that Counsel may in all eventuality charge a separate fee for this and we would therefore be grateful if you might confirm that you are content for us to proceed on this basis.

We look forward to hearing from you by return and enclose our note of professional fees for all work done to date for your attention.

Hamilton Burns WS

That same day I also found the following information on the internet:

News Release - 21st Nov 2003 The Law Society

PRESS RELEASE

New Solicitors Welcomed By The Law Society Of Scotland

Fifty-two new solicitors from around Scotland are to be welcomed into the Law Society of Scotland at a formal ceremony today (Friday 21st November) at the Signet Library in Edinburgh.

Joe Platt, President of the Law Society of Scotland, will present enrolment certificates to the new solicitors. The guest speaker will be The Honourable Lady Smith who herself graduated in law from Edinburgh University in 1977 before going on to complete an apprenticeship with Shepherd+Wedderburn two years later. In 1980 Lady Smith was called to the Bar where she specialised in professional negligence before being appointed as Temporary Sheriff in 1995 and Advocate-Depute in 2000. Lady Smith became chairperson of both the Advocates Family Law Group and the Advocates Professional Negligence Law Group and was installed as Senator of the College of Justice in 2001.

Later that day I also found the following publicly available information on the internet:

Lady Smith, appointed along with Martin McAllister, is the wife of David Smith, who was of course, appointed by Kenny MacAskill to the Scottish Legal Complaints Commission – to examine complaints against other lawyers.

You can read more about Mr MacAskill's appointments to the Scottish Legal Complaints Commission in the following report I wrote earlier in the year :

Call for MacAskill appointments 'sleaze investigation' as revelations show Legal Complaints Commission member was subject of Police inquiry

You don't have much imagination in public appointments, Mr MacAskill, do you ? and why did you try to use the Office of Public Appointments in Scotland to justify your selections because the OCPAS assessor apparently didn't have sight of any of the information or memos your own Cabinet colleague Mr Swinney has within his files ...

Judicial Appointments Board

21/07/2008

The Cabinet Secretary for Justice today announced the appointment of new legal members to the Judicial Appointments Board for Scotland.

Lady Smith has been appointed as the Senator member to replace Lord Wheatley whose term of office came to and end in June. Lady Smith's appointment is for three years from July 1, 2008.

Lady Smith is a graduate of the University of Edinburgh. She was admitted to the Faculty of Advocates in 1980, and appointed Queen's Counsel in 1993. She was appointed a judge of the Court of Session and High Court in 2001.

Martin McAllister has been appointed as the solicitor member of the Board to replace Michael Scanlan whose term comes to an end later this year. Mr McAllister has been a solicitor since 1980. He was President of the Law Society of Scotland from 2001 to 2002 and is a partner of Taylor and Henderson, Solicitors in Saltcoats.

Mr McAllister has been appointed to the Board for a period of three years. He will take up his appointment in October.

Later that evening I compiled the following notable dates from information gathered concerning Lady Smith:

1972 - 1977 - University of Edinburgh (LLB Hons)

1977 - 1980 – Solicitor at Shepherd & Wedderburn

1980 - Faculty of Advocates

1993 - Queen's Counsel

1995 - Temporary Sheriff

2000 - Advocate Depute

2001 - Judge of the Supreme Court

2008 - Chairman of the Advocates Professional Negligence Law Group

On 4 December 2008 I received an email from Financial Ombudsman Service:

Thank you for your recent email.

The complaint was originally raised in January prior to Lloyds of London issuing their final response. As we can not investigate a complaint without a final response, this was returned to you with our letter dated 9th February. We also wrote to Lloyds and informed them to issue a final response to the complaint. Our letter stated that you will need to return the paperwork with the final response if you remained dissatisfied with the firms letter.

We therefore require the complaint form to be returned with a copy of the final response as we can now carry out a full investigation once this is received. Please find attached a copy of our letter dated the 9th February 2008 explaining the process.

I look forward to receiving the form so that we can proceed.

Later that evening I found the following report on the Internet from the Taxpayers Alliance:

Mark Wallace, campaign director for the Taxpayers' Alliance, said: "These are very interesting figures and raise concerns both in terms of justice and the financial implications for taxpayers. If some judges are regularly making decisions that are overturned on appeal, wrongly convicted people and taxpayers are paying for unjust decisions."

More than two-dozen sentences handed down by Lady Smith, who was appointed a judge of the Supreme Court in 2001, were overturned. The Scottish Court Service, which represents judges, declined to comment.

The list of judges with the number of successfully appealed sentences and quashed convictions:

Lord Hardie: 84 sentences, 2 convictions

Lord Dawson: 30, 3

Lord McEwan: 27, 3

Lady Smith: 27, 1

The next day I found some publicly available information on the internet concerning the Advocate Bruce Erroch, who I had paid £1,000 for an opinion on appealing against decisions made by, among others, Lady Smith:

Advocate - Bruce Erroch

Bruce's practice includes a significant amount of professional negligence work. He commonly acts for both pursuers and defenders.

PROFESSIONAL MEMBERSHIPS:

Member of the Faculty of Advocates Personal Injury Law Group

Member of the Faculty of Advocates Professional Negligence Law Group

I also found some publicly available information on the internet concerning Lady Smith:

Judicial Appointments Board for Scotland

LEGAL MEMBERS

The Honourable Lady Smith

Lady Smith was appointed a Judge of the Supreme Court in 2001. She is a graduate of the University of Edinburgh (LLB Hons). She was admitted to the Faculty of Advocates in 1980 and was Standing Junior Counsel to the Countryside Commission.

Lady Smith was appointed Queen's Counsel in 1993. She served as a Temporary Sheriff from 1995 to 1999. Lady Smith was appointed Chairman of the Scottish Partnership on Domestic Abuse from 1998 to 2000 and served as Advocate Depute from 2000 until she was appointed a Judge. She has served as a member of the Court of Session Rules Council and is a past Chairman of the Advocates Family Law Group and Chairman of the Advocates Professional Negligence Law Group. Lady Smith was appointed to the Board from July 2008 for three years.

So, the Advocate, Bruce Erroch was a member of the Faculty of Advocates Professional Negligence Law Group, and Lady Smith was Chairman of the Advocates Professional Negligence Law Group, and Bruce Erroch did not declare this as a conflict of interest?

Later that day I sent the following email to the lawyer Ross McKenzie at the law firm Hamilton Burns, as I had just learned that an additional £278.03 had to paid on top of the £1,000.00.

Dear Sir,

You can take it from this email that I will be dispensing with the Services of Hamilton Burns WS and Counsel Erroch immediately.

Regarding your letter dated 3 December 2008, I was informed by you around FOUR months ago that Counsel's opinion would cost £1,000.00 which I duly paid into Hamilton Burns WS account on 26 August 2008. I was informed by you that Counsel's opinion would take five to seven days to complete.

After a long, long, long delay, Counsel's opinion arrived some THREE months late, and was frankly, in my opinion, the worst piece of shoddy workmanship that I have ever had the displeasure to set eyes on in my forty-four years. The trouble is, you representing Hamilton Burns WS, had numerous meetings with Counsel, and were a witness, or party to this opinion.

In this world, if you receive defective goods, you have a right to take them back and either get your money back, or receive, free of charge, another non-defective good.

Hamilton Burns WS has now somehow managed to charge me more money for a defective good, and Counsel Erroch wants to charge me even more money to diagnose why his good was defective. However, every downside can also have an upside, and the upside in this story is that I will use the defective good at the European Court Human Rights and other higher courts to show why I could not get legal representation or legal aid in Scotland.

If, in your opinion, it is not a defective good, then you, Hamilton Burns WS and Counsel have absolutely nothing to worry about.

Never at any time did you advise that my bill would be greater than £1,000.00. Although I am ABSOLUTELY livid that I have had to pay £1,000.00 for a defective good with no recourse, and you have somehow managed to add another £278.03 on top of the £1,000.00, I will very, very, very reluctantly pay the £278.03.

I will also at some stage in the future be making all materials to do with this whole case available in the public domain via various channels.

Mr K McAlpine

On 7 December 2008 I found the following publicly available extract on the Internet:

August 2007.

Fitting out the lawyers

King Sturge Project Management teams have been in demand with the law recently with fit out instructions for legal firms Shepherd & Wedderburn (2,000m²), Morgan Lewis (4,000m²) and Watson, Farley & Williams (1,500m²). Shepherd & Wedderburn has recently completed and occupied a floor within Condor House overlooking St Paul's Cathedral.

On 9 December 2008 I received the following letter from the law firm Hamilton Burns:

Dear Mr McAlpine

Appeal to the Court of Session

We refer to the above and further to your email communication to our Mr Mackenzie of 5 December 2008.

We write to confirm that we note the contents of your communication and further to clarify matters in respect of our fee note. When originally instructed by you we requested a payment of £1,000 to account to enable us to carry out the necessary work to instruct Counsel's opinion. The fee for Counsel's opinion was £650 plus VAT with the remaining sums due under our fee note 3051 being in respect of our own fee for professional services plus VAT thereon. We trust this clarifies matters for you.

Yours sincerely

Hamilton Burns WS

Four days later I received an email from the Tribunals Service regarding whether tribunals were devolved between the UK and Scotland governments:

Dear Sir/Madam,

Thank you for your e-mail.

You will need to refer to the Employment Tribunal website to find the appropriate email address for your query. The website address is as follows:

www.employmenttribunals.gsi.gov.uk

Email Customer Enquiry Unit.

I also registered with a website concerning getting legal advice:

Dear Kenneth Robert McAlpine,

Thank you for registering on TakeLegalAdvice.com.

Your Password is: <removed> (and username is your email address)

If you have submitted a case for matching you will be receiving email alerts within 24-48 hours from now.

The next day I received an email from TakeLegalAdvice:

Dear User,

Thank you for submitting your details through the TakeLegalAdvice.com online case matching service.

Having reviewed your case details we have to advise that the law firms on our service are unable to deal with your case and therefore regrettably our matching service is not suitable for your particular needs.

However, we have listed below other services that could be helpful to you.

Do-it-yourself legal guides

Lawpack: A range of do-it-yourself legal guides, legal kits and legal forms.

Free legal information and advice

For those seeking basic guidance or who cannot afford to pay for a law firm or representation, there are a wealth of sources available online, by phone and in person just click on the links or see below for more information:

Other services were listed such as CAB, etc.

On 15 December 2008 I also found the publicly available information on the internet:

Q4 - 2006

Morgan Lewis rent second and third floors at £55/sq ft (£592.02/sq m) with 20 months rent-free at Condor House

29 January 2007

Shepherd and Wedderburn move into fifth floor at Condor House.

Mid - July 2007

Morgan Lewis move into second and third floors at Condor House.

Two days later I sent the following email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

Please find attached a document seeking leave of the EAT to appeal to the Court of Session.

Yours faithfully,

Attached document read:

Dear Sir or Madam,

Under the Employment Appeal Tribunal Practice Direction (Employment Appeal Tribunal - Procedure) 2004, section 21.3, this document should be treated as an application to the EAT for permission to appeal to the Court of Session.

Some of the main points of law to be advanced and the grounds are as follows:

That the Appellant, under The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Rule 40 (3) did not act 'unreasonably', and whether this constitutes a violation of The European Convention on Human Rights, Article 5(1), Article 6(1), Article 10(1), Article 17.

The grounds for the appeal are as follows:

That the Employment Tribunal stated in the judgment:

"We concluded the claimant had acted unreasonably in (i) refusing the respondent's offer of settlement; (ii) maintaining an unrealistic figure for settlement and (iii) refusing to enter into discussions. We concluded that underpinning these three matters was the claimant's refusal to accept the respondent's offer of a contribution towards the cost of legal advice: his refusal was unreasonable and led to him acting unreasonably with regard to each of the above points."

(i) refusing the respondent's offer of settlement.

I have a fundamental right and freedom, without any interference by a public authority, and without any destruction of those rights and freedoms, by an impartial tribunal, to refuse any offer I choose, it is not up to the Employment Tribunal or Employment Appeal Tribunal what offer I should accept.

(ii) maintaining an unrealistic figure for settlement.

I have a fundamental right and freedom, without any interference by a public authority, and without any destruction of those rights and freedoms, by an impartial tribunal, to decide what my claim is worth. The award for discrimination claims is unlimited.

(iii) refusing to enter into discussions.

I have a fundamental right and freedom, without any interference by a public authority, and without any destruction of those rights and freedoms, by an impartial tribunal, to decide whether I want to enter into discussions, or whether I want to proceed to the Employment Tribunal.

"We concluded that underpinning these three matters was the claimant's refusal to accept the respondent's offer of a contribution towards the cost of legal advice: his refusal was unreasonable and led to him acting unreasonably with regard to each of the above points."

I have a fundamental right and freedom, without any interference by a public authority, and without any destruction of those rights and freedoms, by an impartial tribunal, to decide who will represent me, and whether the party who represents me will be acting in my best interests and not the best interests of the respondent who is paying them.

The Appellant requested a written judgment at the Rule 3(10) hearing on 6 November 2008, which has not been supplied as of 17 December 2008. When the Appellant receives a written judgment, other points of law may be identified and advanced from the written judgment.

Mr K. R. McAlpine (Appellant)

On 21 December 2008 I found the following publicly available information on the internet:

Condor House

OFFICE AVAILABILITY, FLOOR

LET TO SKANSKA, Sixth

LET TO SHEPHERD & WEDDERBURN, Fifth

LET TO BARCAP, Fourth

LET TO MORGAN, LEWIS & BOCKIUS, Third

LET TO MORGAN, LEWIS & BOCKIUS, Second

The holiday season came and went before I sent the following email to my parents on 13 January 2009:

Thought you may want to see this:

http://hansard.millbanksystems.com/written_answers/2001/jan/30/employment-tribunals

HC Deb 30 January 2001 vol 362 cc154-5W 154W

Mr. Grieve To ask the Parliamentary Secretary, Lord Chancellor's Department if Lucy Crone, part-time chairman of an employment tribunal, is a member of the Law Society of Scotland; and if he will make a statement on her credentials with respect to practising in Scottish law and holding the post of chairman of an employment tribunal. [147534]

Mr. Alan Johnson [holding answer 26 January 2001]: I have been asked to reply.

155WPart-time chairmen of employment tribunals in Scotland are appointed by the Lord President of the Court of Session in accordance with Section 5a of the Employment Tribunals (Constitution and Rules of Procedure) (Scotland) Regulations 1993.

It would not be proper for me to comment on the credentials of a chairman with respect to practising Scottish law or holding office. However, I understand that Lucy Crone is a lawyer of many years standing who effectively carried out the role of a chairman in Scotland. She was not reappointed after 31 December 2000 and, although she is not a member of the Law Society of Scotland, I understand that she has practised in Scotland as a representative in front of employment tribunals for a period in excess of seven years.

Lucy Crone:

Not reappointed as an Employment Tribunal Chairman after 31 December 2000.

Not a member of the Law Society of Scotland.

The plot thickens.

That same day I sent an email to the Edinburgh Employment Appeal Tribunal:

Dear Sir/Madam,

It has been almost ten weeks since I attended the Rule 3(10) hearing, at which I requested a written judgment, and I have yet to receive the written judgment.

It has also been almost four weeks since I sent written leave to appeal to the Court of Session, and I have yet to receive a reply.

Can you confirm when I should expect the written judgment and a reply to the leave to appeal to the Court of Session.

On 9 January 2009 I sent the following letter to the Crown Office and Procurator Fiscal Service:

Frank Mulholland

Solicitor General

Crown Office

29 Chalmers Street

Edinburgh

EH1 1LD

Dear Sir,

I am writing to make you aware of a case heard in Scotland, part of which is now at the European Court of Human Rights.

In 1966, Mr Kenneth R McAlpine was diagnosed with type I diabetes. In 1998, Mr Kenneth R McAlpine obtained employment with Oracle Corporation UK Ltd ("Respondent"), until being made redundant in 2006. This redundancy was always contentious, and during the case held at the Glasgow Employment Tribunal, it became apparent that Mr Kenneth R McAlpine ("Claimant") had been made redundant due to his disability.

During August 2006 an employment tribunal claim was raised, which was heard in July/August 2007. At this hearing, the Respondent committed acts of perjury, fabricated documents, altered documents, and their witnesses colluded. The acts of perjury are against hard factual evidence, and the witness collusion is in writing within the witness statements.

It is not uncommon for this Respondent to act in a less than truthful manner, as was evident in Counsel's final summary of "Carlucci v Oracle, Case Number 2700870/03":

In his final submission, Laddie outlined a "deliberate policy of exclusion at the highest level" and cited the "high-handed and arrogant" conduct of Oracle throughout the hearings including repeated non-disclosure of documents and emails vital to the case. "The respondent's [Oracle's] witnesses lied all the way through the liability proceedings," he said.

However, if you believe the conduct of the Respondent was bad in this case, this is absolutely nothing compared to the 'conduct' of the Scottish Civil Legal System.

At the Glasgow Employment Tribunal, the Judge directed that all the respondent's witness statements would be taken as read, after the claimant and his witnesses had been made to read out their witness statements under oath in the witness stand.

The judgment of the Glasgow Employment Tribunal contained many references to the Claimant's documents which were wrong, and which would severely hinder future appeals.

During the appeal process to the Edinburgh Appeals Tribunal, it quickly became apparent that all was not right. I started to look into why everything was failing and learned that the Glasgow Employment Tribunal had 'lost' Volume II of the evidence, some 170 pages of evidence, and refused to obtain another copy of Volume II from the respondent. It also became apparent that the respondent's ET3 form should never have been accepted, and that the judgment went against the information contained in the respondent's ET3 form.

Lady Smith cancelled one hearing at the very last minute when three Solicitors and myself and family traveled through to Edinburgh, and did not give a reason.

Upon further investigation, it became apparent that Morgan Lewis LLB and Shepherd and Wedderburn LLB shared the exact same address in London, Condor House, 10 St Paul's Churchyard, Morgan Lewis LLB had represented Oracle Corporation UK Ltd, and Lady Smith had worked for Shepherd and Wedderburn LLB, and her husband was still working for them, and had been Chairman and Partner for some 34 years.

Lady Smith had 'judged' that all three appeals should not pass the sift process, and had then sat at two subsequent Rule 3(10) hearings alone, without reclusing herself from any? The third Rule 3(10) hearing really concerned me, as another London judge had to sit on this Rule 3(10), which lasted no more than 20 minutes, this judge did not retire to chambers to 'consider' the appeal, but proceeded to read out a prepared judgment immediately after the appeal had finish. This, quite frankly, 'smacked' of a judgment written before the hearing, and not a judgment written by this London judge, who quite frankly didn't have any clue what this appeal was about.

The reason why part of this appeal is now at the European Court of Human Rights, is that I appealed to the Court of Session, who, to cut a long story short, proceeded to send out the wrong forms for the appeal, not once, not twice, but three times. By the third time, it was too late to lodge the appeal at the Court of Session in time.

The most recent event that happened recently was that I had approached a firm of Solicitor's in Glasgow, who informed me that it would take five to seven days to obtain the opinion of an Advocate. I then proceeded to instruct this firm to obtain the opinion of the Advocate, Bruce Erroch, and some three months later I finally obtained the opinion of this Advocate, which was quite frankly terrible, nothing had any chance. I paid £ 1, 300 pounds for this, and upon further investigation, found that this Advocate is a Member of the Faculty of Advocates Professional Negligence Law Group, and the Chairman of this group is none other than Lady Smith.

All of these appeals will continue, parts of which are now at a European level, and may go even further than Europe. This will all be made public as soon as all legalities have been completed, as it is in the public interest worldwide to do so, as these perverse judgments affect people with disabilities worldwide, some 600 million, and family and friends will also be interested parties.

So, it is more of a damage limitation exercise for the Scottish Legal System, that is if you choose to do anything about this, and that is why I am making you aware of this, as is my duty to do so.

Mr Kenneth R McAlpine

On 15 January 2009 I received the following letter from the Crown Office and Procurator Fiscal Service:

Dear Mr McAlpine

TRANSFERRAL OF CORRESPONDENCE

I refer to your letter dated 12 January to the Lord Advocate concerning your disability discrimination case.

I can advise that this is not a matter for the Crown Office and Procurator Fiscal Service and has been transferred to the Scottish Government correspondence unit on 14 January for them to action.

One week later, on 20 January 2009, the Costs judgment arrived in the post from the Employment Appeal Tribunal, over ten weeks late. However, I was still awaiting the refusal of the Employment Appeal Tribunal to appeal to the Court of Session, before the clock started to tick to appeal to the Court of Session.

Dear Sir

Mr Kenneth McAlpine v Oracle corporation UK Ltd

I refer to the above matter and enclose a sealed copy of the judgment.

EMPLOYMENT APPEAL TRIBUNAL

52 MELVILLE STREET, EDINBURGH, EH3 7HF

Before

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

(SITTING ALONE)

MR K McALPINE, APPELLANT

ORACLE CORPORATION UK LIMITED, RESPONDENT

Transcript of Proceedings

JUDGMENT

RULE 3(10) APPLICATION - APPELLANT ONLY

APPEARANCES

For the Appellant, MR K MCALPINE (The Appellant in Person)

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an application under Rule 3(10) after Lady Smith found that the appeal had no reasonable prospect of success. It concerns a decision by the Employment Tribunal that expenses should be paid by the Claimant in the sum of £3,700. He had pursued an unfair dismissal and disability discrimination claim to the Employment Tribunal that was unsuccessful. The claims were dismissed and the Respondent sought expenses on the basis that the Claimant's conduct was wholly unreasonable.

2. They relied on three separate grounds which are identified in paragraph 4 of the decision. I will not deal with two of them because the Tribunal very carefully considered each aspect and rejected the employer's contentions. In part, the claim bore in mind that the Claimant was a litigant in person and that, therefore, his knowledge and understanding of the processes would not be as complete as that of others who would be represented. But one of the complaints made by the employers was that the Claimant had unreasonably rejected an offer by the employers to settle the matter. They, in fact, offered £28,000, and in addition they had offered £2,000 as a contribution towards legal expenses. They were very concerned that the Claimant should get advice because they felt that the offer they were making was manifestly fair. They had taken the trouble to spell out in some detail why they felt that it was a sensible offer which the Claimant ought to accept. He at that time was claiming a sum in excess of £700,000, which the Tribunal thought was wholly unreasonable.

3. The Tribunal did refer to certain relevant authorities from the Employment Appeal Tribunal, namely Monaghan v. Close Thornton Solicitors and Kopel v Safeway Stores Plc, which demonstrate that the refusal of a reasonable offer can in principle constitute unreasonable conduct to justify an order for compensation. In the Kopel case, the EAT made it plain that the Calderbank system does not operate in front of tribunals. In other words, you cannot make a payment and automatically award costs against a claimant who fails to meet that payment after pursuing a case. But nonetheless the existence of an offer and I would add the circumstances in which it is given and the explanation given for it, may well be relevant factors which could entitle the tribunal to conclude that costs or expenses in Scotland should be awarded.

4. In this case the Tribunal took account of a number of factors including the fact, as I have said, that there was a careful explanation of the offer, that it included payment of the legal expenses and they felt that the Claimant had stubbornly refused to take legal advice which would have greatly assisted in solving the dispute. They heard evidence about his means. They were asked by the employers for £10,000 and they settled in the end on a figure of £3,000 with regard to this aspect of loss.

5. The Claimant was concerned about two matters. In his grounds of appeal he said that it cannot be right to say that an employee is under an obligation to take legal advice or will have costs awarded against him if he fails to do so. That is so, but that is not what the Tribunal are saying. They are saying that in these circumstances he had the opportunity to have free legal advice and it was a factor in its assessment that he acted unreasonably in not taking up that offer. I think they were entitled to say that.

6. There is also a concern that when Lady Smith rejected this Rule 3 stage, she said that:

"Contrary to the import of the notice of appeal, they did not award the first element of expenses because the claimant had failed to take legal advice but because, overall, he had acted unreasonably."

The Claimant did not really understand this because he felt that the Tribunal had awarded costs against him because he did not take legal advice. I have explained to him that in any event what is said on the original sift sheet is of little relevance when there is an oral application before this Court because I have to consider the matter wholly afresh. But I think Lady Smith is right in this sense, she is not saying that he is not being punished for failing to take legal advice but for failing to do so in circumstances where he was given the opportunity to get it for free from an employer who was trying desperately to settle this matter and prevent it going to a tribunal where significant costs are necessarily incurred.

7. There is also an award of £700 which the Claimant has asked me not to deal with on the basis that there is a related claim. I am not quite sure what it is but he says there is a related claim going to the Court of Session in relation to that matter and he would prefer me not to deal with it.

8. I know this will be a disappointment to the Claimant. I can see it has been a distressful experience. Whether the employers will want to enforce the order or not I am not in a position to say. I am sorry that the litigation has been so difficult for him and I am sure it has been difficult for his family and others too; but I explained to him that, in my judgment, it would be - wrong to let this case go forward, not just because he has no reasonable prospect of Success but also because it would give an impression that he has some realistic prospect of winning the case and, in truth, I think he has none.

On 4 February 2009 I received the following letter from the Scottish Government:

Dear Mr McAlpine,

Thank you for your letter of 12 January to the Solicitor General, concerning your disability discrimination case. I have been asked to reply.

The Scottish Government does not comment on any decision made by any member of the Judiciary, including those who sit on Tribunals, so as not to interfere in any way with the independence of the courts.

I am afraid the Scottish Government does not provide legal advice to members of the public. You may wish to contact your local Citizens Advice Bureau (CAB) for advice.

Later that day I sent the following email reply to the Scottish Government:

Your Reference: 2009/0000957OR

Dear Sir/Madam,

Thank you for your letter dated 2 February 2009.

Whilst I recognise that Courts should be independent, I am surprised that the Crown Office and Procurator Fiscal Service bothered to refer my letter to you on 15 January 2009. May I suggest that you contact the Crown Office and Procurator Fiscal Service and inform them that they should not refer any correspondence to you past, present or future.

As I have now went full circle, Citizens Advice Bureau (CAB), Crown Office and Procurator Fiscal Service, Scottish Government and back to Citizens Advice Bureau (CAB), I am now sending all correspondence from all parties to aid my European Court case, as it clearly shows, in such a dreadful light, a continual passing of the buck.

I have paid approximately £1,400 for an Advocate to inform me that the Civil Legal System in Scotland will not refer cases of Perjury and Perverting the Course of Justice to the Criminal Legal System in Scotland, so can the Scottish Government answer the following questions, and I will also be sending the answers to these questions to the European Court:

1: If Perjury and Perverting the Course of Justice happens in the Civil Legal System in Scotland, is this prosecuted?

2: If this is prosecuted, who in Scotland refers this from the Civil Legal System in Scotland to the Crown Office and Procurator Fiscal Service?

3: Which department is responsible for appointing Tribunal Judges in Scotland, and is this a UK or Scottish department?

4: Which department is responsible for appointing Court Judges in Scotland, and is this a UK or Scottish department?

5: Can the Scottish Government comment on why a Judge was appointed as the Chairman of the Faculty of Advocates Professional Negligence Law Group, and whether the Scottish Government regards this appointment as a conflict of interest?

6: Can the Scottish Government comment on why the husband of a Judge was appointed to the Scottish Legal Complains Commission, and whether the Scottish Government regards this appointment as a conflict of interest?

Later that same afternoon I sent another email to the Scottish Government:

Your Reference: 2009/0000957OR

Dear Sir/Madam,

With reference to your letter dated 2 February 2009, which states:

"The Scottish Government does not comment on any decision made by any member of the Judiciary"

Can you explain the following statement on your website:

http://www.scotland.gov.uk/Publications/2008/06/11133639/1

"Scottish Government: What do we do?

The Scottish Government is the devolved government for Scotland. It is responsible for most of the issues of day-to-day concern to the people of Scotland, including health, education, justice, rural affairs and transport."

I am particularly interested in the word "justice" in the above statement, can the Scottish Government answer the following questions, and I will also be sending the answers to these questions to the European Court:

1: If the Scottish Government is responsible for justice, why are you stating "The Scottish Government does not comment on any decision made by any member of the Judiciary"?

2: If the Scottish Government is responsible for justice, why is the Scottish Government not prepared to look into the injustice suffered by myself?

On 12 February 2009 I received the following letter from the Employment Appeal Tribunal in Edinburgh:

Dear Sir

Mr Kenneth McAlpine v Oracle corporation UK Ltd

I refer to the above matter and enclose a sealed copy of the Order.

EMPLOYMENT APPEAL TRIBUNAL

BEFORE

THE HONOURABLE MR JUSTICE ELIAS

SITTING ALONE

IN THE MATTER of an Appeal under Section 21(1) of the Employment Tribunals Act 1996 from the Judgment of an Employment Tribunal sitting at Glasgow and entered in the Register on the 13th day of February 2008

BETWEEN:

Mr Kenneth McAlpine, Appellant

and

Oracle corporation UK Ltd, Respondent

UPON CONSIDERING the written Application of the Appellant for Leave to Appeal from the Judgment of the Employment Appeal Tribunal given on the 6th day of November 2008

THE TRIBUNAL REFUSES LEAVE to the Appellant to Appeal to the Court of Session

DATED the 22nd day of January 2009

I had been working on and off on an appeal to the Court of Session for a number of months and had now identified most of the law documents to be included in the Court of Session documents, and decided to include these two pages from the Disability Rights Commission Code of Practice to back up my appeal at point 5.3 concerning the Disability Discrimination Act 1995, Part II, Section 3A(5):

4.32 The circumstances in which justification may be possible are explained in Chapter 6. However, it is worth noting that the possibility of justifying potential discrimination only arises at all when the form of discrimination being considered is disability-related discrimination, rather than direct discrimination or failure to make reasonable adjustments.

6 Justification

Introduction

6.1 Most conduct which is potentially unlawful under Part 2 of the Act cannot be justified. Conduct which amounts to:

direct discrimination

failure to comply with a duty to make a reasonable adjustment

victimisation

harassment

instructions or pressure to discriminate, or

aiding an unlawful act

is unlawful irrespective of the reason or motive for it.

This is a case of direct discrimination, and as such "cannot be justified" "irrespective of the reason or motive".

I was cementing my views that what the Tribunal should have done, is upon seeing  page 418, they should not have let the respondent justify the statement "the combination of diabetes and high blood pressure - which could result in a prolonged period of time off due to illness.", as it "cannot be justified" "irrespective of the reason or motive".

Chapter 11

On 15 February 2009, I noticed something strange when reading the Costs appeal judgment issued by the Employment Appeal Tribunal. Near the end of the judgment it contains the sentence:

"Whether the employers will want to enforce the order or not I am not in a position to say"

I could not get this one sentence out of my head for the rest of that day.

Later that day I reread the original Employment Tribunal judgment, particularly the part on disability discrimination, as I wanted to understand the exact reasons why the Employment Tribunal had dismissed the disability discrimination appeal so that I could include relevant appeal points which appealed against those reasons.

I noted the following:

Malcolm Thompson is never really mentioned in the whole of this section

Crone has dismissed both disability discrimination appeals (direct and indirect "disability-related" discrimination) because my role was redundant not that I was placed on the Reduction In Force (RIF) list before the discriminatory emails.

This is what would have to be appealed to the Court of Session, although Lady Smith dismissed the appeals for the reason that I was placed on the RIF list before the discriminatory emails, so that will also have to be appealed to the Court of Session.

On Smith's judgment, disproving the judgment that I was selected for redundancy before discrimination should be easy.  Page 452 clearly states I was not "selected for redundancy" until 30 May 2006. This "selection for redundancy" happened two months after the 'discussions' on my disability.

There are various points to be appealed here:

Being on a Reduction In Force list does not mean that you have been selected for redundancy (pages  395 and  396 of the original evidence put in front of the Tribunal concerned an employee of Oracle who is removed from the Reduction In Force list before the Reduction In Force list is actioned).

You have only been selected for redundancy when you have been officially notified that you have been selected for redundancy (page  443, 25 May 2006 email states "It includes a letter provisionally selecting him for redundancy").

Crone's judgment should be easy to disprove also, as the ET1  states "Service Delivery Manager" and the respondent's ET3  states "yes" when asked whether the respondent agrees with the claimant's description of their job or job title.

At the very end of that day, I was still thinking about the sentence in the Cost's judgment from the Employment Appeal Tribunal "Whether the employers will want to enforce the order or not I am not in a position to say".

Call me overly suspicious but that statement smacked of someone who knows that it has not been paid, otherwise, why make the statement?

If that were the case, then how would the Judge know I hadn't paid it straight after the costs hearing at the Employment Tribunal over a year ago?

Are they in close contact with the Respondent or their lawyers?

The next day I sent the following email to the Financial Ombudsman Service:

Dear Sir/Madam,

Please find attached correspondence regarding your reference 7621674/ /J200 dated 12 February 2009.

Regards,

Attached document read:

Dear Sir/Madam,

Please find enclosed an update to your letter dated 12 February 2009.

"you are now experiencing exceptional financial hardship because of circumstances connected to your complaint;"

Between July 2006 and March 2007 I was in receipt of Jobseekers Allowance. Since March 2007 I have not had any income or benefits, as I have not been able to find employment and my savings are above the benefits threshold and are diminishing fast due to the current financial climate. My wife is currently on a five year career break. I have two children under ten, and this is causing great distress to both my wife and myself.

"you are suffering serious ill-health, which makes it extremely important to you that this complaint is resolved quickly;"

Since November 2006, the control of my diabetes has become increasingly difficult due to stress. At my last two appointments with the diabetic clinic, the consultants discussed moving me from two injections per day to four injections per day.

"legal action is being threatened in relation to this case;"

To update you on where the various parts of this case are:

* The first part of this claim is still with the European Court of Human Rights.

* The second part of this claim is still with the Court of Session.

* The third part of this claim is currently being appealed to the Court of Session.

"you have had an offer from Society of Lloyds since we last wrote, and you have accepted this offer to settle your complaint (or are considering accepting it)"

I have not received any offer from Lloyds.

I would like to point out that this case is about one huge issue, disability and future sickness absence, which is disability discrimination simply because no one can predict the future, and as such it is a stereotypical assumption. I only had two days sickness absence in the previous two years, the average UK employee (without a disability) takes eleven days sickness absence per year.

There are presently 650 million people worldwide with a disability, and interested parties such as family and friends which could easily take this figure up to 2500 million people worldwide, who will be most interested in hearing whether people with a disability are unemployable because of a potential for future sickness absence.

I will end by commenting on one statement made by Lloyds in their last correspondence of 30 April 2008:

"When you initially submitted your claim to Family Plus, your case was referred to Miller Samuel and in doing so Family Plus fulfilled their obligations under the terms and conditions of your policy. It is not within the jurisdiction of this department to make judgement on the advice offered to you by Miller Samuel."

This one paragraph sums up this whole claim, it confirms that the advice offered by Miller Samuel was wrong, and it tries to distance Lloyds and Family Plus from that wrong advice. It has one fundamental omission however, Lloyds appointed Family Plus as Underwriters, and Family Plus appointed Miller Samuel as Solicitors, so all parties are responsible, just like an employer is responsible for the actions of any of its employees.

Yours faithfully,

On 23 February 2009 I sent an email to the Citizens Advice Bureau (CAB):

Hi,

I tried to call you today, but the phone just kept ringing.

I have received a letter from The Scottish Government to contact my local CAB for advice, and they have supplied your address and telephone number.

Can I arrange an appointment with someone for the CAB to speak to concerning this letter.

The matters contained in the letter concern disability discrimination in employment, and appeals lodged with the Court of Session and European Court of Human Rights.

That afternoon I received an email reply from the Citizens Advice Bureau:

Dear Kenneth,

Thank you for your email.

We run a drop-in centre. No appointment necessary. Hours are from Monday to Friday we open at 10.00 am, closing early on Wednesday at 12.30 and on 2.30 the other days.

Come any time, preferably not at the last minute, bring any relevant documents with you.

All the best.

I hope we will be able to help you.

Later that day I sent an email to my parents:

Mum/Dad,

I was photocopying the Aria People Chart on  Page 251 of the tribunal bundle.

Look at Nick Cooper's job title "Support Director".

Questions:

1: Was Nick Cooper performing a support role?

2: Was Nick Cooper performing the full Director role?

3: We find as a matter of fact that, although Mr Cooper's job title was Support Director he was in fact only performing a small subset of that role?

Kenneth

On 27 February 2009 I received the following letter:

The Scottish Government

Constitution, Law and Courts Directorate

Legal System Division

Our ref: 2009/0000957OR

25 February 2009

Dear Mr McAlpine,

Thank you for your e-mails of the 4 February, concerning your disability discrimination case.

As you state, one of the Scottish Government's responsibilities is for justice. This involves policy on issues of substantive criminal and civil law, for example around what is defined as a crime, or the structure of the courts. This does not mean that we comment on specific decisions made by individual judges. It is a long established precedent that the Government does not make such comments, given the importance of the independence of judges. Section 1 of the Judiciary and Courts (Scotland) Act 2008 creates a duty on a number of people, including the First Minister, Lord Advocate, and Scottish Ministers, to "uphold the continued independence of the judiciary". It would therefore be wrong for me to comment on the substance of your case, or on the validity of a judge's decision, or the reasons for it.

While the Scottish Government does not comment on decisions by judges, we do have an overall interest in the conduct of judges. If you believe a judge's conduct, rather than their decision, has been inappropriate I suggest you set out the details of the behaviour in writing to Mr John Anderson at 5" floor, Hayweight House, the Scottish Courts Service, 23 Lauriston Street, Edinburgh, EH39DG. As the Scottish Government does not appoint people to positions in the Faculty of Advocates we cannot comment on why someone has been appointed to a particular position.

In relation to the question you raised about the Scottish Legal Complaints Commission, the appointment process that is followed is regulated by the Office of the Commissioner for Public Appointments in Scotland (OCPAS). As such the process must abide by the OCPAS Code of Practice which ensures that selection is based on merit and individuals selected Will be those who have demonstrated that they best match the skills, knowledge and personal qualities required for the appointment in question. I understand that candidates were also probed on probity and potential conflicts of interest. If you would like more information on the OCPAS appointment process you can contact OCPAS at 9–10 St Andrew Square, Edinburgh, EH22AF.

In relation to who appoints the members of a tribunal, this varies depending on which tribunal is involved. For example, some tribunals' members are appointed by the relevant local authority. Other tribunals' members are appointed by the Scottish Ministers, while others have members appointed by UK Ministers.

Judges in the Court of Session are appointed by Her Majesty the Queen, following the rigorous selection process carried out by the independent Judicial Appointments Board.

You ask in your e-mail about the prosecution of perjury and perverting the course of justice. The Crown Office or the Procurator Fiscal undertakes the prosecution of all crimes in Scotland. If you have allegations of perjury and perverting the course of justice, then I suggest you contact the police in the first instance.

I sent the following email reply later that day:

Dear Sir/Madam,

Can the Scottish Government please provide answers to the following questions:

1: If Perjury and Perverting the Course of Justice happens in the Civil Legal System in Scotland, is this prosecuted?

2: If this is prosecuted, who in Scotland refers this from the Civil Legal System in Scotland to the Crown Office and Procurator Fiscal Service?

3: Which department is responsible for appointing Tribunal Judges in Scotland, and is this a UK or Scottish department?

4: Which department is responsible for appointing Court Judges in Scotland, and is this a UK or Scottish department?

5: Can the Scottish Government comment on why a Judge was appointed as the Chairman of the Faculty of Advocates Professional Negligence Law Group, and whether the Scottish Government regards this appointment as a conflict of interest?

6: Can the Scottish Government comment on why the husband of a Judge was appointed to the Scottish Legal Complains Commission, and whether the Scottish Government regards this appointment as a conflict of interest?

Yours faithfully,

Mr K R McAlpine.

On 2 March 2009 I sent the following email:

Mr John Anderson

The Scottish Court Service

Hayweight House

23 Lauriston Street

Edinburgh

EH3 9DQ

Dear Sir,

I have been provided with your details regarding correspondence I had with The Scottish Government (Reference: 2009/0000957OR) dated 25 February 2009.

In this correspondence, I asked the following questions, which I now request that you answer on behalf of the Scottish Court Service to whom I was referred:

1: Can the Scottish Court Service comment on why a Judge was appointed as the Chairman of the Faculty of Advocates Professional Negligence Law Group, and whether the Scottish Court Service regards this appointment as a conflict of interest?

2: Can the Scottish Court Service comment on why the husband of a Judge was appointed to the Scottish Legal Complains Commission, and whether the Scottish Court Service regards this appointment as a conflict of interest?

3: Can the Scottish Court Service comment on why a Judge did not recluse themselves from hearing, and dismissing, five appeals (UKEATPAS/0040/07/MT, UKEATPAS/0130/07/MT and UKEATPAS/0051/08/MT) where the respondent shared the same London offices and address (Condor House, 10 St. Paul's Churchyard, London, EC4M 8AL) as the Judges husbands legal firm (Sheppard and Wedderburn), a legal firm who the same Judge was also an ex-employee, and whether the Scottish Court Service regards this as a conflict of interest, and a severe breach of a Judges oath?

I also sent the following email that same day:

Office of the Commissioner for Public Appointments in Scotland (OCPAS)

9-10 St Andrew Square

Edinburgh

EH2 2AF

Dear Sir/Madam,

I have been provided with your details regarding correspondence I had with The Scottish Government (Reference: 2009/0000957OR) dated 25 February 2009.

In this correspondence, I asked the following questions, which I now request that you answer on behalf of OCPAS to whom I was referred:

1: Should any member of the Scottish Legal Complaints Commission have any connections with any Judges in Scotland, and whether any connections would be a conflict of interest?

2: Should any member of the Scottish Legal Complaints Commission be married to a Judge, and whether this would be a conflict of interest?

3: Should any member of the Scottish Legal Complaints Commission be married to a Judge who is Chairman of the Faculty of Advocates Professional Negligence Law Group, and whether this would be a conflict of interest?

Later that day I received the following email:

Dear Mr McAlpine

Thank you for your email and enquiry. The Commissioner's Office was established to, among other things, prepare and publish a Code of Practice for the making of public appointments by the Scottish Ministers and to assess compliance with it. You can download a copy of the Code and the Act which set up the Office of the Commissioner from the following web links:

http://www.publicappointments.org/downloads/NewCode.pdf

http://www.hmso.gov.uk/legislation/scotland/acts2003/20030004.htm

For the Code to be complied with during each appointments round, the selection panel must question each candidate to ensure that they are fully aware of the standards of probity required of public appointees. Additionally, questions of conflict of interest must be explained to and explored with each candidate. Each selection panel always includes an OCPAS Assessor. OCPAS Assessors are assigned by this office to oversee every regulated appointments round. Each OCPAS Assessor is an independent consultant recruited and paid by the Commissioner for this purpose.

All application packs sent out by Scottish Government are required to contain our leaflet which contains guidance on conflicts of interest and on how to make a complaint. I have attached a copy for your information.

Turning to the specifics of your enquiry I can confirm that each candidate interviewed for positions on the Scottish Legal Complaints Commission was questioned on probity and conflicts of interest. The selection panel was satisfied with the answers given by each of the appointed candidates and that information was passed to the Cabinet Secretary for Justice who was ultimately responsible for making appointments to the Commission.

Since appropriate questions were asked of candidates regarding probity and conflicts of interests the requirements of the Code were met.

I am aware of this as I conducted an investigation into this appointments round. Reports on the findings of that investigation are available to download from the OCPAS website:

http://www.publicappointments.org/publications/documents/2008-08-29-SLCC-Report-Of-Findings-Complaint.pdf

http://www.publicappointments.org/publications/documents/2008-09-17SLCCReportOfFindings-ComplianceREDACTED.pdf

As you will have gathered, it is not the role of the Commissioner to determine whether a potential appointee has an actual or perceived conflict of interest. Neither is it the role of the Commissioner, should such an actual or perceived conflict be identified, to determine whether such a conflict can be managed. These are matters for the selection panel and the appointing Minister who must make appointments in accordance with the requirements of the Code. Once an appointment has been made, any conflicts arising should be dealt with by the relevant members' Code of Conduct.

Concerns about conflicts and other conduct issues should be raised with the body itself. If you are dissatisfied with the body's response, complaints may be referred to the Office of the Chief Investigating Officer. The following link connects to a leaflet explaining how to make such a complaint in more detail:

http://www.standardscommissionscotland.org.uk/documents/ComplaintLeaflet

-FinalCIOandSCAPPROVED-19-11-08.pdf

I hope that this answers your question fully.

Please don't hesitate to contact me if you have any questions about this response or if you have further questions on the work of the Commissioner.

The next day I sent the following email:

Dear Sir/Madam,

I have been provided with your details regarding correspondence I had with The Scottish Government (Reference: 2009/0000957OR) dated 25 February 2009.

In this correspondence, I asked the following questions, which I requested that OCPAS answer, on behalf of The Scottish Government, to whom I was referred.

I have now been referred to the Office of the Chief Investigating Officer, which I request that the Office of the Chief Investigating Officer answer, on behalf of OCPAS, to whom I was referred.

1: Should any member of the Scottish Legal Complaints Commission have any connections with any Judges in Scotland, and whether any connections would be a conflict of interest?

2: Should any member of the Scottish Legal Complaints Commission be married to a Judge, and whether this would be a conflict of interest?

3: Should any member of the Scottish Legal Complaints Commission be married to a Judge who is Chairman of the Faculty of Advocates Professional Negligence Law Group, and whether this would be a conflict of interest?

On 6 March 2009 I received the following letter:

Citizens Advice Bureau bureau

4" March 2009

Dear Mr McAlpine,

I am writing to confirm that you attended our offices on Wednesday 4"March 2009. As your appeal has now been referred to the European Court of Human Rights we would not be able to provide you with legal assistance in this case.

We would advise that you consult your Member of Parliament, Katy Clark or your European Member of Parliament.

I am sorry that we are unable to provide you with more assistance at this time.

Three days later I received the following email from the Standards Commission for Scotland:

Dear Mr McAlpine,

Thank you for your recent correspondence dated 3 March.

As you may know, the powers of the Standards Commission for Scotland and the Chief Investigating Officer are set out in the Ethical Standards in Public Life etc. (Scotland) Act 2000. In terms of the Act, the Chief Investigating Officer is empowered to investigate alleged breaches of the Codes of Conduct by Members of Devolved Public Bodies and the Councillors' Code of Conduct by Councillors after 1 May 2003.

From your correspondence, it seems that you are making an enquiry about protocol rather than a specific complaint alleging a breach of the Code of Conduct against a Member(s).

Your enquiry does not fall within our jurisdiction, and therefore we are unable to offer advice on this matter.

If you do wish to make a complaint alleging a breach of the Code of Conduct against a Member(s), please do contact me; alternatively, you may find helpful information available in our website (www.standardscommissionscotland.org.uk/).

I hope this is helpful.

On 17 March 2009 I sent another email to the Standards Commission for Scotland:

Dear Sir/Madam,

I was referred to you by The Scottish Government.

As you are a body set up for Ethical Standards in Public life, I believe, and The Scottish Government also believe, that you are the body specifically in a position to answer my questions.

So, once again:

1: Should any member of the Scottish Legal Complaints Commission have any connections with any Judges in Scotland, and whether any connections would be a conflict of interest, and as such would be a breach of ethical standards?

2: Should any member of the Scottish Legal Complaints Commission be married to a Judge, and whether this would be a conflict of interest, and as such would be a breach of ethical standards?

3: Should any member of the Scottish Legal Complaints Commission be married to a Judge who is Chairman of the Faculty of Advocates Professional Negligence Law Group, and whether this would be a conflict of interest, and as such would be a breach of ethical standards?

In order to consider making a complaint, I have to know the answers to the three questions, if any are a conflict of interest then I will make a complaint, if none are a conflict of interest, then I will not make a complaint.

That same day I received the following email reply from the Standards Commission for Scotland:

Dear Mr McAlpine

Thank you for your enquiry.

We are making further enquiries and will endeavour to provide a full response by Friday, 20 March. In the event that our enquiries take longer than this, we will contact you on Friday 20 March with an update.

Later that evening I sent an email to the lawyer Simeon Spencer of the law firm Morgan Lewis:

Dear Sir/Madam,

As you will be aware, Mr K R McAlpine has two appeals, one in the Court of Session and the other in the European Court of Human Rights.

Due to conflicting evidence, it is not apparent at all, how many redundancies in the UK were made by your client, Oracle Corporation UK Ltd, in the year 2006.

Some of the conflicting evidence is as follows:

Your retained Counsel, when asked by the Chairman at the Pre-Hearing review stated that, as far as he was aware, it was only Mr McAlpine who had been made redundant in the UK.

 Page 440 of the Employment Tribunal bundle states "I am being asked to finalise my RIF list for UK, currently we have Kenneth McAlpine on the list and nobody else."

 Pages 514 to 516 is the alleged RIF list which shows 149 employees in the UK.

In the ET Judgment it states "In total 121 employees across the UK were made redundant."

In your last correspondence 4 March 2008 Morgan Lewis stated "No of possible redundancies = 95"

What I am requesting from you is simple:

1: What number of Siebel (or ex-Siebel) employees in the UK were made redundant by Oracle Corporation UK Ltd in the year 2006?

2: What number of Oracle (not Siebel or ex-Siebel) employees in the UK were made redundant by Oracle Corporation UK Ltd in the year 2006?

Note: It is two simple questions which simply require a one number answer to each.

If you fail to supply two one number answers, I will send this correspondence to the higher courts and request an order for this information.

Within six minutes of sending the above email, I received the following email reply from the lawyer Simeon Spencer of the law firm Morgan Lewis:

Dear Sir

You have no right whatsoever to any further information and we are not instructed to supply you with any. If you wish to take the matter elsewhere that is your decision. We can not and will not assist you any further.

The next day I received an email reply from the Scottish Court Service:

Mr McAlpine

Thank you for your e-mail. This awaited my return to the office following a short absence.

It may be helpful if I say a little about the role of the Scottish Court Service. Our purpose is to provide the staff, accommodation and services needed to support the operation of the courts in Scotland.

We have no operational role, or policy interest, in the appointment of members of the judiciary or their conduct. We have no role in relation to the Scottish Legal Complaints Commission. All these matters rest with the Scottish Government. We have no role in relation to the Faculty of Advocates.

In common with other parts of the executive arm of government, the Scottish Court Service cannot comment on any decision made by a judge in connection with legal proceedings.

The matters raised in your three questions are therefore not matters on which the Scottish Court Service can comment.

I am sorry that I am unable to be of more assistance on this occasion.

On 18 March 2009 I sent an email to the Scottish Government:

Dear Sir,

Your Reference: 2009/0000957OR

Regarding your letter dated 25 February 2009 in which you stated "If you believe a judge's conduct, rather than their decision, has been inappropriate I suggest you set out the details of the behaviour in writing to Mr John Anderson..."

As you can see from the email trail below, I have followed your instructions, and received a reply from Mr John Anderson, which in summary states that it is not his responsibility at all.

Either you are wrong, or Mr John Anderson is wrong, which is it?

If Mr John Anderson is not the person, and the Scottish Courts Service is not the organisation, can you supply me with the name and address of the correct person and organisation please.

Later that evening I sent my Member of Parliament the following email:

Dear Valerie,

As discussed with Katy at the Surgery held in Kilbirnie Bridgend Community Centre on 14 March 2009, please find attached the letter which I require to be sent from Katy to various Ministers.

Can I also request that I am copied on all correspondence to and from the Ministers.

Yours faithfully,

Attached document read:

Dear Sir/Madam,

In 1966, Mr Kenneth McAlpine was diagnosed with Diabetes Mellitus Type 1 at age 18 months, which is insulin dependent diabetes controlled by daily injections of insulin. This is the most serious form of Diabetes, and is covered by The Disability Discrimination Act 1995.

Despite his disability, Mr McAlpine has gained an honours degree in Engineering and a Masters degree in Computing.

On 12 August 1998, Mr McAlpine started work for Oracle Corporation UK Limited, as a Consultant, and in July 2004 started work in the role of On Demand Service Delivery Manager.

On the 25 May 2006, Mr McAlpine received a phone call from his manager who informed him that he had to attend a meeting in the Edinburgh office on 30 May 2006. No reason was given for the meeting.

At the meeting on 30 May 2006, Mr McAlpine was informed by a Director that he had been selected for redundancy.

The Appellant was made redundant on 10 July 2006.

During disclosure of documents, Oracle Corporation UK Ltd disclosed the following email to myself and the Tribunal:

"the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness."

This email went on to state that Mr McAlpine should be "exited" (made redundant) from the organisation due to the statement above.

Oracle Corporation UK Ltd, admitted that Mr McAlpine had taken just two days sickness absence over the previous two years. The average UK employee takes eleven days sickness absence each year.

Mr McAlpine presented a complaint to the Employment Tribunals Service on 25 August 2006 claiming that his dismissal from the employment of Oracle Corporation UK Limited had been unfair and that he had been discriminated against contrary to the Disability Discrimination Act.

At the Full hearing on merits hearing on 2, 3 and 4 July and 6 August 2006, both the claim for unfair dismissal and the claim for disability discrimination were dismissed.

Over the next two and a half years, Mr McAlpine has presented three appeals to the Employment Appeals Tribunal all have been unsuccessful.

Currently, there is one appeal in the European Court of Human Rights, and two appeals in the Court of Session. All have still to be decided.

Apart from having one of the best claims of direct discrimination ever to be heard by a Tribunal in the UK as everything is in writing, some other extremely disturbing aspects to this case, are as follows:

* Witnesses lying.

* Witness collusion.

* Documents altered.

* Documents fabricated.

* Some 170 pages of documents lost by Tribunal. Refusal to obtain these from the Respondent for future appeals.

Oracle Corporation UK Ltd have a history of acting in a less than truthful manner as was evident in Counsels final summary of Carlucci v Oracle, Case No 2700870/03 at a tribunal in Reading. Mr Laddie, of Counsel, outlined a deliberate policy of exclusion at the highest level and cited the high handed and arrogant conduct of Oracle throughout the hearings including repeated non-disclosure of documents and emails vital to the case. The witnesses lied all the way through the proceedings he said.

The judgement of the Glasgow Employment Tribunal contained many references to my documents which were wrong and which would severely hinder future appeals. During the appeals process at the Edinburgh Appeals Tribunal it quickly became apparent that all was not right. I started to look into why everything was failing and that is when I learned that the Glasgow Employment Tribunal had lost volume II of the evidence, some 170 pages of evidence and refused to obtain another copy of these documents from the respondent. It also became apparent that the Respondent's ET3 Form should never have been accepted, and that the judgement went against the information contained in the Respondent's ET3 Form.

Upon further investigation it became apparent that Morgan Lewis LLB [the multinational law firm acting for Oracle] share the same address in London, Condor House, 10 St Paul's Churchyard as Shepherd and Wedderburn and that Lady Smith had worked for them and her husband was still working with them and had been Chairman and partner for 34 years. I do not feel comfortable with this, as Lady Smith has been involved with every appeal regarding this case. I believe that for justice to be done the judge has to be totally impartial.

Lady Smith cancelled one hearing at the Edinburgh Appeals Tribunal at the very last minute when three solicitors and myself and family had travelled through to Edinburgh. No reason was given for this.

Lady Smith had judged that all three appeals should not pass the sift process, despite one appeal having been lodged by a pro-bono Solicitor which quoted bias and perversity, and had then sat at two subsequent rule 3[10] hearings alone, without reclusing herself from any. The third rule 3[10] hearing really concerned me, as another London judge had to sit on this rule 3[10] hearing which lasted no more than 20 minutes, this judge did not retire to chambers to consider the appeal but proceeded to read out a prepared judgement immediately after the appeal finished. This quite frankly smacked of a judgement written before the hearing, and not a judgement written by this London judge, who I believe had no idea what the appeal was about.

The reason why part of this appeal is now at the European Court of Human Rights is that I appealed to the Court of Session, who, to cut a long story short, sent out the wrong forms for the appeal , not once, not twice, but three times. By the third time it was too late to lodge the appeal to the Court of Session in time.

The most recent event was that I approached a firm of solicitors to have the opinion of an Advocate. I was told this would take five to seven days. Three months later I had to chase up this opinion. This was a complete waste of time and money. I have learned that the Advocate is a Member of the Faculty of Advocates Professional Negligence Law Group and the Chairman of this group is none other than Lady Smith

I went to the Glasgow Employment Tribunal in good faith, because I had been discriminated against and all I wanted was justice to be done. This case has caused untold grief and hardship to not only myself, but to my family.

What the UK is left with here is that there are 200 million people with Diabetes worldwide, who the UK have "judged" are going to be sick in the future, and are therefore unemployable. This is the narrow interpretation. As the Disability Discrimination Act covers all disabilities, then the UK has "judged" that a disability will result in future sickness absence, which will effect 650 million people with disabilities worldwide. Of course, this is not taking into account any family or friends of people with a disability, which could balloon this figure up to 2.5 billion people who would have 'issues' with this "judgment".

On 18 March 2009 I sent an email to the Financial Ombudsman Service:

Dear Madam,

You can take this letter as a request to review the Ombudsman judgment, case reference 7621674/JML/W302.

Please also be notified that I will possibly send the outcome of this review, as well as the Judgment to the European Court of Human Rights and possibly the United Nations in future. This is only to support my case that I am unable to obtain legal representation, and the reasons why I am unable to obtain legal representation.

Yours faithfully,

Attached document read:

Application to review 7621674/JML/W302

I will now go through your judgment in detail as my review:

"You made a claim on your legal expenses policy for cover in connection with a claim against your employer for Unfair Dismissal."

This is incorrect, as my claim was for Unfair Dismissal and Disability Discrimination.

"You met Carolyn Miller in the firm's Employment Unit for a fairly lengthy meeting."

This is incorrect, both my wife and I agreed that the meeting lasted no more than approximately 20 minutes.

"Ms Miller advised you that there were a number of difficulties with your claim. It was Ms Miller's opinion that the Employment Tribunal did not have jurisdiction to hear your claim in respect of the disability (as she thought that you had not followed the correct procedure by raising a grievance with your employer) and that your former employer, Oracle Corporation, had said that they would argue this at the full hearing."

This is the most important paragraph in your whole judgment, and it is fundamentally wrong, and goes right to the heart of why I have raised this with the Financial Ombudsman Service.

Firstly, when someone is dismissed from an employer, it is the Statutory Dismissal Procedure that has to be followed, not the Statutory Grievance Procedure. Raising a grievance is not required, as the Statutory Dismissal Procedure allows the employee to appeal the decision to dismiss.

Statutory Instrument 2004 No. 752

Application of the grievance procedures

6.

(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

http://www.opsi.gov.uk/si/si2004/20040752.htm

This however is irrelevant as both the Employment Tribunal and Employment Appeals Tribunal accepted the full claim, so both the Employment Tribunal and Employment Appeals Tribunal DID have jurisdiction to hear the full claim, including the disability discrimination part of the claim.

The information that I received from Ms Miller was fundamentally wrong in law, and the subsequent decisions and hearings regarding my pro-bono Solicitor, Employment Tribunal and Employment Appeals Tribunal prove that it was fundamentally wrong.

It is so easy for a Solicitor to state that your case has no chance, but that they could perhaps negotiate a small increase in the settlement. A few hundred pounds for the Solicitor for writing one letter, which keeps the Solicitor and Insurance Companies happy, without them having to engage in any work of any note.

As you will be aware, all discrimination claims do not have a ceiling on the amount that can be awarded. As I was employed in a job which paid £44,500 per annum, my loss of earnings alone over the period of dismissal up until now amount to approximately £130,000. Should I win, this will only form a part of any award that the Court will have to award me. Your findings of "Ms Miller felt that the offer made by your former employer was reasonable", that sum being £12,000, simply beggars belief.

Findings

You have based your findings mainly on the information you have received from a "qualified lawyer".

Please accept evidence in the form of the attached email subject heading "06-12-07 - (45539.1) OUR CLIENT AND YOUR INSURED - KENNETH McALPINE" from a "qualified lawyer", which was sent to the insurer, and which states:

"You may be able to detect from the terms of the note of appeal we are of the view that the prospects of success of the appeal are very good indeed."

"Irrespective of the issue of reasonable adjustments it appears that Miller Samuel did not make any assessment of the prospects of success of his unfair dismissal claim. His unfair dismissal claim is effectively two pronged. Firstly he asserts that it is unfair under the normal principles of the law of unfair dismissal.

Secondly he maintains that the real reason for his dismissal was his disability. He did not of course require to raise a grievance before proceeding with the unfair dismissal claim and accordingly why Miller Samuel did not address the merits of that claim is entirely unclear."

"you should bear in mind that it is our view that it is probably that Mr McAlpine would have won his case had he received legal representation at the Tribunal Hearing."

All this from a Solicitor who was working for free on this case.

I had to represent myself against three Barristers and two lawyers, because of the inactions of the insurance companies. Question, why did my employer hire the services of three Barristers and two lawyers (£117,000) for a three-day tribunal claim, if it did not have any chance?

I also have to correct you that Biggart Bailli are unable to help any further on this claim, as higher Courts require an Advocate, and do not accept representation from a Solicitor.

I trust that the information that I have provided to you in this letter, and the email "06-12-07 - (45539.1) OUR CLIENT AND YOUR INSURED - KENNETH McALPINE" will be more than enough to overturn this decision.

I received the following letter on 20 March 2009:

SUPREME COURTS

INNER HOUSE & EXTRACTS DEPARTMENT

Parliament House

Edinburgh

EH1 1RQ

Our Ref: XA165/08

Your Ref: No Ref

Date: 18" March 2008

Dear Mr McApline,

Yourself for leave against the Employment Appeal Tribunal - XA165/08

You attended the General department on Wednesday the 18 March with a view to lodging a new appeal for leave to appeal against a decision from the EAT.

Your appeal was not competent as there is a depending appeal by yourself against the decision of the EAT in the Court of Session. Although the appeal you were attempting to lodge was an appeal against expenses granted against you, the appeal which is currently before the court is an application for leave to appeal against the final decision and this would take precedence.

The date 18 March 2008 was wrong in the above letter, it should have read 18 March 2009.

That same day I received an email from the Office of the Chief Investigating Officer a body set up for ethical standards in public life:

Dear Mr McAlpine

The SLCC came into being on 1 October 2008 and has internally approved a draft Code of Conduct, which is in the process of being agreed by Ministers and available from the SLCC or via their website.

The Office of the CIO is unable to investigate conduct which occurred prior to the relevant code of conduct being approved. Any complaint regarding the conduct of an SLCC Commissioner prior to this date should be made in writing to the Chief Executive Officer, Eileen Masterman, at The Stamp Office, 10 - 14 Waterloo Place, Edinburgh, EH1 3EG.

I hope this is helpful.

Later that morning I sent the following email reply to the Office of the Chief Investigating Officer:

Dear Madam,

That is not an answer to the questions, which I was expecting.

I am asking that you answer these questions in March 2009, so these questions and their answers happened after 1 October 2008, and are after the Code of Conduct was internally approved.

So, yet again:

1: Should any member of the Scottish Legal Complaints Commission have any connections with any Judges in Scotland, and whether any connections would be a conflict of interest, and as such would be a breach of ethical standards and Code of Conduct?

2: Should any member of the Scottish Legal Complaints Commission be married to a Judge, and whether this would be a conflict of interest, and as such would be a breach of ethical standards and Code of Conduct?

3: Should any member of the Scottish Legal Complaints Commission be married to a Judge who is Chairman of the Faculty of Advocates Professional Negligence Law Group, and whether this would be a conflict of interest, and as such would be a breach of ethical standards and Code of Conduct?

In order to consider making a complaint, I have to know the answers to the three questions, if any are a conflict of interest then I will make a complaint, if none are a conflict of interest, then I will not make a complaint.

That afternoon I received an email from my Member of Parliament:

Hi Kenneth

Thank you for your detailed letter to us earlier this week. As you had put so much information in, it was decided that it would be easier to forward a copy of your letter in its entirety to the relevant Ministers rather than amend. I enclose for your information the covering letters we sent on your behalf.

As soon as we are in receipt of any respons we will be back in touch with you.

On 23 March 2009 I sent the following email to my Member of Parliament:

Valerie,

Thanks for that.

Can you also send a copy to the Disability Minister.

That same day I received an email from the Office of the Chief Investigating Officer:

Dear Mr McAlpine

Thank you for your enquiry. I should explain that, without undertaking a formal investigation, we are unable to state whether, in any particular case, alleged behaviour amounts to a breach of the Code of Conduct.

I also refer you to our previous response. That the SLCC came into being on 1 October 2008 and has internally approved a draft Code of Conduct, which is in the process of being agreed by Ministers and available from the SLCC or via their website.

The Office of the CIO is unable to investigate conduct which occurred prior to the relevant code of conduct being approved. Any complaint regarding the conduct of an SLCC Commissioner prior to this date should be made in writing to the Chief Executive Officer, Eileen Masterman, at The Stamp Office, 10 - 14 Waterloo Place, Edinburgh, EH1 3EG.

I hope that this information is useful.

I then email the Scottish Government again regarding the above email:

Dear Sir,

As you referred me to this organisation in the first instance, and I believe that this organisation is the correct organisation to answer these questions, and my questions were asked after the 1 October 2008, this organisation is not willing to answer any of my questions with regard to their code of conduct, can you please write to this organisation and ask them to supply me with answers.

Later that day I received an email reply from my Member of Parliament:

Letter to Jonathan Shaw MP as requested. I will be in touch as soon as we have a response.

The last email I sent that day was to the Court of Session (the Supreme Court):

Dear Sir/Madam,

Your Reference: XA165/08

I lodged this appeal on 2 October 2008, but have not heard anything regarding this appeal apart from your letter dated 3 October 2008.

I am an appellant representing myself in this appeal.

As I am an Appellant representing myself, does the Court of Session appoint someone to my appeal who can advise on processes and procedures, so that I have a contact at the Court of Session who I can contact for any updates?

Chapter 12

On 24 March 2009 I received an email from the Court of Session:

Dear Mr McAlpine,

Thank you for your email dated the 23rd March.

I believe you have been in contact with my college Gavin McLeod regarding your case sometime last week. If you wish for updates or any advice regarding your appeal please contact the Extracts/Innerhouse department, unfortunately we can only advise you on procedural matters and it would be up to yourself to pursue this case further to the next step.

Later that morning I received another email from the Court of Session:

Mr McAlpine,

We do not have a central email address for this department; you can either contact us by phone or email individuals. I believe Gavin McLeod gave you a compliment slip that may have his email address on it if you require assistance.

That afternoon I sent the following email reply to the Court of Session:

Dear Madam,

I have checked, and I do not have a compliment slip from Gavin McLeod, and any correspondence I have received from the Court of Session does not contain the email address of Gavin McLeod.

Can you ensure that this email gets to Gavin McLeod.

What I require is an update on where this appeal is, and what I am required to do as a next step.

The only correspondence I have received from the Court of Session regarding this appeal is a letter dated 3 October 2008 and "a copy of the interlocutor granting service in your case".

Is there any rules of Court or procedures which you can point me to, which explain the processes and procedures to be followed in the future.

Also, I read on the notice board that someone from the Administrative Department should be appointed to aid litigants in person, is this correct, and if so, why have I not been appointed anyone?

Within a couple of hours I had received an email reply from Gavin McLeod at the Inner House of the Court of Session which deals with appeals:

Mr McAlpine,

As you are probably aware the last Court Interlocutor in this case was granted on the 2nd October granting you authority to serve your Appeal print and the Courts Interlocutor upon the respondents, namely Oracle Corporation uk Ltd and the Clerk to the Employment Appeal Tribunal. I would refer you to rule of court 16 for Service methods. you can find the rules of court on our website at www.scotcourts.gov.uk

Appeal's under statute (in which an appeal against a decision of the EAT is) is narrated in rule 41.18 to 41.22. This states what procedure applies and what is required for an appeal under this rule.

I am not aware of any notice board that states that the Administration Department will appoint aid to Litigants in person. I would assume though that this is only the case if you need any help for mobility or requirements, or Physical or mental conditions. The Court does not appoint individuals to look over and case manage actions presented by Party Litigants, If you are looking for a point of contact though to assist and help you understand the rules of court and case procedure then I will be more than happy to be that point of contact for you Mr McApline.

I hope this clears matters up for you.

I immediately sent the following reply back to the Court of Session:

Dear Sir,

"Appeal's under statute (in which an appeal against a decision of the EAT is) is narrated in rule 41.18 to 41.22. This states what procedure applies and what is required for an appeal under this rule."

Can you please check that this is correct, as rule 41 makes reference to Form 41.19, but I was told by the Court of Session that the appeal should be lodged in Form 40.2, and I lodged the appeal in Form 40.2, and this was accepted by the Court of Session, and £170.00 paid. If Form 40.2 was correct, then Rule 40 must apply, is this correct?

"I am not aware of any notice board that states that the Administration Department will appoint aid to Litigants in person."

This was either on, or near, the notice board directly across from your department, from memory it stated that the Court was running a pilot scheme to appoint an Administrator to aid/mentor litigants in person.

Finally, is there any time limit as to when the Interlocutor should be served, or is it solely at the Appellant's discretion?

The last email I sent this day was to my father who had been present when I travelled through to the Court of Session:

Dad,

Help?

Treat the references to rules with a pinch of salt until they are checked and confirmed by the Court of Session.

We seem to have been here before, wrong rules, wrong forms, surely, after one whole year, they have improved. Then again maybe not.

I spent the whole evening reading and checking Court of Session rules and procedures, and sent my father another email the next morning to get a second opinion:

Dad,

My reading of it is as follows:

Form 40.2 seems to be the correct form.

If Form 40.2 is the correct form, then the whole of Rule 40 (see 40.2) only applies to this appeal (ie: nothing in Rule 41 applies).

The following day I received an email from the Financial Ombudsman Service:

Dear Mr McAlpine

Thank you for your e-mail 18 March with attachments. I am considering what you say and will write to you. I note that you wish the matter to be referred to the Ombudsman for a final decision.

The next day I received the following email from the Court of Session:

Mr McAlpine,

Apologies for my mistake, i was not aware that you were seeking leave to appeal. Therefore rule 40.2 applies to yourself.

I am not aware and having looked at the notice board you referred to still cannot see any notice to which you refer.

Again, i am not aware of any time limits for an appellant to serve the appeal, but the onus is upon yourself to serve this and to research if there are any specific rules that govern this.

On 1 April and 2 April 2009 I sent the following interlocutor (an order) and a copy of the application for leave to appeal to Oracle Corporation UK Limited and the Employment Appeal Tribunal in Edinburgh:

XA165/08

McAlpine, Kenneth -v- EAT

Party Litigant

Edinburgh 02 October 2008 The Lords Grant warrant for service of a copy this interlocutor along with a copy of the Application for Leave to Appeal upon the Respondents, Oracle Corporation UK Ltd, Oracle Parkway, Thames Valley Park, Reading, Berkshire, Allow them to lodge Answers thereto, if so advised, within 21 days of such service; Grant Warrant for intimation of a copy of this interlocutor along with a copy of the Application for Leave to Appeal on the Clerk to the Employment Appeal Tribunal, 52 Melville Street, Edinburgh, for his interest.

Around this time I sent my parents an email wondering how Sheppard & Wedderburn, a small law firm with three offices, could afford to have an office in the same prime London location, overlooking St Paul's Cathedral, as the other occupants who are all worldwide companies, with thousands of employees and worth a fortune, Morgan Lewis ($1.2 billion), Skanska (£11.1 billion) and Barclay's Capital (£1.2 trillion).

On 15 April 2009 I sent the following email to Member of Parliament Jonathan Shaw, Minister for Disabled People:

Your email has been sent to the MP for your area;- Jonathan Shaw , the content of the message is below

Message ID : WR1239798282W49e5d20a3611c

Name: Mr Kenneth Robert McAlpine

This person is NOT in your constituency

Message :

Dear Sir/Madam,

Can you confirm by email reply that Jonathan Shaw MP has received a letter from Katy Clark MP regarding myself, Mr Kenneth McAlpine, Reference: VR/MCAL01003/01080001, dated 23 March 2009.

I also sent an email to Member of Parliament Harriet Harman, Minister for Women and Equality:

Your email has been sent to the MP for your area;- Rt Hon Harriet Harman QC , the content of the message is below

Message ID : WY1239798569W49e5d329aaf0c

Name: Mr Kenneth Robert McAlpine

This person is NOT in your constituency

Message :

Dear Sir/Madam,

Can you confirm by email reply that Rt Hon Harriet Harman MP received a letter from Katy Clark MP regarding myself, Mr Kenneth McAlpine, Reference: VR/MCAL01003/01080001, dated 19 March 2009.

Immediately after this email I sent the following email to Member of the Scottish Parliament Kenny MacAskill, Cabinet Secretary for Justice:

Dear Sir/Madam,

Can you confirm by email reply whether Kenny MacAskill has received a letter from Katy Clark MP regarding myself, Mr Kenneth McAlpine, Reference: VR/MCAL01003/01080001, dated 19 March 2009.

I quickly received an email reply from the Scottish Parliament:

One for you to check please and reply to Mr McAlpine.

Later that afternoon I received an email reply from the Cabinet Secretary for Justice office:

Dear Mr McAlpine,

I can confirm that the letter from Katy Clark MP was received and it will be answered very shortly by Mr Fergus Ewing MSP, Minister for Community Safety

On 17 April 2009 I sent the following email to my parents regarding publicly available information on the internet:

08 December 2006

Markets in Financial Instruments Directive (MiFID) and Technology Press Briefing

Shepherd and Wedderburn has played host to a press event organised by software company Oracle in its London office. The briefing to financial and technology journalists related to the Markets in Financial Instruments Directive (MiFID) due to be finalised in the UK by the end of January 2007 and coming into effect across all EU Member States by 1 November 2007. MiFID, which has been described as "bigger than Sarbanes Oxley and Y2K combined", aims to establish a genuine single European market in investment services and will have a major impact on financial services firms with many needing to overhaul their information systems to deal with the new regulatory regime.

Nigel Matthews, Oracle's Business Development Director for Financial Services gave a presentation along with Kenny Mullen of the Media and Technology team and also PJ Di Giammarino, Chairman of the MiFID Joint Working Group-IT, a leading MiFID think tank.

Later that day I sent the following email to my parents regarding more publicly available information on the internet:

CBI (Scotland) Annual Dinner 2008

Sponsored by: 999 Design

Shepherd and Wedderburn

Oracle Corporation UK

The Royal Bank of Scotland

BVT Surface Fleet Ltd

The last email I sent that day was to the Court of Session:

Dear Sir/Madam,

Your Reference: XA165/08

I am an appellant representing myself in this appeal.

I have sent the interlocutor regarding this appeal to Oracle Corporation UK Ltd and the Employment Appeal Tribunal, both of which received the interlocutor on Thursday 2 April 2009.

On 19 April 2009 I received the following letter from the Scottish Government:

The Scottish Government

Constitution, Law and Courts Directorate

Legal System Division

17 April 2009

Dear Mr McAlpine

Thank you for your e-mails of 18 March 2009 and 23 March 2009.

In relation to your e-mail of the 23 March, I see from your e-mail that the Office of the Commissioner for Public Appointments in Scotland (OCPAS) has provided you with information on the OCPAS appointment process. It is for OCPAS to decide how they respond to your e-mails and letters, and I will therefore not be writing to them on your behalf.

In relation to your e-mail of the 18 March, I have spoken to Mr John Anderson. I was mistaken in my understanding of Mr Anderson's role, for which I apologise. I should explain that he dealt with complaints about the conduct of judges until very recently, but this responsibility has now passed on to the Legal System Division. The contact point in the Division for such complaints is my colleague Mrs Jayne Milligan in the Legal System Division, St Andrew's House, Regent Road, Edinburgh, EH1 3DG.

I have passed your correspondence to Mrs Milligan, who will consider it on return from leave. It would be helpful if you could contact her directly to confirm the exact nature of your complaint against the relevant judge.

In Mrs Milligan's absence I can confirm, however, that complaints which are criticisms of the substance of a decision made by a judge acting in his or her judicial capacity cannot be considered by the Branch. The appropriate manner to review such decisions is to appeal. The third question you asked Mr Anderson in your e-mail of 2 March, concerning a judge's decision not to recuse himself or herself from a matter, is a judicial decision, and one that could be reviewed only by an appellate court or tribunal.

I hope this is helpful to you.

Yours sincerely

On 23 April 2009 I received the following letter from the law firm McGrigors:

McGrigors

22 April 2009

Our Ref MFH/EFS/ORACLE

Dear Mr McApline

You v Oracle Corporation UK Limited

Leave of Appeal

I refer to the above in which I act for Oracle Corporation UK Limited and enclose a copy of the Answers lodged today at the Court of Session in response to your Application for leave to appeal.

Yours sincerely

Maureen Hall

Senior Associate

For McGrigors LLP

Letter attached read:

IN THE COURT OF SESSION

ANSWERS

for

ORACLE CORPORATION UK LIMITED

to the Application of Kenneth McAlpine

for

LEAVE TO APPEAL

under

Section 37 of the Employment Tribunals Act, 1996

against

A Rule 3(10) direction of the Employment Appeal Tribunal and relative Judgment dated 20 June 2008

1. Admitted that on 18 August 2008, the Employment Appeal Tribunal refused the application of the applicant for leave to appeal to the Court of Session against its direction and relative Judgment of 20 June 2008. The Employment Appeal Tribunal's direction and Judgment of 20 June 2008 and its refusal of leave of 18 August 2008 are each referred to for their terms. Quoad ultra denied. Explained and averred that following a decision of the Employment Tribunal at Glasgow on 13 September 2007 the applicant sought to institute an appeal to the Employment Appeal Tribunal by serving thereon a notice of appeal in terms of Rule 3 of the Employment Appeal Tribunal Rules, 1993 (SI 1993/2854). Rule 3(7) ofthe said Rules states inter alia:

"Where it appears to a judge or the Registrar that a notice of appeal...—

(a) discloses no reasonable grounds for bringing the appeal;...

he shall notify the Appellant ...accordingly informing him of the reasons for his opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the notice of appeal...".

Rule 3(10) states:

"Where notification has been given under paragraph (7) and within 28 days of the date the notification was sent, an appellant ...expresses dissatisfaction in writing with the reasons given by the judge or Registrar for his opinion, he is entitled to have the matter heard before a judge who shall make a direction as to whether any further action should be taken on the notice of appeal..."

By letter dated 19 December 2007, the applicant was notified, in terms of Rule 3(7), of the judge's opinion (and relative reasons) that the notice of appeal disclosed no reasonable grounds for bringing the appeal. The applicant thereafter sought a Hearing before the judge in terms of Rule 3(10). That Hearing took place on 20 June 2008. Following that Hearing, the judge directed, in terms of Rule 3(10) that no further action be taken on the notice of appeal. The applicant sought leave to appeal against that direction. Leave was refused on 18 August 2008. The Employment Appeal Tribunal's direction of 20 June 2008 is not an appealable "decision or order" of the Employment Appeal Tribunal. The present application is, accordingly, incompetent. In any event, the application should be refused for the reasons more fully set out below.

2. The Employment Appeal Tribunal's Note of 18 August is referred to for its whole terms.

3. The Judgment of the Employment Appeal Tribunal of 20 June 2008 is referred to for its whole terms.

4. For the reasons given by it in its Note of 18 August 2008, the Employment Appeal Tribunal correctly refused leave to appeal to the Court of Session. The reasons of 18 August 2008 disclose no error of law. Separatim, this application is in any event incompetent. Reference is made to Answer 1.

5. The putative grounds of appeal do not, in any event, disclose probable cause such as to justify the granting of leave by Your Lordships in relation to an appeal to challenge the Employment Appeal Tribunal's Rule 3(10) direction.

5.1 This ground was not raised at the Rule 3(10) Hearing of 20 June 2008, nor was it raised prior to that before the Employment Tribunal either at the Hearing which led to the Judgment of 13 September 2007 or at any time during the sundry per Hearing procedure described by the Employment Tribunal at paragraphs [1] to [6] if its Reasons. The applicant fails, in any event, to explain why the Respondent's Form ET3 ought not to have been accepted by the Tribunal. Rule 1(5)(b) of the Employment Tribunal Rules does not relate to forms ET3.

5.2 This ground was not raised at the Hearing of 20 June 2008. The applicant fails, in any event, to explain why findings made by the Employment Tribunal and Employment Appeal Tribunal were "prohibited" by the Disability Discrimination Act, 1995. He fails to explain what relevance the Respondent's knowledge of his disability has to any issue which was determined by the Employment Tribunal or the Employment Appeal Tribunal.

5.3 As was noted by the Employment Appeal Tribunal in its reasons of 18 August 2008, the Employment Tribunal found on the evidence heard by it that the reason for the applicant's dismissal (by reason of redundancy) was nothing to do with his disability (Employment Tribunal's Reasons at paragraphs [] and [178]).

5.4 As was noted by the Employment Appeal Tribunal in its reasons of 18 August 2008, the Employment Tribunal found as a fact that the reason for the applicant's dismissal for redundancy was nothing to do with his disability. Reference is made to Answer 5.3 above.

5.5 The applicant fails to provide any specification of the basis for the bare assertion that the factual finding challenged was "totally contrary to the evidence". At paragraph [] of its Reasons, the Employment Tribunal noted that it preferred the evidence of the Respondent's witnesses to that of the applicant on this issue. The finding referred to was indeed contrary to the evidence of the applicant, but not— on the Tribunal's findings — to that of the Respondent.

5.6 As noted by the Employment Appeal Tribunal in its Judgment of 20 June 2008 (paragraphs 15-17) and at paragraphs  [8] (d) and (e) of the Employment Tribunal's Reasons, there was agreement to treat the Respondent's witness statements as equivalent to the evidence in chief of the witnesses. Such a course was entirely consistent with the terms of Rule 14(3) of the Employment Tribunal Rules. The applicant did not object to that course (Employment Tribunal at [8] (d)

5.7 This ground was not raised at the Hearing of 20 June 2008 or at the prior Hearing before the Employment Tribunal. The applicant fails, in any event, to set out (a) any basis for his request for inquiry into whether or not "witness collusion" took place; or (b) any error of law on the part of the Employment Tribunal. In the absence of any suggestion of such error, it is not the role of an appellate tribunal to embark upon such an inquiry.

5.8 This ground was not raised at the Hearing of 20 June 2008 or at the prior Hearing before the Employment Tribunal. The applicant fails, in any event to set out (a) any basis for his request for inquiry into whether or not "witness perjury" took place; or (b) any error of law on the part of the Employment Tribunal. In the absence of any suggestion of such error, it is not the role of an appellate tribunal to embark upon such an inquiry.

5.9 This ground was not raised at the Hearing of 20 June 2008 or at the prior Hearing before the Employment Tribunal. The applicant fails, in any event to set out (a) any basis for his request for inquiry into whether or not "documents have been fabricated"; or (b) any error of law on the part of the Employment Tribunal. In the absence of any suggestion of such error, it is not the role of an appellate tribunal to embark upon such an inquiry.

5.10 This ground was not raised at the Hearing of 20 June 2008. It was alleged by the applicant before the Employment Tribunal, and was dealt with by the Tribunal at paragraphs [] to [] of its Reasons. The Employment Tribunal found no evidence to support it, and found as a fact that the applicant's allegation "was unfounded" [126]. The applicant fails in this application to set out (a) any basis for his attempt to re-open an inquiry into whether or not "documents have been altered" before the Employment Appeal Tribunal; or (b) any error of law on the part of the Employment Tribunal in the finding in fact referred to above. In the absence of any suggestion of such error, it is not the role of an appellate tribunal to re-open such an inquiry.

5.11 This ground was not raised at the Hearing of 20 June 2008. It relates to a head of loss, forming part of the applicant's Disability Discrimination Act claim, which the applicant sought expressly to depart from before the Employment Tribunal. As noted above, the Employment Tribunal in any event found, on the evidence, that the applicant's Disability Discrimination Act claim was without merit. In those circumstances, the Employment Tribunal was entitled to dismiss that claim in its entirety, as it duly did.

6. Section 37(1) of the Employment Tribunals Act, 1996 is referred to for its terms. Quoad ultra denied. This application is incompetent. Reference is made to Answer 1.

On 27 April 2009 I sent the following email to the Court of Session:

Dear Sir,

As I am sure that you will be aware, the Respondent in this case has now lodged Answers in response to my appeal, which state that my appeal is "incompetent".

As I am a litigant in person, can you advise what the next step/rule is in the Court of Session procedure, and approximate timescales.

Later that same day I received an email reply from the Court of Session:

Mr McAlpine,

You should refer to Rule of Court 41.22 which deals with Motion's for Further Procedure. The Time scale for this states that 'within 14 days of the expiry of the period allowed for lodging answers to the appeal, wither or not answers have been lodged, the appellant shall apply by motion to the inner house for- ' Its is up to yourself what further procedure you seek, but you should lodge your Execution copy Appeal if you have not already done so before enrolling the motion.

I hope this answers your question.

Many Thanks

I immediately sent the following email reply to the Court of Session:

Dear Sir,

Please refer to your email of Fri 27/03/2009 11:28 (attached).

As you have stated in the attached email, Rule 40 is the Rules of Court which apply to this appeal.

Which Rule 40 applies?

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

At my last meeting with Katy Clark MP, a question was raised by Katy regarding whether the two law firms, Morgan Lewis and Shepherd and Wedderburn, which shared the same address in London, shared this address with any other law firms?

This address contains the following organisations:

Morgan Lewis (worldwide law firm)

Shepherd and Wedderburn (UK law firm)

Skanska (worldwide construction firm)

Barcap (worldwide investment banking)

I now have very grave concerns as to why Lady Smith did not recluse herself from my appeals, as I have recently found out that Shepherd and Wedderburn and Oracle Corporation UK Ltd have co-sponsored certain UK events, examples are:

http://www.shepwedd.co.uk/news/view/111/markets-in-financial-instruments-directive-mifid-and-technology-press-briefing/

http://www.cbi.org.uk/ndbs/events.nsf/38bd90c481b68b08802567300055b21c/193017c2dd6dc206802573d0005b8144?OpenDocument

Later that day I received the following email from the Court of Session:

Mr McAlpine,

You should enrol a single bill for further procedure as stated below, and intimate this motion to the Respondents agents accordingly.

I also sent the following email to the Scottish Parliament:

Dear Sir,

Further to your letter dated 17 April 2009, you stated to write to Mrs Jayne Milligan.

Please find attached to this email a letter for the attention of:

Mrs Jayne Milligan

Legal System Division

St Andrew's House

Yours sincerely

Attached document read:

Dear Sir/Madam,

In 1966, Mr Kenneth McAlpine was diagnosed with Diabetes Mellitus Type 1 at age 18 months, which is insulin dependent diabetes controlled by daily injections of insulin. This is the most serious form of Diabetes, and is covered by The Disability Discrimination Act 1995.

Despite his disability, Mr McAlpine has gained an honours degree in Engineering and a Masters degree in Computing.

On 12 August 1998, Mr McAlpine started work for Oracle Corporation UK Limited, as a Consultant, and in July 2004 started work in the role of On Demand Service Delivery Manager.

On the 25 May 2006, Mr McAlpine received a phone call from his manager who informed him that he had to attend a meeting in the Edinburgh office on 30 May 2006. No reason was given for the meeting.

At the meeting on 30 May 2006, Mr McAlpine was informed by a Director that he had been selected for redundancy.

The Appellant was made redundant on 10 July 2006.

During disclosure of documents, Oracle Corporation UK Ltd disclosed the following email to myself and the Tribunal:

"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?"

The next email from the Senior HR Manager stated:

"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"

Oracle Corporation UK Ltd, admitted that Mr McAlpine had taken just two days sickness absence over the previous two years. The average UK employee takes eleven days sickness absence each year.

Mr McAlpine presented a complaint to the Employment Tribunals Service on 25 August 2006 claiming that his dismissal from the employment of Oracle Corporation UK Limited had been unfair and that he had been discriminated against contrary to the Disability Discrimination Act.

At the Full hearing on merits hearing on 2, 3 and 4 July and 6 August 2006, both the claim for unfair dismissal and the claim for disability discrimination were dismissed.

Over the next two and a half years, Mr McAlpine has presented three appeals to the Employment Appeals Tribunal all have been unsuccessful, despite being represented by a pro-bono Solicitor, who is a partner in a large legal firm. This Solicitor also stated in the appeal that the Tribunal decision was "perverse".

Currently, there is one appeal in the European Court of Human Rights where I have to represent myself, and two appeals in the Court of Session where I have to represent myself. All have still to be decided.

Apart from having one of the best claims of direct discrimination ever to be heard by a Tribunal in the UK as everything is in writing, some other extremely disturbing aspects to this case, are as follows:

* Witnesses lying.

* Witness collusion.

* Documents altered.

* Documents fabricated.

* Some 170 pages of documents lost by Tribunal. Refusal to obtain these from the Respondent for future appeals.

Oracle Corporation UK Ltd have a history of acting in a less than truthful manner as was evident in Counsels final summary of Carlucci v Oracle, Case No 2700870/03 at a tribunal in Reading. Mr Laddie, of Counsel, outlined "a deliberate policy of exclusion at the highest level and cited the high handed and arrogant conduct of Oracle throughout the hearings including repeated non-disclosure of documents and emails vital to the case. The witnesses lied all the way through the proceedings" he said.

The judgement of the Glasgow Employment Tribunal contained many references to my documents which were wrong and which would severely hinder future appeals. During the appeals process at the Edinburgh Appeals Tribunal it quickly became apparent that all was not right. I started to look into why everything was failing and that is when I learned that the Glasgow Employment Tribunal had lost volume II of the evidence, some 170 pages of evidence and refused to obtain another copy of these documents from the respondent. It also became apparent that the Respondent's ET3 Form should never have been accepted, and that the judgement went against the information contained in the Respondent's ET3 Form.

Upon further investigation it became apparent that Morgan Lewis LLB [the multinational law firm acting for Oracle] share the same address in London, Condor House, 10 St Paul's Churchyard as Shepherd and Wedderburn and that Lady Smith had worked for them and her husband was still working with them and had been Chairman and partner for 34 years. I also learned that Shepherd and Wedderburn and Oracle Corporation UK Ltd have co-hosted/sponsored various UK events. I do not feel comfortable with this, as Lady Smith has been involved with every appeal regarding this case. I believe that for justice to be done the judge has to be totally impartial.

Lady Smith cancelled one hearing at the Edinburgh Appeals Tribunal at the very last minute when three solicitors and myself and family had travelled through to Edinburgh. No reason was given for this.

Lady Smith had judged that all three appeals should not pass the sift process, despite one appeal having been lodged by a pro-bono Solicitor which quoted bias and perversity, and had then sat at two subsequent rule 3[10] hearings alone, without reclusing herself from any. The third rule 3[10] hearing really concerned me, as another London judge had to sit on this rule 3[10] hearing which lasted no more than 20 minutes, this judge did not retire to chambers to consider the appeal but proceeded to read out a prepared judgement immediately after the appeal finished. This quite frankly smacked of a judgement written before the hearing, and not a judgement written by this London judge, who I believe had no idea what the appeal was about.

The reason why part of this appeal is now at the European Court of Human Rights is that I appealed to the Court of Session, who, to cut a long story short, sent out the wrong forms for the appeal , not once, not twice, but three times. By the third time it was too late to lodge the appeal to the Court of Session in time.

The most recent event was that I approached a firm of solicitors to have the opinion of an Advocate. I was told this would take five to seven days. Three months later I had to chase up this opinion. This was a complete waste of time and money.

I went to the Glasgow Employment Tribunal in good faith, because I had been discriminated against and all I wanted was justice to be done. This case has caused untold grief and hardship to not only myself, but to my family.

What the UK is left with here is that there are 200 million people with Diabetes worldwide, who the UK have "judged" are going to be sick in the future, and are therefore unemployable. This is the narrow interpretation. As the Disability Discrimination Act covers all disabilities, then the UK has "judged" that a disability will result in future sickness absence, which will effect 650 million people with disabilities worldwide. Of course, this is not taking into account any family or friends of people with a disability, which could balloon this figure up to 2.5 billion people who would have 'issues' with this "judgment".

On 29 April 2009 I sent the following email to the Court of Session:

Dear Sir,

Thank you for your last email.

I have already lodged my appeal with the Court of Session, and sent a copy of the lodged appeal with a copy of the interlocutor to the respondent.

Please find attached my interpretation of what I believe you require regarding Rule 41.22.

If my interpretation is wrong, or Form 23.2 has been wrongly filled in, can you please advise any further actions I am required to take on Rule 41.22.

Later that afternoon I received a reply from the Court of Session:

Mr McAlpine,

You need to give 2 days intimation prior to enrolling the motion with the Court of Session. You should also state what futher procedure you are seeking.

I immediately sent a reply to the Court of Session:

Dear Sir,

Thank you for your last email.

"You need to give 2 days intimation prior to enrolling the motion with the Court of Session."

I will make the following change to Form 23.2:

Has motion been intimated? Yes * If yes, give date 6 May 2009

I will lodge Form 23.2 with the Court of Session by post (or email?), and a copy with the respondent's representative on 4 May 2006 by post (or email?), is this acceptable?

"You should also state what futher procedure you are seeking."

I will make the following change to Form 23.2:

THE MOTION IS that the appellant, Mr Kenneth R McAlpine, applies by motion to the Inner House for early disposal of the appeal in the Single Bills.

Is this acceptable?

Also, can you inform me of how much money it is to lodge a motion, and if I can attach a cheque to the motion?

The next day I received the following reply from the Court of Session:

Mr McAlpine,

Its is up to yourself what method of intimation you give the respondents agents, as long as it is intimated prior to 12:30am for that day to count as a day of intimation.

If you are seeking Early Disposal and a hearing in the Inner house (This is called a Summer Roll), you will also have to complete a form 6.3, which again should be intimated to the other side. Appearance by yourself will be required for this Motion as to satisfy the Judges the need for Early Disopsal.

A fee of £45 is payable to the Scottish Court Service for this motion. It would be better if you sent the motion in with the fee on the day you wish to enroll the motion.

Later that evening I sent the following email to the lawyer Maureen Hall from the law firm McGrigors:

Dear Sir/Madam,

Please find attached a copy of the form of motion which will be lodged with the Court of Session regarding Court case number XA165/08.

I attached the form, and relevant parts of this form are shown below:

Form 23.2

Form of motion

PART 1

Name of pursuer/petitioner* Mr Kenneth R McAlpine.

Name of first defender/respondent* Oracle Corporation UK Ltd

Name and nature of petition (e.g. John Smith's curatory)

McAlpine, Kenneth -v- EAT

Court case number XA165/08 Date of last interlocutor 02 October 2008

Is case due in court during the next seven days? No*

PART II

Name of firm enrolling motion Litigant in person

Date of enrolment of motion 6 May 2009

Has motion been intimated? Yes * If yes, give date 1 May 2009

THE MOTION IS that the appellant, Mr Kenneth R McAlpine, applies by motion to the Inner House for disposal of the appeal in the Single Bills.

On 1 May 2009 I received the following automated email reply:

Read: Copy of form of motion (Court case number: XA165/08)

I also sent a copy of this form of motion to the Employment Appeal Tribunal in Edinburgh.

On 5 May 2009 I received the following email from the lawyer Maureen Hall at the law firm McGrigors:

Dear Mr McAlpine,

I refer to the intimation of your motion and confirm that this will be marked as opposed.

The next day I received an email from the Court of Session:

Mr McAlpine,

I have received your Single Bill and cheque today for further procedure.

As i stated in my previous email you should have lodged an execution appeal print in the process prior or along with your motion, this has not been done. Therefore i cannot present this Motion until such has been lodged.

Could you please forward a certified copy of your appeal with a copy of the courts Interlocutor allowing service and the executions of service upon the respondents, backed and clipped up and marked up 'execution copy'.

I will hold onto your motion and cheque till the end of the week, if i do not hear back from you or nothing is sent in then I will have to return the motion sheet with the Cheque.

I immediately sent an email reply to the Court of Session:

Dear Sir,

"execution appeal print"

What is this document?

If this is just my appeal, this has been lodged and also sent to the respondent.

"courts Interlocutor"

Is this the Interlocutor of 2 October 2008?

"executions of service"

Is this a proof of sending, ie: an email with the motion attached?

Later that morning I received another email from the Court of Session:

Mr McAlpine,

As previously stated you need to lodge an Exection copy of the appeal, this shows the court that you have served a copy of the appeal print along with the courts Interlocutor in accordance with the Rules of Court.

This has not been done. You need to lodge a certified copy appeal print with the interlocutor sheet and proof of service (of the Appeal print) as one document, And mark it up 'Execution Copy' .

If you are still unclear it might be better if you called myself to clarify matters further.

I replied to the Court of Session:

Dear Sir,

Please find attached one document containing all required documents, and marked execution copy.

If this requires any further alterations, please outline via email.

That evening I received another email reply from the Court of Session:

Mr McAlpine,

The principal document needs to be lodged, along with youself certifying it being a true copy. An Electronic copy cannot be lodged.

Late that evening I sent the Scottish Parliament Cabinet Secretary for Justice the following email:

Dear Sir/Madam,

You stated in your last email, some three weeks ago, that Mr Fergus Ewing MSP would be answering, very shortly, the letter from Katy Clark MP.

I have not received any answer.

Can you confirm that Mr Fergus Ewing MSP has answered the letter from Katy Clark MP?

Has this been sent to Katy Clark MP?

Can you also send a copy to myself, either via email or post.

Using postal track and trace, the website showed that the motion had been received by the Court of Session on 6 May 2009:

On 7 May 2009 I received the following email from the lawyer Maureen Hall at the law firm McGrigors:

Dear Mr McAlpine,

I am advised by our court department that no motion was in fact enrolled yesterday as intimated by you.

Can you please confirm the position here? Please copy any response to my colleague Paul Gunn.

I also received an email from the Scottish Government Minister for Community Safety:

Mr McAlpine,

A response from Mr Ewing was issued to Katy Clark MSP on 20th April 2009.

Around lunchtime that day I sent an email reply to the lawyer Maureen Hall from the law firm McGrigors:

Dear Sir/Madam,

The motion was sent to the Court of Session, and received by them yesterday.

The Court of Session have asked me to supply one further document which they will receive on Friday 8 May 2009.

I believe that this will allow them to proceed with processing the motion.

I then received a letter from the Court of Session with a date stamp copy of my motion and appeal.

On 8 May 2009 I received an email from the Scottish Government Minister for Community Safety:

Mr McAlpine

Please find attached a copy of the letter sent from Fergus Ewing, Minister for community Safety to Katy Clark MP on 20 April.

Dear Katy

Thank you for your letter of 20 March 2009, enclosing correspondence from your constituent Mr K McAlpine.

I am afraid that as Mr McAlpine states in his letter that he is currently pursuing appeals in the Court of Session, and in the European Court of Human Rights, it would not be appropriate for me to comment. Notwithstanding that, as you will no doubt understand as a general principle the Scottish Government does not comment on the validity of decisions made by Tribunals or the Courts.

I am sorry not to be able to offer you a more welcome reply.

Yours sincerely

Fergus Ewing.

The next day I received an email from the Court of Session:

Mr McAlpine,

I have received the Execution copy of the Appeal today in the post. Unfortunately you have not provided a copy of service upon the EAT. Also you have provided a scanned copy of the service, the Principal should be lodged in the process.

Therefore I cannot proceed with you motion until I receive all the relevant papers, accordingly I am returning the execution copy, your motion and cheque for £45.

Once the above has been amended you can forward the papers back to myself to put forward to the Inner House.

I quickly sent an email reply to the Court of Session:

Dear Sir,

"Unfortunately you have not provided a copy of service upon the EAT"

I sent you an email with all documents attached that you required on "06 May 2009 11:48", you never stated in your reply on "06 May 2009 11:56" that you required "a copy of service upon the EAT"?

"Also you have provided a scanned copy of the service, the Principal should be lodged in the process."

In your email on "06 May 2009 11:56" you stated "The principal document needs to be lodged, along with youself certifying it being a true copy. An Electronic copy cannot be lodged.". I lodged, by post, on the 8 May 2009, a printout of the exact appeal document lodged with the Court of Session and sent to the respondent and EAT, signed, and certified by me, that this printout of the appeal was a true copy, in line with your instructions.

What, exactly, do you require when you state "Principal"?

What I now require from you, is an exact list of all documents that you require, the exact format of these documents, and in plain, clear and concise english.

I will then send, again via email, these exact documents in the format you require, if you then state that these are all the documents you require, I will send these in by signed for post, again.

Is this acceptable?

I trust that this lack of clear and concise instructions will not result in my appeal being late, or any other unfair advantage to the respondent?

While researching my appeal to the Court of Session, I came across the following wiki article describing Article 6 - fair trial:

European Convention on Human Rights

Article 6 - fair trial

Article 6 provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, the presumption of innocence, and other minimum rights for those charged with a criminal offence (adequate time and facilities to prepare their defence, access to legal representation, right to examine witnesses against them or have them examined, right to the free assistance of an interpreter).

The majority of Convention violations that the Court finds today are excessive delays, in violation of the "reasonable time" requirement, in civil and criminal proceedings before national courts, mostly in Italy and France. Under the "independent tribunal" requirement, the Court has ruled that military judges in Turkish state security courts are incompatible with Article 6.

Another significant set of violations concerns the "confrontation clause" of Article 6 (i.e. the right to examine witnesses or have them examined). In this respect, problems of compliance with Article 6 may arise when national laws allow the use in evidence of the testimonies of absent, anonymous and vulnerable witnesses.

I was particularly interested in the last paragraph of this article as Malcolm Thompson sprung immediately to mind, as he was not a witness that attended the Employment Tribunal hearing, hence he could not be 'examined', but the Employment Tribunal took his witness statement as read, and based a large part of their Judgment on his witness statement. The Glasgow Employment Tribunal could potentially be in a whole host of trouble with this one allowing 'the use in evidence of the testimonies of absent'.

Chapter 13

It was now 11 May 2009 when I received the following email from the lawyer Maureen Hall at the law firm McGrigors:

Dear Mr McAlpine

I am advised by the Court that your motion has now been dropped.

Please note that you will require to re-intimate any motion to me, if you intend to re-enrol.

Later that morning I received an email from the Court of Session:

Mr McAlpine,

The Interlocutor of the 2nd October 2008 stated that you had to serve it upon the EAT.

What I meant by the principal is the original receipts, recorded delivery slips of proof of service upon the respondents.

I must state Mr McAlpine that it is up to yourself to familiarise yourself with the rules and regulations of the Court of Session and relevant acts. I have provided information to you on several occasions now in what I thought was concise and clear information. I would rather that you did not email up in advance copy's of documents that you wish to be lodged as I cannot tell from this if they are in the correct format or not.

As I have offered to you before, if you are unclear about anything you can call myself or come to the offices in person to clarify matters of procedure.

I have enclosed a booklet of what is expected of a Party Litigant, and in turn what is expected from the Offices of court. Could you please go over this and if happy sign the document and pass back to myself.

I sent the following email reply to the Court of Session:

Dear Sir,

"The Interlocutor of the 2nd October 2008 stated that you had to serve it upon the EAT."

This was served upon the EAT.

"What i meant by the principal is the orginal reciepts, recorded delivery slips of proof of service upon the respondents."

Ok, thank you, that is much clearer now.

"I have provided information to you on several occasion's now in what i thought was concise and clear information. I would rather that you did not email up in advance copy's of documents that you wish to be lodged as i cannot tell from this if they are in the correct format or not."

It wasn't, otherwise you would not have returned my motion. I would much rather email copy of documents, and get you to agree these are the correct documents and in the correct format, as it is costing me in time and money everytime I send documents to the Court of Session, only for them to be returned.

"As i have offered to you before, if you are unclear about anything you can call myself or come to the offices in person to clarify matters of procedure."

No, I cannot easily come to the Offices, as I stay two and a half hours drive away, a round trip of some five hours. I want everything in writing, so that if I suffer any unfair disadvantage, I have documents to appeal to higher courts, ie: the European Court of Human Rights.

As you can tell from these various email chains, I am not happy at all at the moment. As this is a civil court, there should exist some form of a simple, clear and concise guide for litigants in person with regards to appealing from lower courts.

I am still unclear as to what documents, in what format, that you require, so please find below a list of documents that I think you require:

1) Form of motion (unchanged).

2) Execution Copy cover sheet.

3) Appeal document (signed, certified as a true copy and signed).

4) Principal Interlocutor sent by Court of Session to Mr K McAlpine (not scanned copy).

5) Proof of delivery (appeal and interlocutor) to Respondent.

6) Proof of delivery (appeal and interlocutor) to EAT (a printout of email sent to EAT).

Can you please answer whether I will suffer some form of disadvantage regarding this motion process, and whether I have to start the whole motion process again, by sending the motion to the respondent?

Mr K McAlpine (Appellant)

Towards the end of the day I received another email from the Court of Session:

Mr McAlpine,

Rule of Court 16 deals with intimation of documents upon parties, and Rule of Court 23 deals with motions and the intimation of such.

I am not aware of you being at any disadvantage regarding the motion process.

Early that evening I sent the following email to the lawyer Maureen Hall at the law firm McGrigors:

Dear Madam,

I plan to re-enrol the same motion on 13 May 2009.

Although this is the same motion, which has already been intimated to you, I have attached the motion to this email with the new date of enrolment.

I also sent a similar email with the attached motion to the Employment Appeal Tribunal in Edinburgh.

Later that evening I received an email reply from the lawyer Maureen Hall at the law firm McGrigors:

Thank you. The motion will be marked as opposed.

The next day I received an email from the Court of Session:

Mr McAlpine,

Although you sent your motion to the department, I had not put it forward as an execution copy had not been lodged. If it had been put forward it would have been dropped.

You should re-intimate the motion to parties.

The next day I sent the following email to the Court of Session:

Dear Sir,

Can you confirm that you have received my motion, today 13 May 2009, and whether this is acceptable or not?

Later that day I received an email reply from the Court of Session:

Mr McAlpine,

I have put your motion forward for Thursday the 15th May 2009. I have also returned your cheque for £45 as this is a procedural motion and a fee is not required for such.

The next morning I sent an email to the Court of Session:

Dear Sir/Madam,

Can you provide me with a copy of the customer complaints procedure.

At around ten o'clock on the morning of the 14 May 2009, I received a call from Elaine Dickson, who informed me that the hearing at the Court of Session would be heard tomorrow morning at half past ten. What a shock that was, as I had not lodged any evidence or any skeleton argument. So much for writing to inform you of the date of the hearing well in advance.

There then followed a frantic effort on my part to get this hearing cancelled and rearranged for a date in the future.

On 14 May 2009 I received the following email reply from the Court of Session:

http://www.scotcourts.gov.uk/courtusers/charter/charter_12.asp

The complaint procedure rules are available on our Website using the above link

During that morning I sent an email to the Court of Session:

Dear Sir,

I have received a call this morning at 10am from Elaine Dickson.

Elaine informed me that my motion should have been for the Summar Roll rather than the Single Bills.

I have contacted the Respondent's Solicitors, McGrigors, and informed them of this discussion.

I now need to amend my original motion to change this hearing from the Single Bills to the Summar Roll, how should I go about doing this?

Later that morning I received an email from the Court of Session:

A new motion sheet can be faxed to the office and confirmation that it has been intimated.

On reading your email, I must point out that I called you to say the motion was calling tomorrow and explained that disposal on the Single Bill roll was a short hearing of about an hour or so.

The Summar roll was for hearings of a longer duration, so you were to consider this and decide which path you wished to follow.

You should also let us know if you wish this to call tomorrow, if the motion remains opposed then you will require to appear at 10.30am

The next email I sent out that morning was another email to the Court of Session:

Dear Sir/Madam,

I have received a call this morning at 10am from Elaine Dickson.

Elaine informed me that if my hearing was for a longer time than one hour, I should have lodged my motion for the Summar Roll rather than the Single Bills.

I have contacted the Respondent's Solicitors, McGrigors, and informed them of this discussion, and my intention not to proceed with the hearing arranged for tomorrow morning, 15 May 2009 at 10:30am, on the Single Bills, but to amend the motion for a hearing on the Summar Roll.

Can you forward this information to Elaine Dickson, who asked me to contact her before midday. I have also phoned and left word concerning this on the phone number.

I quickly email the Court of Session back:

Dear Madam,

I cannot fax, can I email a new motion sheet, or will I have to post?

I now wish to follow the Summar Roll path.

I do not wish this to call tomorrow on the Single Bills.

Do I have to attend tomorrow at 10:30am?

Around lunchtime I sent the following email to the lawyer Maureen Hall at the law firm McGrigors:

Dear Madam,

Following on from my phonecall to you this morning, 14 May 2009 at approximately 10:10am, where I notified you of my intention to amend the motion sheet for a hearing in the Summar Role rather than the Single Bills, as the Single Bills was too short a hearing, I have now informed the Court of Session that I wish to cancel the Single Bills hearing scheduled for tomorrow, 15 May 2009 at 10:30am, and I am now awaiting the Court of Sessions reply.

The Court of Session never explained that a Single Bills hearing was less than one hour, and I have also still to lodge most of my evidence in support of my appeal.

Mr K McAlpine (Appellant)

As soon as I sent the email to Maureen Hall at McGrigors, I received an automated email stating that Maureen Hall would be out of the office on 14 May 2009 with only intermittent access to emails.

Early afternoon I sent another email reply to the Court of Session:

Dear Madam,

Please supply me with a copy of your booklet "How to make a complaint" as outlined in your complaints procedure, so that I can make a complaint.

Another email was received from the Court of Session:

Please email any amended motion to Gavin McLeod

Then I received another email from the Court of Session:

Can you inform me what department you are complaint about and I will pass you to the Office Manager of the relevant department to post out to you.

I then sent the following email to the Court of Session:

Dear Sir,

Please find attached an amended motion as instructed by Elaine Dickson.

A copy of this email and amended motion has been sent to the respondents.

Following on from that last email to the Court of Session, I sent another email to the Court of Session:

Dear Madam,

It concerns the "Statement of Service Standards" for party litigants not being followed.

I have dealt with the General Department at the start, and I am now dealing mostly with the Inner House Department.

I quickly received another email reply from the Court of Session:

Mr McAlpine,

Could you please complete the enclosed form and intimate it the the other side as well.

I will enroll your motion on Wednesday the 20th May 2009.

It was still 14 May 2009 when I sent the following email to the Court of Session:

Dear Sir,

Please find attached Form 6.3 as requested.

If this is incorrect, or you require this by post, please let me know.

A copy of this Form 6.3 has been sent to the respondents.

The last email I received that day was from the Court of Session:

Mr McAlpine,

Could you please send me the principal signed document so I can lodge it in your appeal along with your Motion.

The next morning I received the following email from the Court of Session:

Can you tell me if McGrigor Donald are continuing to oppose your motion to have a hearing, no matter if you have enrolled for disposal on Summar Roll or single bill.

The next day I received a short email from the Court of Session:

I am posting out the booklet to you today

Later that morning I sent an email to the Court of Session:

Dear Madam,

This email has just come through on my computer on Friday 15 May 2009 at 04:04, some 17 hours late. I have noticed this with a number of emails sent out from the Court of Session recently.

Although I cannot speak for McGrigor Donald, I would imagine that they will oppose everything.

The next day I received another short email from the Court of Session:

I have as yet to receive your new motion, please send it to Mr McLeod.

On 18 May 2009 I sent the following email to the Court of Session:

Dear Sir,

I would like to lodge further evidence concerning Court case number: XA165/08.

How do I go about doing this?

How many copies must I lodge?

Is there any latest date by which I must lodge this evidence?

Do the respondents have a right to see this evidence?

I received an automated email reply from the Court of Session:

The Court of Session is closed until Tuesday 19th May 2009. If you require urgent assistance please contact Reception, otherwise I will reply to your email upon my return.

The next day I sent another email to the Court of Session stating that emails were arriving nearly a day late.

Later that day I received an email from the Court of Session:

Mr McAlpine,

If you wish to lodge further evidence you should lodge what is called an Appendix, this is a document that will contain all your productions, supporting documents, notes of evidence at your Appeal Hearing.

You should lodge 6 copies for the Court of Session.

The Appendices should be lodged no later than 3 months after the appointment of the Summar Roll hearing.

Everything that is lodged in your appeal must be intimated to parties.

On 21 May 2009 I received the following letter from my Member of Parliament:

HOUSE OF COMMONS

LONDON SW1A 0AA

KATY CLARK MP

19 May 2009

Our Ref: JC/MCAL01003/01080001

Dear Mr McAlpine

Re Termination of Employment

I enclose copies of letters dated 1" May from the Ministry of Justice and 20 April from Fergus Ewing MSP regarding the above matter.

Once you have had the chance to read the responses in full you may wish to contact my office and discuss the matter further.

Please do not hesitate to contact me if you feel that I can assist you in any way.

With best wishes.

Attached letters were:

Minister for Community Safety

Fergus Ewing MSP

Ms Katy Clark MP

House of Commons

LONDON

SW1Α ΟΑΑ

Your ref: VR/MCAL01003/01080001

Our ref: 2009/0009201

20 April 2009

Dear Katy

Thank you for your letter of 20 March 2009, enclosing correspondence from your constituent Mr K McAlpine.

I am afraid that as Mr McAlpine states in his letter that he is currently pursuing appeals in the Court of Session, and in the European Court of Human Rights, it would not be appropriate for me to comment. Notwithstanding that, as you will no doubt understand as a general principle the Scottish Government does not comment on the validity of decisions made by Tribunals or the Courts.

I am sorry not to be able to offer you a more welcome reply.

FERGUS EWING

Ministry of Justice

Bridget Prentice MP

Parliamentary Under Secretary of State

102 Petty France

London

SW1H 9AJ

www.justice.gov.uk

Katy Clark MP

House of Commons

London

SW1Α ΟΑΑ

Our ref: MC236265

Your ref: VR/MCAL01003/0108001

1st May 2009

Dear Katy,

Kenneth McAlpine.

Thank you for your letters of 19 March to Harriet Harman and 23 March to Jonathan Shaw about your constituent, Mr McAlpine, who made a claim for unfair dismissal and disability discrimination to the Employment Tribunal. I am replying as the Minister responsible for the Tribunals Service and I apologise for the delay in doing so.

I am sorry that Mr McAlpine feels that the appeals process has caused grief and hardship to him and his family and I understand that he is disappointed in the outcome of his Employment Tribunal and subsequent appeal. As a Government Minister I am unable to intervene in the decisions of the judiciary, not through any lack of concern or interest, but because to do so would undermine judicial independence. I have passed your letter and Mr McAlpine's attached synopsis to the Head of the Judicial Appointments and Finance Division of the Scottish Executive Justice Department, as this is the appropriate official to investigate and respond to Mr McAlpine's complaints about the Edinburgh Appeal Judge of the Employment Appeals Tribunal (EAT).

My officials at the Glasgow Employment Tribunal inform me that Mr McAlpine's file was destroyed in February this year in accordance with the policy guidance on destroying papers. It is no longer possible to investigate fully what happened to the missing evidence or the issue of the respondent's ET3 form being accepted he refers to in his synopsis. However, the EAT's Practice Direction, which is published on its website, explains that appellants are responsible for preparing the papers they would like the Appeal Judge to consider, the Employment Tribunal does not supply evidence to the EAT on their behalf. Mr McAlpine was, therefore, responsible for retaining a copy of the evidence and submitting it to the EAT.

I understand that Mr McAlpine's EAT hearing on 29 April 2008 was postponed when an earlier hearing that day took longer than expected. I apologise for this delay and the inconvenience caused to Mr McAlpine.

The Scottish Court Service, which is the Scottish Government agency that has overall responsibility for the administration of courts in Scotland, informs me that when Mr McAlpine contacted the Court of Session in 2008, he was directed to a form for appealing to the court, rather than the form he needed for applying for permission to appeal to the court. This was due to a misunderstanding by the court staff, for which the Scottish Court Service has extended its apologies. I understand this has not prejudiced Mr McAlpine's appeal in any way.

The Court of Session is now considering an application from Mr McAlpine for leave to appeal the decision of the Edinburgh Appeal Judge. The court directed Mr McAlpine to serve notice of the application before further proceedings can take place. I understand Mr McAlpine also contacted the court in March this year to lodge an appeal against expenses awarded against him; however, court staff advised him it was not possible to lodge such an appeal while his application for leave to appeal was still being considered.

I hope my reply has explained Mr McAlpine's situation as far possible this time and enclose a copy for you to send to Mr McAlpine, should you wish to do so.

ΒRΙDGΕΤ ΡRΕΝΤΙCΕ

On 21 May 2009 I received an email from the Court of Session:

Mr McAlpine,

I have been informed by the division clerk that your motion to appoint the cause to the Summar Roll has been opposed and appearance is required by yourself.

The date of the Opposed motion is Friday the 29th May at 10:30, could you please confirm your attendance.

I immediately replied to this email:

Dear Sir,

"The date of the Opposed motion is Friday the 29th May at 10:30, could you please confirm your attendance."

I will attend, where do I report to?

Later that day I received another email from the Court of Session:

Mr McAlpine,

Many thanks for confirming your attendance.

Your case will call either in Court 1 or Court 2, if you ask at the reception area they will be able to advise you on the morning.

On 25 May 2009 I sent the lawyer Maureen Hall of the law firm McGrigors the following email:

Dear Sir/Madam,

Case Number: XA165/08

Please find attached an updated appendix and document (10) lodged at the Court of Session regarding this appeal.

If you require any copies of documents which you do not already have, please do not hesitate to contact me.

I immediately received an automated email reply from the lawyer Maureen Hall of the law firm McGrigors:

The office is closed for a public holiday on Monday 25th May.

On 28 May 2009 I received an email from the law firm McGrigors:

Dear Mr McAlpine

I am assisting Maureen Hall with case number XA165/08.

Thank you for email below. Can you please confirm whether all the documents listed on the updated appendix have been lodged with the Court.

I would be grateful if you could provide us with copies of items 1, 2, 3, 7, 8, 9 & 10.

It was now 29 May 2009, the day of the Court of Session appeal hearing:

DISABILITY DISCRIMINATION

Date: 29 May 2009

Time: 10:30am

Duration: 15 minutes

Judges: Three Judges from the extra division of the Court of Session

Party: Mr K R McAlpine (representing himself)

Respondent: Mr Douglas Fairley (Advocate)

Present: Jean McAlpine, Andrew McAlpine, Janette Murdoch and a few members of the public or other applicants.

Kenneth McAlpine's notes on the hearing:

* There was one hearing before me on a very short preliminary point, which lasted around 5 minutes, whilst I stood queued waiting at the front bench.

* My hearing started

* Counsel indicated that it should go to a single bills hearing to determine whether or not the appeal was competent for a summer roll hearing.

* Counsel indicated that it would only take about half an hour to go through the objections to the competency of my appeal.

* The most senior judge in the middle then outlined to me that I should prepare a half hour presentation on the law of my case and a half hour presentation on the merits of my case and that these were the two hurdles that I had to overcome at the next hearing.

* In consultation with Counsel, it was agreed that this would be on 29 June 2009, and would be listed as a half-day hearing (two hours duration).

Andrew McAlpine's notes on the hearing:

Court of Session

First Hearing: 29 May 2009

Extra Division, Inner House:

Three Judges sitting:

Appellant: Kenneth R McAlpine, representing himself as a party litigant

Respondent: Oracle Corporation UK Ltd, represented by Mr Fairley (of counsel)

This was an application for leave to appeal.

Senior Judge calls on Mr Fairley, acting for the Respondent.

Mr. Fairley stated that there were two main issues to his objections and he asked that both should be taken together.

There was the issue of the competency of the appeal and the issue of the merits of the appeal as no cause had been shown by the Appellant.

When asked he estimated that he would require half an hour on each issue.

Senior Judge asks Mr. McAlpine if he understood what Mr Fairley was asking.

Senior Judge to Mr. McAlpine:-

Do you know what happens? You have two hurdles to clear – competency + probable cause (in other words you have to make a prima facie case in order to proceed).

Do you have any objections? You will have to respond to Mr Fairley. If you are unsuccessful in doing so then that would be the end of the appeal.

The Senior Judge conferred in order to fix a Hearing date and time. The date of Friday, 26th June for the Hearing was agreed by all concerned and the commencement time was set at 10.30 am, to be finished by 1 pm.

Prima facie. At first sight. A prima facie fact is one that seems to be correct, but may subsequently be proved wrong by other evidence.

On 1 June 2009 I sent an email to the Court of Session:

Dear Sir,

I attended a short Single Bills Hearing on Friday 29 May 2009.

Another half day hearing was arranged for Friday 26 June 2009.

I have a couple of questions which I hope that you can help me with:

1: Do I have to supply a copy of all Judgments and Appeals to the Respondents, or should the Respondents be able to obtain a copy of these Judgments and Appeals themselves?

2: I was informed at the Single Bills Hearing on Friday 29 May 2009, that my case could be thrown out at the next half day hearing on Friday 26 June 2009, and I was surprised by this, as Rule 40.12 of the Court of Session does not state anywhere that an appeal can be thrown out, can you confirm which Rule states that the appeal can be thrown out?

The next day I received the following email reply from the Court of Session:

Mr McAlpine,

Everything that you lodge in your appeal must be intimated to the respondents.

I was not at the hearing on Friday the 29th June, but if a direction or suggestion was made from the bench then I would say that it stands. I am unsure what rule this would fall under, but what the bench says does not have to be contained within the rules, but they are within their power to refuse or 'throw out' your appeal at numerous stages.

That same day I also received an email from the law firm McGrigors regarding evidence lodged for the appeal:

Mr McAlpine

Thanks for your email. Please feel free to send through to me.

Around lunchtime that same day I sent an email to the trainee lawyer Paul Gunn at the law firm McGrigors with relevant evidence for the appeal lodged at the Court of Session.

Later that afternoon I also emailed the Employment Appeal Tribunal in Edinburgh with relevant evidence for the appeal lodged at the Court of Session.

I received a letter stamped with Received by the Employment Appeal Tribunal.

On 13 June 2009 I received the following letter:

The Scottish Government

Constitution, Law and Courts Directorate

Legal System Division

11 June 2009

Dear Mr McAlpine

I am writing to acknowledge your letter about proceedings before the Employment Appeal Tribunal.

As Ben Haynes mentioned when he wrote to you on 17 April, we cannot consider any criticisms of what amount to judicial decisions by a judge. A decision whether or not to decline to preside in a case is an element of the judge's decision making. Such matters are reviewable only by the appellate courts and I note that you have three appeals still before the courts: one in European and two at the Court of Session. These appeals offer you an opportunity to invite the judges to consider all aspects of this case which cause you concern.

I am sorry that I am unable to be of further assistance. If you would like further advice on your rights under the Disability Discrimination Act, you might wish to contact the Equality and Human Rights Commissioner. They have a helpline on 0845 604 5510.

Two days later I finally received the judgement from the Financial Ombudsman Service regarding the failure of my house insurance company to provide legal help and representation:

Financial Ombudsman Service

Our ref 7621674/JML/W302

11 June 2009

Dear Mr McAlpine

Your complaint about Society of Lloyd's

I refer to our telephone conversation of 10 June. Thank you for your e-mail of 18 March with the enclosed findings of the Employment Appeal Tribunal and your submissions. I am sorry for the delay before writing to you as I have reconsidered the file in the light of your latest submissions.

It had not escaped me that your application was for cover under your legal expenses policy regarding claims for Unfair Dismissal and Disability Discrimination following your redundancy in June 2006. Family Plus accepted the claim at the outset and in February 2007 they appointed Miller Samuel, solicitors to consider your claims.

Under the policy terms, in-keeping with all legal expenses cover, the underwriter is only prepared to cover legal costs if "we deem that there are good prospects of success". In order to assess that insurers generally refer the matter to a panel solicitor and those solicitors consider the matter and make a recommendation on whether the case should be covered.

I note that you say that the meeting between Miller Samuel and you and your wife took just 20 minutes, although there was a considerable amount of paperwork. The advice given to you by Miller Samuel is flawed as you were told that your failure to raise the grievance procedure affected your claim. I understand that is incorrect and note the Statutory Instrument you sent me deals with this point.

However, the Ombudsman's role is not to review the legal merits of your claim or to try to look behind what advice the solicitor gave you. It is not possible for the Ombudsman therefore to reverse the advice given to you by Miller Samuel even though you have produced evidence stating that the grievance procedures do not apply where the employee has been dismissed.

If you are unhappy with the advice given to you by Miller Samuel then this is a quite separate issue from the one which the Financial Ombudsman Service can deal with. Complaints about the service given by solicitors are dealt with by the Law Society in their Legal Complaints Service.

I recognise that this has been frustrating for you, particularly as you feel that you were incorrectly advised, but I am charged with determining whether Family Plus, as the administrator of the policy on behalf of Lloyds, has administered your cover correctly. Having accepted the claim and referred it to solicitors it was entitled to accept the opinion of those solicitors.

Ms Miller took the view that the offer that was made to you was a reasonable offer, Family Plus was entitled to accept that view and the policy makes it clear that cover will only be provided if there are "good prospects".

It is my view that, at the time, Family Plus was entitled to accept the view expressed and at the time you did not produce an opinion from a barrister to show that Miller Samuels' view Was incorrect.

At the hearing in October 2007 your represented yourself in the Employment Tribunal and your case failed. Subsequently you sought advice from Biggart Baillie Solicitors on a probono basis and, in an e-mail dated 6 December (some time after 25 October 2007 – (the date for lodging a notice of appeal) Biggart Baillie expressed the view that you had good prospects on appeal.

Having considered what Biggart Baillie said the underwriter wrote to you on 4 March 2008, stating that, despite the fact that your case had not been successful in the Tribunal, in the event that Biggart Baillie was successful obtaining leave to appeal then the underwriter will consider covering the claim from that date.

You told me on the phone that you lost the full hearing and that costs were awarded against you. You have also lost all three of the "sift" appeals. Despite that you have a hearing listed to take place on 26 June before 3 High Court Judges in the Court of Session to consider your case.

Biggart Baillie will not be able to represent you in the Court of Session and you therefore intend to represent yourself. If you succeed in that short hearing the case will be listed for a two day hearing.

Had you succeeded at the application for leave to appeal then it would have been open to you to refer back to the underwriter and ask for your costs to be covered. I take the view that this is a fair offer.

As I have said, it is not the Ombudsman's position to look behind the legal advice which was obtained for you, he does not have the qualifications or jurisdiction or experience to do that. It was appropriate for Family Plus to instruct a solicitor to review your claim and to accept the advice given at that time. The advice of Miller Samuel was borne out by the findings of the Tribunal and the 3 appeals in the sift process, sadly.

I have considered very carefully the additional information you have sent us. However, regret I have to tell you that my view of your complaint remains unchanged.

This means that I do not consider that your complaint should be upheld. I know that this is not the outcome you were hoping for. And I appreciate that this will come as a disappointment to you.

If you disagree with this, please write and tell me by 25 June 2009 — setting out your reasons and including any evidence that you have not already provided and that you think is important to your case. I would be grateful if you could let me know now, if you plan to reply fully but do not think you will be able to meet this deadline.

As explained in our leaflet, your complaint and the ombudsman, consumers have the right to ask an ombudsman to review their case — as the final stage of our process. But if we do not hear from you by 25 June 2009, we will assume that you have decided not to pursue the complaint further.

Yours sincerely

Johanna Lowe

Adjudicator

On 19 June 2009 I sent the following email to the Financial Ombudsman Service:

Dear Madam,

You can take this letter as a request to review the review of the Ombudsman judgment, case reference 7621674/JML/W302.

Yours faithfully,

Document attached read:

Application to review 7621674/JML/W302

Thank you for your review of Judgment 7621674/JML/W302.

I must say that I am alarmed by your review of the judgment.

The reason why I say this is that the judgment is contradictory because it states clearly "the policy makes it clear that cover will only be provided if there are "good prospects"."

However, the judgment also states two paragraphs later "Biggart Bailli expressed the view that you had good prospects on appeal."

Why did Family Plus not provide cover on the policy when Biggart Bailli expressed the view that I had good prospects?

Hindsight is a wonderful thing, but what I will not accept from this Ombudsman or any insurance organization, is why Family Plus, on 6 December 2007, as soon as it received the email from Biggart Bailli stating "that the prospects of success of the appeal are very good indeed", did not invoke its policy terms, and provide cover from that date onward.

I also must disagree entirely with the statement in the judgment "The advice of Miller Samuel was borne out by the findings of the Tribunal and the 3 appeals in the sift process, sadly." This is simply not true, as the main claim, and 2 out of the 3 appeals were not dismissed due to Miller Samuels advice that no grievance was raised. The third appeal is still being appealed, as a grievance was not required as it was a dismissal, and is currently in the European Court of Human Rights.

In summary, I have clearly stated twice that I am not happy with the judgment, especially when Family Plus did not provide cover on the advice from Biggart Bailli who clearly recognized the importance of this judgment, and the effect it will have on 200 million diabetics worldwide.

I continue to represent myself in High Courts against Barristers/Advocates, but I will expect nothing less than Family Plus to start providing the cover that I have paid for in its Policy, and because of the mess it has created since 6 December 2007, of its own accord, to provide cover and legal representation until I have won all appeals.

This cover must start immediately.

Mr K McAlpine

Chapter 14

It was now 26 June 2009 and I was through in Edinburgh at the Court of Session, the Supreme court in Scotland:

SINGLE BILLS HEARING REGARDING MAIN DISABILITY DISCRIMINATION APPEAL TO COURT OF SESSION

Date: 26 June 2009

Time: 10:30am

Duration: 2 hours

Judges: Lord Osborne, Lord Clarke and Lady Dorrian

Party: Mr K R McAlpine (representing himself)

Respondent: Mr Douglas Fairley (Advocate)

Present: Paul Gunn, Solicitor for McGrigors, My Mother, Father and an Aunt. Two members of the public also entered the Court and listened to proceedings for a while before leaving.

Before the start of this hearing when the three Judges appeared from behind a curtain at 11:05am, the Advocate seemed very surprised that it was these three Judges, as these three Judges were a different three Judges who had heard the first hearing a month ago.

It is perhaps worth introducing these three Judges:

Lord Osborne

Aged seventy-two, Lord Osborne is the longest serving Judge in the Court of Session and was appointed a Judge in 1990. He is a graduate of Edinburgh University (MA, LLB) and was admitted to the Faculty of Advocates in 1962. He was Standing Junior Counsel to the Ministry of Defence (Navy) from 1974 to 1976. Lord Osborne was appointed Queen's Counsel in 1976 and served as an Advocate Depute from 1982 to 1984. He served on VAT Tribunals, Medical Appeal Tribunals and the Disciplinary Committee of the Potato Marketing Board. He was a member of the Lands Tribunal for Scotland from 1985 to 1987 and he was Chairman of the Local Government Boundary Commission fro Scotland from 1990 to 2000. He was appointed as an Inner House Judge in 2001 and in the same year became a member of the Privy Council.

Lord Clarke

Lord Clarke was educated at Holy Cross High School Hamilton, and studied at the University of Glasgow (M.A., LL.B.).[1][2] He was admitted as a solicitor in 1972, and lectured in the School of Law of the University of Edinburgh from 1972 to 1978, when he was admitted to the Faculty of Advocates. He was Standing Junior Counsel to the Scottish Home and Health Department from 1983 to 1989, in which year he was appointed Queen's Counsel. He served as a Judge of the Courts of Appeal of Jersey and Guernsey from 1995 to 2000. He was a member of the Consumer Credit Licensing Appeal Tribunal from 1976 to 2000, of the Estate Agents Tribunals from 1980 to 2000, and of the Trademarks Tribunal from 1995 to 2000, and was part-time Chairman of the Industrial Tribunals from 1987 to 2000. He was a member of the UK Delegation to the Council of the Bars and Law Societies of Europe from 1989 to 1999, serving as its Leader from 1992 to 1996 He was appointed an Honorary Fellow of the Europa Institute at the University of Edinburgh in 1995.

Lady Dorrian

Aged fifty-two, Lady Dorrian was appointed a Judge of the Supreme Court in 2005, having served as a Temporary Judge since 2002. She is a graduate of the University of Aberdeen (LLB). She was admitted to the Faculty of Advocates in 1981 and was Standing Junior Counsel to the Health and Safety Executive and Commission between 1987 and 1994. Lady Dorrian served as Advocate Depute between 1988 and 1991, and as Standing Junior to the Department of Energy between 1991 and 1994. Lady Dorrian was appointed Queen's Counsel in 1994. Between 1997 and 2001 she was a member of the Criminal Injuries Compensation Board.

Before the hearing started, I passed three copies of Law and Merits documents to the Deputy Clerk who gave a copy to each Judge, and I passed one copy of each document, along the long bench, to the Advocate.

Lord Osborne started with a brief description of the reasons for the hearing that concerned the incompetency of the appeal, so Counsel for the Respondent would have to convince the Judges that the appeal was incompetent, then the Appellant would have a reply to convince the Judges that the appeal was competent. This was different to last hearing where it was stated thirty minutes for Counsel for incompetency, then sixty minutes for the Appellant on Law and thirty minutes for the Appellant on Merits, the Appellant had these two hurdles to overcome.

At this hearing, Counsel rose from the bench and began to address the Judges.

Counsel stated that there would be two reasons for incompetency:

1) Whether or not a direction from the Employment Appeal Tribunal Judge is, or is not an appealable decision or order. The main basis for this part was that the Rule3(10) hearing did not result in a 'Judgment' but was a direction?

2) That the issues in the Court of Session appeal were never ventilated in the Employment Appeal Tribunal.

Counsel began with the first reason and stated that Section 37, subsection 3 of the Employment Appeal Tribunal Act is the starting point with regard to an order from the Employment Appeal Tribunal refusing leave to appeal.

Counsel confidently enquired, "Is it an order or a decision? It is not defined."

37 Appeals from Appeal Tribunal.

(3) No appeal lies from a decision of the Appeal Tribunal refusing leave for the institution or continuance of, or for the making of an application in, proceedings by a person who is the subject of a restriction of proceedings order made under section 33.

33. Restriction of vexatious proceedings.

(1) If, on an application made by the Attorney General or the Lord Advocate under this section, the Appeal Tribunal is satisfied that a person has habitually and persistently and without any reasonable ground -

(a) instituted vexatious proceedings, whether before the Certification Officer, in an employment tribunal or before the Appeal Tribunal, and whether against the same person or against different persons, or

(b) made vexatious applications in any proceedings, whether before the Certification Officer, in an employment tribunal or before the Appeal Tribunal, the Appeal Tribunal may, after hearing the person or giving him an opportunity of being heard, make a restriction of proceedings order.

(2) A "restriction of proceedings order" is an order that—

(a) no proceedings shall without the leave of the Appeal Tribunal be instituted before the Certification Officer, in any employment tribunal or before the Appeal Tribunal by the person against whom the order is made,

(b) any proceedings instituted by him before the Certification Officer, in any employment tribunal or before the Appeal Tribunal before the making of the order shall not be continued by him without the leave of the Appeal Tribunal, and

(c) no application (other than one for leave under this section) is to be made by him in any proceedings before the Certification Officer, in any employment tribunal or before the Appeal Tribunal without the leave of the Appeal Tribunal.

(3) A restriction of proceedings order may provide that it is to cease to have effect at the end of a specified period, but otherwise it remains in force indefinitely.

(4) Leave for the institution or continuance of, or for the making of an application in, any proceedings before the Certification Officer, in an employment tribunal or before the Appeal Tribunal by a person who is the subject of a restriction of proceedings order shall not be given unless the Appeal Tribunal is satisfied—

(a) that the proceedings or application are not an abuse of the process, and

(b) that there are reasonable grounds for the proceedings or application.

(5) A copy of a restriction of proceedings order shall be published in the London Gazette and the Edinburgh Gazette.

Counsel then went on at great lengths on the technicalities behind this Rule 37, subsection 3 heading.

Counsel stated that the direction of the Employment Appeal Tribunal was through a sift procedure as per the Employment Appeal Tribunal Rules, at which there is no representation on behalf of the Respondent. This procedure is about serving documents in a designated form, a Judge or a Registrar at the Employment Appeal Tribunal would look at the note of appeal and consider whether it is an abuse of process or has no particular chance of success, or whether it should go forward to a full appeal hearing at the Employment Appeal Tribunal. If the Judge or Registrar determines that the original appeal has no particular chance of success, the Appellant would serve a fresh note of appeal within 28 days. This would be heard before a Judge sitting alone with regard to the direction of the fresh note of appeal, through a Rule 3(10) hearing, refers to Rule 3(10) Judgment that would give reasons and directions. Counsel refers to an explanation with regard to a perversity appeal where the grounds relied upon a suggestion with regard to findings in fact. The Tribunal did have an evidential basis, the claimant and his credibility

Relevant Law

Institution of appeal

3 ......

(5) In an appeal from the employment tribunal in relation to national security proceedings in relation to which the appellant was the respondent in the proceedings before the employment tribunal, the appellant shall, within the period described in paragraph (3)(a), provide to the Appeal Tribunal a document setting out the grounds on which the appeal is brought.

(6) In an appeal from the employment tribunal in relation to national security proceedings in relation to which the appellant was the claimant in the proceedings before the employment tribunal-

(a) the appellant may, within the period described in paragraph (3)(a)(ii) or (iii) or paragraph 3(b), whichever is applicable, provide to the Appeal Tribunal a document setting out the grounds on which the appeal is brought; and

(b) a special advocate appointed in respect of the appellant may, within the period described in paragraph 3(a)(ii) or (iii) or paragraph 3(b), whichever is applicable, or within 21 days of his appointment, whichever is later, provide to the Appeal Tribunal a document setting out the grounds on which the appeal is brought or providing supplementary grounds of appeal.

(7) Where it appears to a judge or the Registrar that a notice of appeal or a document provided under paragraph (5) or (6)-

(a) discloses no reasonable grounds for bringing the appeal; or

(b) is an abuse of the Appeal Tribunal's process or is otherwise likely to obstruct the just disposal of proceedings, he shall notify the Appellant or special advocate accordingly informing him of the reasons for his opinion and, subject to paragraphs (8) and (10), no further action shall be taken on the notice of appeal or document provided under paragraph (5) or (6).

(7A) In paragraphs (7) and (10) reference to a notice of appeal or a document provided under paragraph (5) or (6) includes reference to part of a notice of appeal or document provided under paragraph (5) or (6).

(8) Where notification has been given under paragraph (7), the appellant or the special advocate, as the case may be, may serve a fresh notice of appeal, or a fresh document under paragraph (5) or (6), within the time remaining under paragraph (3) or (6) or within 28 days from the date on which the notification given under paragraph 7 was sent to him, whichever is the longer period.

(9) Where the appellant or the special advocate serves a fresh notice of appeal or a fresh document under paragraph (8), a judge or the Registrar shall consider such fresh notice of appeal or document with regard to jurisdiction as though it were an original notice of appeal lodged pursuant to paragraphs (1) and (3), or as though it were an original document provided pursuant to paragraph (5) or (6), as the case may be.

(10) Where notification has been given under paragraph (7) and within 28 days of the date the notification was sent, an appellant or special advocate expresses dissatisfaction in writing with the reasons given by the judge or Registrar for his opinion, he is entitled to have the matter heard before a judge who shall make a direction as to whether any further action should be taken on the notice of appeal or document under paragraph (5) or (6).

After listening to a long-winded explanation from the Advocate regarding why the appeal cannot be accepted regarding these laws and procedures, Lord Osborne retorts "Can't be concerned with that". Counsel replied, "Lady Smith must be making a finding", but Lord Osborne replies "Lady Smith has taken the view no reasonable grounds".

Counsel then provides another long explanation that the appeal had not moved beyond the Rule 3(7) sifting process, the outcome of the sifting process regarding Rule 3(10) is that the direction was that there should not be any further action on the appeal, and this was an administration direction, in a normal court, no such order regarding the direction of Lady Smith and that the Advocate had never seen such an order. Rule 3(10) is with regard to taking no further action on the appeal. The gateway is not by appeal but by judicial review.

The Judges enquired how Rule 3(7) and Rule 3(10) relate to Section 37 of the Act. Counsel replied that if it is a decision or order, given the circumstances of this case, then Rule 3(7) and Rule 3(10) does not fit into this order.

The Judges further enquired about the judgments made on the two claims at the Employment Tribunal. Both of these were decisions taken by the Employment Tribunal the Judges stated.

Counsel, sensing a trap, replied that an appeal on that decision by the Employment Tribunal is subject to the gateway, and can be appealed to the Employment Appeal Tribunal.

But, Lord Osborne retorted "What was Lady Smith doing entertaining the appeal? Might expect Lady Smith would have known."

Counsel, becoming increasingly anxious that the Judges were not entertaining this point enquired "Is Rule 3(10) appealable?"

Lord Osborne turned to myself as the Appellant and states that the one point against me is with regard to Lady Smith accepting the appeal.

Counsel, trying to force home this argument, states that there is case law with regards to this argument, Haritaki v South East England Development Agency, presided over by Judge McMullen at an English Employment Appeal Tribunal.

Lord Osborne enquired "What is the issue?". Counsel states that the note of appeal was on grounds of nationality, contained no substantial grounds of law and that the same Judge came to the same conclusion on fairness issue about a Rule 3(10) case? Judge McMullen said Rule 3(10) was not appealable regarding Appellant only hearing and oral application.

Judge states that it is not the same in Scotland where there is a right to ask for an oral hearing. Confused, the same Judge asked "Why was it misconceived?".

Counsel explained that the reason is in Rule 3(8), a new note of appeal is an entirely fresh one, you can't have two bites of the cherry, it is a once and for all opportunity, you can't make ten applications, just one opportunity. The general point is that this is an administrative sift, you don't have a right of appeal, Rule 3(7) is an administrative decision by the Registrar who shall notify with regard to the reasons, which are from Lady Smith but as a direction to the Registrar. It is not a matter of a right of the Appellant, the purpose of a sift is to sift out the unmeritorious appeals and if it doesn't get to an Employment Appeal Tribunal main appeal hearing then it doesn't get any further. There had been three bites of the cherry, Rules 3(7), 3(8) and 3(10).

Counsel further stated that he has personal experience of the appeal process where it has purpose with regard to the merits of the case but a Rule 3(7) sift should not be subject to an appeal to the Court of Session.

Lord Osborne refers Counsel to page 73, an order by the Employment Appeal Tribunal is a sealed copy sent to the Appellant with regard to refusal of leave to appeal with a note attached from Lady Smith, that an appeal lies only in points of law, and that this is a reference to the Appellant for leave to appeal.

At this point, Counsel could not point the Judges to the relevant page containing the Employment Appeal Tribunal appeal, but the Appellant points out the relevant page.

The Judges asked what the Employment Appeal Tribunal appeal related to?

Counsel replied that the Respondent had not received the application for leave to appeal, but the Judges gave a disdainful reply stating, "It would not come to the Respondent".

Lord Osborne turned to the Appellant, with regard to Lady Smith's note, and asked: "What does the application contain?"

The Appellant apologetically stated, "I don't have it with me, but it had the date of Rule 3(10) hearing, the main appeal point regarding stereotypical assumption, and also stated that other appeal points would be identified and appealed as soon as the Appellant received a copy of the Judgment". This document, along with Lady Smith's note refusing leave to appeal to the Court of Session, must have been an application.

Lord Osborne turned to Counsel and stated: "There was a written application.". Counsel, becoming more desperate, stated that it should not have been dealt with.

The Judge states "Lady Smith shouldn't have been dealing with it beyond the Rule 3(10), it must have got beyond Lady Smith, very odd indeed, no decision at this level with regard to competency, Rule 3(10) then application for leave to appeal."

Counsel snaps, "It doesn't matter."

The Judge continued "It does if you can't see it, appealing against the refusal of leave to appeal against the 20th June 2008 Employment Appeal Tribunal Rule 3(10) which is characterised as a judgment, it's a peculiar submission to use, if you are right then the only challenge is a judicial review. Find it odd with regard to any attempt being knocked back on these terms, as it were at the last post.

"The practice of the Employment Appeal Tribunal is with regard to treating this as a decision, i.e. the practice direction points to treating this as a decision." Counsel confidently states.

Counsel then referred the three Judges to a very large and thick legal book with regard to no reasonable grounds at oral Rule 3(10), at Rule 3(7) a Judge or Registrar may postpone decision, not in Counsel's favour if dealing with a vexatious litigant, a decision, so described, refers to a vexatious litigant sift process, against that with regard to a direction in Rule 3(10) and amendments to Rule 3(10), Section 37 uses the word 'direction'.

The Judge, with reference to Practice Direction 9.2, comments that this deals with an administrative process of sifting when treated by a Judge as an Appeal, in England it is not part of an appeal, the difference between 9.2 and here is with regard to a sealed order, Section 37 with regard to a sealed answer. With reference to Practice Direction 9.2, the Judgment on Rule 3(10) is being used here, the Registrar with regard to Rule 3(7) and the Judge with regard to Rule 3(10). With regard to the Practice Direction, a broader view is taken. The Practice Direction is subject to the rules of the Employment Appeal Tribunal.

Counsel quips, "This is simply not right" and attempts to summarise why.

Lord Osborne interrupts Counsel and again states the sealed order provisions.

Counsel, not wishing to concede states "I will research that while the Appellant is appealing and come back to you."

Lord Osborne summarises "The decision of Rules 3(7) and 3(10) could raise a question of law, the policy is intended with regard to whether the sift process intends layers of appeal is a choice of language which needs more direction. There are questions with regard to the Employment Appeal Tribunal and the interlocutor, sealed order, and to any mechanism with regard to enlightenment of the Employment Appeal Tribunal with regard to the rules of this court and with regard to remitting back to the Employment Appeal Tribunal a Chapter 41 leave to appeal, at 41.2, there is nothing to suggest with regard to a remit back, no such thing."

This completed the first point on incompetency by Counsel.

Mr Fairley began his second point on incompetency at approximately 12.25 pm.

2) That the issues in the Court of Session appeal were never ventilated in the Employment Appeal Tribunal.

Counsel began by stating "The grounds the Appellant seeks to advance now in this Appeal were not advanced during the sift process at the Employment Appeal Tribunal, what the Employment Appeal Tribunal could not have heard in law narrows down the appeal points available, question of law not advanced, pro bono solicitor took the decision to narrow appeal, can't now be taken that it can be argued here."

Lord Clarke intervenes "The Appellant does seek leave to appeal".

Counsel counters that in paragraph 5 of the application for leave to appeal to the Court of Session, appeal points 5.1, 5.2, 5.5, 5.7, 5.8, 5.9, 5.10 and 5.11 were not raised at the Employment Appeal Tribunal.

Lord Clarke stated, "The Appellant has requested that findings be made".

Counsel conceded that appeal points 5.3, 5.4 and 5.6 were raised at the Employment Appeal Tribunal.

Lord Osborne comments that appeal points 5.8, 5.9 and 5.10 are with regard to seeking findings of fact, appeal point 5.7 seems to be in the application on an error of law.

Counsel counters with "What was not advanced before Lady Smith cannot be advanced here. The appeal has to set out what was before Lady Smith, the test is Campbell v Dunoon Housing Association with regard to probable cause on a point of law, 5.3 and 5.4 taken together without merit with regard to disability discrimination would be re-opening facts or exploring the findings of facts of the Employment Tribunal which established that there was no causal link. Lady Smith was quite clear that the findings in fact had a proper basis, there was the 'credible witness' aspect and other grounds.With regard to 5.6, witness statements taken as read, there could have been cross-examination of the witnesses to find collaboration, the Employment Tribunal is entitled to take evidence and is not bound by rule 14, which relates to procedure at a Hearing, at 14(2) not bound by any rule or law but to make enquiries with regard to those before it. This was done as is outlined in the Employment Tribunal Judgment  paragraph 8(d) and there are no grounds now to bring it up as some error of law, the only point is with regard to an error on hurt feelings in a disability claim is not supported by fact. The Claim failed, as did the appeal against Costs, and no case has been shown. I invite your Lordships to refuse this application seeking leave to appeal.

Lord Osborne, "We are still concerned by the first issue with regard to appealable decisions."

Lord Osborne then turns to the Appellant and invites the Appellant to respond.

The Appellant responds, "The pro bono solicitor followed procedures and requested a judgment and this was done. I always took it to be a judgment. As the pro bono solicitor does not have a right of audience here then I made the application myself as a party litigant. If a judgment from the Employment Appeal Tribunal is unable to be appealed, that would make the Employment Appeal Tribunal God, with no right of appeal".

Lord Osborne quips, "Not quite Mr McAlpine".

The Appellant refers the Judges to page 76, which reads "I refer to the above matter and enclose a sealed copy of the Judgment".

Lady Dorrian comments "Your objection is not a good one"

The Appellant ends with "This judgment affects 200 million diabetics worldwide", at which point Counsel raises his hands in the air and drops his shaking head in disgust.

Lord Osborne raises his head from reading the Employment Appeal Tribunal judgment, "As to what Lady Smith did at the 20 June 2008 Rule 3(10), she says at  paragraph 22 with regard to "No further action will be taken in this appeal" is a direction."

The Judges now began speculating with regard to Section 37 as it applies to appeals from the Employment Appeal Tribunal.

Lord Osborne states, "This is a judgment, the Respondent was not represented, no contest, refer to page 77, Lady Smith had the opportunity to say can't appeal Rule 3(10), or Lady Smith wrongly left open leave to appeal, if Lady Smith made a mistake, where do we go from here? A judicial review is narrower, always a judgment, not a decision, judgment is a set of decisions, with regard to a Rule 3(10) who shall make a direction regarding mode of appeal?"

Counsel, composing himself, comments "Section 31 of the Employment Appeal Tribunal rules states that every order of the Employment Appeal Tribunal shall be drawn up by the Registrar and that the Employment Appeal Tribunal give reasons in writing by a sealed order and judgment.

Employment Appeal Tribunal Rules

Drawing up, reasons for, and enforcement of orders

31 (1) Every order of the Appeal Tribunal shall be drawn up by the Registrar and a copy, sealed with the seal of the Tribunal, shall be served by the Registrar on every party to the proceedings to which it relates and–

(a) in the case of an order disposing of an appeal from an employment tribunal or of an order under section 33 of the 1996 Act, on the Secretary of the Employment Tribunals; . . .

(b) in the case of an order disposing of an appeal from the Certification Officer, on that Officer

(c) in the case of an order imposing a penalty notice under regulation 20 or 21 of the 1999 Regulations, regulation 33 of the 2004 Regulations or regulation 22 of the Information and Consultation Regulations, on the Secretary of State; or

(d) in the case of an order disposing of an appeal from the CAC made under regulation 38(8) of the 1999 Regulations, on the Chairman of the CAC.

(2) Subject to rule 31A, the Appeal Tribunal shall, on the application of any party made within 14 days after the making of an order finally disposing of any proceedings, give its reasons in writing for the order unless it was made after the delivery of a reasoned judgment.

(3) Subject to any order made by the Court of Appeal or Court of Session and to any directions given by the Appeal Tribunal, an appeal from the Tribunal shall not suspend the enforcement of any order made by it.

The three judges confer privately for five minutes without leaving the Court.

Lord Osborne resumes "We will continue this Hearing on Competency for one day as it is presently constituted with regard to the range of other points raised by the Respondent. The Appellant is to address these points and give his reasons for the competency of his appeal."

The Court rises, and the three Judges retire behind a curtain to chambers.

On 29 June 2009 I received the following letter from the Court of Session:

COURT OF SESSION

26 June 2009

Dear Sir

APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 37(1) OF THE EMPLOYMENT TRIBUNALS ACT 1996

I refer to today's hearing on the Single Bills and enclose a copy of the Court's order.

I have to inform you that the hearing fee for today is £285. Your remittance for that amount should be forwarded to "The Cashier", Court of Session, Parliament House, Parliament Square, Edinburgh, EH1 1RQ.

Yours faithfully

D C Bruton

Clerk to the First Division

Attached was a photocopied page out of what looked like a handwritten court diary:

26 June 2009

First Division

Lord Osborne

Lord Clarke

Lady Dorrian

11:00 Single Bill - hearing on competency of application for leave to appeal.

Act: party appellant - Mr Kenneth McAlpine

Act: D. Fairley

11:05 Mr Fairley addressed the Court in support of his objection to the competency of the application.

12:34 Party addressed the Court.

12:55 Decision as per Interlocutor of even date viz continued for a 1 day hearing on the Single Bills - Keeper informed by email - on competency.

Fee 3 x £95 = £285

An interlocutor was attached which read:

XA165/08

McAlpine, Kenneth -v- EAT

Party Litigant

McGrigors LLP

Edinburgh, 26 June 2009

The Lords having heard in part counsel for the respondents and the party appellant personally on the issue of the competency of the application for leave to appeal under Section 37 of the Employment Tribunals Act 1996, due to lack of available court time, continue the hearing quoad the issue of competency to a date to be afterwards fixed when the appellant will be given the opportunity to address the range of other points raised by the respondents in the second chapter of their arguments; appoint a hearing on the Single Bills of one day's duration to be fixed.

Donald Bruton

Depute Clerk of Session

The next four months were very quiet with regards to any correspondence from anyone, but it did however give me and my parents a chance to re-examine evidence with regards to including it in future appeals under altered or fabricated evidence, and it also provided a chance for me to research and map out what would happen if the Court of Session appeal was to fail.

On 20 November 2009 I received the following letter:

Financial Ombudsman Service

our ref 7621674/JML/W302

18 November 2009

Dear Mr McAlpine

Your complaint about The Society of Lloyd's

I am writing to keep you updated about your complaint with us.

Unfortunately, we still have very high volumes of cases waiting to be referred to an ombudsman. I am very sorry to tell you that because of this, we have been unable as yet to review your complaint, ready for an ombudsman to make a final decision.

Given this delay, I am writing to ask if there have been any important changes that you haven't already told us about — for example, if:

* There has been a change in circumstances which has resulted in financial hardship because of circumstances connected to this complaint;

* There are now serious ill-health issues, which makes it extremely important to you that this complaint is resolved quickly;

* Legal action is being threatened in relation to this case; or

* You have had an offer from Society of Lloyds since we last wrote, and you have accepted this offer to settle your complaint (or are considering accepting it).

If you need to contact us about any changes like these, please phone us on 020 2093 5500 (office hours), email us at casework.supportfinancial-ombudsman.orq.uk, or write to our casework-support team at the above address.

In the meantime, I am grateful to you for your continued patience. I will, of course, let you know as soon as we have news for you.

Yours sincerely

Sarah Home

ombudsman administrator

On 24 November 2009 I sent the following email reply to the Financial Ombudsman Service:

Dear Sir/Madam,

Further to your letter dated 18 November 2009, please find my replies below:

1: There has been a change in circumstances which has resulted in financial hardship because of circumstances connected to this complaint;

Between July 2006 and March 2007 I was in receipt of Jobseekers Allowance. Since March 2007 I have not had any income or benefits, and I have been fighting all three cases on my own without much if any legal help against a multinational legal firm, Barrister and Advocate, as a result of this I have also not been able to find employment and my savings are above the benefits threshold and are diminishing fast due to the current financial climate. I have two children under ten, and this is causing great distress to both my wife and myself.

2: There are now serious ill-health issues, which makes it extremely important to you that this complaint is resolved quickly;

Since November 2006, the control of my diabetes has become increasingly difficult due to stress. My diabetic clinic are still monitoring my situation as to whether to move me from two injections per day to four injections per day. My blood sugar levels should be 6.5 to 7.0, but are currently running between 8.5 to 9.5, so there is around 50% more sugar in my blood.

3: Legal action is being threatened in relation to this case; or

To update you on where the various parts of this case are:

The first part of this case is still with the European Court of Human Rights.

I have not heard anything from the European Court of Human Rights since lodging the first part of my case in September 2008. I doubt very much that it will be thrown out before a hearing as this judgement will affect some 25 million citizens in the European Union who have diabetes.

The second part of this case is still with the Court of Session, the highest Court in Scotland, where I am having to represent myself against an Advocate (Barrister).

There have already been two single bill hearings. The Respondent's Advocate (Barrister) has admitted to the three appeal Judges that three of the eleven appeal points will have to go to a full summar roll hearing, including the main disability discrimination appeal point, and the remaining seven appeal points will be heard at a one day single bills hearing.

The third part of this case is still with the Court of Session, the highest Court in Scotland, where I am having to represent myself against an Advocate (Barrister).

I will also be sending copies of every piece of correspondence and judgments to the United Nations, as these judgments affect some 200 million diabetics worldwide.

4: You have had an offer from Society of Lloyds since we last wrote, and you have accepted this offer to settle your complaint (or are considering accepting it).

I have not received any offer from Lloyds.

On 25 November 2009 I sent an email to the Court of Session:

Dear Sir,

Court of Session Reference: XA165/08

I attended a one half of a day Single Bills hearing on Friday 26 June 2009.

At this hearing I was informed by the Clerk that the Court of Session would write to arrange a further one full day Single Bills hearing.

As this was five months ago, and I have not had any correspondence from the Court of Session regarding a further one full day Single Bills hearing, can you indicate when I can expect such correspondence and when this one day Single Bills hearing is likely to take place?

Later that day I received an email reply from the Court of Session:

I am out of the office untill Thursday 26 November 2009. If you require urgent assistance please contact Mr Jamie Knox, otherwise i will reply to your email upon my return.

Many thanks and have a good day.

Gavin McLeod

Inner House and Extracts Manager

Court of Session

Edinburgh

EH1 1RQ

The last email that I received that day was from the lawyer Maureen Hall of the law firm McGrigors:

Dear Mr McAlpine,

I contacted the courts to find out about the continued hearing and am advised that it is now for the parties to fix a date. Are there any dates between now and March that you wish to avoid and I will arrange for the hearing to be fixed with reference to our counsel's availability?

The next morning I sent an email reply to the lawyer Maureen Hall of the law firm McGrigors:

Dear Madam,

None.

Later that day I received an email from the Court of Session:

Mr McApline,

Apologies for the delay in getting back to you.

I am unsure as to when the one day hearing wil convene, it will have to go back to the same quorum of Judges that has already heard part of your appeal.

I will bring your case to the attention of the Inner House Clerk to hopefully expediate matters.

I then received a follow up email from the Court of Session that same day:

Mr McApline,

Further to my email dated today, I have since been in contact with the Division clerk and he has suggested that both yourself and the other side arrange a date to come to the keepers office to fix a futher one days hearing.

I hope this is of help.

I immediately sent the following email reply to the Court of Session:

Dear Sir,

Could I do this by telephone or email as I stay on the very west coast of Scotland and it is quite a travel to arrange one date.

Mr K R McAlpine (Appellant)

The last email I sent that day was to the lawyer Maureen Hall of the law firm McGrigors:

Dear Madam,

I am getting a totally different version of events from the Court of Session who state that both parties should arrange a date very soon for both parties to attend the Keepers Office to fix a one day hearing with the same quorum of Judges.

Can you indicate what dates in the next couple of weeks that someone from your side will be available to attend the Keepers Office?

On 1 December 2009 I received an email reply from the Court of Session:

Mr McAlpine,

I have spoken to the keeper's office about how best for you to fix a one day hearing and they advise me that it would be best if you liased with the respondents solicitors advising them of dates for the one day Summar Roll hearing that are sutiable for you, then they can come to the keepers office to fix a date for both parties concerned.

If you put something in writing to the respondents agents then they can bring this in when fixing the one day hearing.

I hope this makes sense, any problems please do not hesiate to get in conatct.

I immediately sent an email reply to the Court of Session:

Dear Sir,

Thank you for your reply.

I have contacted the respondents solicitors and asked them to provide a date over the next couple of weeks when we can both attend the keepers office, as I would like to be present to ensure that a date is arranged with the same quorum of judges that is not too far in the future. The one day hearing is a continuance of the earlier Single Bills hearing and is not a one day Summar Roll hearing.

As I emailed the respondents solicitor on Friday 27 November 2009, how long should I give them to reply with their suitable dates to attend the keepers office?

If the respondents solicitor does not reply within this period, should I attend the keepers office myself to fix a date, or is there any other procedure?

Around lunchtime that day I received the following email reply from the Court of Session:

Mr McApline,

I cannot comment on how long you should give them to reply to your email.

The keepers office will not fix a date without consent or all parties being in attendance. I am unaware of any other procedure avaliable to fix a date.

If you have any further queries regading fixing your continued 1 day Summar Roll hearing may I suggest that you get in contact with the keepers office directly.

Two days later I sent another email to the lawyer Maureen Hall from the law firm McGrigors:

Dear Sir/Madam,

As I am sure that you are aware, and as confirmed by the Court of Session, the Keepers Office will not fix a date for the next hearing without both parties being present.

I am still awaiting dates over the next couple of weeks that someone from your side will be available to attend the Keepers Office to fix a date for the next one day hearing with the same quorum of Judges. If I do not receive dates from yourself when someone can attend the Keepers Office by 10 December 2009, I will contact the Keepers Office to advise them of your failure to set a date, and ask them what can now be done to fix a date.

I quickly received an email reply from the lawyer Maureen Hall of the law firm McGrigors:

Mr McAlpine

We have a representative at court every day so I was offering to do this for both parties to save you having to attend in person. If however you would prefer to attend in person, I would suggest Monday 7 December at 11.30am. Our representative is Ms Sharon McKenzie.

That same morning I sent an email reply to the lawyer Maureen Hall from the law firm McGrigors:

Dear Madam,

I will attend in person on Monday 7 December at 11:30am at the Keepers Office.

On 8 December 2009 I sent the following email to the Court of Session:

Dear Jamie,

You gave me your details yesterday at lunchtime regarding sending an email to the DPCS, can you forward on the email below.

Thanks,

Mr K McAlpine

For the attention of Deputy Principal Clerk of Session:

Dear Sir/Madam,

Case Number: XA165/08

I attended the Keepers Office with the other party in this case with regards to setting a date for a further one day single bill hearing. I asked the Keepers Office to check that the three Judges for the continued one day hearing were the same three Judges that heard the first half day hearing. To complicate matters, on the day of the previous half day hearing, 26 June 2009, the hearing was listed to be heard by the Extra Division, but was then moved to be heard by the Second Division, the Clerk who noted the case was covering for the usual Clerk, and this temporary Clerk has noted that it was the First Division who heard the half day hearing.

Can you check which three Judges heard the half day hearing, and write to me with their names, so that I can arrange a continued one day hearing with the same quorum of Judges?

Why did the Clerk note "First Division" and yet none of these Judges are listed in the "First Division"?

If Lady Dorrian was one of the Judges who originally heard the half day hearing on 26 June 2009, why was Lady Dorrian one of the Judges when Lady Dorrian is not listed as a member of either the "First Division" or "Second Division"?

Thanks,

Mr K McAlpine

Chapter 15

On 9 December 2009 I received the following email from the Court of Session:

Hi Mr McAlpine,

I've acknowledge receipt of your email below.

I have passed this on to the DPCS who will respond in kind in the near future.

Many Thanks

Jamie Knox

I immediately sent a thank you email to Jamie Knox at the Court of Session.

Later that morning I received another email from the Court of Session:

Mr McAlpine

I refer to your email of 8/12/09, which you asked to be passed to the DPCS. The DPCS, Mr Cockburn is currently out of the office so I am responding on his behalf.

In response to your email; The noting by the temp clerk that the case was being heard by the First Division was an error and I apologise for that, the First Division only sit when the Lord President chairs the Division. In your case, I can confirm, that the half day hearing was heard before an Extra Division, chaired by Lord Osborne along with Lord Clarke and Lady Dorrian.

With regard to your final point re Lady Dorrian. In terms of the Court of Session Act, Sec 3, "The Lord President may from time to time direct any three judges of the court to sit as an Extra Division of the Inner House for the purpose of hearing and disposing of causes pending before the Inner House"

To confirm the three judges that sat and part heard your case were; Lord Osborne, Lord Clarke and Lady Dorrian

Please continue to liaise with the keepers office with a view to fixing your continued hearing before the Inner House, for any other procedural advice or guidance please contact the Inner House & Extracts Dept Manager, Mr Gavin McLeod

Thank you

The last email I sent that day was to the lawyer Maureen Hall from the law firm McGrigors:

Dear Madam,

Case Reference: XA165/08 (McAlpine v Oracle Corporation)

If you are not already aware, I turned up at the Keepers Office on Monday 7 December 2009 with Ms Sharon McKenzie to arrange a further date for the continued one day hearing. At the Keepers Office there seemed to be some confusion concerning what division and as such which judges had sat on the original one day hearing, with the temporary Clerk noting that the half day hearing was heard by the First Division. After writing to the DPCS, the DPCS have now confirmed that the half day hearing was heard by an Extra Division, chaired by Lord Osborne along with Lord Clarke and Lady Dorrian.

Now that this matter has been cleared up, can I ask that you arrange with Ms Sharon McKenzie to arrange a further one day hearing on 27 January 2010 with the Extra Division, chaired by Lord Osborne along with Lord Clarke and Lady Dorrian.

If this date is not available, I believe that the 28 January 2010 was also available.

Can you also confirm to me the date of the one day continued hearing when it has been fixed at the Keepers Office.

The next day I received a reply to this email from the lawyer Maureen Hall of the law firm McGrigors:

Dear Mr McAlpine,

I have instructed our court clerkess to deal with this today and will confirm the date fixed as soon as possible.

Regards

The very next day I received another email from the lawyer Maureen Hall of the law firm McGrigors:

Dear Mr McAlp[ine.

I refer to previous communication and write to confirm that the continued hearing has now been fixed to take place on 27 January 2010.

Regards

I immediately sent a thank you email to the lawyer Maureen Hall from the law firm McGrigors:

The Christmas and New year holiday season came and went before I next received two letters from the Financial Ombudsman Service on 12 January 2010:

The first letter was:

Financial Ombudsman Service

our ref: 7621674/JML/W304

12 January 2010

Dear Mr McAlpine

Your complaint about Society of Lloyd's

I have passed your request to fast track the case to my manager to deal with.

Would you please advise whether the case with Biggart Baillie is still progressing and what was the outcome of the proceedings?

Yours sincerely

Johanna Lowe

Adjudicator

The second letter was:

Financial Ombudsman Service

our ref: 7621674/JML/W304

12 January 2010

Dear Mr McAlpine

Your complaint about The Society of Lloyd's

I am writing about your complaint against Society of Lloyds. I am very sorry about the delay in handling this case. We know that the complaint has now been with us for some time, and we are very grateful for the patience you have shown.

Unfortunately, we still have a very large number of cases where consumers and businesses are requesting a formal decision by an ombudsman. This means that we have not been able to review your case as quickly as we would have liked - before referring it to an ombudsman.

However, I will continue to keep in regular contact with you. If you need to get in touch with us in the meantime, please phone us on 020 2093 5500 (office hours), email us at casework.support@financial-ombudsman.org.uk, or write to the casework-support team at the above address.

Yours sincerely

Sarah Home

ombudsman administrator

Two days passed before I received an email from the lawyer Maureen Hall from the law firm McGrigors:

Dear Mr McAlpine,

I am writing to advise you that having reviewed the history of the employment Tribunal proceedings raised by you against Oracle, it has been noted by my clients that the award of costs in their favour of £3,700 remains unpaid.

Although no formal steps have yet been taken by my clients to enforce this award, I have now been instructed to take such steps against you. As you know, your attempt to have this award overturned by the EAT was unsuccessful, and this judgement does not form any part of your current application to the Court of Session. It therefore remains an outstanding debt which you require to meet, irrespective of the outcome of the current proceedings.

Before I take steps to have the award enforced through formal action, I am writing to give you the opportunity to meet these costs on a voluntary basis. Please let me know what proposals you have for making payment of these costs as soon as possible. I would ask you to let me have your proposals within the next seven days, failing which I will begin the process of instructing sheriff officers in a recovery process. I trust however that step will not be required and look forward to hearing from you in response.

Yours sincerely

Ms Maureen Hall

Later that day I sent the following email reply to the lawyer Maureen Hall from the law firm McGrigors:

Dear Sir/Madam,

Case Reference: XA165/08 (McAlpine v Oracle Corporation)

I must correct you on your wrong assumption that I have not lodged an appeal regarding the award of costs.

I have lodged an appeal at the Court of Session regarding the award of costs on 18 March 2010, and was informed by the Court of Session quote "the appeal which is currently before the court is an application for leave to appeal against the final decision and this would take precedence". I was also informed by the Court of Session that the judges would take into account the award of costs made against me and may quash the award of costs if they overturn the original judgment.

I will also enter into evidence your email dated 14 January 2010 at 15:15.

I would also like to inform you that I plan to request a written judgment that is published on the Court of Session website. The reason for requesting a written judgment that is published on the Court of Session website is that this judgment affects some 200 million Diabetics worldwide.

Yours faithfully

Mr K McAlpine

The next day, 15 January 2010, I received another email from the lawyer Maureen Hall from the law firm McGrigors:

Dear Mr McAlpine,

I refer to your message and assume that you meant that you lodged a further appeal in respect of the award of costs on 18 March 2009? If so, can you advise where and when this was intimated to my clients?

I immediately sent an email reply to the lawyer Maureen Hall from the law firm McGrigors:

Dear Sir/Madam,

Case Reference: XA165/08 (McAlpine v Oracle Corporation)

The date 18 March 2010 was a typo, the correct date is 18 March 2009.

With regards to intimation to your clients, as I understand the point the Court of Session was making to me, you cannot have two 'live' depending appeals for the same case.

If or when the appeal against costs becomes a 'live' independent appeal, I will intimate this appeal to you.

If you have any further queries regarding the appeal against costs, I suggest that you take this up with the Court of Session.

Yours faithfully

Mr K McAlpine

It was now fast approaching the final one day hearing at the Court of Session, the Supreme Court in Scotland, for the appeal on disability discrimination and other appeal points.

Note From The Publisher

Hello, this is Nostaple Limited. Thank you for reading this book. Your support means a lot to us.

No spelling mistakes and grammatical errors have been corrected in any of the emails or letters contained within this book.

You can play a part, in order to help fight discrimination, by spreading the word to any diabetics you may know, that this series of books exist.

If you enjoyed the book and found it interesting and informative, we would appreciate it greatly if you would take a few moments to post a review.

Once again, our sincere thanks

Nostaple Limited

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

