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First Edition

Other books by Nostaple Limited:

The Justify This series:

Justify This 2006 - 2007

Justify This 2007 - 2008

Justify This 2008 - 2010

Justify This 2010 - 2011

Justify This 2011 - 2015

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

Table of Contents

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Chapter 12

Chapter 13

Chapter 14

Chapter 15

Chapter 1

"O what a tangled web we weave when first we practice to deceive"

Sir Walter Scott, 1771-1832.

My name is Kenneth Robert McAlpine, and it was now early October 2007, and time to take stock of the last twelve months.

I had been diagnosed with type one diabetes at aged eighteen months due to mumps, and for the rest of my life, I would have to inject myself with insulin. I was now forty-three years old, had a degree in engineering and a master's degree in computing, but for the last year had been unemployed and fighting an unfair dismissal and disability discrimination claim in the Tribunal system.

In 1998, I had obtained employment with Oracle Corporation UK Limited as a consultant, and for the next seven years worked in the Support part of the business helping to set up and run the new On Demand part of the business, which looked after customers Oracle software and databases remotely.

In 2004, I started to work as an On Demand Service Delivery Manager, known as an oSDM and worked in a team of around twelve to fourteen employees all having the job title oSDM. Immediately upon starting in the role of oSDM, I was assigned to work on the Environment Agency account with another oSDM, which was one of the largest accounts in Europe, Middle East and Africa region. Within two months, this account became so busy that a third oSDM was assigned to work solely on this account. The next eighteen months were extremely busy, and in November 2005, one of the oSDM's stated she was leaving this line of the business to work in another line of the business. At this time, my manager, Philip Snowden, had assigned me to work simultaneously on an even larger account, General Electric.

Within a matter of weeks I knew that this was not going to work and that something had to give, and to make matters worse, the two oSDM's on the Environment Agency account had reported me to my manager because I had stated that I could not attend an Environment Agency monthly meeting on the day I was due to finish for my Christmas break. During a conference call with my manager, I stated that I could not continue to work simultaneously on the two accounts, and that I was feeling stressed, and that this was having an impact on my diabetes. After this meeting, one of my duties on the Environment Agency account was cut, but I still had to work simultaneously on both accounts.

After attending the Environment Agency meeting which had sparked this whole discussion off, I had a further unplanned meeting with my senior director, Nick Cooper, which did not go well at all. At the end of that meeting, I had been given no choice but to inform Nick Cooper that I would have to look for another role within Oracle as I could not continue working simultaneously on both contracts as workload conflicts and stress was affecting my health.

I continued working in the role of oSDM, and trying to find time to apply for any new roles within Oracle, and over the period of the next four months, I only managed to identify two roles which my knowledge and experience would suit, both of which I did not get offered.

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 in the Tribunal system for unfair dismissal and disability discrimination just over a month later. Within twenty-eight days, the respondent, Oracle Corporation UK Limited, represented by Morgan Lewis, a multinational legal firm, had lodged their response to my claim. In the response, they had clearly stated that I had been dismissed and agreed that my description of my job or job title was correct.

In the multiple pages that comprised of their response two months after the redundancy, the respondent stated that I had a non-customer facing role, which was news to me, but did not state once in all eighteen hundred words that I had a unique or support role, and never mentioned the Customer Incident Management role.

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.

In February 2007, I received a bundle of documents to be used as evidence at the main hearing, and within this bundle were two emails:

The first  email was from my manager, Phil Snowden, to a senior director, and which Human Resources were copied on, and which read:

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

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

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

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

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

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

That was the proof that I had suspected all along, my case was now a formality. 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 prudent to refuse both offers.

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

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

Chapter 2

On 19 September 2007, I sent the following email to the Tribunal, as I was livid that the Tribunal had sent the full judgment to the Citizens Advice Bureau.

Dear Sir/Madam,

The Claimant is requesting a full explanation as to why the judgment of this Employment Tribunal was sent to a Mr Steve Butler at the Citizens Advice Bureau, and not to the Claimant at his home address, where all other correspondence had been sent previously.

The Claimant is requesting any exact wording of any correspondence between this Employment Tribunal and the Citizens Advice Bureau, which led this Employment Tribunal to deliver this judgment to the Citizens Advice Bureau, and not to the Claimant at his home address, a reason why the Claimant was never informed by this Employment Tribunal in any correspondence that this judgment was being sent to the Citizens Advice Bureau instead of directly to the Claimant.

This has resulted in a delay of 5 days from when the judgment was issued to when the Claimant received the judgment, and has now cut the time that the Claimant has to submit any appeal from 14 days to 9 days.

During the next week, I spent every day going through the judgment and the evidence, and noting points that were wrong in my opinion, and should be reviewed. On 26 September 2007, I emailed the Tribunal.

Dear Sir/Madam,

Please find attached a request to review the "Judgment of the Employment Tribunal" copied to parties on 13 September 2007.

The document attached is entitled "Review of full tribunal judgment S_116267_06" and contains 39 pages in total.

The Tribunal replied on 2 October 2007:

Dear Sir

I refer to your application for a review of the above case. I have to advise you that the Chairman (Ms Crone) has refused to grant a review and states:-

"The Chairman considers the review has no reasonable prospect of success because the points raised and referred to are all points that were made or could have been made at the hearing .The role of the Tribunal at the Hearing includes making findings of fact based on the evidence heard and productions referred to This process frequently involves preferring one party's evidence to the other and where this has happened, we have set out our reasons why we preferred particular evidence."

On 3 October 2007, I wrote two letters to the Tribunal, the first letter stated:

Dear Sir/Madam,

The claimant requests a copy of all the audio (and/or video) tapes of the tribunal in case number S/116267/06 held on the following dates:

2 July 2007

3 July 2007

4 July 2007

6 August 2007

The claimant also requests all of the following information:

A copy of all notes taken by all tribunal members during all the dates outlined above.

A copy of all notes taken by the tribunal when making the judgment.

A copy of how each tribunal member voted with regards to the judgment.

This will aid appeals and any third parties representing the claimant.

The second letter stated:

Dear Sir/Madam,

Thank you for your letter dated 2 October 2007 stating that the claimant's request for a review was refused. The claimant will take from the reply given, that this tribunal cannot provide answers to the questions posed by the claimant.

Further information regarding judgment issued to parties on 13 September 2007.

The following information would aid the EAT appeal, and any subsequent appeals:

1: In the respondent's  ET3 form dated 25 September 2006, the respondent does not mention the "Global Service Desk" or "CIM" role once. As this ET3 form was lodged only a couple of months after the claimant was made redundant (allegedly because of the "Global Service Desk" and "CIM" role), can this tribunal explain why the "Global Service Desk" and "CIM" role was never ever mentioned in the ET3 form only two months after making the claimant redundant for those 'alleged' reasons?

2: With regards to filing the ET3 form on the Employment Tribunals website, it states:

"By law, you must tell us your full name and address, say whether or not you are resisting the claim in whole or in part and, if you are, give the grounds on which you are resisting it."

Why has this tribunal in its  judgment, found in favour of the respondent, on different and unstated grounds than those stated in the ET3 form?

3: Does this tribunal still maintain that, having heard and read all the evidence, that disability discrimination has not taken place at all?

4: Why, please state reasons, does this tribunal believe that this has not been a 'story' created over the 10 months between the ET3 form dated 25 September 2006 to full tribunal dated 2, 3, 4 July 2007?

5: Were the witness statements of Mr Philip Snowden and Mr Nicholas Cooper, so heavily relied on in the judgment of this tribunal,  signed by  hand?

6: Why are most of the claimant's document references in the judgment completely wrong, for example, on  paragraph 93 of the judgment it lists a number of references to volume 3 page 111 or less, volume 3 does not start until  page 385? As this will severely hamper the claimant's chances at future appeals, I ask that this tribunal correct every single error in the 38 pages of the judgment and send a fully corrected copy to the claimant as soon as possible.

The letters that were being written at this stage of the case did not even begin to project just how incensed I was with not only the respondent but also the legal system. This was now a war, not just against the respondent, but also against the legal system in Scotland. While I knew the enemy had unlimited resources and powerful people, I knew and had always known, that I had good, right and fairness on my side.

I had started to prepare my appeal for the Employment Appeal Tribunal, but I was also aware that I would require legal help due to previous experience with the Employment Appeal Tribunal and the reasonable adjustment appeal.

I, therefore, decided to contact Diabetes UK again, although I had personal first-hand experience that many of these organisations hide as soon as you mention legal proceedings.

It was now 3 October 2007 when I received a copy of the following letter sent by the respondent to the Tribunal:

Dear Sir

Application for award of costs against the Claimant: Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Rules 38 and 40

The full Tribunal hearing in this matter took place on 2-4 July 2007 (inclusive) with closing submissions on 6 August 2007. The Tribunal's decision, dismissing all of the Claimant's claims, was sent to the parties on 13 September 2007.

Prior to the full hearing, a pre-hearing review took place on 9 March 2007, with case management discussions on 20 October 2006, 9 March 2007 and 26 June 2007.

During the course of this litigation - commenced by the Claimant's ET1 on 25 August 2006 - the Claimant made numerous written applications to the Tribunal against the Respondent, including

* applications for adverse inferences to be drawn against the Respondent (18 November 2006 and 16 February 2007);

* an application for the Respondent to be debarred from defending the claim and/or for preparation time costs to be awarded in his favour (1 May 2007);

* an application for witness orders, (having previously contacted former colleagues at, and employees of a client of, the Respondent seeking witness statements from them) (29 May 2007), and

* an application for the Respondent's defence to be struck out (25 June 2007 pursued at CMD on 26 June 2007).

Also on 25 June 2007, the Claimant withdrew his claim in respect of personal injury, despite having confirmed that this was a head of loss he pursued in the Schedule of Loss which he served on 21 March 2007.

Throughout this litigation (and even before it commenced), the Respondent was prepared to consider settlement on reasonable terms, and in pursuance of this, has made the following :-

* Before the Claimant's employment ended: settlement offer of £12,000 (in a compromise agreement given to the Claimant in June 2006);

* On 13 November 2006 : settlement offer of £12,000 (made through experienced ACAS Officer, David Graham who we understand endeavoured to encourage the Claimant to settle this dispute on reasonable terms);

* On 31 January 2007 : settlement offer of £28,000 together with an offer of a contribution of £2,000 towards taking legal advice in respect of the accompanying compromise agreement, and an offer of £1,000 towards outplacement services;

* On 12 February 2007 : explanation of basis for offer made on 31 January 2007; explanation of calculation of Tribunal awards; offer of £1,000 towards Claimant taking employment law advice as to his claims from a specialist employment solicitor;

* On 20 March 2007 : explanation of basis for loss of career award sought in the case of Khan & King v. the Home Office (relied on by the Claimant in discussions with Respondent's Counsel);

* In March 2007 : suggestion of mediation in this dispute - costs of mediation to be borne by the Respondent: at 9 March 2007 CMD it was agreed that the case should be sisted for mediation from 10 March to 30 April 2007. During this period the Respondent took the following steps:

* Wrote to/emailed the Claimant on 20, 21 and 22 March 2007;

* 27 March 2007 : Informal without prejudice discussion between Claimant and the Respondent's Counsel;

* On 29 March 2007 : Indication to the Claimant that Respondent was considering contribution to costs of Claimant's legal representation at mediation - in response to his indication that he would represent himself;

* Between 9 March and 27 April 2007 : Identifying Edinburgh-based mediator and co-ordinating their available dates for mediation with those of Respondent representatives and Counsel, as well as agreeing mediator with Claimant;

* On 1 May 2007 : Offer of mediation date to Claimant together with offer of contribution of up to £2,000 towards cost of Claimant being legally represented at mediation;

* On 9 May 2007 : Email to Claimant encouraging him to attend mediation;

* Payment to proposed mediator in relation to cancellation of date provisionally reserved for mediation and in respect of costs incurred -including in relation to correspondence between Claimant and mediator (not disclosed to Respondent);

* On 18 May 2007 : explanation of difference between the parties' valuation of the Claimant's claim for future losses (which totalled over £700,000.) It was pointed out that this differing approach was the only thing then preventing a mediation.

Whilst the Claimant indicated his willingness to participate in mediation, his settlement expectations remained unreasonable and he indicated that he did not intend to be legally represented at a mediation (although as had been indicated to the Claimant on 1 May 2007, the Respondent did make an offer of £2,000 towards the costs of such representation).

Ultimately the Claimant declined to participate in mediation as it had not taken place prior to the end of April 2007. Further, with effect from his 18 June 2007 email, the Claimant stated that any further communications regarding his claims (including with regard to mediation) would no longer be treated as "without prejudice" but would be used by him in evidence. This effectively prevented any further discussions taking place with regard to settlement.

Copies of correspondence with the Claimant regarding settlement and mediation, from 31 January 2007 onwards, are enclosed with this letter.

As the enclosed correspondence makes clear, on 1 February 2007, the Claimant stated "... if you wish to reach a settlement before tribunal proceedings, do not waste my time, your time and any other legal advisor's time by sending offers less than a six figure sum".

The Tribunal will recall that the Claimant's claims were ultimately rejected in their entirety and that the Claimant was found not to be a credible witness in many aspects of his evidence. In particular, it was noted as follows in the judgment:

"We found this aspect of the claimant's evidence to be not credible"

 [paragraph 83]

"We found the claimant, in contrast to the above, to not be a credible witness in many aspects of his evidence. The claimant was evasive when responding to questions, and often maintained the position of responding with the information he wished to give, rather than answering the question."

 [paragraph 122]

As the Tribunal will note, since our letter of 12 February 2007, and reiterated in Mr Davy's (Respondent's Counsel) email to the Claimant dated 18 May 2007, the Respondent has made clear that, should the Claimant be unsuccessful in his claims before the Tribunal (including if he recovered less than the £707,000 sought by him in settlement of his claims in February 2007), the Respondent would reluctantly make a costs application against him in respect of costs incurred by the Respondent since 26 February 2007. In Mr Davy's email of 18 May 2007 he stated as follows:

"I appreciate that you are reluctant to seek any further independent legal advice, but I urge you to at least consider taking advice on the issue of mitigation and future losses. As you know, my clients have offered to contribute to the cost of you seeking legal advice and have also offered to contribute towards the cost of you being legally represented at a mediation.

As was mentioned in the letter to you of 12th February 2007, if the Tribunal accepts my client's approach and determines that the value of your claim is significantly less than the sum set out in your Schedule, my client will argue that if both parties had taken a sensible view as to the value of the claim it could have been resolved by mediation and without the need for a final hearing. Accordingly, my client will reluctantly seek an Order from the Tribunal for a contribution towards its legal costs".

We now make such an application. It is the Respondent's case that the Claimant's conduct of this litigation has been wholly unreasonable. In particular:

i) The Claimant unreasonably rejected each of the Respondent's offers of settlement. Given the Tribunal's complete rejection of the Claimant's claims and the conclusion that he was not a credible witness in many aspects of his evidence, the settlement offer of £28,000 in January 2007 was extremely generous. The Respondent went to great lengths to try to explain to the Claimant why the value of his claims was less than the sum offered (including offering to pay for him to obtain independent legal advice).

ii) The Claimant's unreasonable settlement expectations and his refusal to enter into a meaningful dialogue effectively prevented any settlement being achieved. Although the Claimant was a litigant in person, the Respondent's representatives repeatedly explained why his expectations were unreasonable and offered to pay for him to obtain legal advice on that issue.

iii) The manner in which the Claimant pursued his claim both prior to the hearing and during the hearing was wholly unreasonable and meant the Respondent incurred significant additional costs dealing with unmeritorious and unjustified applications.

The Respondent's costs since the end of February 2007 amount to a total of £117,000.

The Respondent does not seek reimbursement of the total amount of these costs but rather a contribution towards its costs since that date. The Tribunal's jurisdiction to award costs against a party is limited to £10,000. Accordingly, the Respondent seeks a costs award against the Claimant in the sum of £10,000. For the avoidance of doubt, the Respondent's costs of attending the final hearing alone cost over £40,000 (this figure does not take into account the costs of attendance at the three day hearing of three senior managers of the Respondent).

In addition to an application for a contribution to its total costs, the Respondent makes a specific application for its costs of responding to the very serious allegation made by the Claimant that the Respondent had deliberately altered/tampered with documents in order to gain an advantage in the case. The Tribunal's decision in relation to this issue is at paragraphs  125 and  126 of the judgment. In particular:

i) The allegation was a very serious one that effectively amounted to fraud and accordingly the Respondent was obliged to take it very seriously and respond in great detail.

ii) The confusion which gave rise to the allegations was not helped by the fact that the Claimant had refused to provide hard copies of the documents as had been requested (despite the Respondent offering to pay for this to be done.)

iii) Before making the allegation the Claimant did not check whether the information provided by the Respondent (which was said to have been tampered with) was the same as the information he had sent. Before making such a serious allegation it was wholly unreasonable for the Claimant to have failed to take such a basic step. If he had done so, all or much of the subsequent time and expense spent on this issue would have been avoided.

iv) The Claimant made the allegations that documents had been tampered with or not disclosed even though he knew, or should reasonably have known, that this was not the case. For example, he suggested that a photocopied document, that he knew was originally highlighted in red and had become dark through photocopying, had been deliberately 'blacked out'. He also suggested that documents had been deliberately concealed even though they were included in the bundle.

v) The Claimant's allegation was unfounded (see  paragraph 126 of the judgment).

It was wholly unreasonable for the Claimant to have made the allegation he did or in the way that he did. As a result of the allegation it was necessary for the Respondent to incur considerable costs including that caused by

* reviewing all emails/correspondence between the parties regarding disclosure of documents;

* preparing a specific bundle of documents dealing with this issue;

* re-examining all soft copy documents as supplied by Claimant against schedule supplied by the Claimant of alleged alterations;

* instructing a forensic IT specialist to examine Claimant's relevant emails and soft copy attachments and report on the allegations of altering documents made by Claimant.

In total the cost of responding to the allegation was £700.00.

The Respondent seeks a costs award against the Claimant in this sum in addition to any costs awarded in respect of the costs of responding to the claim as a whole. It is accepted that the total of any cost awards cannot exceed £10,000.

To say I was livid would be the understatement of all time. Not only had the respondent clearly discriminated against me by assuming that diabetes would result in more time off in the future, and dismissing me, but they now wanted me to pay for the privilege.

The next day I sent a number of emails to Diabetes UK, The Disability Law Service and a Law Centre, to try and obtain representation at future hearings.

Around this time, my parents and I were so livid with the judgment that discussions and emails were happening on a daily basis concerning just about every paragraph of the main Tribunal judgment, and every decision made by this Tribunal. In particular were the decisions to dismiss disability discrimination, dismiss unfair dismissal and the statement in paragraph 122 of the judgment "We found the claimant, in contrast to the above, to not be a credible witness in many aspects of his evidence.". Other parts of the judgment that were discussed were the parts concerning altered documents, my role being non-customer facing, support, unique, back office and limited, as well as any other words that the respondent could use which had a similar meaning. Given the hard factual evidence presented to that Tribunal to dispute all their findings, the anger was tangible and had purpose.

On 9 October 2007 I received the following email reply from the Law Centre:

Dear Mr McAlpine

Sorry due to shortness of time and geographical limitations of our service we cannot be of assistance.

Later that day I sent an email to the Employment Appeal Tribunal requesting a five-day extension to the time for lodging an appeal, as I had received the Employment Tribunal judgment five days late due to the Employment Tribunal sending the judgment to the Citizens Advice Bureau rather than to myself at my home address.

Early the next morning I received a reply from the Employment Appeals Tribunal referring me to a procedure which stated that an appeal must be lodged before they can consider a request to extend the time for appealing. Talk about putting the cart before the horse.

That same day, I, at last, received a breakthrough, Diabetes UK phoned me to confirm that they had passed my details on to a lawyer in London and that I should phone the lawyer immediately.

I immediately phoned the lawyer but was a little disappointed to learn that the lawyer was a specialist in pharmaceuticals. However the lawyer was nice and assured me that she would help in any way, and I should send down documentation and any judgments on the case. I received the following email later that afternoon:

Dear Mr McAlpine

Further to our telephone discussion this afternoon, my contact details are as follows:

Arnold & Porter UK LLP

Tower 42

25 Old Broad Street

London EC2N 1HQ

Tel: 020 7786 6100

Fax: 020 7786 6299

Please mark any correspondence for my attention to ensure that it does not go astray within the office.

I look forward to hearing from you.

Upon receiving that email, I immediately sent copies of all documentation used at the Tribunal including judgments, and a brief summary of the case to the address in the email, and marked it for the attention of the lawyer.

Two days later I received the following letter from the Tribunal:

Please find enclosed a copy of a letter dated 3 October 2007 from the respondent's solicitor. The Chairman (Ms Crone) has instructed me that a half day hearing on the question of expenses should be fixed.

The Chairman requires you to complete the attached form in full and return it to this office by 26 October 2007.IF IT IS NOT POSSIBLE TO IDENTIFY DATES SUITABLE TO BOTH PARTIES WITHIN THE PERIOD SPECIFIED DATES WILL BE FIXED IN THE PERIOD FOLLOWING IMMEDIATELY THEREAFTER BY THIS OFFICE WITHOUT CONSULTATION.

It is worth stating at this time two immediate thoughts that occurred to me when I received this letter.

The first thought was a question, why is a multinational company which earns billions a year, represented by a multinational legal firm who are not short of cash, bothering to try and win less than ten thousand pounds?

The answer to that question was immediate, as it would probably cost them that much in time and money, they were not benefiting that much, if at all financially. However, it may frighten off any further plans for appealing.

The second thought was that a Tribunal Chairman does not have to agree to a costs hearing, and does not have to award costs, in fact, in less than one in one hundred cases do a Tribunal award costs. However, my immediate reaction to this letter was not surprising, if this Tribunal could dismiss discrimination when it is in black and white, then anything goes, so I was utterly convinced that this Tribunal would award costs against me.

It was now a stark choice, cave in and take less financial punishment, or carry on, with any future financial punishments increasing dramatically in higher appeal Courts.

My wife, at this stage, was also begging me to give up, as she had never supported me from day one, and we couldn't take any financial hit, never mind thousands, as she was on a five year career break, I was unemployed, and we had two children under ten, as well as bills to pay.

However, if everyone ignored injustices, evil would rule the world, good would just be a word, and world order would slowly collapse. It is those chosen few, who step up to the plate and tackle injustice that can meet their maker with a good tale to tell. The rest can spend eternity reflecting on what could have or might have been.

Just after I had made peace with myself on my decision to carry on, I received a letter from the Tribunal:

Dear Sir

I acknowledge your emailed letters of 3 October 2007.

The Chairman (Ms Crone) has instructed me to state:-

(i) There is no tape recording of the Tribunal.

(ii) The request for notes made by the Tribunal is refused.

(iii) The judgment recorded the decision of the Tribunal was unanimous.

A copy of your requests and this reply has been sent to the respondent's solicitor.

I wasn't surprised by this letter, as I did not expect a tape recording and if the Tribunal had taken any notes during the three-day hearing, it would only have amounted to a couple of pages, as any time I observed them, they were not engaged in taking any notes or reading anything. A unanimously wrong decision would make it easier to get all three Tribunal members sacked.

On 18 October 2007 I received some good news from the lawyer that Diabetes UK had contacted:

Dear Mr McAlpine

Further to my discussion with you today, I confirm that Michael McLaughlin of Biggart Baillie, solicitors, has kindly agreed to take on your case. I understand that he is an employment expert and qualified both to advise you and represent you at the hearing. I have indicated to him that you are unable to fund the costs of legal representation.

Mr McLaughlin's contact details are as follows:

Biggart Baillie

Dalmore House

310 St Vincent Street

Glasgow

G2 5QR

tel: 0141 228 8000

I have sent to him the papers you sent me by email (the materials you sent electronically) and by courier (the two files). I am a little unsure whether the courier will arrive tomorrow morning - and would therefore suggest (as you said you had a spare copy) you should call Mr McLaughlin's secretary in the morning and if my package has not arrived, provide your documents. I'm sorry for any inconvenience this may cause.

Please let me know how you get on \- or contact me again if you have any problems.

On 22 October 2007, I had arranged to have my first meeting with Michael McLaughlin, and this meeting started in the middle of the morning in a large, plush boardroom, with just Michael and myself. Michael was about my age and my height, thin with short hair. He was welcoming, friendly and courteous. He had already worked his way through the whole thirty-nine pages of the main Tribunal judgment and highlighted contentious areas with a yellow highlighter pen. We, therefore, proceeded to work our way through the judgment from start to finish, discussing these contentious areas in greater detail, and this method took up the greater part of the meeting.

We were due to break for lunch two-thirds of the way through the meeting, and at that time, we were discussing witness statements. I commented to Michael that some of the witnesses had read other witness statements, and Michael inquired how did I know that, to which I replied that it was stated in their witness statements. Michael was astounded, and I added that I had brought up the witness statements which were in my car, and the last thing Michael said to me before we broke for lunch was to find those  paragraphs in the witness statements which stated that those witnesses had  read other witness statements and to bring  these back to the meeting at one o'clock.

After a short lunch break, I met up with Michael again in the same boardroom and showed him the witness statements. We finished up the meeting around two o'clock with Michael requesting further information on ten points:

1. Find any parts of any witness statements that mention CIM role and/or Service Desk.

2. Find any parts of submissions that mention CIM role and/or Service Desk.

3. Find any parts of submissions that mention individual aspects of the oSDM role that I did and didn't perform.

4. Find any parts of any witness statements that mention 'removal' of claimant's role.

5. Find any parts of Kenneth McAlpine or Catherine Temple witness statements that mention 'face-to-face' meeting.

6. Find any parts of Philip Snowden or Catherine Temple witness statements that mention 'general discussions about alternative roles'.

7. Find any parts of Malcolm Thompson or Catherine Temple witness statements that mention 'diabetes'.

8. Find any parts of Malcolm Thompson, Catherine Temple, Philip Snowden or Nicholas Cooper witness statements that mention 'diabetes' and email 12 April 2006.

9. Find any parts of any witness statements that mention 'further alternative roles'.

10. People who have stated they have read other witnesses statements.

The day after the meeting with Michael, I received the following email:

Ken,

As discussed please track your changes.

Regards,

Michael

The attached document read:

EMPLOYMENT APPEAL TRIBUNAL (SCOTLAND)

KENNETH McALPINE (THE APPELLANT)

against

ORACLE CORPORATION (UK) LIMITED (THE RESPONDENT)

PAPER APART

7.1 The Employment Tribunal reached certain critical findings in fact which, on the evidence before it, were conclusions that no Tribunal properly directing itself would have come to. The Employment Tribunal reached factual conclusions which were not permissible on the fact of the evidence before it.

7.2 The Appellant's claims for unfair dismissal, less favourable treatment and direct discrimination, the latter two claims under the Disability Discrimination Act 1998 ("DDA") was centred on his belief that the two reasons for his selection for and dismissal as a result of redundancy was due to the fact of his having diabetes and his diabetes was exacerbated by stress and that the Respondent held the belief that his diabetes could potentially result in the Appellant being absent from work as a result of ill health for long periods.

7.3 An absolutely crucial piece of documentary evidence in relation to the Appellant's assertions was an  email from the Appellant's Line Manager, Phil Snowden to the Respondent's Malcolm Thompson dated 12 April 2006. Phil Snowdon's immediate Line Manager was Nick Cooper and in turn his Line Manager was Phil Snowdon. The email was copied to 3 other individuals being Nick Cooper, Simone Harch and Cathy Temple. Simone Harch and Cathy Temple are representatives of the Respondent's Human Resources Department. The email is set out immediately below in full:-

"Malcolm,

As discussed this afternoon, the options are:-

\- to allocate Kenneth to a new customer account. It has been some time since Kenneth attended the on demand life cycle training, and he has not been involved, due to his current engagement with EA and JE, in the initialisation process, which is vital to establish the initial customer environment. This would be quite a risk to the account at an early stage. it would also take a lot of support from another SDM during this phase.

\- to allocate Kenneth to an existing customer account to replace an existing SDM. This is probably the least risk option but would involve a prolonged handover so that Kenneth could get an understanding of the account and the services which are being delivered to the customer. Any capability process could probably only commence once Kenneth was fully delivered to the customer following the extended handover.

With either option, there is a 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 exist 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.

Regards,

Phil"

7.4 This email represented in essence the high point of the Appellant's case at the Tribunal. The Appellant maintained that the email was clear evidence that a full 6 weeks before the commencement of the redundancy consultation procedure, the various individuals who were responsible for selecting him for redundancy were already engaged in an email exchange regarding exiting him from the business as a result of the likelihood that his diabetes would cause him to be off sick for a prolonged period. Largely, on the basis of this email, the Appellant maintained that the reason for his selection for redundancy was his diabetes and its potential to cause him to be off work. 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 to redundancy was the likelihood that he would be off sick for long periods then in so concluding the Respondent had treated him less favourably. This is the factual and legal position advanced by the Appellant, both in evidence and in submissions.

7.5 The Respondent's rebuttal of these arguments was centred on the fact that the effective commencement of the process which culminated in the Appellant's redundancy occurred during February 2006. The Respondent's position was that following upon a merger of the Respondent's business with another Company named Siebel a reorganisation process culminated in a number of the Respondent's employees being placed on what is referred to as a "Reduction In Force" list. On this list were placed individuals whose roles were potentially redundant as a result of the reorganisation of the Respondent's business. It was critical to the Respondent's case that the Tribunal accepted three central facts regarding the placing of the Appellant on this RIF list. Firstly, that it was Malcolm Thompson and Malcolm Thompson alone who decided to place the Appellant on the RIF list. Secondly, that Malcolm Thompson did so at a time when he had no knowledge of the Appellant's diabetes. Thirdly, that all of the other recipients of the email of 12 April 2006 were entirely unaware either or the existence of the RIF list and the fact that the Appellant had been placed on the list. If the Respondent could satisfy the Tribunal of these 3 central facts then the Respondent was in a position to argue that even if the email of 12 April 2006 was indicative of a general desire on the part of Phil Snowden to exit the Appellant from the business as a result of his diabetes, the instrumental decision maker in the redundancy process was completely uncontaminated with any such knowledge or motive and therefore the fairness or otherwise of the selection for redundancy was not tainted by any such inappropriate motives or objectives that may have existed on the part of Phil Snowden, Nick Cooper or Cathy Temple.

7.6 The Tribunal did indeed accept this factual analysis presented by the Respondent. On page 34  paragraph 167 of the Judgment, the Tribunal states as follows:-

"You were referred to Mr Thompson's witness statement where you stated that he had been unaware of the Appellant's diabetes at the time of putting his name forward for the RIF list. The Appellant did not have an opportunity to cross examine Mr Thompson regarding this matter but Ms Temple spoke to this matter and the Claimant did not seek to challenge her evidence on the basis that we accepted that Mr Thompson Senior Manager had put forward the Appellant's name for the RIF list had been unaware at the time of the Appellant's diabetes at the time of putting him on the RIF list. Mr Snowden and Mr Cooper were initially unaware of the RIF list and could not have influenced Mr Thompson's decision".

The Tribunal continued to address the issue at page 34  paragraph 168:-

"The Appellant referred to emails from Mr Snowden while reference was made to his diabetes and the potential for absence. We, in considering this matter, were satisfied on two points:-

Firstly, that communication to and from Mr Snowden did not lead to the selection of redundancy of the Appellant because his name was already on the RIF list; and secondly, at that time, Mr Snowden did not know for a fact that the Appellant's name was on the RIF list. The discussion Mr Snowden had (via email) related to the role the Appellant could take on in the future, the risks in moving the Appellant to a full OS DM role with a new account and requirements of moving him back to take over an account from one of the other OS DM's, all against the background and knowing the Appellant did not want to take on the full OS DM role, there was no suggestion that this discussion lead to the Appellant's selection for redundancy, he was already on the RIF list and would be made redundant if an alternative could not found".

In reaching this conclusion, the Tribunal has fallen into fatal errors. Firstly, the Tribunal have failed to notice that the  email from Snowden to Malcolm Thompson on 12 April 2006 commences with the words "As discussed this afternoon, the options are".

It is clear from these words that the email follows upon a discussion between at least Snowden and Thompson. If, as the Respondent has stated, the Appellant was already on the RIF list and therefore likely to be made redundant, the Tribunal should have asked itself why Mr Thompson would not have parted this knowledge to Mr Snowden even on a confidential informal basis. The fact that Mr Snowden has required to send this email following upon that meeting is proof that Mr Thompson did not disclose to Mr Snowden that the Appellant was on the list. The mere existence of the meeting between Thompson and Snowden and the email that followed upon that meeting should have lead that Tribunal to the unavoidable conclusion that as at 12 April 2006 the Appellant was not on the RIF list nor at risk of redundancy. If he had been then there would have been no reason for the exchange or conversation to take place.

7.7 In addition, the Tribunal have failed to take any cognises of the Appellant's evidence that to this day he has never met Malcolm Thompson. That being the case, the Tribunal should have questioned to what extent Mr Thompson could have been in a position to assess the extent of the Appellant's role and the appropriateness of placing him in the RIF list without consultation with Snowden and Cooper. Thompson did not know the Appellant nor did he know what he did and the Tribunal could only have concluded that Thompson could not have replaced the Appellant on the RIF list without consultation with Cooper or Snowden.

7.8 The acceptance of various witness statements from those who did appear and who did not appear at the Employment Tribunal are subject to a separate ground of appeal below however, for the purpose of this ground of appeal, reference is made to Malcolm Thompson's witness statement. Malcolm Thompson did not give evidence at the Employment Tribunal. It must be borne in mind that the Respondent's position was that the decision to place the Appellant on the RIF list was the decision of Malcolm Thompson and Malcolm Thompson alone. Because of that fact, his thinking could not possibly have been contaminated by thoughts of the Appellant's diabetes and the potential for sickness absence. Notwithstanding this well rehearsed position of the Respondent in numbered paragraph 2,  line 6, Mr Thompson's statement outlines as follows:-

"We anticipated that the support role with which Mr McAlpine uniquely provided to full service SDM's within the UK, the SDM team would no longer be required."

The only interpretation that the Tribunal could have drawn from this part of Mr Thompson's evidence in chief was that the decision to place the Appellant on the RIF list was not a decision that Mr Thompson had taken himself in confidence and in isolation but that had been taken in conjunction with Snowden and Cooper, that being the case, there was clearly scope for Cooper and Snowden to make known their reservations about the Appellant's diabetes and the potential for sickness absence. Notwithstanding this apparent contradiction disclosed by Mr Thompson's witness statement the Tribunal appear to have accepted that the decision to place the Appellant on the RIF list was that of Mr Thompson alone to do so in the face of such contradictory evidence from that particular witness himself is impermissible and in so doing, the Tribunal have committed an error or law.

7.9 A separate and distinct ground of appeal arises out of Phil Snowden's email to Malcolm Thompson of 12 April 2006. The redundancy consultation process in respect of the Appellant commenced with a meeting with an HR representative of the Respondents on 30 May 2006. That meeting with Sue Skates was followed up by a letter of the same date. In the second paragraph of that  letter it is stated:-

"If, as a result of this process we conclude that there are no suitable opportunities available then only at this point will we confirm that you are redundant".

Notwithstanding that statement, it should have been evident to the Tribunal that the email of 12 April demonstrates that some 5 weeks prior to the commencement of the redundancy consultation process the Respondent in the guise of Snowden, Thompson, Cooper, Temple and Harche have already concluded that the Appellant is not to be considered for any alternative roles within the Respondent's organisation as a result of his diabetes and the likelihood that his diabetes will lead to lengthy sickness absences. The matters raised in the  email of 12 April 2006 were at no time discussed with the Appellant either prior to or during the redundancy consultation process. It was an unavoidable conclusion for the Tribunal in this case that the Respondent took no steps whatsoever to identify alternative roles for the Appellant. The legal obligation on the Respondent was of course to take reasonable steps to identify alternatives and therefore avoid the redundancy dismissal of the Appellant. It is also an inescapable conclusion for the Tribunal that the reason why no attempts were made to identify alternative roles for the Appellant was due to the fact that he suffered from diabetes and accordingly, it was the Respondent's perception or anticipation that the Appellant would be off sick for long periods as a result of that condition. In declining to make any efforts whatsoever to identify alternatives by reason of the Appellant's disability and resultant possible absences, the only permissible conclusion for the Tribunal was that the respondent's conduct constituted direct discrimination in terms of Section [ ] and/or less favourable treatment on the grounds of disability in terms of Section [ ]. The Tribunal's failure to find these facts proven in light of the incontrovertible documentary evidence before them was impermissible.

Witness Statements

7.10 The Employment Tribunal placed reliance on evidence contained in witness statements from individuals who did not appear to give evidence at the Employment Tribunal. In so doing, the Tribunal placed reliance on evidence which the Appellant was unable to test in cross examination.

7.11 For reasons best known to the Respondent, the most important witness in the entire case, Malcolm Thompson, did not appear to give evidence. It is Malcolm Thompson as the Respondents have it who took the decision to place the Appellant on the RIF list. It was therefore Mr Thompson who ultimately decided that the Appellant should be provisionally selected for redundancy. The Respondent's case was that it was his decision and his decision alone and that that decision was not influenced in any way by any representation made either by Snowden or Cooper who had much more frequent and closer daily working contact with the Claimant. If the foregoing submission is accepted, then the Tribunal had no evidence whatsoever of Malcolm Thompson's thought process in selecting the Appellant for redundancy. In addition, the Tribunal had before it no evidence of the extent of Mr Thompson's knowledge about the Appellant's diabetes or potential for being off sick as a result of the diabetes. Without this evidence, the Respondent has lead no evidence to rebut the Appellants assertion that the selection for redundancy was a result of the Appellant occupying a singular and unique position within the Respondent's organisation which had all but disappeared.

7.12 The witness statements of Nick Cooper, Phil Snowden and Cathy Temple go on at length about the reasons for the Appellant's selection for redundancy however, as the Respondent maintains that the decision to select the Appellant for redundancy was the decision of Malcolm Thompson and Malcolm Thompson alone, the Tribunal should have place no weight on that evidence whatsoever.

7.13 The Employment Tribunal appear to recognise the difficulty that the non appearance of Mr Thompson causes for the Respondent at page 34, numbered  paragraph 167 where it is stated as follows:-

"We would refer to Mr Thompson's witness statement where he stated that he was unaware of the Appellant's diabetes at the time of putting his name forward for the RIF list. the Appellant did not have an opportunity to cross examine Mr Thompson regarding this matter, but Ms Temple spoke to this matter and the Appellant did not seek to challenge her evidence. On that basis, we accepted that Mr Thompson, the Senior Manager who put forward the Appellant's name for the RIF list had been unaware of the Appellant's diabetes at the time of putting him on the RIF list".

Ms Temple's statement which was taken as her evidence in chief makes no reference whatsoever to Mr Thompson's state of knowledge one way or the other of the Appellant's diabetes. The high point of her evidence on this particular issue for the Respondent is that she was "aware that in February 2006 candidates for possible redundancy were sought within Oracle as a consequence of oracle's acquisition of Siebel and as a result of other plant re-organisations within the business". She speaks to the compilation of the RIF list in the course of February 2006 but she makes not reference whatsoever to whether or not she has any knowledge of whether or not Malcolm Thompson had any knowledge of the Appellant's diabetes and accordingly, her evidence does not enable the Tribunal in the absence of evidence from Mr Thompson to conclude anything about his state of knowledge in respect of the Appellant.

7.14 The witness statements of the most important witnesses for the Respondent being Nick Cooper, Phil Snowden, Malcolm Thompson and Cathy Temple disclose that each of the witnesses had had sight of the other witnesses witness statements prior to the completion of their own witness statements. On page 3 numbered  paragraph 7 of Malcolm Thompson's statement, he states "I am aware of, and have read statements of Phil Snowden and Cathy Temple and confirm that I agree that these accurately reflect my recollection of events in April and May 2006". Accordingly, Malcolm Thompson has had sight of the witness statements of other witnesses in order to assist him in compiling his own evidence. In effect the Respondent's witnesses have collaborated in the putting together or their evidence and it is therefore hardly surprising that the evidence of the principal witnesses for the Respondents is entirely consistent.

If appears that the Employment Tribunal has failed to notice the fact that the Respondent's witnesses collaborated in putting together evidence or if that fact had been noticed, the Tribunal was entirely unconcerned by it. Whichever of these two scenarios is the case, in failing to recognise that the putting together of the witness statements had been a collaborative and collective exercise, the Tribunal has fallen into error. Any Tribunal properly directing itself in law would have not allowed the Respondent's evidence in chief to be given by way of witness statement having discovered that it had been put together in collaboration and in failing to do this, the Tribunal is in error.

Whilst the Employment Tribunal in England allows witnesses who are yet to give evidence to sit through the evidence of other witnesses, that practice is not accepted in Scotland. Even assuming that there is nothing improper in that practice, what has happened her in this case goes way beyond the normal practice in England in that the witnesses had sight of the evidence of the other witnesses at a time when they were preparing their own witness statements and therefore had they been of a mind to, they were able to tailor their evidence to make sure it is consistent with their colleagues. Justice must be seen to be done as well as done and the fact that the Respondent's collaborative evidence has been accepted almost entirely by the Employment Tribunal, its decision in any matter or fact cannot be accepted.

Pre-Determined Redundancy Dismissal

7.15 The Respondent's position is that Malcolm Thompson decided to place the Appellant on the RIF list in the early part of February 2006. In support of this assertion, the Respondent relied on evidence on a version of the  RIF list which was sent from Malcolm Thompson to Catherine Temple by email attachment dated 7 February 2006. The attachment consisted of a list of employees with their personal details, locations and job titles and grade. The last 3 columns on that spreadsheet are good together under the heading of "Key Dates". The 3 headings under this global heading are "Required Exit Dates (by Business)", "Estimated Termination Date" and "Actual Termination Date". The redundancy consultation procedure had not commenced as at 7 February 2006. Notwithstanding that fact, from the face of the RIF list, the Respondent had already reached a final and concluded view that the employment of the Appellant and anyone else on that list required to be terminated by a certain date. A Tribunal properly directing itself in respect of this document could have drawn no other conclusion from the words "required exit date".

Accordingly, any consultation process which took place after the date on which the Appellant was placed on the list was nothing more than a sham. The termination of the Appellant's employment was pre-ordained as of 7 February 2006.

7.16 As stated above, the Respondent produced an email from Malcolm Thompson to Catherine Temple dated 7 February 2006 which contained a version of the confidential RIF list on which the Appellant had been placed as at that date. That fact appears to be a key plank in the Respondent's argument that Malcolm Thompson's reasoning and thought process could not have been contaminated with thoughts of the Appellant's medical condition and the likelihood that he would be absent for long periods. This particular evidential position is however contradicted entirely by a further document produced by the Respondent. At volume III document 72  page 408 of the Agreed Bundle of Documents, an email from the Respondent's Debbie Gardiner to Catherine Temple dated 2 April 2006, it is clear from the face of that email that Cathy Temple had asked Debbie Gardiner to add the Appellant to the RIF list and Debbie Gardiner replies to Cathy Temple to advise her that this has now been done. There is a significant and material contradiction therefore in the Respondent's position relative to when the Appellant was placed on the RIF list. The Employment Tribunal clearly failed to take account of this apparent contradiction.

The evidence of Catherine Temple at page  number 12 of the witness statement was that "This list was compiled in February 2006. I understand that Malcolm Thompson is named as the Manager who identified Mr McAlpine as a candidate on this list". At page 1,  paragraph 2 of Malcolm Thompson's witness statement, he states "I confirm that I identified Mr McAlpine's role as potentially redundant in a spreadsheet seeking possible candidates for redundancy sent to me in February 2006." The Employment tribunal confirms in its Judgment that the evidence of Thompson and Temple on the timing of the RIF list was accepted notwithstanding the exchange of emails between Debbie Gardiner and Catherine Temple which indicates that the Appellant's name was not in fact added to the RIF list until 2 April 2006.

Three days later I sent the following email to the Department for Business, Enterprise and Regulatory Reform:

Hi,

I, as an ex employee of an organisation, require to know for a Tribunal claim, whether the company I worked for submitted an HR1 form to the DTI in Spring last year (March/April/May 2006).

I do not require to know individual employee names, etc, but just whether the company submitted an HR1 form and how many redundancies there were according to the HR1 form.

How would I go about obtaining this information?

I received the following reply later that same day:

Please phone our Birmingham office (Redundancy Payments), for the information.

Chapter 3

Eight days after my face-to-face meeting with Michael McLaughlin, Michael sent me his reasonable adjustments appeal that was due to be heard at a Rule 3(10) hearing at the Employment Appeals Tribunal in eight days time:

Kenneth,

Further to our telephone conversation earlier this morning I attach a copy of my letter to the EAT together with the revised Note of Appeal, the terms of which are hopefully self explanatory. I am not back in the office now until Tuesday 6 November 2007, however, if there is any correspondence in my absence from the EAT my colleague, Ingrid O'Neill, will forward that on to you.

I would be hopeful that the EAT will simply accept this revised Note of Appeal as having reasonable prospects of success thereby avoiding the need for the Rule 3.10 Hearing on 7 November. You are, of course, aware that the Rule 3.10 Hearing is not to actually hear the appeal itself but to decide whether or not the appeal that has been lodged on your behalf has any prospect of success.

Attached to this email was the letter to the Employment Appeals Tribunal regarding the reasonable adjustments appeal:

Dear Sirs

KENNETH McALPINE V ORACLE CORPORATION UK LIMITED

We refer to the above and confirm that we have very recently accepted a pro bono instruction from Mr McAlpine. We understand that there is a Rule 3.10 Hearing set down for Wednesday 7 November 2007 in relation to an appeal against the judgement of an Employment Tribunal in Glasgow dated 13 March 2007. The Judge for the pre hearing review at which the Respondent asked the Tribunal to strike out Mr McAlpine's claim that his employers had failed to make reasonable adjustments in light of his disability.

Unfortunately, the writer is unavailable to appear before the Employment Appeal Tribunal on 7 November 2007 however, we hereby enclose a revised Note of Appeal and hereby request that the initial Note of Appeal be disregarded in its entirety.

With regard to the Note of Appeal we are of the view that there is indeed a stateable appeal and one with real prospects of success. We would hope that the submission of this revised and alternative Note of Appeal would avoid the need for this Appeal to call before the EAT on 7 November. If the EAT still require the Rule 3.10 Hearing to go ahead Mr McAlpine will appear in person to speak to the attached revised Note of Appeal.

We have sent a copy of this letter and the revised Note of Appeal to the Respondents' agents.

Also attached to this email was Michael's revised note of appeal regarding the reasonable adjustments appeal:

NOTE OF APPEAL

IN THE

EMPLOYMENT OF TRIBUNAL OF SCOTLAND

KENNETH McALPINE (the Appellant)

-v-

ORACLE CORPORATION (UK) LIMITED (the Respondent)

NOTE OF APPEAL

7.1 The Employment Tribunal erred in that it addressed only the issue of whether or not the Claimant had lodged a written grievance in respect of his assertion that the Respondent failed to make reasonable adjustments in terms of the Disability Discrimination Act 1998. The Employment Tribunal failed to recognise that in the circumstances of this case the requirement to lodge a grievance did not apply.

7.2 There is no dispute between the parties that the Appellant and Respondent had been engaged in discussions regarding alterations and amendments to the Appellant's job role since December 2005. There is no dispute that those discussions continued and effectively became fused with the Respondents redundancy consultation process which commenced on 30 May 2007. Again, there is no dispute that it was incumbent upon the Respondent to take reasonable steps to identify alternative employment for the Appellant given that his job role had been identified as being redundant. It is understood that the Respondent accepts that the discussions regarding alterations to the Claimant's job role commencing December 2005 effectively merged with the Respondent's consideration of all terms of employment in the context of a redundancy situation. The parties effectively agree that if the Claimant is correct in asserting that the Respondent has failed to make reasonable adjustments then his failure is in fact a continuous and ongoing act of discrimination culminating in the dismissal of the Appellant in July 2007. It is understood that the Respondent's agent conceded before the Employment Tribunal in the Pre Hearing Review that the Appellant's claim for failure to make reasonable adjustments was not time barred.

7.3 If the foregoing submissions in numbered paragraph 7.2 are accepted then the alleged failure to make reasonable adjustments in inextricably linked and forms part of the redundancy dismissal procedure followed by the Respondent commencing May 2006. Accepting that as a fact and having regard to the EAT's decision in Lawrence v HM Prison Service [2007] IRLR 468 a decision of the EAT on 26 March 2007 which the Employment Tribunal did not have the benefit of its guidance, the EAT (in Lawrence) noted as follows:-

"The essential point is that where the complaint is about the dismissal or matters pertaining to that dismissal including the reason why it is said to be unfair or unlawful, these issues can be aired and considered through the dismissal process ...... In most cases it is likely to be raised by the employee in the course of the disciplinary and dismissal procedures."

The failure to consider alternative employment was indeed raised as an issue by the Appellant in the redundancy consultation process. The EAT further explore the issue in Lawrence:-

"It would create considerable difficulties if the dismissal procedural 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 discrimination provisions had to be the subject to a separate grievance and be resolved according to a different set of procedural rules. I see no merits 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."

7.4 It is accepted that the decision in Lawrence post dates the Pre-Hearing Review on this issue but nevertheless, the Employment Tribunal failed to have regard to Regulation 6 (5) The Employment Act 2002 (Dispute Resolution) Regulations 2004 which states as follows:-

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

In asserting that the Respondent inter alia failed to take reasonable steps to identify alternative employment in the context of the redundancy procedure having regard to his disability, the failure to make reasonable adjustments formed an integral part of the decision to dismiss the Appellant by reason of redundancy. Accordingly there was no obligation on the Appellant to raise a grievance in order to proceed with his claim under Section 4(a) of the Disability Discrimination Act 1995.

It was now 1 November 2007, and although I had read a draft copy of Michael McLaughlin's main disability discrimination appeal, I had not received a copy of the final version that had been lodged at the Employment Appeals Tribunal one week ago. I emailed Michael McLaughlin's secretary, who posted the final version out to me immediately, and the final version of the main disability discrimination appeal read:

EMPLOYMENT APPEAL TRIBUNAL (SCOTLAND)

KENNETH McALPINE (THE APPELLANT)

against

ORACLE CORPORATION (UK) LIMITED (THE RESPONDENT)

PAPER APART TO FORM EAT 1

INTRODUCTION

7.1 The Employment Tribunal reached certain critical findings in fact which, on the overwhelming evidence before it, were conclusions that no Tribunal properly directing itself would have come to. The Employment Tribunal reached factual conclusions which were not permissible and in so doing it erred in law.

EMAILS OF 11 AND 12 APRIL 2006

7.2 The Appellant's claims for unfair dismissal, less favourable treatment and direct discrimination, the latter two claims under the Disability Discrimination Act 1998 ("DDA") were centred on his belief that the true reason for his selection for and subsequent dismissal by reason of redundancy was due to the fact of his having diabetes and that the Respondent held the belief that his diabetes could potentially result in the Appellant being absent from work as a result of ill health for long periods.

7.3 The most crucial piece of documentary evidence in relation to the Appellant's assertions was an exchange of emails between the Respondents Phil Snowden and his line manager Malcolm Thompson. This exchange was copied to the . The email was copied to 3 other individuals being Nick Cooper, the Appellant's line manager and Simone Harche and Cathy Temple. Simone Harch and Cathy Temple are representatives of the Respondent's Human Resources Department. The exchange commenced with Malcolm Thompson's email to Phil Snowden of 11 April. The email is set out immediately below in full:-

"Phil - We need to talk this through.

My view is that Ken was taken on as an OSDM and he should be able to handle the customer-facing element, if not, then we are in to a capability issue. I am not really happy to put a new customer at risk and we should be looking at ways we can reallocate or support Ken in a period whilst he is exposed to the true OSDM.

What options do we have?

Nash - Give him an existing account? Switch an existing OSDM to new business – give him a new account from another OSDM. Could Adele support Ken on OSDM? Whichever we go for, we need to outline to Ken in clear terms what our expectations are in the role he is employed in.

Currently I see not other "internal" role we could use Ken in.

Regards,

Malcolm"

Mr Snowden replied to that email the following day, apparently after an undocumented between the two which was not the subject of evidence at the tribunal. His reply is noted below verbatim:-

"Malcolm,

as discussed this afternoon, the options are:-

to allocate Kenneth to a new customer account. It has been some time since Kenneth attended the On Demand Lifecycle training, and he has not been involved, due to his current engagement with EA and GE, in the initialisation process, which is vital to establish the initial customer environments. This would be quite a risk to the account at an early stage. It would also take a lot of support from another SDM during this phase.

to allocate Kenneth to an existing customer account to replace an existing SDM. This is probably the least risk option, but would involve a prolonged handover so that Kenneth could get an good understanding of the account and the services that are being delivered to the customer. Any capability process could probably only commence once Kenneth was fully delivering to the customer following the extended handover.

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.

Regards,

Phil"

7.4 This email exchange represented the high point of the Appellant's case at the Tribunal. The exchange which took place a full 6 weeks before the commencement of the redundancy consultation procedure and it involved the individual who according to the Respondent was responsible for selecting him for redundancy. The Appellant asserted that it was evidence that prior to the commencement of the redundancy process, representatives of the Respondent were already engaged in a dialogue the purpose of which was to court suggestions as to how he might be exited from the business as a result of the likelihood that his diabetes would cause him to be off sick for a prolonged period. Largely, on the basis of this email, the Appellant maintained that the reason for his selection for redundancy was his diabetes and its potential to cause him to be off work. 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. This is the factual and legal position advanced by the Appellant, both in evidence and in submissions.

7.5 The Respondent's rebuttal of these arguments was centred on the fact that the first and most significant act which led to the Appellant's redundancy dismissal took place at the beginning of February 2006, some 9 weeks before the email exchange. The Respondent's position was that following upon a merger of the Respondent's business with another Company, Siebel, a reorganisation process culminated in a number of the Respondent's employees being placed on what is referred to as a "Reduction In Force" list. On this list were placed individuals whose roles were potentially redundant as a result of the reorganisation of the Respondent's business. The list was confidential and the Appellant did not discover that he was on the list until 30 May, the date on which the redundancy consultation process began. It was critical to the Respondent's case that the Tribunal accepted three central facts regarding this RIF list. Firstly, that it was Malcolm Thompson and Malcolm Thompson alone who decided to place the Appellant on the RIF list. Secondly, that Malcolm Thompson did so at a time when he had no knowledge of the Appellant's diabetes. Thirdly, that all of the other recipients of the email of 12 April 2006 were entirely unaware either of the existence of the RIF list or the fact that the Appellant had been placed on the list and were therefore unable to influence Mr Thompson's decision in any way. If the Respondent could satisfy the Tribunal of these 3 central facts then it was in a position to argue that even if the email exchange of  11 and  12 April 2006 was indicative of a general desire on the part of Phil Snowden and others to exit the Appellant from the business as a result of his diabetes, the instrumental decision maker in the redundancy process was completely uncontaminated with any such knowledge or motive at the time when he identified the Appellant's role as potentially redundant and therefore the selection of the Appellant for redundancy was not tainted by any such inappropriate motive or objectives that may have existed at a later date.

7.6 The Tribunal did indeed accept this factual analysis presented by the Respondent. On page 34  paragraph 167 of the Judgment, the Tribunal states as follows:-

"We were referred to Mr Thompson's witness statement where he stated that he had been unaware of the Appellant's diabetes at the time of putting his name forward for the RIF list. The Appellant did not have an opportunity to cross examine Mr Thompson regarding this matter, but Ms Temple spoke to this matter, and the Appellant did not seek to challenge her evidence. On that basis we accepted that Mr Thompson, the senior manager who put forward the Appellant's name for the RIF list, had been unaware of the Appellant's diabetes at the time of putting him on the RIF list. Mr Snowden and Mr Cooper were initially unaware of the RIF list, and could not have influenced Mr Thompson's decision".

The Tribunal continued to address the issue at page 34  paragraph 168:-

"The Appellant referred to emails from Mr Snowden where reference was made to his diabetes and potential for absence. We, in considering this matter, were satisfied of two points:-

Firstly, that the communication to and from Mr Snowden did not lead to the selection of redundancy of the Appellant because his name was already on the RIF list; and secondly, at that time, Mr Snowden did not know of the fact the Appellant's name was on the RIF list. The discussion Mr Snowden had (via email) related to the role the Appellant could take on in the future, the risks in moving the Appellant to a full oSDM role with a new account and the requirements of moving him to take over an account from one of the other oSDMs - all against a background of knowing the Appellant did not want to take on the full oSDM role. There was no suggestion this discussion led to the Appellant's selection for redundancy - he was already on the RIF list and would be made redundant if an alternative could not be found".

In reaching this conclusion, the Tribunal has fallen into manifest and significant error. The Tribunal appears to be of the view that the exchange of emails and relates to alternative employment in the context of a redundancy situation. Somewhat surprisingly the tribunal appeared to be completely unperturbed by its contents. At page 36,  paragraph 177 of the Judgment, the Tribunal stated:-

"We were satisfied the email exchange centred on alternatives for the Appellant and that the comment was made in the context of forcing the Appellant to do a job they knew he did not wish to do. We were not prepared to accept that the mere mention that the fact the Appellant had diabetes was sufficient to link the subsequent treatment to the Appellant's disability."

The tribunal ignores the fact that the redundancy process for the Appellant did not commence for a further 5 weeks. The tribunal ignores the fact Mr Thompson does not appear to disclose to any of his colleagues that the Appellant is on an RIF list and therefore potentially redundant. The tribunal ignores the fact that Mr Thompson appears to be searching for a solution to the problem that is Mr Thompson. There is nothing in either email which discloses that this is a conversation about alternative employment in a redundancy context. The tribunal should have asked itself if this were a simple conversation about what alternatives could be offered to the Appellant to avoid redundancy, why does Mr Thompson state:-

"He should be able to handle the customer facing element. If not then we are in to a capability issue."

If these emails have been about alternative employment in the context of a redundancy situation, the Respondent need not have agonised over to what extent the Appellant was capable of doing the job. The tribunal should have been very well aware that in the context of a redundancy situation their obligation would simply be to make the Appellant aware of the existence of alternative positions. It would then fall to the Appellant to express an interest or not. The Respondent can only offer what roles it has it need not create a role for the Appellant.

The language of these emails clearly discloses a general discussion between Snowden, Cooper and Thompson and copied to Human Resources about what is to be 'done' with the Appellant. If it were a case of simply identifying alternatives to be offered to the Appellant then there would have been no need for Mr Thompson to  state

"whichever way we go, we need to outline to Ken clear terms of what our expectations are in the role he is employed in".

The discussion is not about alternatives but the Appellant's capability to the job he was in. The only permissible conclusion available to the Tribunal in relation to this exchange of emails was that it was not in the context of identifying possible alternatives in the event of the Appellant's current role being made redundant. The email dialogue was clearly about capability concerns and the need to exit him from the business one way or another.

The tribunal should have wondered why Malcolm Thompson asked the question "what options do we have?" if the Appellant was already facing redundancy by being on the RIF list. No options were needed.

Having regard to the terms of this exchange of emails and the fact that the redundancy consultation process did not commence for a further 6 weeks, the only permissible conclusion for the Employment Tribunal was that the ultimate selection for redundancy and the redundancy dismissal of the Appellant was as a result of this exchange of emails. That being the case, his redundancy was in fact a sham which was constructed by the Respondent to avoid having to address the Appellant's work role in terms of capability through his diabetes. What we have in this exchange of emails is an acknowledgement on the part of the Respondent that the Appellant was potentially incapable of carrying out his contractual role. The matter should have been dealt with by the Respondent as a capability issue however, they engineered a redundancy situation which they camouflaged by the wider group re-organisation so as to avoid having to go through what is usually a lengthier capability process.

The tribunal also fails to notice or place significance on the fact that the email from Snowden to Malcolm Thompson on 12 April 2006 commences with the words "As discussed this afternoon, the options are". It is clear from these words that the email follows upon a discussion between at least Snowden and Thompson. If, as the Respondent has stated, the Appellant was already on the RIF list and therefore likely to be made redundant, the Tribunal should have asked itself why Mr Thompson would not have imparted this knowledge to Mr Snowden. The fact that Mr Snowden sends his email following upon that meeting is proof that Mr Thompson did not disclose to Mr Snowden that the Appellant was on the RIF list. The mere existence of the meeting between Thompson and Snowden and the email that followed upon that meeting should have lead that Tribunal to the unavoidable conclusion that as at 12 April 2006 the Appellant was not on the RIF list nor at risk of redundancy. If he had been then there would have been no reason for the exchange or conversation to take place.

7.7 In addition, the Tribunal failed to take any cognisance of the Appellant's evidence that to this day he has never met Malcolm Thompson. That being the case, the Tribunal should have questioned to what extent Mr Thompson could have been in a position to assess the extent of the Appellant's role and the appropriateness of placing him in the RIF list without consultation with Snowden and/or Cooper. Thompson did not know the Appellant nor did he know what he did and the Tribunal could only have concluded that Thompson could not have placed the Appellant on the RIF list without consultation with Cooper or Snowden who did know about the Appellant's. To succeed, the Respondent had to distance Thompson from Cooper and Snowden and their knowledge of the Appellant's diabetes. Therefore the Tribunal was asked to accept that Thompson, who had never met the Appellant, who sat three rungs above the Appellant in the Respondent's management hierarchy and who knew much less about what he did on a day to day basis than Cooper or Snowden, nevertheless assessed the Appellant's role as potentially redundant without any consultation with Cooper, Snowden or HR.

7.8 The acceptance of various witness statements from those who did and did not at the Employment Tribunal hearing is subject of a separate ground of appeal below however, for the purpose of this ground of appeal, reference is made to Malcolm Thompson's witness statement. Malcolm Thompson did not give evidence at the Employment Tribunal. It must be borne in mind that the Respondent's position was that the decision to place the Appellant on the RIF list was the decision of Malcolm Thompson and Malcolm Thompson alone. Because of that fact says the Respondent, his thinking could not possibly have been contaminated by thoughts of the Appellant's diabetes and the potential for sickness absence. Notwithstanding this well rehearsed position of the Respondent in numbered  paragraph 2, line 6, Mr Thompson's statement outlines as follows:-

"We (writers emphasis) anticipated that the support role with which Mr McAlpine uniquely provided to full service SDM's within the UK, the SDM team would no longer be required."

The only interpretation that the Tribunal could have drawn from this part of Mr Thompson's 'evidence in chief' was that the decision to place the Appellant on the RIF list was not a decision that Mr Thompson had taken himself in confidence and in isolation but that had been taken in conjunction with Snowden and Cooper. That being the case, there was clearly scope for Cooper and Snowden to make known their reservations about the Appellant's diabetes and the potential for sickness absence. At the very least it should have caused the tribunal to question the Respondent's mantra that Thompson made the decision without any consultation with those that knew the Appellant's job role. They did not. The Tribunal accepted that the decision to place the Appellant on the RIF list was that of Mr Thompson alone. To do so in the face of such contradictory evidence from that particular witness himself is impermissible and in so doing, the Tribunal have committed an error of law.

7.9 A separate and distinct ground of appeal arises out of Phil Snowden's email to Malcolm Thompson of 12 April 2006 in that the Respondent could not have made any genuine attempts to offer alternative employment to the Appellant. The redundancy consultation process in respect of the Appellant commenced with a meeting with an HR representative of the Respondents on 30 May 2006. That meeting with Sue Scates was followed up by a letter of the same date. In the second paragraph of that letter it is  stated:-

"If, as a result of this process we conclude that there are no suitable opportunities available then only at this point will we confirm that you are redundant".

Notwithstanding that statement, it should have been evident to the Tribunal that the email of 12 April demonstrates that some 5 weeks prior to the commencement of the redundancy consultation process, the Respondent in the guise of Snowden, Thompson, Cooper, Temple and Harche had already concluded that the Appellant would not to be considered for any alternative roles as a result of his diabetes and the likelihood that his diabetes would lead to lengthy sickness absences. The matters raised in the email of 12 April 2006 were at no time discussed with the Appellant either prior to or during the redundancy consultation process. It was an unavoidable conclusion for the Tribunal in this case that after the email exchange, the Respondent was incapable of taking reasonable steps to identify and offer alternative employment given that it had been resolved that the Appellant should be exited from the business one way or the other. It was also an inescapable conclusion for the Tribunal that the reason why no attempts were made to identify alternative roles for the Appellant was due to the fact that he suffered from diabetes and it was the Respondent's perception or anticipation that the Appellant would be off sick for long periods as a result of that condition. In declining to make any efforts whatsoever to identify alternatives by reason of the Appellant's disability and possible resultant absences.

WITNESS STATEMENTS

7.10 The Employment Tribunal placed reliance on evidence contained in witness statements from individuals who did not appear to give evidence at the hearing. In so doing, the Tribunal placed reliance on evidence which the Appellant was unable to test in cross-examination.

7.11 For reasons best known to the Respondent, its most important witness Malcolm Thompson, did not appear to give evidence. It was, said the Respondent Malcolm Thompson who took the decision to place the Appellant on the RIF list. It was therefore Mr Thompson who ultimately decided that the Appellant should be provisionally selected for redundancy. The Respondent's case was that it was his decision and his decision alone and that that decision was not influenced in any way by any representation made either by Snowden or Cooper who had much more frequent and closer daily working contact with the Claimant. If the foregoing submission is accepted, then the Tribunal had no evidence whatsoever of Malcolm Thompson's thought process in selecting the Appellant for redundancy. An inanimate witness statement which was not tested by cross-examination is not admissible evidence. In effect Thompson did not give evidence. His statement should have been discounted. It was not. That being the case the Tribunal had before it no evidence of the extent of Mr Thompson's knowledge about the Appellant's diabetes or potential for being off sick as a result of the diabetes. It had no evidence about his thought process in placing the Appellant on the RIF list. The Respondent has lead no evidence to rebut the Appellant's assertion that he was selected for redundancy on the basis of his diabetes or its effects.

7.12 The witness statements of Nick Cooper, Phil Snowden and Cathy Temple narrate at length their opinion and interpretation of the reasons for the Appellant's selection for redundancy however, as the Respondent maintains that the decision to select the Appellant for redundancy was the decision of Malcolm Thompson and Malcolm Thompson alone, taken in complete isolation the Tribunal should have placed no weight on that evidence whatsoever. Their witness statements do not state how it is that they came by this knowledge. Accordingly their evidence does not even constitute hearsay.

7.13 The Tribunal appear to recognise the difficulty that the non-appearance of Mr Thompson causes the Respondent at page 34, numbered  paragraph 167 where it is stated as follows:-

"We would refer to Mr Thompson's witness statement where he stated that he was unaware of the Appellant's diabetes at the time of putting his name forward for the RIF list. The Appellant did not have an opportunity to cross examine Mr Thompson regarding this matter, but Ms Temple spoke to this matter and the Appellant did not seek to challenge her evidence. On that basis, we accepted that Mr Thompson, the Senior Manager who put forward the Appellant's name for the RIF list had been unaware of the Appellant's diabetes at the time of putting him on the RIF list".

Ms Temple's statement which was taken as her evidence in chief makes no reference whatsoever to Mr Thompson's state of knowledge of the Appellant's diabetes. The high point of her evidence on this particular issue for the Respondent is that she was "aware that in February 2006 candidates for possible redundancy were sought within Oracle as a consequence of oracle's acquisition of Siebel and as a result of other planned re-organisations within the business". She speaks to the compilation of the RIF list in the course of February 2006 but she makes no reference whatsoever to whether or not she has any knowledge of whether or not Malcolm Thompson had any knowledge of the Appellant's diabetes and accordingly, her evidence does not enable the Tribunal, in the absence of evidence from Mr Thompson to conclude anything about his state of knowledge in respect of the Appellant.

In addition the tribunal place reliance on the witness statement of another 'witness' who did not attend the hearing. At page 35  paragraph 170 of the Judgement it is stated:-

"We noted another oSDM also had type 1 diabetes. She continued in her role. This appeared to undermine the Claimant's assertion that diabetes had been the reason for his selection for his redundancy."

This other oSDM was a Fiona Vickers. Her witness statement was produced. She did not give evidence and thus was not cross examined. No reliance should have been placed on her statement. In any event it was the Respondent's position that the only oSDM who was at risk of redundancy was Appellant. For both of these reasons it was impermissible for the Tribunal to place any weight on this evidence whatsoever.

7.14 The witness statements of the most important witnesses for the Respondent being Nick Cooper, Phil Snowden, Malcolm Thompson and Cathy Temple disclose that each of the witnesses had had sight of the other witnesses witness statements prior to the completion of their own witness statements.

On page 3 numbered  paragraph 7 of Malcolm Thompson's statement, he states:-

"I am aware of, and have read statements of Phil Snowden and Cathy Temple and confirm that I agree that these accurately reflect my recollection of events in April and May 2006".

In paragraph  number 12 of her statement Catherine Temple states "both Phil Snowden and Nick Cooper refer to this in their statements".

In paragraph  number 6 of his statement Nick Cooper states, "as manager and the person most closely involved, Phil Snowden's statement deals with all these matters". In paragraph  number 23 his statement narrates "the details of these discussions and emails is dealt with in Phil Snowden's and Cathy Temple's evidence".

Accordingly, the key witnesses have had sight of their colleagues witness statements at the time when they were composing their own evidence. They have conferred about the evidence that they will give. In effect the Respondent's witnesses have collaborated in the putting together of their evidence and it is therefore perhaps unsurprising that the evidence of the principal witnesses for the Respondents is entirely consistent.

The Employment Tribunal has failed to notice the fact that the Respondent's witnesses have effectively collaborated in putting together evidence or if that fact had been noticed, it was not a matter which troubled them. Whichever of these two scenarios is the case, in failing to recognise that the putting together of the witness statements had been a collaborative and collective exercise, the Tribunal has fallen into error. Any Tribunal properly directing itself in law would have not allowed the Respondent's evidence in chief to be given by way of witness statements having discovered that the statements had been put together collectively and in collaboration and in failing to do this, the Tribunal is in error.

Whilst the Employment Tribunal in England allows witnesses who are yet to give evidence to sit through the evidence of other witnesses, that practice is not accepted in Scotland. Even assuming that there is nothing improper in that practice, what has happened here in this case goes way beyond the normal practice in England in that the witnesses had sight of the evidence of the other witnesses at a time when they were preparing their own witness statements and therefore had they been of a mind to, they would have been able to tailor their evidence to make sure it was consistent with their colleagues. Justice must be seen to be done as well as done and the fact that the Respondent's collaborative evidence has been accepted entirely by the Employment Tribunal, its decision in any matter or fact cannot be accepted.

Pre-Determined Redundancy Dismissal

7.15 The Respondent's position is that Malcolm Thompson decided to place the Appellant on the RIF list in the early part of February 2006. In support of this assertion, the Respondent relied on evidence on a version of the RIF list which was sent from Malcolm Thompson to Catherine Temple by email attachment dated 7 February 2006. It was at Volume II document 53  pages 338 and  339 of the Bundle of Documents for the hearing. The attachment consisted of a list of employees with their personal details, locations, job titles and grades. The last 3 columns on that spreadsheet are grouped together under the heading of "Key Dates". The 3 sub-headings under this global heading are "Required Exit Dates (by Business)", "Estimated Termination Date" and "Actual Termination Date". The redundancy consultation procedure had not commenced as at 7 February 2006. It commenced nearly four months later. Notwithstanding that fact, from the face of the RIF list, the Respondent had already reached a final and concluded view that the employment of the Appellant and anyone else on that list required to be exited by a certain date. A Tribunal properly directing itself in respect of this document could have drawn no other conclusion from the words "Required Exit Date".

Accordingly, any consultation process which took place after the date on which the Appellant was placed on the list was nothing more than a sham. The termination of the Appellant's employment was pre-ordained as of 7 February 2006.

7.16 As stated above, the Respondent produced an email from Malcolm Thompson to Catherine Temple dated 21 February 2006 which apparently contained a version of the confidential RIF list on which the Appellant had been placed as at 7 February 2006. That fact appears to be a key plank in the Respondent's argument that Malcolm Thompson's reasoning and thought process could not have been contaminated with thoughts of the Appellant's medical condition and the likelihood that he would be absent for long periods. This particular evidential position is however contradicted entirely by a further document produced by the Respondent. At volume III document 72  page 408 of the Agreed Bundle of Documents, there is an email from the Respondent's Debbie Gardner to Catherine Temple dated 2 April 2006, it is clear from the face of that email that Catherine Temple has asked Debbie Gardner to add the Appellant to the RIF list and Debbie Gardner replies to Cathy Temple to advise her that this has now been "done". There is a significant and material contradiction therefore in the Respondent's position relative to when the Appellant was placed on the RIF list. The Employment Tribunal clearly failed to take account of this apparent contradiction.

The evidence of Catherine Temple at paragraph  number 12 of her witness statement was that "This list was compiled in February 2006. I understand that Malcolm Thompson is named as the Manager who identified Mr McAlpine as a candidate on this list". At page 1,  paragraph 2 of Malcolm Thompson's witness statement, he states "I confirm that I identified Mr McAlpine's role as potentially redundant in a spreadsheet seeking possible candidates for redundancy sent to me in February 2006." The Employment tribunal confirms in its Judgment that the evidence of Thompson and Temple on the timing of the RIF list was accepted notwithstanding the exchange of emails between Debbie Gardner and Catherine Temple which indicates that the Appellant's name was not in fact added to the RIF list until 2 April 2006.

Any tribunal properly directing itself in law would have been deeply concerned about this apparent contradiction on such a material issue as the timing of the placement of the Appellant on the RIF list. It was impermissible for the tribunal to fail to take account of this contradiction.

OUTCOME

7.17 The ground of appeal relative to the collaboration of witnesses 'unseats' the entire Judgement and would require the case to be remitted to a freshly constituted tribunal for the claim to be heard afresh. However if the foregoing submissions, particularly in relation to the exchange of emails on 11 and 12 April are accepted then the only permissible option for the Employment Appeal Tribunal is to conclude that the only permissible factual and legal conclusions that were available to the Employment Tribunal were as follows:-

(1) If he was placed on the RIF list, the Claimant was only placed on the RIF list after the exchange of emails in April.

(2) The reason that he was placed on the list was because of the fact of his having diabetes and the Respondent's perception that this would result in prolonged sickness absence.

(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.

(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

The Claim should be remitted to a freshly constituted tribunal so that remedy may be dealt with.

On 1 November 2007, Michael McLaughlin received the following letter from the Employment Appeal Tribunal:

Dear Sir

I refer to the above matter and your letter of 30 October 2007 stating that you are now acting for the Appellant. The EAT have now amended the file to reflect that you are now on record for this Appellant. All future correspondence will now be sent to you as representative for the Appellant.

You are asked to confirm whether or not your letter of 30 October 2007 should be treated as an adjournment application for the forthcoming R3(10) hearing listed for 7 November 2007. If you are unable to attend and do not want the matter adjourned, the hearing could still go ahead on written submissions without the Appellant and/or representative appearing. Your letter (with attachment) will be passed to the judge with the other papers in advance of the hearing. A response in writing by return and by no later than 10am Friday 2 November 2007 is required.

Please note the hearing will remain in the list for 7 November 2007 at the current time.

This letter is copied to the Respondent for information only at this stage.

Chapter 4

One particular aspect of this case that I could not find any help on, and which may be important, was the fact that the Tribunal took the respondent's witness statements as read. I decided to email Liberty, the human rights group, to see if they could provide any help, and received the following email reply from Liberty on 6 November 2007:

Your Query to Liberty

Dear Mr McAlpine,

Thank you for your query received on 4 October 2007.

I understand from you query that you would like to know whether or not the fact that you were asked to read out your witness statement under oath whilst the respondent's witnesses statements were "taken as read" at the employment tribunal hearing you attended as applicant resulted in a breach of your human rights under Article 6 of the European Convention of Human Rights (ECHR) (a right to a fair trial).

Application of the Human Rights Act

Disputes in relation to dismissal constitute a dispute of a civil right and are therefore, in the vast majority of cases, offered the protection of Article 6(1) of the ECHR (section 6 of the Human Rights Act 1998).

The right to a fair trial includes the obligation on the tribunal to afford both parties an equal opportunity to present their case and to call evidence. It would appear that both you as applicant and the respondents were given the opportunity to present your case but the method by which the evidence was presented varied. Such difference in treatment may be deemed "unfair" if the effect of the different treatment placed you at a substantial disadvantage compared to the other party.

Article 6 of the ECHR also requires courts and tribunals to ensure that they operate a fair procedure. An allegation by an individual that he or she did not receive a proper hearing from the tribunal on the ground that there was bias, apparent bias, or improper conduct on the part of the tribunal is, therefore, a ground of appeal to the Employment Appeal Tribunal (please see our comments below).

Ability of Chairman to Manage Proceedings

Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the Chairman of the tribunal has a wide discretion in exercising his powers to manage proceedings and may make orders concerning the manner in which proceedings are to be conducted as he thinks is appropriate. The tribunal can require the witnesses who attend the hearing to give their evidence on oath or affirmation. Case law provides that an unrepresented party ought to be given the opportunity to read out their statement, being interrupted to be questioned where necessary. This is to ensure that the unrepresented party will not be disadvantaged compared to a represented party, whose legal advisers will usually have prepared the statement. When a statement is "taken as read", this means that the Tribunal's members will read the statement themselves. There are no rules which govern the Chairman as to which method to choose. Generally, the practice varies from tribunal to tribunal, and depends upon –

1. the time available;

2. the length of the statement; and

3. the complexity of the matters in issue.

The rules do not state that all witnesses must be treated in the same way. The tribunal is allowed to rely on all statements whether given under oath or taken as read when giving its decision. Therefore reference to witness statements that have been taken as read does not of itself constitute unfairness.

Following the respondent's statements having been read you should have been given the opportunity to cross examine the Respondent's witnesses. Unless cross-examination would be wholly unhelpful, a denial of the right to cross examine witnesses will in most cases amount to a breach of natural justice. Cross examination involves questioning the witnesses on their 'evidence in chief' (i.e. their witness statements) on any matter that is relevant, but in particular cross examination is normally used to discredit the opponent's case by questioning disputed facts. The purpose of cross examination would not be to put a relevant matter to the witnesses which should have been adduced in your own evidence, but rather to question them on points of dispute. Equally, the Respondent or its representative should have been given the opportunity to cross examine you.

The Tribunal members may also make their own enquiries of the witnesses.

Following cross-examination, the parties may re-examine their own witnesses to question further on matters that may have been disclosed during cross examination.

You state that the tribunal, in its judgment, used and referred heavily to the Respondent's witness statements in reaching its judgment, and dismissed your claim. The Tribunal is entitled to assess the quality of the evidence presented and to decide whether a party has discharged the evidential burden of proving his or her case. The involves ascribing "weight" to items of evidence in order to decide the influence that evidence should have on the matters to be decided.

If it can be demonstrated that the Tribunal did not allow you to cross examine the Respondent's witnesses or you can demonstrate that the Tribunal members wholly ignored relevant evidence or reached a conclusion that was perverse, these are further grounds of appeal to the Employment Appeal Tribunal.

"Unfairness" of Treatment

Under case law, in order to prove that the treatment you received by the tribunal was unfair, you would need to prove that the difference in treatment had an effect on the outcome of the hearing. In order to determine whether or not this was the case the following additional facts regarding the case are relevant:

1. The details of the claim;

2. The respondents defence to the claim;

3. The ability of both parties to cross-examine (question) the other party's witnesses;

4. Whether the reason for the difference in hearing the witness statement was a result of any bias of the chairman or other tribunal members.

5. Whether or not you had legal representation at the hearing;

6. Whether sufficient time was given for the exchange of witness statements prior to the hearing.

Course of Action

If you are of the opinion that the difference in treatment did have an effect on the outcome of the hearing, I would advise you to speak to the person representing you at the original hearing or alternatively, if you were unrepresented or not content with the representation you received then you should contact your local citizens advice bureau or law centre.

A local advice agency such as a law centre or Citizens Advice Bureau (CAB), should be able to recommend local solicitors who are experienced in employment law and human rights or will be able to provide information on how to find a suitable solicitor. In some cases, a CAB can refer you to an organisation which can offer free legal help.

You can also find details of solicitors on the Law Society website at www.solicitors-online.com, or go to the Community Legal Service Directory for details of solicitors and advice agencies throughout England and Wales.

It was now 7 November 2007, the day of the Employment Appeals Tribunal Rule 3(10) hearing on the reasonable adjustments claim that had been thrown out at the Employment Tribunal pre-hearing review back in March.

I had travelled through to Edinburgh with my mother as an observer. This Rule 3(10) hearing was just myself trying to persuade a judge that there was an appeal to be heard, the process being that if the judge was persuaded then the appeal would go to a Rule 3(7) hearing at the Employment Appeals Tribunal that would be heard by the judge and another two members.

Date: 7 November 2007

Time: 2:00 pm

Duration: 1 hour

Judge: The Honourable Lady Smith and another Judge from Poland.

Party: Mr K R McAlpine (representing himself, as Michael McLaughlin could not make it)

Present: Mrs J McAlpine.

The Hearing

Notes from Rule 3(10) Hearing held at Edinburgh Employment Appeals Tribunal on 7 November 2007 at 2:00 pm.

Present was Lady Smith, the Judge, another Judge from Poland who was acting only as an observer of the Employment Appeals Tribunal in Scotland, Mr Kenneth McAlpine, the Appellant, and Mrs Jean McAlpine who was an observer for the Appellant.

Judge started off by outlining to the Appellant that due to rule 3(8) the Judge could not accept the newer grounds of appeal (lodged on 30 October 2007).

Appellant then started to outline the grounds for appeal.

Appellant started with an explanation as to what had happened in November 2005, Appellant had been working on a very large account, Environment Agency, and had been allocated to work simultaneously on the General Electric account, which was an even larger account. Clashes with workload in December 2005 started, due to Environment Agency Monthly Report and General Electric work. Appellant then outlined that he had discussions with both his manager, who was then due to go off on holiday and a senior director regarding being taken off either the Environment Agency or the General Electric account.

The Appellant referred the Judge to document 7, one-page  email from 12 April 2006. Judge could not find this document in the bundle in front of Judge. Appellant stated that this email was part of the folder of documents lodged for the Rule 3(10) hearing that contained ET1 and ET3. Judge could still not find this email. My observer said that she had an extra copy of this email. Judge then stated that the email had been found.

Both the Appellant and my observer found this strange.

Appellant continued to outline that this email linked the reasonable adjustments claim to the redundancy. Judge questioned Appellant on this line of reasoning:

Judge: Why does this email link to reasonable adjustments?

Appellant: Reads direct from email "With either option, there is the possibility of Kenneth raising the health/stress issue that he discussed with me in December". Appellant then outlined that he only had one discussion with his manager in 'December' concerning either being taken off the Environment Agency or General Electric account.

Judge: Why does this email link to redundancy?

Appellant: Reads direct from email "given the above, are there any other options to exit Kenneth from the organisation". Appellant then outlined that the word 'exit' referred to dismissal.

Judge was silent for around a minute.

Judge then started a discussion on this email and Employment Tribunal. Appellant outlined that this claim had been heard by Glasgow Tribunal on 2, 3 and 4 July 2007 and submissions on 6 August 2007, and unfair dismissal and disability discrimination claims had been dismissed on the judgment of 13 September 2006. Appellant outlined that this was now under appeal. Judge outlined that Judge is aware of all appeals that go through Edinburgh Employment Appeals Tribunal, but that Judge was not aware of an appeal being lodged for 13 September 2007 judgment. However, Judge stated that there had been a two-week delay due to the postal strike, and that may be why Judge had not seen this appeal.

Judge then questioned Appellant regarding reasonable adjustments claim being a separate claim, the Appellant did not understand this line of questioning. Judge question why this was a separate claim, was it due to Appellant wanting a separate award? Appellant outlined that reasonable adjustment claim had been struck out at the Pre-Hearing Review on 9 March 2007, hence an appeal for reasonable adjustments. Judge then referred Appellant to "Judgment of the Employment Tribunal" last  paragraph, which states:

"the claim of unfair dismissal and disability discrimination (being the assertion the reason for selection for redundancy was due to the claimant being a disabled person, or due to him having requested reasonable adjustments) will proceed to a hearing on the merits."

This line of questioning regarding reasonable adjustments, and whether or not it was a separate claim continued. Judge read out from a document something regarding reasonable adjustments being a separate claim, the Appellant did not recognise this 'quote', as the Appellant has always stated that the failure to make reasonable adjustments was always part of the main claim, and was not a separate claim, and this was stated in answers to orders dated 27 October 2006.

Judge then outlined that, after around 30 minutes, Judge would now retire for 15 minutes, and return with a Judgment.

Judgment read out and recorded.

Judge outlined all relevant materials that concerned the original appeal, and the Rule 3(10) appeal.

Judge stated that Appellant had not, on numerous occasions, made the link between reasonable adjustments and redundancy.

Judge stated something about reasonable adjustment being a separate appeal.

Judge then stated that original ET judgment was correct and that statutory grievance procedure applied.

Rule 3(10) appeal was dismissed, and an order made that no further proceedings could be made regarding this matter.

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

Dear Sir

I refer to the above proceedings.

The Hearing on Expenses for the above claim will take place at COET (Scotland), 3rd Floor, The Eagle Building, 215 Bothwell St, Glasgow, G2 7TS on Friday, 11 January 2008 at 10:00 am.

Please attend 15 minutes before your case is due to start so that particulars of witnesses and representation can be obtained.

I sent Michael McLaughlin an email containing a transcript of the notes taken by my observer and myself during the Rule 3(10) hearing in front of Lady Smith. I then requested a meeting with Michael for later on that month.

On 13 November I received the following email from Michael McLaughlin:

Michael,

Can we meet on 20 November at 10:30am?

Please find attached a brief meeting agenda.

I realise that some of these items either may not be in your particular field, or you may not be able to help. If this is the case, we can either skip the item, or very briefly discuss.

With regards to item one, witness perjury, I am hoping to hand in a folder to your office outlining the item with proof, which should help at the appeal, so even if this is not in your particular field, it will be well worth reading. I am hoping to get the folder to you by Friday 16 November 2007 morning, and will hand this in at reception.

Attached document read:

MEETING AGENDA

1. Perjury and Perverting the Course of Justice

1.1 Witness lies, and the impact of those lies on ET Judgment.

1.2 What can be done regarding perjury and perversion.

1.3 Relevant forum (Tribunal or Court)?

2. Witness Collusion

2.1 Witness collusion, and the impact of this on ET Judgment.

2.2 What can be done regarding witness collusion.

2.3 Relevant forum (Tribunal or Court)?

3. Possible actions against Glasgow Tribunal and/or Chairman

3.1 What actions can be taken against ET and/or Chairman.

3.2 Claim or action regarding DDA, Part III, "Services", ET have discriminated by not finding discrimination in Judgment?

3.3 Relevant forum (Tribunal, Court, Commission, Parliament)?

4. Costs award against the Claimant

4.1 Glasgow Tribunal has arranged an expenses hearing on 11 January 2008 at 10:00am.

4.2 Respondent has outlined costs of around £117,000.

5. Personal Injury

5.1 Can the claimant pursue a Personal Injury claim, or is this barred according to the Judgment?

6. Reasonable Adjustments EAT Rule 3(10) Hearing

6.1 If the written Judgment has been received, what is the next course of action.

Six days passed before I received another email from Michael McLaughlin that read:

Kenneth,

Would you please bring your policy document with you tomorrow and any correspondence you have had with the insurers.

The next morning I travelled up to the Glasgow offices of Biggart Bailli and met with Michael McLaughlin myself. The first thing that Michael discussed was a letter that he had received from Morgan Lewis regarding witness collusion. He let me read the letter that basically stated that it would be very difficult to prove witness collusion and Morgan Lewis would utterly reject any collusion.

On the subject of perjury and perverting the course of justice, I discussed this with Michael and referred him to the folder that I had brought up with me and which I was leaving with Michael to read.

We also briefly discussed any possible actions against the Glasgow Employment Tribunal. Michael, direct and angry, barked "Are you mad". Michael was also extremely concerned that this would have an impact on the appeals process. I made Michael aware of libel damage that the Chairman had caused myself by stating in the "Credibility" section of the judgment statements such as "We found the respondent's witnesses, Mr Snowden, Mr Cooper and Ms Temple to be credible witnesses who gave their evidence in an honest and straightforward manner" and "We found the claimant, in contrast to the above, to not be a credible witness in many aspects of his evidence."

I pointed out to Michael that I was aware of certain "privileges" that are vested on certain legal individuals, but outlined that in my view this goes way beyond these "privileges". The Chairman could have used "we preferred the evidence of Mr Snowden, Mr Cooper and Ms Temple" and "We did not prefer the evidence of Mr McAlpine", but didn't, and instead chose to attack the "credibility" of the claimant. That was the Chairman's choice, choice being the operative word.

I also pointed out at the meeting, that Morgan Lewis have already 'picked up on' and are using the "Credibility" issue against me in correspondence, which is a prime example of what I have just stated.

Towards the end of the meeting, I asked Michael to write to Morgan Lewis regarding obtaining Oracle Corporation UK Ltd permission to approach the Department for Trade and Industry to obtain the HR1 form, if one was lodged, for the one hundred and twenty-one redundancies last year. The reasons for requesting this permission were discussed, and I also outlined that Michael should not accept any "HR1" form which Morgan Lewis or Oracle would be willing to provide, as I only wanted an exact copy of any HR1 form that the Department for Trade and Industry may have, sent to me directly by the Department for Trade and Industry.

Two days later I sent Michael the following email:

Michael,

My immediate family (wife, father and mother) would like to arrange a meeting with you regarding some of the consequences to come out of the full tribunal judgment, and this would also be a good chance to discuss what actually happened at the full tribunal with three people who attended, and took notes, during the full three-day hearing.

I realise that this is close to the date of the last meeting that we had, and as such, my parents have offered to pay for this meeting. Can you manage anytime within the next week to ten days, approximately one hour.

As a follow up to our meeting on 20 November 2007, please find below some comments and actions:

1. Witness Statements

You currently have my only copy of Malcolm Thompson and Fiona Vickers witness statements, so can you photocopy both of these witness statements, and someone will pick these up at the next meeting.

2. Collusion

Regarding our discussions concerning witness collusion, and Morgan Lewis stating that it would be hard to prove, I have given this a bit of thought, and reread the relevant paragraphs, and come to the following conclusion:

Most of the collusion statements occur very early on in the witness statements. The collusion statements also use phrases like "details of" and "deals with". Because of this, these witnesses could not have read the other witness statements after giving their own witness statements, because the collusion statements were early on in each of their witness statements, and the phrases used do not leave any doubt that at the point the collusion statements were made, these witnesses were going to give their evidence regarding that version of events, but were aware that other witness statements contained that version of events, and so, just referred the reader to that version of events in the other witness statement.

If you think about all possible scenarios, including witnesses, reading each others witness statements after giving their own witness statements, all the other scenarios are impossible (due to location of collusion statements in the witness statements, and the phrases used), and the above scenario in the previous paragraph is the only scenario which is valid. Any other scenario would have to result in an abomination and rewrite of the original witness statements (if these witness statements did not contain the collusion statements) to contain the collusion statements, which, of course, collusion avoids.

On the subject of Morgan Lewis and any correspondence for that matter regarding this claim, can you include me in all correspondence to and from everyone, so that I am aware of what is happening, and I can give you my views.

3. Costs

You stated that you were going to write to the Glasgow Tribunal to get the costs hearing set aside because of the outstanding appeal, can you copy me on any correspondence regarding this matter.

4. EAT and the rule 3(10) hearing

Regarding the EAT on the rule 3(10) hearing, can you contact the EAT and ask when we should expect a copy of the judgment. As discussed, the least we should expect is a written judgment.

That same day I received a letter from The Insolvency Service that is part of the Redundancy Payments Directorate that is in turn part of the Department for trade and Industry:

Dear Mr McAlpine

Thank you for your email of 26 October 2007 requesting information under the freedom of Information Act.

I can confirm that an HR1 form has been received from this company.

Four days later I sent the following email to the Employment Appeals Tribunal:

Dear Sir/Madam,

Reference: UKEATPAS/0040/07/MT, Case: 116267/2006

When can the appellant expect to receive the judgment from the Rule 3(10) Hearing on 7 November 2007?

That same day I received an email reply from the Employment Appeals Tribunal that read:

Dear Sir,

A request for a transcript of the judgment given on 7 November 2007 has not been made.

Para 18.5 of the EAT practice Direction referrers.

I immediately forwarded the email reply from the Employment Appeals Tribunal to Michael McLaughlin, and received the following reply from Michael later that day:

Kenneth,

Thanks for that.

I am not ignoring your email. I have been up to my neck in it over the last few days. I will respond to it in full no later than Wednesday.

It was now 3 December 2007, and I received an email from Michael McLaughlin that simply read, "Please give me call". I called Michael and we briefly discussed the situation with the Employment Appeals Tribunal and the situation with trying to obtain a written judgment.

After the call with Michael, I sent the following email reply to the Employment Appeals Tribunal:

Meg,

Para 18.5 only applies to England and Wales as outlined in the EAT practice direction.

Can I request that either a written judgment or a copy (tape) of the recorded judgment be supplied, so that I can determine with my lawyer the reason why this appeal was dismissed, so that we can make an informed decision as to whether to raise an appeal in the Court of Session.

At this moment in time, we cannot make this informed decision, but my lawyer and myself are both aware of a similar case which was allowed by the EAT.

The next day I forwarded a copy of the email I had sent to the Employment Appeals Tribunal to Michael, and received this reply:

Kenneth,

Let's see what she comes back with first. Because of the timescales you can't afford to leave it too long. If you have not heard from her by mid -morning tomorrow then call her back.

Later that same day I received the following reply from the Employment Appeals Tribunal:

Dear Sir,

In instances where a judgment is not reserved, it is usual procedure for PD 18.5 to apply in Scotland. That is, when a party attends the hearing, any application for a transcript should have been made at the hearing or within 14 days of it taking place. Any application from you should have been received by 21 November 2007. You first applied for the judgment on 26 November, 5 days out of time. Therefore, at this time, no further action will be taken upon it.

With regards your comments that you are considering whether or not to appeal to the Court of Session, your attention is referred to PD 21.3

I immediately replied to the Employment Appeals Tribunal with the following email:

Dear Sir/Madam,

We seem to be going round in circles, as we are now back to PD 18.5, which is where this conversation started.

As PD 18.5 only applies to England and Wales, and not to Scotland, and I can not make an informed decision with my lawyer regarding whether or not to appeal to the Court of Session, I will now be forced to make an uninformed decision to appeal to the Court of Session, and as such, will have to raise this particular matter at the Court of Session, as PD 18, particularly the part which applies to Scotland, is about as clear as 'mud' to everyone (including myself and my solicitor).

I will also be discussing with my solicitor the matter of costs if the appeal to the Court of Session fails, as these costs could have been avoided if PD 18 was clearer for Scotland, and a judgment, which was awaited and expected, could have prevented an uninformed appeal to the Court of Session, thereby saving precious time and costs (approximately £10,000).

All this could have easily been avoided if PD 18 was clearer, and a judgment is received in the meantime.

Towards the end of that day, I received a short email from the Employment Appeals Tribunal that simply stated:

Dear Sir,

I will request a transcript of the judgment without further delay.

I immediately forwarded a copy of this email to Michael, and received the following short reply:

Good,

Let's see what the transcript says before deciding where to go next.

Six days passed before I received another email from Michael McLaughlin, and this email, regarding the reasonable adjustments appeal which had recently been dismissed, read:

Kenneth,

I think we should wait until you have emailed or spoken to Meg Tindall tomorrow.

I remain unconvinced of the wisdom of seeking leave to appeal. You will have to pay for that appeal and if it is unsucessful you will have to pay Oracle's costs which will doubtless run to a minimum of £10,000.

Speak to her first thing tomorrow and explain that the clock is ticking. By my calculation the 42 day is 18 December.

I immediately emailed the Employment Appeals Tribunal:

Dear Sir/Madam,

The appellant is still awaiting a transcript of this judgment:

On what date can the Appellant expect to receive a transcript of this judgment?

Can you confirm that the 42 days leave to appeal will start when the Appellant receives a transcript of this judgment?

On 11 December 2007, I received the following email reply from the Employment Appeals Tribunal:

Dear Sir,

Order seal dated the 9th day of November 2007 gives directions on the 42 day period. Your solicitor will be aware of time limits and regulations.

Judgments can take up to 6 weeks to produce.

I was not happy with this situation at all. If it takes six weeks to produce a written judgment, which is forty-two days, and you require a written judgment that you appeal against to a higher Court, how can anyone appeal against a decision of the Employment Appeals Tribunal to a higher Court within the forty-two day time limit.

Simply ridiculous.

The next day I received the following letter from Morgan Lewis that was a reply to my letter of 13 November 2007:

Dear Mr McAlpine

We acknowledge receipt of your email of 13 November 2007 addressed to our client, Oracle, which the Company has passed to us for response.

We are unclear of the basis for the requests which you make. In your email, you say "As I have appealed the judgment of (the) Employment Tribunal (in case number 116267/06) (you) require clarification that the relevant Consultation and Notification legislation has been adhered to ". You go on to say that "I feel sure that the Employment Appeals Tribunal will be pleased to have available to them such clarification on points of law relative the above".

Having now seen your draft Notice of Appeal, however, none of the matters which you raise in your email are mentioned at all. In addition, of course, your Notice of Appeal is still subject to the sifting process.

Nonetheless, whilst you are not entitled to any information from our client, our client has no objection to responding to your question asking when consultation with the ECF was undertaken in respect of redundancies within Oracle UK between January 2006 to September 2006. We would respond as follows:-

We understand that consultation took place on 19 January 2006 and 9 May 2006.

We do not consider that there is a proper basis for any of your questions, and in particular, we do not understand your question 3 - a form HR1 does not contain "personal data" and does not therefore fall not within the scope of the Data Protection Act.

If you wish to clarify the basis for your further requests, we will consider them further.

That afternoon I sent the following email to Michael McLaughlin:

Michael,

You probably are already aware of my take on the grounds for the Reasonable Adjustments Appeal to Court of Session, but here is a summary:

The failure to make reasonable adjustments is based on the Respondents failure from December 2005 to June 2006 to take the Appellant off the Environment Agency Monthly Report duty or the General Electric duties. Working on both created work conflicts during the first ten days of each month.

If the reasonable adjustments had been a standalone claim, then the Claimant would have had to lodge a grievance within three months of making the request.

What is crucial to this appeal, is that the email from Phil Snowden on 12th April 2006 states '....he discussed with me in December....'. Due to this reference to 'December', the Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b) states:

(b) any act extending over a period shall be treated as done at the end of that period;

which allows the failure to make reasonable adjustments in December 2005 to be brought back in, as it is linked to my redundancy, and therefore, the act (of redundancy) extends from December 2005 to July 2006 (when I was made redundant.The Respondent has agreed that this claim is not time barred.

The Pre Hearing Judgment which states:

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.

is wrong in the following scenarios:

Section 32 Employment Act 2002 does not apply between December 2005 and March 2006 to the failure to make reasonable adjustments in December 2005, as this was not a standalone claim, but was inextricably linked to the redundancy in July 2006, therefore the The Employment Act 2002 (Dispute Resolution) Regulations 2004, Section 3(1) applies.

Section 32 Employment Act 2002 does not apply between July 2006 and October 2006 to the failure to make reasonable adjustments in December 2005, as this was not a standalone claim, but was inextricably linked to the redundancy in July 2006, therefore the The Employment Act 2002 (Dispute Resolution) Regulations 2004, Section 3(1) applies.

One other reason why this claim is not time barred, is that the work conflicts continued from December 2005 through to June 2006.

Lawrence v HM Prison Service [2007] IRLR 468, can also be quoted as case law.

Two days later I received a copy of a letter sent by the Employment Appeals Tribunal to a Mr McGowan that read:

Dear Sir

I refer to the above matter and email of 11 December 2007 from Mr McAlpine.

If you are no longer representing Mr McAlpine can you inform this office as soon as possible.

A transcript of the judgment was not ordered by the learned judge or requested by the Appellant at the hearing.

A request for a transcript was received by the Appellant on 26 November, 5 days outside the 14 day limit for lodging such a request.

The EAT has agreed to have the judgment transcribed but advise this can take 6-8 weeks.

The judgment was delivered at the hearing and the 42 day time limit to appeal to the Court of Session runs from Order seal dated 9 November 2007.

I immediately sent an email to Michael McLaughlin that read:

Michael,

I have received a letter from the EAT this morning, which was sent to Biggart Baillie.

This letter was sent to a "Mr McGowan" at Biggart Baillie in Glasgow, and was dated 12 December 2007.

In case you do not receive this letter, it is basically confirming discussions in the email between myself and the EAT, the only important sentence is "The Judgment was delivered at the hearing and the 42 day time limit to appeal to the Court of Session runs from Order seal dated 9 November 2007."

So it looks like the appeal to the Court of Session must be in by 20 December 2007, but I would aim for no later than 18 December 2007 (42 days from 7 November 2007), just in case the EAT move the goalposts again.

I will also expect my advocate to raise this whole sorry issue with the Court of Session, and outline that the Appellant should not incur any costs in going in front of the Court of Session, as the Appellant could not make any informed decision with his solicitor/advocate on the chances of this appeal.

Can you also send me a copy of the appeal to the Court of Session, and the letter to the Glasgow ET regarding the costs hearing.

The next day I received an email from Michael McLaughlin:

Kenneth,

I think I alone should correspond with the EAT. I think we are confusing them.

The note for leave to appeal will not be ready until Monday lunchtime. It might be best if you take it through. I think Meg is mistaken. The date on the seal of the order is 9 November but it's dated at the bottom 7 November so we must work to 18 December as the last day to be safe.

I'll probably give you a call tomorrow.

The following day I received another email from Michael McLaughlin:

Kenneth,

I have come into the office this morning to prepare a note to the EAT seeking leave to appeal the EAT decision of 7 November. I have reviewed the tribunal's judgement of 9 March and re-read your ET1. The Reasonable Adjustments Appeal ("the RAA") has absolutely no prospects of success and I think that pursuing that appeal may be tactically foolish: we may weaken the prospects of the main appeal by pursuing an additional appeal which is frankly hopeless.

Why do I reach that conclusion?

Most importantly I have now read the PHR judgement. I had not done so previously. From that judgement it is clear that you did not argue before the PHR the following three things:-

1. That the failure to make RAs was a continuing act that continued to dismissal;

2. That the failure to make RA became fused and became one with the obligation on Oracle to take reasonable steps to identify alternative employment within the confines of the redundancy consultation process;and

3. Because of 1. and 2. above there was no requirement on you to lodge a grievance at all

Not only were these fact or arguments not advanced in evidence before the tribunal at the PHR, they were not even hinted at in the ET1. Because no such arguments were advanced and no such evidence was lead, the tribunal at the PHR made no findings in fact that would lead to the legal conclusion that we are now advancing. In order for our legal analysis of the RA issue to be accepted the tribunal would have to have made findings in fact that accord with numbers 1-3 above. No such findings in fact were made. The EAT is not the forum for proving facts. That is the ET's job. We cannot invite the EAT to make findings in fact.

In addition I note from the PHR judgement that the issue of timebar was not conceded at all but was reserved for the full hearing. There is no admission by the Respondent on record that the failure to make RAs was one continuing act.

We cannot advance the legal analysis which I have devised because we do not have the necessary findings in fact to substantiate it.

In addition the "fusion" argument is undermined by the way you have expressed the failure to make RAs in your ET1. You state as follows:-

"No reduction in workload until I was selected for redundancy".

You do not say that they failed to find you an alternative and less onerous role. For the fusion argument to succeed you needed to say that the failure to make reasonable adjustments was in not finding you a new job as opposed to not reducing the workload in you existing role.

My very firm view therefore is that the RAA is completely unstateable and as an officer of the courts and tribunal I cannot advance an argument that I believe to be unstatable. The previous note which I prepared for the 7 November hearing was based on the Respondent having conceded 1. above. If such a concession had been made then no finding in fact would have been necessary. No such concession has been made.

It is a matter for you whether or not you lodge a note of appeal by 18 December. I agree with you that the issues that have arisen over the production of a written judgement have been highly unsatisfactory but frankly having reviewed the matter in detail this morning, the terms of Lady Smith's judgement are irrelevant in that the RAA was unstateable in the first place.

I will not be offended in the slightest if you lodge a note and subsequently seek counsel's opinion. That is your right. I have no doubt however that the opinion will be the same as mine. If you choose to go down this route I will simply write to the EAT advsing that I act only in the main appeal which is currently in the sift process.

Please call me on my mobile when you have digested this note. I am tied up most of tomorrow and you will find it difficult to catch me.

On 16 December 2007 I sent the following email to Michael McLaughlin that read:

Michael,

The ET will have to explain the following in the judgment issued on 15 March 2007:

"5. It was agreed a Pre-Hearing Review would be arranged to consider three preliminary issues:....(ii) time bar"

"6. 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."

Question: How can the Chairman strike out the claim of failure to make reasonable adjustments on 15 March 2007, without hearing "the issue of time bar should be reserved to the hearing on merits." on 2 July 2007?

The next day I received an email from Michael McLaughlin that read:

Kenneth,

Your failure to lodge a grievance means that the ET did not have jurisdiction to hear the reasonable adjustments claim and therefore renders the issue of time bar utterly irrelevant. That is why Davy wanted to reserve it for another day. To deal with the timebar issue evidence would have been required from a number of witnesses and lengthy submissions. He knew that he had a knock out blow with the failure to lodge a grievance so he was not terribly interested in time bar.

I immediately sent the following email reply:

Michael,

Regarding our telephone discussions this morning, can I request an explanation from you regarding the first paragraph of your reasonable adjustments appeal, which now totally contradicts your current views:

"7.1 The Employment Tribunal erred in that it addressed only the issue of whether or not the Claimant had lodged a written grievance in respect of his assertion that the Respondent failed to make reasonable adjustments in terms of the Disability Discrimination Act 1998. The Employment Tribunal failed to recognise that in the circumstances of this case the requirement to lodge a grievance did not apply."

What has changed in the last month or so, which now makes you argue the exact opposite?

That afternoon I received another email from Michael:

Kenneth,

Principally because you also told me that Oracle had conceded to the ET during the PHR that the failure to make RAs was a continuous act which continued up to termination. You also told me that it had similarly been conceded that the RA claim was not time barred. That gave us the necessary factual foundations on which to build the legal argument. The complete absence of findings in fact did not therefore matter. Having read the PHR judgement it is clear that no such concessions were made but matters were reserved to the full hearing. That changes the position entirely.

From the judgement it is clear that you effectively accepted that a grievance should have been lodged. Initially you argued that one had been lodged and then you conceded that it had not in fact been lodged in respect of reasonable adjustments. Reasonable adjustment DDA claims do require a grievance to be lodged unless that failure forms part. You did not challenge that with the legal and factual arguments that you now make. In the absence of such a challenge from you, the ET were entitled to rule that a) s32 applied and b) it had not been complied with.

I trust this clarifies the matter.

Later that afternoon I was copied on the following email from Michael McLaughlin to the Employment Appeals Tribunal:

Dear Mrs Tindall,

I continue to act for Mr McAlpine in respect of the appeal of the ET judgment of 13 September, 2007. I do not now act for Mr McAlpine in respect of his appeal of the ET decision of 9 March and which was subject of the 3(10) hearing on 7 November. I understand that Mr McAlpine will continue to pursue that matter on his own account.

One day before the latest date on which we had to write to the Employment Appeals Tribunal seeking leave to appeal to the Court of Session, which is Scotland's supreme civil court, a court of first instance and a court of appeal.

I was copied on the Employment Appeals Tribunal quick reply to Michael McLaughlin that read:

Dear Sir,

Thank you for clarifying your position. I will remove you from record in Appeal PAS/0040/07/MT.

The last email that I received from Michael McLaughlin that day read:

Kenneth,

I refer to recent correspondence and enclose a copy of my letter to the Employment Tribunal at Glasgow in relation to the Hearing on Expenses. I also attach a copy of a letter from Morgan Lewis together with my response, the terms of which are doubtless self explanatory.

First attached document read:

Dear Simeon

MY CLIENT - KENNETH McALPINE

Thank you for your letter dated 12 December 2007, the terms of which I have noted.

In relation to the admissibility of evidence by way of witness statements, I apologise if the Note of Appeal has mislead you in any way. For the avoidance of any doubt, witness statements as the source of evidence in chief are of course admissible in Employment Tribunals. Over the years I have appeared regularly in England and therefore I am familiar with their use in Employment Tribunals. Indeed, the use of witness statements is creeping into Scottish procedure in more and more cases.

The difficulty that I have with the witness statements in this case is that it is apparent from the face of the Respondents' witness statements that each of the Respondents' witnesses had had sight of the witness statements of the other witnesses at the time when they were themselves preparing their own witness statements. The point that I make in the Note of Appeal is that this is tantamount to the witnesses discussing together the evidence in chief that they shall give prior to giving that evidence. In Scotland at a lunch break or at the end of a particular day, if a witness was giving evidence has not finished his or her evidence it is standard practice for that witness to receive a warning from the Tribunal that he/she should not discuss any aspects of the evidence with the other witnesses who are still to give evidence. For witnesses to discuss the evidence that they shall give in advance of a Tribunal hearing clearly provides those witnesses with the opportunity to "get their stories straight". That clearly offends the principles of natural justice.

As regards clarification of our intent in relation to the "deliberate and dishonest collusion" I intend to wait until the specific process has been completed, one way or the other, and then I will clarify the position. I see little point in doing that until the appeal has actually been accepted by the EAT.

I trust this deals with the two questions that you have raised in your letter of 12 December, however, if you have any outstanding issues, please do not hesitate to give me a call.

Second attached document was not sent.

The last email that I sent that day was to the Employment Appeals Tribunal that read:

Dear Sir/Madam,

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

Attached document read:

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

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.

The point of law to be advanced and the grounds are as follows:

The Employment Tribunal, at a Pre-Hearing Review on 9th March 2007, struck out the claim of alleged failure to make reasonable adjustments, stating:

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;

This would have been a correct judgment if the alleged failure to make reasonable adjustments in December 2005 was a standalone claim, but the email evidence of Mr Philip Snowden, dated 12 April 2006, 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?"

The phrases 'discussed with me in December' and 'exit Kenneth from the organisation' inextricably link the alleged failure to make reasonable adjustments in December 2005, to the Appellants redundancy in July 2006. As such, the Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3 (3)(b) states:

(b) any act extending over a period shall be treated as done at the end of that period;

Because the alleged failure to make reasonable adjustments is inextricably linked to the redundancy, the 'act' of redundancy started in 'December' when the request for reasonable adjustments was made, and extended until July 2006, when the Appellant was made redundant.

Section 32 of the Employment Act 2002 in respect of raising a grievance regarding the complaint of an alleged failure to make reasonable adjustments did not apply to this claim, as this claim was not a standalone claim, but was inextricably linked to the Appellant's redundancy, and as such Regulation 6(5) of the Employment Act (Dispute Resolution) Regulations 2004 applies, which states:

(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

The recent case law in this regard is Lawrence v HM Prison Service [2007] IRLR 468, which states in the summary:

Employee dismissed and claimed unfair dismissal, both on normal grounds and on the basis that he had been subject to disability discrimination. Employment Tribunal held that he could not pursue the latter because he had not lodged a grievance. EAT upheld the appeal and held that it was not necessary to do so. Reg 6(5) of the Employment Act (Dispute Resolution) Regs 2004 applied and his concerns should be dealt with through the employer's dismissal procedures.

The Appellant will also raise the perversity of the following decision of the Employment Tribunal in their judgment issue to parties on 15 March 2007:

REASONS

5. It was agreed a Pre-Hearing Review would be arranged to consider three preliminary issues:......(ii) time bar......

6. .....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......

For this claim not to be time barred, the Employment Tribunal would have to have listened to arguments regarding the ongoing act being inextricably linked to the Appellant's redundancy, so why did the Employment Tribunal strike out the alleged failure to make reasonable adjustments without listening to the time bar arguments?

Chapter 5

It was now 18 December 2007, exactly one week before Christmas, and I received an email from The Insolvency Service:

Dear Mr McAlpine

I apologise for the delay in responding to your email. Your specific question was "Whether the following organisation submitted an HR1 form during the period November 2005 to August 2006: Oracle Corporation UK Limited. I am only looking for whether you received an HR1 Form from this organisation, during this period. I am not looking for the contents of the HR1 Form."

My reply was to your specific question and was confirmation that a form had been received during this period. I regret that I am unable to provide the information about when the form was received as the RPO inform me that the document concerned is in storage and that it would take considerable cost and staff time to retrieve the information.

I am sorry to send a disappointing reply.

If you are unhappy with the service you have received in relation to your request and wish to make a complaint or request a review of our decision, you should write to the Redundancy Payments Directorate's Freedom of Information Officers. The persons concerned are:

David Rowan

The Insolvency Service

Redundancy Payments Directorate

Area 5.8, 21 Bloomsbury Street

London WC1B 3SS

If you are not content with the outcome of your complaint, you may apply directly to the Information Commissioner for a decision. Generally the ICO cannot make a decision unless you have exhausted the complaints procedure provided by The Insolvency Service.

The ICO can be contacted at :

The Information Commissioner's Office,

Wycliffe House,

Water Lane,

Wilmslow,

Cheshire

SK9 5AF.

I immediately sent an email reply to The Insolvency Service that read:

Barbara,

This email chain has become a little fragmented, so I want to be perfectly clear on what is being stated, before I consider whether or not I need to pursue this further.

Can you confirm, yes or no, that this is what you are stating:

Oracle Corporation UK Limited submitted an HR1 form during the period November 2005 to August 2006.

If you reply to this email, with a simple yes or no, this should then end your involvement.

At this point, my father and I were reviewing some of the evidence that the respondent had disclosed to the Tribunal at the main hearing.  Page 291 of the main tribunal bundle was an entry in Philip Snowden's daybook dated 28 March 2006 that stated: "MT not wanting to pay off due to recent previous experience". The reason why we were concerned with this particular entry was that Malcolm Thompson (MT) was meant to have placed me on the reduction in force or redundancy list on 7 February 2006, so if that was the case why was Malcolm Thompson expressing concerns to other people and Philip Snowden about not wanting to pay off. Strange.

Christmas passed and we tried to do the best for the kids as we possibly could given the circumstances, and the kids seemed to enjoy it.

Two days after Christmas I received an email from Michael McLaughlin:

Kenneth,

The sift has now concluded and Lady Smith is of the view that my note of appeal does not contain a stateable ground of appeal. The EAT's letter was received in this office on 19 December while I was on holiday. I will send it to you in tonight's post and we can discuss it tomorrow. I am in all day tomorrow.

Regarding the costs hearing because at the moment technically there is no appeal before the EAT there is nothing to prevent the costs hearing taking place.

The next day I received the letter that Michael had sent me, with an attached letter from the Employment Appeals Tribunal:

Dear Mr McAlpine

YOU v ORACLE CORPORATION UK LIMITED

I refer to the email which I sent to you today and enclose a copy of the EAT's letter, the terms of which are doubtless self explanatory and disappointing. You will see a copy of the letter has been sent to the Employment Tribunal and accordingly, I anticipate that I will receive a letter from the Employment Tribunal in response to my letter seeking a postponement of the Expenses Hearing, confirming that the Expenses Hearing will proceed on 10 January 2008 due to the fact that no outstanding appeal is before the EAT.

As regards the Expenses Hearing on 10 January, you must decide whether or not you wish to instruct me to conduct that hearing on your behalf or whether you wish to appear on your own behalf.

As regards the appeal, I will have to go back to the drawing board and see what improvements can be made. It may be that we have to argue for the merits of the appeal at 3(10).

Hopefully I will have discussed the content of the letter with you before the New Year break.

Dear Sir

Mr K McAipine 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 September 2007.

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. There must be a question of law arising from the decision of Employment Tribunal or a point of law, which has arisen in the proceedings before it. There is no appeal against the Tribunal's findings of fact. There is no retrial of the case on appeal; it is simply a question of reading the decision which has been given to see that it was in accordance with the law. Employment Tribunals often have to hear cases in which there is conflicting evidence and the Tribunal has to decide whose evidence to accept There is no appeal against the Tribunal accepting the evidence of one party or rejecting the evidence of the other party unless it can be shown that there was a perverse decision — that is, one which no reasonable Tribunal could have come to. Such instances occur where the Tribunal finds facts which are contrary to the uncontradicted evidence, or finds facts for which there is no evidence at all. There are isolated cases in which perverse decisions are made and they will be entertained on an appeal as raising questions of law, but perversity means that the decision is contrary to the evidence, not that the Tribunal has preferred the evidence of one party to another or could have taken a different view of the evidence. It really has to be shown that there is an overwhelming case for setting aside the decision of the Employment Tribunal as unsupported by any evidence or as completely contrary to the uncontradicted evidence. This is not one of those isolated cases. Here, the entire notice of appeal reads as a set of submissions that could have been advanced before the Employment Tribunal in an effort to persuade it to take a different view of the evidence not, in reality, as a set of appeal submissions. The essence of it is that the Tribunal could and therefore should have taken a different view of the evidence. The highpoint of the notice of appeal is a submission that there was a contradiction in the evidence on a material matter (the email referred to at 7.16 and 7.17) but the April e mail exchange is not obviously contradictory with Mr Thompson having indicated that he identified the claimants role as potentially redundant in February. No discreet error of law is identified. This Employment Tribunal were entitled to reach the conclusions that they did on the evidence that they accepted, they have clearly explained how and why they did so and they have applied the correct law. There are, in all the circumstances, no reasonable grounds of appeal advanced 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.

It was at this point that I became extremely suspicious of everything that happened up until now. The main reason for my suspicion was the fact that whatever was going on, it had now alienated diabetics from the workplace, because diabetics would be off sick in the future. As the world has some two hundred and forty million diabetics, many of whom lead a fairly normal life, and many of whom work, made these decisions even more perverse. The one thing which I could not resolve, and probably never would, was why very well qualified judges, who know the law and apply the law on a daily basis, could reach this decision. It certainly wasn't ignorance, and it couldn't be a bad day at the office, as I had already had some seven hearings, reviews and appeals dismissed.

On 28 December 2007, I decided to contact the Equality and Human Rights Commission in Scotland to see if they could provide any help.

That same day I sent an email to Michael McLaughlin that read:

Michael,

I have left you a vmail.

I am now instructing you to represent me at the costs hearing in Glasgow ET on 11 January 2008.

You should use my household insurance to cover your time, if you have any problems with this, please let me know.

I quickly received the following email reply from Michael McLaughlin:

Kenneth,

I refer to your email of earlier this afternoon and your voicemail and note that you now wish to instruct me to represent you at the Expenses Hearing on 11 January 2008. I note that you say I should use your household insurance to cover my time. I will endeavour to do this however, I would be grateful if you would confirm that should your insurer, for whatever reason decline to meet my reasonable and properly incurred cost in preparation for and conduct of the Expenses Hearing, you will personally meet my cost.

I look forward to hearing from you in early in January as possible in relation to this and all other outstanding matters.

The last email I received that day was again from Michael McLaughlin that read:

Kenneth,

I have read Morgan Lewis's letter of application for costs dated 3 October 2007. They seem to seek costs from you on the following basis: -

1. You unreasonably refused to participate in the mediation process notwithstanding their offer of a contribution to your legal costs;

2. Your expectation of compensation was wildly unrealistic;

3. You then made a vexations allegation that certain documents had been tampered with; and

4. You made a number of applications throughout the duration of claim for orders which caused the Respondents a significant amount of expense and time in dealing with the applications.

I would be grateful if you would give me your detailed comments on all of the above noted allegations.

In relation to the allegation that you made a number of applications for witness and other orders, were these orders granted by the Employment Tribunal? In relation to the applications they appear to come under 4 separate headings as follows:-

1. Applications for adverse influences to be drawn against the respondent made on 18 November 2006 and 16 February 2007;

2. An application of respondent to debarred from defending the claim and/or for preparation time costs to awarded in your favour dated 1 May 2007;

3. An application for witness orders dated 29 May 2007;

4. An application for the respondents defence to be struck out dated 25 June 2007.

I would be grateful if you would give in account as to why these orders were sought, and whether or not they were granted.

On the last day of 2007 I sent my Member of Parliament, Katy Clark MP an email:

Dear Sir/Madam,

Hi, Kenneth McAlpine. Merry Christmas and a happy new year.

Please find below an email to Diabetes UK and their lawyers regarding an employment claim which has been through the Glasgow Employment Tribunal, and the Edinburgh Appeals Tribunal, and is currently in the process of an appeal to the Court of Session.

I would like to arrange a meeting with yourself as soon as possible regarding this matter.

Email to Diabetes UK and their lawyers:

If you remember back in October this year, Diabetes UK contacted you, and you kindly found a pro bono solicitor for me, to represent me during my two appeals to the Employment Appeals Tribunal.

This was in connection with the statements in my ex employers emails, which I have copies of:

From my ex manager to HR:

"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.

Given the above, are there any other options to exit Kenneth from the organisation prior to the end of FY06?"

From HR to my ex manager:

"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"

I had taken 2 days sick leave in the previous 15 months, which my ex-employer has conceded in writing.

To bring you up to date, I had to represent myself at the Employment Appeal Tribunal in November 2007 regarding the reasonable adjustments part of my claim, as my pro bono solicitor had other commitments. I have now had to lodge an appeal myself regarding the reasonable adjustments part of this claim, seeking leave to appeal to the Court of Session (Court of Appeal in England), as this was not part of my pro bono solicitors remit (only the direct discrimination appeal). I have just been informed today that my pro bono solicitors appeal to the Employment Appeal Tribunal regarding direct discrimination has not even passed the sift process, so there is currently no appeal to the Employment Appeal Tribunal.

I now require some more help, if you can kindly assist.

In October 2007, you mentioned that you could obtain the services of a Barrister on a costs only basis paid by myself, if that is the case then I believe that a Barrister could combine both the reasonable adjustments and direct discrimination appeals to the Court of Session, and win both.

My pro bono Solicitor had lodged a perversity appeal for the direct discrimination appeal, as his opinion was that the judgment was totally perverse, involving witness collusion to try and cover up the direct discrimination. I am now facing a costs hearing at 10:00am on 11 January 2008 at Glasgow Employment Tribunal, at which the Respondent is claiming costs of approximately £117,000. This nightmare continues.

Can you let me know asap whether you can obtain the services of a Barrister.

I received an email reply from Katy Clark MP that read:

Dear Mr McAlpine

Trish from my office will get in touch to arrange a meeting between us. If possible it would be helpful to see any paperwork in advance of the meeting.

Please note my constituency office is now closed till Thursday 3 January.

That same day I sent a similar email to my local Member of the Scottish Parliament, Kenneth Gibson, and received the following email reply:

Dear Kenneth,

A Happy New Year to you.

I have surgeries on Friday and Saturday this week if you want to come along.

It was now 2008 and on 2 January I sent an email to the lawyer in London who Diabetes UK had put me in touch with a few months ago, Adela Williams, and I also copied Diabetes UK on the same email that read:

Dear Adela,

Hi, Kenneth McAlpine. Merry Christmas and a happy new year.

If you remember back in October this year, Diabetes UK contacted you, and you kindly found a pro bono solicitor for me, to represent me during my two appeals to the Employment Appeals Tribunal.

This was in connection with the statements in my ex employers emails, which I have copies of:

From my ex manager to HR:

"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.

Given the above, are there any other options to exit Kenneth from the organisation prior to the end of FY06?"

From HR to my ex manager:

"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"

I had taken 2 days sick leave in the previous 15 months, which my ex-employer has conceded in writing.

To bring you up to date, I had to represent myself at the Employment Appeal Tribunal in November 2007 regarding the reasonable adjustments part of my claim, as my pro bono solicitor had other commitments. I have now had to lodge an appeal myself regarding the reasonable adjustments part of this claim, seeking leave to appeal to the Court of Session (Court of Appeal in England), as this was not part of my pro bono solicitors remit (only the direct discrimination appeal). I have just been informed today that my pro bono solicitors appeal to the Employment Appeal Tribunal regarding direct discrimination has not even passed the sift process, so there is currently no appeal to the Employment Appeal Tribunal.

I now require some more help, if you can kindly assist.

In October 2007, you mentioned that you could obtain the services of a Barrister on a costs only basis paid by myself, if that is the case then I believe that a Barrister could combine both the reasonable adjustments and direct discrimination appeals to the Court of Session, and win both.

My pro bono Solicitor had lodged a perversity appeal for the direct discrimination appeal, as his opinion was that the judgment was totally perverse, involving witness collusion to try and cover up the direct discrimination. I am now facing a costs hearing on 11 January 2008, at which the Respondent is claiming costs of approximately £117,000. This nightmare continues.

Can you let me know asap whether you can obtain the services of a Barrister.

That same day I also replied to the email I had received from Katy Clark MP:

Dear Katy,

Thank you for your reply.

I will not burden you with numerous paperwork, and this claim had 850 pages of documentation in the joint bundle of evidence.

I believe that the attached word document containing two scans of two emails are the crux of this case, and speak for themselves. It clearly demonstrates the stereotypical assumptions or prejudice against disabled people, ie: disabled = 'offsick' or 'prolonged period of time off due to illness'. I had two days sick in 15 months, and the eight years that I worked for my ex-employer, my absentee record was excellent.

I would like to concentrate our discussions on any help that you can provide, as this case is now one step away from the European Courts.

I also sent the following email to the Court of Session regarding the reasonable adjustments appeal:

Dear Sir/Madam,

I am representing myself in an employment matter, which has recently been dismissed at the Employment Appeal Tribunal.

I have written to the Employment Appeal Tribunal asking for leave to appeal to the Court of Session.

If leave to appeal to the Court of Session is refused (which, I have been informed is normal):

1: What do I have to do to appeal to the Court of Session (form to fill in, etc)?

2: What is the time limit for appealing from the Employment Appeal Tribunal?

Later that day I sent Michael McLaughlin an email that read:

Michael,

I am instructing you to apply for a rule 3(10) hearing regarding the failure of the appeal to pass the sift process.

Although I am not at all happy, or in agreement with this action, I do recognise that time is running out.

I am also instructing you to find me an advocate to lodge an appeal to the Court of Session. This should be done as soon as possible, as I would like to discuss the various options of running the reasonable adjustments and/or the full tribunal appeal together at the Court of Session, or whether both should be kept separate, and whether a rule 3(10) hearing is worth pursuing, etc.

I will pay for the services of the advocate, but will reserve the right to change advocate, should another party either provide an advocate for me, or offer an advocate on a costs only basis.

The next day I sent a few emails out to law firms in Glasgow and Edinburgh regarding representation, as I was appealing to higher Courts and though that a Barrister or Advocate would best represent my interests.

Later that day I sent an email to the Court of Session regarding where to send forms for my reasonable adjustments appeal.

Marion,

Please treat my enquiry as someone who may have to apply themselves, as I do not have an advocate on board yet, so any extra information, guide or relevant law and timescales regarding appeals from EAT to Court of Session would be extremely helpful.

That same day I received a reply from the Court of Session that read:

Kenneth

The Employment Tribunal should sent you letter letting you know if leave as been granted or refused and which Rule to follow and the time limits. When you receive this information can you email or phone and I will send out the relevant information. Alternatively, the Rules of Court are posted on our website and can be accessed through www.scotcourts.gov.uk.

I hope this is some help to you,

The following day I sent an email to Michael McLaughlin that read:

Michael,

I am instructing you to apply for a rule 3(10) hearing, and use your exact original appeal as the basis for the rule 3(10) hearing.

Do not change any wording at all, as I believe that there is more than enough information in that appeal for any judge properly directing themselves to not only find perversity, but also to quash the whole decision, and rule out any further tribunal due to the witness collusion, which would make a fair hearing impossible.

Another reason why I do not want you to change anything in the original appeal, is that I would like a written judgment which tries to explain away the points raised in the original appeal. That would make a very interesting read.

Can you submit your application for the rule 3(10) hearing within the next couple of days, and let me know when this has been done.

I also sent a further follow up email to Diabetes Scotland:

Dear Sir/Madam,

Following the phonecall from Mrs McAlpine, please find below/attached the correspondence I sent to my MP:

I believe that the attached word document containing two scans of two emails are the crux of this case, and speak for themselves. It clearly demonstrates the stereotypical assumptions or prejudice against disabled people, ie: disabled = 'offsick' or 'prolonged period of time off due to illness'. I had two days sick in the previous 15 months, and in the eight years that I worked for my ex-employer, my absentee record was excellent.

I would hope that someone from Diabetes UK could attend the costs hearing at Glasgow Employment Tribunal on 11 January 2008 at 10:00am, as I am now facing costs of £117,000, all for the 'pleasure' of being directly discriminated against because of my diabetes.

Michael McLaughlin sent me the following email on 4 January 2008:

Kenneth,

I refer to your emails of 2 and 3 January and write to respond to the various matters which you set out in those emails.

As regards the Appeal of the substantive decision of the Employment Tribunal, which has now been rejected during the sift process, I am slightly confused as to the nature of your instructions. Your first email states that you are "not happy" at all with me to apply for a Rule 3(10) Hearing, nor are you "in agreement" with this action. As I explained, it is not for me to persuade you to take a particular course of action or not. I can only accept the instructions which you give but I am concerned that you are giving instructions very reluctantly. If you do not feel that it is in your best interests to apply for a Rule 3(10) Hearing then you must consider withdrawing the instruction.

I note however that your subsequent email on 3 January repeats the instruction to apply for a Rule 3(10) Hearing only this time using the original grounds for appeal rather than submitting fresh and revised grounds for appeal in terms of rule 3(8). Before committing to the 3(10) process, I need to be confident that you view it as the best and most sensible option given the circumstances that we find ourselves in.

On the subject of whether or not it would be prudent to draft a revised Note of Appeal, I have this morning read the original Note of Appeal again and I am not convinced that there is an awful lot more that I could add to that Note. I think that perhaps there is scope for me to bolster the grounds of the Appeal based on our assertion that the decision to make you redundant was taken at a very early stage and because of that the redundancy consultation process was a sham. Case law sets out certain legal principles regarding legal requirements of a fair and reasonable redundancy consultation process. We might also have been able to bolster the ground of appeal that asserts that Oracle failed to take reasonable steps to identify alternative employment although I thought it would have been evident rom the exchange of emails in April that no genuine attempts could be made thereafter to find any type of role for you.

I have however noted your instruction to re-submit the original Note of Appeal. I have taken the liberty of going through it to tidy up some typographical errors that crept into the document which was lodged and with your consent, I would propose to lodge that. I would of course make it clear that no substantive changes had been made to the document.

With regards the Hearing on Expenses, I attach a copy of an email which has been sent to your insurers. Yours insurance policy does not cover work that is carried out prior to written confirmation from the insurers that your policy applies and therefore I have asked that they apply to me by return. It is also a condition of policy cover that there are reasonable prospects of success. You will see my comments in that regard.

Your email of 2 January instructs me to find an Advocate to lodge an appeal to the Court of Session. I had understood you to say that the Diabetes Society had confirmed to you that they would be prepared to investigate funding the instruction of an Advocate, should that become necessary. As I have explained to you previously, I do not think the reasonable adjustments appeal has any prospect of success and therefore I cannot instruct an Advocate to proceed with such an Appeal. As regards the full Tribunal decision, it is too early to consider instructing an Advocate given that the 3(10)Hearing is not likely to take place until March or April at the earliest. There are two potential outcomes of the 3(10) Hearing. Some or all of the grounds of Appeal may be admitted following upon submissions. I know that you will hold a strong view that that is highly unlikely. The other option is of course that Lady Smith restates her view that the Note contains no stateable grounds of appeal. It is only at that stage that you would have to consider seeking leave to appeal to the Court of Session. Only when we are considering proceeding to the Court of Session is it necessary to instruct an Advocate.

Regarding the reasonable adjustments appeal, I assume that you have lodged a note with the EAT seeking leave to appeal Lady Smith's decision to the Court of Session. In addition, you are also awaiting the written Judgment from the EAT setting out the reasons why the reasonable adjustments appeal was rejected. I would have thought your best course of action would be to wait until the Judgment is issued and then instruct an Advocate to provide you with an opinion as to the prospects of success of such an appeal.

I would be happy to discuss all and any of the foregoing matters with you.

I immediately replied to Michael's email with this email:

Michael,

Please find attached the document which I would like you to use to form the first couple of pages of the rule 3(10) appeal.

Document attached read:

Start the rule 3(10) appeal by asking the following question directly:

Does Phil Snowdens email of 12 April 2006 amount to a violation of the Disability Discrimination Act Section 3A(5)?

Section 3A(5) of the Disability Discrimination Act 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.

<insert full email from Phil Snowden 12 April 2006 here (page 418)>

You can take out, or leave the following in (there are 1000's of these quotes on the internet):

direct discrimination on the ground of a disabled person's disability (DDA section 3A(5))

Direct discrimination

If someone is treated less favourably than someone else who is not disabled, solely because of their disability, then this will amount to unlawful direct discrimination. This will cover situations where a person is treated differently because of stereotypical assumptions or prejudice about their condition or abilities. There is no defence to direct discrimination.

An example might be where an employer turns down an applicant for a job who has schizophrenia, because of a negative medical report based on stereotypical assumptions about the effects of the condition without consideration of their particular case.

Now outline the following:

1: "on the ground of the disabled person's disability"

My disability of diabetes was used.

2: "he treats the disabled person less favourably than he treats or would treat a person not having that particular disability"

My selection for redundancy and redundancy.

3: "whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."

My selection for redundancy and redundancy, compared to other team members with the same job description, especially other team members who had a shorter service time in the team, but especially Mark Jones who only started in the team on 1st June 2006, after I had been selected for redundancy, and who had no prior experience of the job of SDM.

You can then outline the following:

4: Stereotypical assumptions or prejudice were made, or exhibited by Phil Snowden in this email, as he made the stereotypical assumption that the disability will lead to greater time off in the future "the combination of diabetes and high blood pressure – which could result in a prolonged period of time off due to illness." All this for someone who does not have a diagnosed condition of "high blood pressure", and who only had 2 days "off due to illness" in the previous 15 months, as stated by the respondent. This stereotypical assumption is the key to the direct discrimination claim, and it is irrelevant under what circumstance the respondent made this stereotypical assumption (ie: it is like saying women take more time off work than men due to their genetics, or ethnic minorities take more time off work than British people due to their perceived poorer backgrounds, all ludicrous untruths).

5: There is no defence against direct disability discrimination, and whether or not I was on a redundancy list before Phil Snowden used my disability, is completely irrelevant, and it certainly does not constitute any defence to using my disability.

6: Even although the following is irrelevant to proving direct disability discrimination, if you still want to persist with having to link it to my redundancy, what seems to be most strange, is that Phil Snowdens email is in reply to an email from Malcolm Thompson (page 416), who had argued in the previous email about giving me one of two options, either an existing account, or a new account. Malcolm Thompson outlining to Phil Snowden two options for keeping me in the SDM role, all from the person who allegedly placed me on the redundancy list two months previous to this, and whose suggestions to Phil Snowden were destroyed by Phil Snowden, when Phil Snowden raised my disability "with either option....".

This is actually irrelevant to proving direct disability discrimination, so is irrelevant to our claim, but you may want to point this out, if you continue to persist with having to link it to my redundancy. What I am trying to avoid is the watering down of the stereotypical assumption (this is direct discrimination in its own right) for any reason (selection for redundancy or redundancy), as discrimination should stand solely on its own merits, and perhaps this is the mistake we have been making?

I want the above to be the first couple of pages of the rule 3(10) appeal, after this, you can then outline the witness collusion, possibly outline the perjury (although if you don't want to use this word, then don't, and which you have a copy of in the folder that I provided), and all this perverting the course of justice (ET not finding Phil Snowdens email direct discrimination (redundancy list is not a defence, as there is no defence to direct disability discrimination), the witness collusion and the perjury = perverting the course of justice).

Finish by outlining that due to the witness collusion, I could not possibly have another fair hearing, possibly bring in European Law on human rights, so you are looking for this decision to be completely overturned.

I followed this email with another email to Michael on some concerns that I had:

Michael,

Just as a footnote to my previous email, I do believe that we are watering down the direct disability discrimination claim, by stating that it was connected to this event or that person who done this or that, etc.

The direct disability discrimination claim is in the one email (Phil Snowdens, 12 April 2006), everything else is irrelevant, because if he had stated the "diabetes...." paragraph in any circumstance (even in a general discussion with me at any time), it would have been direct disability discrimination. So it is both time and circumstance irrelevant.

Examples:

If Phil Snowden stated that I was an 'old ####', this would be direct age discrimination, and his 'old ####' statement would be both time and circumstance irrelevant.

If Phil Snowden stated that I was an 'black #######', this would be direct race discrimination, and his 'black #######' statement would be both time and circumstance irrelevant.

The fact that Phil Snowden stated that I was 'disabled which would lead to more time off in the future', would be direct disability discrimination, and this would be both time and circumstance irrelevant.

Hopefully you will see that the direct disability discrimination claim is both time and circumstance irrelevant, so it shouldn't require to be 'linked' to anything, and should just stand on it's own merits. It is the very wrong stereotypical assumption 'disability = time off' which is the direct discrimination, nothing else matters.

The last email that I sent to Michael that day read:

Michael,

As a further footnote to my previous email, if you agree that direct discrimination is both time and circumstance irrelevant, this will completely blow away the respondents whole claim.

Why, because all you have to do is prove that my 2 days time off in the previous 15 months beats, hands down, the average time off taken by the whole working population (which I believe is 11 days off sick for the average working person per year), and that this completely wrong and unfounded stereotypical assumption is direct disability discrimination.

What can the respondent state in any defence?

Three days later I sent Michael McLaughlin an email concerning the impending costs hearing due to commence in four days:

Michael,

With reference to the costs hearing on Friday 11 January 2008:

I will be unavailable on Thursday 10 January 2008, as I will either be travelling, or in attendance for 2 clinics concerning my diabetes.

Mrs Jean McAlpine will take the witness stand to testify on the subject of altered, amended documents. I have already been cross examined at the full hearing on the altered or amended documents, but if you need me to take the witness stand again, I will be more than happy to do this.

If you are asked any questions by the respondent or Chairman regarding altered or amended documents, your answer will ALWAYS be "documents were altered or amended", you will not state anything else, as this is the truth, it is plain to see, and it is an 'opinion' as to why these documents were altered or amended.

With regards to the orders that I sought, be aware that the respondent fought every single application for orders, usually by sending a letter into the tribunal within 24 hours of my intial application for orders. This may be the 'work' that they are claiming costs against, although, if the tribunal grant them costs for this, then there would hardly ever NOT be a costs award against some party in every tribunal claim, as I believe orders are commonplace.

Later that day I received the following email reply from Michael:

Kenneth,

I refer to your various emails on Friday 4 and Monday 7 January and note what you have written.

Regards the Expenses Hearing, we have to be quite precise about what it is we say about the altered documents. It is apparent that the appearance of the documents had changed however, it is not clear as to whether or not the content was changed. If the content was changed, that would clearly be an altogether more serious matter. I have noted however from page 19 numbered  paragraph 88 of the Judgment, it is stated that "the Claimant subsequently conceded that he was not maintaining that documents had been altered deliberately but just that they had not been produced in the correct format". This is perhaps something we can go into in more detail in advance of the Hearing on Expenses on Friday. Please confirm that the Hearing is due to commence at 10am. That being the case, I think you should arrange to be at my offices for 9am at the latest and we will go over the various matters in advance of the Hearing.

As regards your various emails regarding the issue of direct discrimination and the 3(10) letter, I will come back to you on those issues once I have had a chance to digest the emails.

I have still heard nothing from the insurers regarding them placing you on cover for the preparation for and conduct of the Hearing on Expenses and I think you should telephone them as a matter of urgency to push them into making a response to my email of last week.

I replied to Michael's email immediately and stated:

Michael,

You should now be well aware of just how inaccurate the judgment is, it does not have any of my document references correct at all, it has all the respondents document references correct. You have also heard from various other witnesses who attended the full hearing. You have stated that the judgment was perverse in your own appeal, and lodged a perversity appeal at the EAT on these grounds.

Some documents were not produced in the correct format, other documents had sections whited out (sections discussing compromise agreements), another document, my offer of employment letter, had the word 'Oracle' missing, and the signature whited out. Another document was completely the wrong document, the respondent had this document in their indices as '25 April 2005' but which contained a document dated '30 May 2006' . Another document had a figure highlighted in red, but when it was photocopied, it was unreadable, either the respondent should have contacted me to notify me of this, or should have obtained a colour photocopy. Again, another document was the completely wrong document, where slide 20 was used instead of slide 21. Another document had the word 'Oracle' removed, and the signature whited out, this was my selection for redundancy letter.

As you can plainly see, this is NOT just a case of 'documents not produced in the correct format'. I did state at the full hearing that some of the documents were not produced in the correct format, but also stated in the witness box, when asked, that my position was 'documents were altered or amended'.

The last email I received that day was from Katy Clark MP Secretary that read:

Good afternoon Mr McAlpine

I understand that you tried to see Katy at the weekend. I am sorry if I did not make myself clear when I spoke to you. Katy's next surgeries are on Saturday 12th January at 10.30am in the Walker Hall, Kilbirnie and 2.00pm at Saltcoats Town Hall.

Apologies again for any confusion I may have caused.

Chapter 6

Michael McLaughlin sent me two email replies on 8 January 2008, the first email read:

Kenneth,

All of that is noted.

I have received a bundle of documents from Morgan Lewis in respect of the expenses hearing. I'm not going to touch it until your insurers have been in touch to confirm cover. Did you phone them yesterday. If not you should phone them as a matter of urgency.

The second email read:

Kenneth,

I have received a one line letter from your insurers asking that I put my "details" regarding the expenses hearing in letter form. It can only be a stalling tactic. I'm afraid that they will not have confirmed cover in time for me to prepare and run the expenses hearing. In that case even if they confirm cover say next week, they will not backdate that cover. That means they will not meet any cost incurred before confirmation of on cover will not be met by them, leaving it to you to meet that cost. Have you phoned them. If not you should do so as a matter of urgency.

Later that day a flurry of emails between Michael McLaughlin and myself ensued and was started by me sending the following email to Michael McLaughlin:

Michael,

Please find attached original scans of some of the most important altered or amended documents, and the two witness statements. I have left out the documents where only the format had changed. The alterations or amendments are outlined in the witness statements.

All of these witness statements and original and altered/amended documents, as well as the missing format changed documents, were presented to the tribunal in a plastic folder at the very start of the 3 day full hearing.

My family had also helped to produce 5 bundles of all my original documents, spanning some 10 lever arch folders, at some considerable time and expense to all of us. The Chairman did not accept these bundles, and instead let the 3 day hearing commence with the joint bundle of documents produced by the respondent, and accepted the documents in the plastic folder.

Michael McLaughlin then sent me the following email reply:

Kenneth,

I am assuming that it was in the final bundle of documents lodged by Oracle for the full tribunal hearing that you noticed that documents had been altered? That pre-supposes that you had seen the documents before in their "unaltered form". Were these documents that you already had in your possession or had they previously been intimated to you by Oracle.

I then replied to the email from Michael McLaughlin with the following email:

Michael,

"I am assuming that it was in the final bundle of documents lodged by Oracle for the full tribunal hearing that you noticed that documents had been altered?"

That is correct.

"That pre-supposes that you had seen the documents before in their "unaltered form". Were these documents that you already had in your possession or had they previously been intimated to you by Oracle."

I had the original documents in my possession, my bundle of documents, and these were sent by email to Morgan Lewis for the purpose of collating the joint bundle. My original documents in "unaltered form" were compared to the final bundle of documents lodged by Morgan Lewis for the full tribunal hearing, and this is when the altered or amended documents were noticed.

I also sent the following email to Michael McLaughlin:

Michael,

You may want to use, or at least have in your possession, the email listed below.

This clearly shows that the respondent was only questioning 3 documents out of the 120 or so that was sent to them. These 3 documents were not even part of the altered or amended list.

Note also as well the date this email was sent, 1 June 2006, close to the date for joint bundle production.

Part of email attached read:

We also note from those documents that you have disclosed to us, that the following appear to be missing:

Document 50 in your list - CIM role definition - is there an attachment to this email? If so please supply a copy.

Document 75 in your list - Letter dated 13 October 2006.

Document 83 in your list - Hospital record.

Please let us have copies in each case.

The last email that I sent to Michael McLaughlin that day read:

Michael,

Just noticed this email below, this is surely not right, let me explain:

* Witness statements, according to the CMD on 9 March 2006, had to be exchanged "no later than two weeks prior to the commencement of the Hearing".

* This was done by the Claimant on 18 June 2006 at 11:33am, as can be seen from the email below.

* This was NOT done by the Respondent on 18 June 2006, as can be seen from the email below.

* 18 June 2006 is exactly 14 days (2 weeks) prior to the commencement of the Hearing (2 July 2006), so the respondents witness statements were late.

* Now observe the date that all the main witness statements were written, 18 June 2006.

So the respondent wrote their witness statements on the same day that the respondent received the Claimants witness statements that morning.

The respondent also waited until the last date that witness statements had to be exchanged, before taking witness statements, knowing fine well, that these witness statements would not be received by the Claimant in time to conform with the CMD instruction.

This surely cannot be legally correct, as the respondent could have read my witness statement before writing their own witness statements?

Perhaps this can be used at any EAT hearing, or Court of Session.

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

Kenneth,

I received your email yesterday in connection with the insurance cover. As you instructed, I faxed Andrew Smith setting out my views on the merits of assisting the request for expenses. That was faxed to Andrew Smith before lunchtime yesterday. I sent him a subsequent fax this morning advising him that my estimate of the fee increased as a result of receipt of the bundle of documents from Morgan Lewis.

I had heard nothing from Andrew so, given that time is getting on, I decided to phone him to find out what the state of play was. I did not speak to him but spoke to one of his colleagues. I explained the entire situation to the colleague and expressed the urgency of the matter given that preparations have to be commenced shortly. That colleague put me on hold for about 5 minutes and came back to say that he had a brief chat with Andrew and had looked at the file. He advised me that cover was being denied for the Expenses Hearing on account of cover having previously been withdrawn on advice of their solicitor, who I assume was Miller Samuel. I have been advised that cover was withdrawn on 23 February 2007 on account of you having turned down settlement offers or settlement approaches which the panel solicitor thought were reasonable.

I have to say that all of this is news to me. I discussed with you at our last one to one meeting where you got to with obtaining legal representation for the initial Tribunal Hearing via your insurance policy. You advised me that you met with Miller Samuel, possibly Stuart Swan. You advised me that he was unwilling to take the case on because you had not lodged a grievance and therefore your discrimination claim was bound to fail. I was surprised and concerned by the advice that he gave you given that when you met him it was still within time to have lodged a grievance. You then advised me that as a result of Miller Samuel not being interested in taking the case on, you chose simply to represent yourself.

You will see that there is an inherent contradiction of what I am being told by you and what the insurers appear to be telling me from their records. I must have confidence in what I am told by you. In order for me to continue to act for you I require (1) confirmation that you will personally meet my fee for the Expenses Hearing and (2) a satisfactory explanation in respect of the two conflicting accounts I have been given regarding legal representation. I need to hear from you by noon tomorrow. For the avoidance of doubt even if you agree to meet the fee, I may not be prepared to act in the absence of a satisfactory explanation. Subject to what that is, I may ask for a payment to account of the fee. Should you not let me have an explanation or if it is not satisfactory then I will not be able to continue with the EAT application. If I do not hear from you by noon in acceptable terms, I will consider myself no longer representing you.

In the middle of the morning, I received a copy of a letter by post from Family Plus, my insurance agent, to Michael McLaughlin:

Dear Sirs,

We refer to your recent e-mail.

Firstly, cover was discontinued in this matter because we were funding one of our panel Solicitors, but your Client refused to accept the advice of the panel Solicitors either to accept an offer which had been put forward or to allow them to negotiate and see whether they could improve upon it.

The Client decided to take his papers and seek advice from elsewhere. We see he therefore went to your good selves. We assume, although we do not know because we have such vague information, that the offer is that which is referred to in the Respondent's Application for Costs.

Since that date, and the termination of the cover we had no information regarding this matter at all. We do not know whether the matter settled, whether it went to Tribunal and if so what the results of the Tribunal were. We have no way of measuring the prospects of success, other than the comments made by yourselves, and all we are able to say with any certainty is that at the time that cover ceased, prospects did not look promising. We are now asked to extend cover to resist an Application for wasted costs which would appear from our file to have arisen directly as a result, of the conduct of the matter, contrary to the advice of our panel Solicitors.

In the circumstances, we cannot extend cover.

For he avoidance of doubt, in the event that wasted costs are awarded to the Respondent, there is no indemnity in respect of those costs upon this policy. We trust that you will make this clear to your Client.

Later that day I then sent an email reply to Michael McLaughlin:

Michael,

Firstly, I am extremely disappointed in your email, as you are calling into question my integrity. I am also astounded, no, extremely astounded, that you have had my insurance details for some 6 weeks, and have not, and I repeat not, made any inroads in these 6 weeks with my insurance company, and have left it until the last, last minute. I would assume from our discussions and emails that you, as a long serving solicitor, have dealt many times with insurance companies, and by now, you should know what this entails.

The facts.

I have now spoken to my wife concerning Miller Samuel, who was with me at the time we went to Miller Samuel with this claim.

I have no idea who Stuart Swan is, as it was a woman who dealt with our claim. As you state in our previous discussions, and I have verified this with my wife who was present at the meeting with the woman solicitor, the woman solicitor advised us that this claim had no prospect of success, as in her opinion, I had not lodged a grievance?

You were told all of this at our last one-to-one meeting. You outline this in your email, and my, and my wife's position on this has not changed.

"I was surprised and concerned by the advice that he gave you given that when you met him it was still within time to have lodged a grievance."

WHAT ON EARTH ARE YOU TALKING ABOUT HERE. I was made redundant officially on the 10 July 2006, so how is "when you met him it was still within time to have lodged a grievance" possibly true, when you state that cover from Miller Samuel was withdrawn on 23 February 2007.

I only ever met with Miller Samuel around February 2007, never before this date at all?

Are you stating that I met with Miller Samuel around July/August/September 2006?

In answer to your points:

(1) As stated, I will meet your costs, but I have asked my wife to phone my insurance company first thing tomorrow.

(2) It has been apparent to not only me, but my family, for some time now that you have changed your views over time, from initially in November everything having a great chance of success, to now not representing me at all with regards to the reasonable adjustments, not now wanting to represent me at the costs hearing, whether paid by me or my insurer, and not wanting to represent me in any future EAT appeal.

In your emails, one-to-one meetings, and meeting with my family, over time, this has been totally apparent.

If you want out, then tell me straight, if you do not, then, as previously outlined, either I or my insurer will meet your costs.

Please be aware that if you do leave at this stage, I will make Diabetes UK and Arnold and Porter aware, and will bring all these matters in front of a legal ombudsman.

I will also be sending this whole email thread to Diabetes UK and Arnold and Porter at lunchtime tomorrow if I have not heard from you by then.

That day, I had also received the following letter by post from the Employment Appeals Tribunal that read:

Dear Sir

I refer to the above matter and enclose a sealed copy of the Order.

Document attached read:

BEFORE: THE HONOURABLE LADY SMITH IN CHAMBERS

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 15th day of March 2007

UPON considering the written application of the Appellant for Leave to Appeal from the Judgment of the Employment Appeal Tribunal given on the 7th day of November 2007 THE TRIBUNAL REFUSES LEAVE to the Appellant to appeal to the Court of Session for the reasons attached

D A T E D the 9th day of January 2008

Application for Leave to Appeal in causa KENNETH MCALPINE

On 13th March 2007, the Employment Tribunal determined that the claimant could not proceed with that part of his claim that sought to establish that his employers had been under a duty to make reasonable adjustments, as provided for by the Disability Discrimination Act 1995 and had failed in that duty. That was because he had not, in respect thereof, set out his grievance in writing and sent it to his employers as required by paragraph 6 of Schedule 2 to the Employment Act 2002. That being so, s.32(2) of the 2002 Act prevented the Employment Tribunal from allowing that claim to be presented. The claimant applied for a review of that decision, unsuccessfully. The claimant lodged a notice of appeal with this Tribunal. He now seeks leave to appeal to the Court of Session against the refusal, on 7th November 2007, of his application under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, for further action to be taken on his notice of appeal. His notice of appeal had been rejected, following consideration in chambers, as disclosing no reasonable grounds, under rule 3(7), on 25 May 2007 when he was advised :

"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."

Shortly put, the notice of appeal sought to argue that the Employment Tribunal erred because it should have considered that the reasonable adjustment claim (in respect of the claimant's assertion that he had requested such adjustments in December 2005) 'could be linked' to the claimant's selection for redundancy and subsequent dismissal for redundancy in June 2006.

At the hearing on 7th November, the claimant advised that the merits hearing in respect of that part of his claim which survived the pre- hearing review, namely his claim for unfair dismissal and disability discrimination the latter being the assertion that his selection for redundancy was due to his being disabled) had taken place. His claim for unfair dismissal had been dismissed as was the claim of disability discrimination that was allowed to go forward.

He sought, however, as was confirmed in the course of discussion at the hearing, to pursue a case that his employers discriminated against him on grounds of disability in December 2005 in respect that they failed, at that time, to make reasonable adjustments. He said he saw that as a separate claim. Indeed, to avoid falling foul of the res iudicata principle, it would require to be, given that the employment tribunal have decided the issue of whether or not his dismissal was unfair because it was by reason of disability discrimination. The problem with that was, however, that it simply served to reinforce the correctness of the Tribunal's approach at the pre hearing review that insofar as the claimant sought to advance a separate case that his employer had discriminated against him by failing to make reasonable adjustments, he required to comply with the requirements of s.32 and Schedule paragraph 6 to the 2002 Act. That meant that he required to have intimated that particular grievance to his employer in writing prior to making a claim in respect of it before the Tribunal. He did not do so, as was accepted by him at the pre - Hearing review.

The rule 3(10) application was refused in respect that nothing the claimant said showed that the grounds of appeal advanced were reasonable ones. It was striking that, far from supporting those grounds, what was actually said and explained by the claimant was illustrative of their being misconceived. He did not in fact seek to argue that the claim for failure to make reasonable adjustments in December 2005 was part of his claim about his redundancy at all. Rather, he stressed that it was not, saying a number of times that it was not. Further, even if his notice of appeal had said what he explained at the hearing, namely that he sought to claim in respect of a separate act of discrimination, it could not have said anything in support of a case that the Tribunal erred because it is clear he did not intimate any grievance and the Tribunal were, accordingly, prevented from hearing it.

The application for leave to appeal, contrary to what was submitted at the hearing on 7th November, suggests that the reasonable adjustment claim was not a 'stand alone' claim but was 'inextricably linked' to the decision to make him redundant. It bears no hint of the recognition and acceptance at that hearing that the claim was a separate one. Nor does it bear any indication of a recognition that the merits of that part of his action in which he claimed that he had been unfairly dismissed in circumstances which also amounted to disability discrimination have been disposed of by the Employment Tribunal. It relies on the provisions of the Employment Act (Dispute Resolution) Regulations 2004 which state that neither of the grievance procedures applies where the grievance is that the employee has been dismissed. Those regulations do indeed provide that there is no need to follow the grievance procedures if the grievance is that the employee has been dismissed. The claimant, however, fails to recognise that the issue of unfair dismissal was considered and determined subsequently, at a full hearing before the Employment Tribunal, in the course of which I understand, (from having considered the papers in that case for rule 3 purposes) the email exchange relied on in the notice of appeal to have been considered in the context of his claim that his dismissal was discriminatory on grounds of disability.

In all these circumstances, it would, in my view, be quite inappropriate to grant leave to appeal.

The Honourable Lady Smith

Early the next day I received the following email reply from Michael McLaughlin:

Kenneth,

I refer to your email of 9 January 2008 which was received shortly before 10pm. I write to confirm that I am not necessarily calling into question your integrity but I am trying to have reconciled two very conflicting versions of events which I have been given by yourself and your insurer respectively.

Before moving on to that, you do however make a criticism of my approach to the insurers. I think it is worthwhile rehearsing some of the history of our relationship in order to clarify that. I received instructions in respect of the appeal of the tribunal's judgement from the full hearing from Arnold & Porter on Friday 19 October. I had agreed to consider the papers and if I felt there were stateable grounds of appeal, lodge an appeal, all on a pro-bono basis. I worked on the Note of Appeal over that weekend and met with you for the first time on Monday 22 October. The last day for lodging the appeal to the EAT was 24 October 2007. The appeal was lodged on that date. In the circumstances there was clearly no possibility of obtaining insurance cover or even engaging in any meaningful dialogue with your insurers given the short timescale. My recollection is that we did not discuss the possibility of insurance cover until after the appeal was lodged.

Regarding the fee position generally I agreed to take on the appeal of the judgement of the ET from the full tribunal on a pro bono basis. Having discovered you might be covered for my fees by your insurance policy we both agreed that it made sense to explore the possibility of your insurer meeting my fee. I also made it clear that if cover was refused for the full appeal I would of course continue to act, pro bono.

As regards the reasonable adjustments issue, I only became aware of the existence of your own appeal against the reasonable adjustments claim being struck out shortly after the initial Note of Appeal was lodged. We discussed that in general terms and you advised me that the Respondent had made certain concessions in relation to the reasonable adjustments claim prior to and during the PHR. Those concessions were (1) the failure to make reasonable adjustments was one continuous ongoing act that ended at the date of dismissal and (2) that the reasonable adjustments claim was not time barred. In addition, you advised me that in the course of the PHR you made or at least alluded to the argument that there was no necessity for you to have raised a grievance in order to proceed with our reasonable adjustments claim. Although I had accepted no instruction in relation to the reasonable adjustments appeal which you had commenced, in order to be helpful I put together what I considered to be a stateable Note of Appeal in relation to that matter and sent that to the EAT. Ultimately because of timing issues my efforts were of no assistance to you. At that time, I had not read the Tribunal's judgment from the PHR.

I subsequently read the PHR Judgment and it made it clear that the issue of time bar had not been conceded but had in fact been reserved to be a full hearing. There was no mention of a concession that the failure to make reasonable adjustments was one continuous ongoing act. It then became apparent that no submissions or argument whatsoever was made that there was no necessity for you to have lodged a grievance on account of the fact that the failure to make reasonable adjustments was inextricably linked to the act of dismissal. My view on the prospects of reasonable adjustments claim therefore changed substantially to the point when I advised you that I didn't think that it was stateable. It is clear that you feel that I have completely changed my view on that reasonable adjustments claim and you appear to be critical of me for doing that. You are right to say that my view has changed but it has changed with good reason. The reason however that I have changed my view on the merits is that the information on which I was initially proceeding proved to be inaccurate and as I explained to you at length at the time, there were no findings in fact from the PHR on which I could base the legal submissions which I had drafted.

As regards the Hearing on Expenses, while I was aware of its existence from perhaps early December, I was not formally instructed in connection with that hearing until receipt of your email of 28 December. Whether or not that might proceed was of course dependant on the position in relation to the appeal to the EAT where the position changed just prior to Christmas. That email was sent at 14.11, less than 3 hours before the New Year shut down and so I had no opportunity to progress matters with your insurers at that time. A detailed note on prospects was sent to your insurer on the morning of 3 January 2008, ie at the first available opportunity. I have since been very proactive in chasing your insurer and enlisting your assistance in chasing your insurer in order to secure cover for the Expenses Hearing.

Turning now to the issue of the conflicting version of events regarding insurance cover. I was advised yesterday by telephone by your insurer that cover was withdrawn in February 2007 on the basis that the panel solicitor acting was of the view that a reasonable settlement approach had been unreasonably rejected by you in February 2007. My understanding of your dealings with the insurer and Miller Samuel in relation to the Employment Tribunal were formed from a discussions which we had in the course of our meeting on 3 December 2007. I understood from our discussion the following facts:-

1. That you approached Miller Samuel prior to the lodging of the claim;

2. That Miller Samuel were not prepared to confirm to your insurer that there were reasonable prospects of success on the basis that you had not lodged a grievance in relation to the failure to make reasonable adjustments. You may recall that I did express some surprise at that view because leaving aside the reasonable adjustments claim, you had a stand alone unfair dismissal claim in relation to the redundancy and also a disability discrimination claim in relation to redundancy, neither of which required the lodging of a grievance.

3. On the basis that Miller Samuel had declined to act, you decided to act on your own behalf and duly did so.

Until yesterday, I was not aware of the possibility that cover had been put in place and was subsequently withdrawn. I was unaware of the reason for the withdrawal of the cover and therefore you can imagine that so close to the Expenses Hearing this information came as something of a surprise to me.

You will appreciate therefore that it is vital that I establish the true position in relation to those events. You can perhaps see the importance of that. I am perfectly prepared to accept that the insurer has misinformed me should that be the case. Accordingly, I would be grateful if you would set out in detail your entire dealings with your insurer and their solicitor, especially the reasons why cover was either withdrawn or declined. As well as clarifying the contradiction that has become apparent, it may also assist in contesting the insurer's decision not to place you on cover for Friday's hearing.

I look forward to hearing from you by return.

I also received another email reply from Michael McLaughlin that same day that read:

Kenneth,

DIRECT DISCRIMINATION – 3(10) HEARING

The 28 day period for requesting a 3(10) Hearing and submitting a revised Note of Appeal in terms of Rule 3(8) expires on Tuesday 15 January and therefore I am anxious to deal with this matter one way or the other.

One issue that you raised was whether or not I should incorporate further submissions in our revised Note of Appeal relative to Phil Snowdon's email of 12 April 2006. In particular, you assert that that email of itself, entirely unrelated to any other event before or after and in particular the selection for redundancy, constitutes an act of direct discrimination. The point that I understand you to make is that even if you treat that email in complete and utter isolation, it constitutes direct discrimination. I will therefore give my view as to whether or not I agree without reference to anything that happened before or after that email. If I am wrong in these assumptions, you will doubtless correct me.

As you are well aware, an act of direct discrimination requires two separate elements which are as follows:-

(a) Less favourable treatment;

(b) As a result of the existence of a disability.

What I am struggling to see is in what way the email of itself represents less favourable treatment. If I am understanding you correctly, you perceive the mere fact that stereotypical assumptions have been made about your disability is sufficient to constitute direct discrimination. Perhaps that understanding has been influenced by the examples given. It is not enough that stereotypical assumptions have been made, the employer must have taken some form of action or less favourable treatment as a result of those stereotypical assumptions. In the example which you quote in your note, an employer refuses to make a job offer to an applicant because that job applicant has schizophrenia. This refusal is based on stereotypical assumptions about the effects of the condition. The less favourable treatment here is the failure to make a job offer NOT the stereotypical assumptions. Stereotypical assumptions without some form of action on the basis of those assumptions cannot constitute less favourable treatment.

On the basis of the foregoing, I do not accept the analysis which you place on Phil Snowdon's email of 12 April 2006. It may offend the law and breach the Disability Discrimination Act in a number of other respects linked to other events however, it does not in itself constitute an act of direct discrimination and accordingly, I do not intend to amend the Note of Appeal to incorporate any submissions to that effect.

I also received another email that day from Michael McLaughlin that read:

Kenneth,

The 2 page letter has not arrived. We will have to resolve the insurance issue after tomorrow is dealt with. Time is now tight and a lengthy night of preparation lies ahead. I think we should focus exclusively on tomorrow's hearing for the time being.

I think it would be helpful for both of us if we have a bit of a debrief meeting after the hearing tomorrow to try and resolve all outstanding issues and plan the way forward. That may help to clear the air a bit. Would you please confirm that the hearing is set down for 10 am. If that is the case can you be here for 8.30am to go over our case and the Respondent's case?

I will be leaving right on 5pm. I am going to do my prep at home tonight. Please phone me on my mobile. I will book a car parking space for 8.30am-2pm and if you don't use it then fine.

Chapter 7

It was now the 11 January 2008 and the day of the costs hearing arranged to start at ten o'clock in the morning at the Employment Tribunal in Glasgow.

I travelled into Glasgow with my mother and father, and we met with Michael McLaughlin around eight thirty in the offices of Biggart Bailli, which were just a short walk from the Employment Tribunal. After coffee and a brief chat, we all walked to the Employment Tribunal and had a very short wait in the waiting room before being called into the hearing room where Michael and the Barrister briefly set out their papers before the same three Tribunal members were called in to start the hearing.

The Chairperson confirmed in her opening remarks that the Respondent's application for costs of ten thousand pounds is by submission on three separate grounds:-

* That the claimant made six separate requests for Orders from the Tribunal which resulted in the respondent carrying out a significant amount of work in order to comply with the Orders

* That the claimant refused to participate in mediation and rejected a settlement offer of twenty-eight thousand pounds.

* The claimant made an allegation that the respondent had tampered with the documentary productions. The respondent maintains that this allegation resulted in a further cost of seven hundred pounds to disprove these allegations.

Michael McLaughlin acting on behalf of the claimant said that he would make submissions about the claimant's financial position, he has no income, and about the assertion of document changes, the physical appearance of documents were different, as, in the bundle, there is clear evidence of this different appearance. The Chairperson intervened by stating that it had been found that there had been no deliberate changes made to the documents. Mr. McLaughlin posed the question "what gave rise to it?" He sees no dispute in the factual matter of the appearance change in the documents.

Mr Neil Davy, Barrister for the respondent, would seek clarification on three issues with regard to the production of the documents:

1. Their request for hard copies was denied.

2. They were sent using the cut and paste email method.

3. That the print out was as per the emails sent.

If there was any confusion it was because there were no hard copies but only email versions and that the claimant had not checked the printouts against the emails sent. Mr. Davy said that he would question the financial position of the claimant with regard to benefit income and capital.

Mr. McLaughlin responded by saying that evidence will be produced on both issues.

I was now called to the witness stand where I was asked to give an oath.

Mr McLaughlin began with the altered documents issue. He referred the claimant to the list that he had compiled of all of the documents that had been altered or had their appearance changed and he asked the claimant to comment on this in relation to the respondent's position that the printed versions were as per the emails sent by the claimant. Examples were given by the claimant of documents with no signatures on them, he would have sent only  signed copies, of documents with date changes, 25 April 2005 came out as  30 April 2006 in production, and of a document with highlights in red which had been blacked out as  unreadable. He said that the respondent had not notified him of this unreadable aspect and that this document was very significant to his case as the blacked out part contained reference to the 2500 total number of incidents per year in the Environment Agency account that he had worked on, making it many times busier than the other accounts in On Demand. The claimant also gave another example of  date changes and an example of a document from  Sue Scates where the word Oracle had been removed and the signature at the bottom had been removed. He conceded that there was no difference in the wording of the two letters. The final  document had two sections whitened out, which referred to compromise agreements and leaver's checklist, and their physical appearance had been altered. He conceded that Angela Gill, on behalf of the respondent's legal team from Morgan Lewis, had sent an email to say that compromise agreements were inadmissible in evidence. The claimant's assertion was that the Tribunal should be made aware of the offer to him of a compromise agreement and that an explanation had not been given to him as to why it had been whitened out and could not be included in the document.

Mr McLaughlin then referred to Mr Davy's early point that he would want to ask questions about the claimant's financial position and of the need to know this before a decision on expenses could be made at this hearing, this would also include any savings and assets that the claimant possessed. Mr McLaughlin asked the claimant if his financial position had changed from the time of the main tribunal hearing. The reply was no, and the explanation was that he had been in receipt of jobseekers allowance but that this had run out in March 2007. To the best of his knowledge, he was not entitled thereafter because of the savings threshold. Mr McLaughlin asked how he was managing and the reply from the claimant was that he and his family were living off savings. The Chairperson informed the claimant that he would have to be more detailed with regard to his financial position. The claimant sought clarification from the Chairperson as his savings and his home were in joint names. The Chairperson said that he would have to state details of the joint and of his own finances, to which he replied that joint savings were £30,000 and the joint mortgage was £5000.

Mr Davy, in his cross-examination, asked the claimant with regard to the altered documents which statements does he agree with:

1. He was asked to provide hard copies of documents, the claimant replied yes.

2. He was offered expenses by the respondent to provide such hard copies, the claimant said that he believed the respondent had offered to pay for hard copies, but he had always sent all documents by email.

3. He was asked to send attachments by hard copy but this was refused, the claimant said that it was refused and that this was not pushed any further by the respondent.

4. Information produced was as per copy produced, the claimant replied no.

5. Copy sent was as per the original copy, claimant replied yes.

6. Copy sent was not as per document folder, claimant replied no.

7. Copies used at this hearing are not all of the documents, claimant stated that the examples used for this hearing provided comparison with regard to changes as earlier stated.

8. More than produced today, claimant said that there were about six examples for today and, without having the total figure in front of him, there were approximately 10 altered documents on the original list.

9. On some of which the format had changed, claimant said that this was the dispute with regard to the cut and paste method that he had used.

Copies here today had been brought to the attention of the Tribunal at the main hearing. Mr Davy reiterated the fact that the claimant didn't produce hard copies as requested

Mr Davy now brought up the date changes, and said that the dates in the documents where dates had changed did not matter, the dates were not important. The claimant did not accept that, there were  differences with regard to dates and with regard to differences in the listing of indices. Mr Davy asked a further question about the differences.

Mr McLaughlin, from across the other side of the room, advised the claimant not to answer the question. Mr Davy asked about the next two documents, which had been originally highlighted in red, and he asserted that the claimant was suggesting that they had been deliberately altered, to which the claimant reiterated his stated position that documents had been subject to alteration, amendment or removal in some way.

Mr Davy said that he had not provided a hard copy but the claimant said yes, it was a scanned copy, which was, in effect, a photocopy. But, said Mr Davy, you were asked to provide a hard copy to which the claimant explained that it was a scanned copy of the original which had been sent as an email attachment. Mr Davy asserted that he had advanced this position to improve his case to which the claimant again reiterated his stated position that documents had been subject to alteration, amendment or removal in some way. Mr Davy continued by saying that he had advanced this position despite advice given to him as to why a part had been removed, claimant begged to differ with Angela Gill as the Tribunal had been made aware with regard to the compromise agreement.

Mr McLaughlin again intervened by telling the claimant not to answer the question further as he, himself, was not aware that the Tribunal was aware. The Chairperson said that she was not aware but she did note Mr McLaughlin's caveat. Mr Davy asked the claimant if he accepted that it was not deliberate, the claimant answered that he did not say that it was deliberate and he again reiterated his position that the documents had been altered, amended or removed in some way.

Mr Davy asserted that such allegations were unfounded to which the claimant added that documents don't alter themselves. Did he check them with the emails sent, enquired Mr Davy? The claimant answered yes, at the time he would have checked them.

Mr Davy insisted that the claimant was stating his position as deliberate alteration. Mr McLaughlin intervened by saying that they were not re-visiting the main Tribunal hearing. Mr Davy stated with regard to the answer that the claimant stated at the main Tribunal hearing that he had not checked the documents against the emails. Mr McLaughlin said that they were not seeking to challenge the Tribunal judgment but to address the third submission with regard to the seven hundred pounds costs related to the document issues. Mr Davy is revisiting the issue to question the character of the claimant. Mr Davy replied by saying that much had been made of the difference between the original documents and the printed documents but the claimant could not say what the difference is between the emails sent and the printed documents. Mr McLaughlin said that is incorrect as the emails were not the same and he and his client were making no concession on that. Mr Davy concluded this line of questioning by saying that there appeared to be some conflict with the judgment.

Mr Davy then went on to question the claimant as to why his jobseekers allowance payments had run out, the claimant replied that it was because of the number of National Insurance payments made and he gave clarification by referring to the payments made between the middle of 2006 and early 2007. Mr Davy asked the claimant as to what steps had been taken to find jobs. Mr McLaughlin intervened by saying to the claimant not to answer the question, as this was not a remedy hearing. Mr Davy replied by saying that the Tribunal will have to consider the relevance of what job the claimant would have in the future which is important with regard to the question of costs. Mr Davy asked the question again, the claimant said that his attempts to find a job were still the same as he had given at the main hearing, for example, through recruitment agencies. Mr Davy said that according to the claimant's evidence he was concentrating on roles entitled On Demand Service Delivery Manager. The claimant replied that there was some dispute over that fact and he explained that web based sites would search for jobs which contained the five words On Demand Service Delivery Manager, and he also said that he had checked and was still searching through a number of web sites for the five keywords On Demand Service Delivery Manager giving him his best chance.

Mr Davy moved on to the question of benefits entitlement and asked what he did with regard to asking about other benefits to which the claimant replied that the threshold allowance related to savings was too low for him to receive other benefits. Have you spoken to the Benefits Agency asked Mr. Davy? The claimant replied no and explained that his understanding was gleaned from Jobcentre Plus who would have informed him of any entitlements. He then asked the claimant if he knew what the threshold level was, the claimant said no, he went on to respond by giving the joint savings figure of thirty thousand pounds as being well over that level and that he has Oracle shares with an approximate value of fifteen thousand dollars. Mr Davy asked if he had any other assets, to which the claimant replied that he had a small income from other shares. In response to other questions relating to his finances, the claimant confirmed that he and his wife owned their home which has a current approximate value of between three hundred and fifty to four hundred thousand pounds, and that his current living expenses were low as his wife did their supermarket shopping in the evening when there were more bargain offers. The claimant concluded by explaining that his savings were meeting his financial expenditure and that he had not sold any shares. Mr Davy had no other questions to ask.

Mr Love, one of the three Tribunal panel, asked the claimant if his medical condition did not entitle him to incapacity benefit, but the claimant replied that he had been on sickness benefit and jobseekers allowance and that was all he was entitled to due to savings. Mr Love said that he did not understand the relationship with his savings and the claimant explained that he had explored everything with Jobcentre Plus, which now also incorporates the Benefits Agency. He further explained that he was not now in receipt of a sick line that had started and ran out during January 2007, and was not now in receipt of Jobseekers Allowance that had run out in March 2007.

There were no other questions for the claimant who vacated the witness stand.

Mr Davy began his closing submissions by stating that there were two important aspects to consider

1. The conduct of the claimant.

2. The claimant's conduct with regard to his allegation of the deliberate alteration of documents.

Mr Davy said that number two alone merited a cost Order.

He began to summarise the legal position as follows:

1. If the Tribunal are satisfied as to these two important aspects then they have a duty to consider making a cost Order.

2. They have the discretion of making an Order.

3. That discretion is unfettered, as they believe that the claimant's behaviour has been unreasonable and that the Tribunal must give reasons with regard to Orders.

4. Not to punish the claimant would be an abuse of process as to the claimant's conduct of the claim in three areas, the refusal of their offer of settlement, the claimant's unrealistic settlement figure and his unmeritorious manner in trying to force the respondent to a late response which included his late withdrawal of part of his claim.

Mr. Davy went on to elaborate on these three areas.

That the Claimant has failed to do better than the offer of twenty-eight thousand pounds and that it was a fair offer to make. Rejection of that offer was unreasonable behaviour and is sufficient to merit a cost Order. The chronology of events in this area begins with tab 1 page 2 list of correspondence. It continues through tab 2, the 31 January 2007 with regard to the Respondent's attachment of the compromise agreement sum offer of twenty-eight thousand pounds and the advice to take independent legal advice, paid for by the respondent, which was not taken up by the claimant. This was the background on which the offer was made. The claimant's response is at tab 3 where the claimant had asked for one hundred thousand pounds at the very least and at the Tribunal he had put his final settlement offer at seven hundred and seven thousand pounds. At tab 4 the respondent had attempted to explain that the seven hundred and seven thousand pounds are made up of calculations by the claimant on the maximum value of his claim and that arriving at that sum he did so with no legal knowledge to back it up. The respondent's offer of one thousand pounds to seek legal advice with regard to the revaluation of the claim total was not taken up by the claimant who should have been aware that the twenty-eight thousand pounds was a reasonable offer. Therefore, he was unreasonable to pursue his claim. At tab 4 is the letter to the claimant informing him that the matter would be referred by the respondent to a costs Hearing of the Tribunal. The claimant had been warned and should have been aware of the consequences.

That this unreasonable conduct did overlap into the claimant's schedule of loss where the sum total of seven hundred and seven thousand pounds was made on his calculations, based on his future prospects of finding a similar job, with similar salary within one hours drive, being 0.0003%, bearing in mind his refusal to countenance any offer unless it was a six figure sum. The claimant was unwilling to move on this at the sist from March 2007 to 1 May 2007. In tab 11, the claimant was willing to be involved in mediation at which he would be representing himself despite the fact that the mediation outcome would have to be in the presence of a lawyer. At the end of the sist, the respondent had said that because of difficulties it was not possible to have had mediation prior to late June 2007. The tab 12 letter was attached to an email from the claimant which stated that the respondent had failed to take part in a Tribunal processed mediation procedure and he had asked the Tribunal to invoke an Order debarring the respondent from representation. At tab 13, correspondence confirmed the first date of 20 June 2007 for mediation towards which the respondent had offered costs of two thousand pounds to allow the claimant to obtain representation towards mediation. The tab 13 email from the respondent was about the claimant being not willing to go to mediation, about asking him to usefully set aside his seven hundred and seven thousand pounds figure in order to overcome differences between his figure and the respondents at mediation. Mr Davy read out this letter in full, which concluded with the offer by the respondent to meet the costs of mediation. At Tab 17 was the response by the claimant where he had stated that the respondent had undervalued his claim by three hundred thousand pounds, a reference to his claim plus future loss of earnings and that he did not want any further communication on this matter as it was now too close to the main Tribunal hearing. Mr Davy summed up this area by saying that the claimant had no justification for not taking legal advice with regard to his claim figure and was holy unreasonable not to inform himself of the legalities of this and of the mediation process. All of this had put the respondent in the position where it had no option but to defend the case.

That at the tab 1 page 1 the history of the claim appendix outlined that the claimant had been barred from taking part of this claim forward. He had proceeded to do so. The respondent's defence team had struck out witnesses requested by the claimant, as they were employees of the company. Despite this, the claimant had pursued Orders to obtain these witnesses, which were denied. The claimant had pursued his claim with regard to personal injury only to withdraw it at a late stage of the Tribunal. Mr Davy continued with regard to:

The Claimant being unmeritorious with his accusation of deliberate alteration of documents, which was recorded at  8(g) of the written judgment. The respondent had requested hard copies and, in the circumstances, the Tribunal's factual conclusion was that the respondent did not deliberately alter documents to advance their case.

The claimant was unwilling to accept that he had made accusations without taking the basic step of checking his facts. The claimant had put forward the same  documents with allegations that they were not the same as the emails. How could he have made that allegation without checking his emails?

Mr. Davy moved on to the total costs figure of forty thousand pounds, which was accrued by the respondent with regard to the submissions made for this costs hearing. The cost figure of seven hundred pounds excludes the case management costs. The respondent asked for the maximum sum of ten thousand pounds to be awarded to them to meet their costs. As the claimant's living expenses are met from savings and shares, and as other assets are untouched, then there is no issue of the claimant being able to meet the ten thousand pounds. He continued by saying that the Benefit Agency had not been contacted, that he was still relying on the same job searches which was not creditable and that, although Tribunals were normally cost-free environments, there is a requirement on this claimant of bringing a claim with large costs through his failure to take advice. The question is one of relevance of the claimant's conduct with regard to altered documents and to his overall conduct. If it is found to be questionable then the Tribunal should order costs against the Claimant and there must be cogent reasons not to order costs.

Mr Davy ended his submissions, and a short comfort break was taken.

The costs hearing resumed with Mr McLaughlin making a few preliminary points with regard to the pattern of unreasonable behaviour. It was not open to this costs hearing to consider unreasonable behaviour as a reason to set out additional work, which resulted in additional costs. He cited the case of Shalbene v Smith, where the respondent was on the receiving end of considerations that their case was not good enough to make a claim and that considerations must relate to the Tribunal deciding or not deciding to make an Order and not to making the link between unreasonable conduct and to costs. Mr McLaughlin continued by citing the case of Dunlop where it is considered that the Tribunal is a cost-free environment particularly in relation to offers made.

Discrimination cases mainly characterise a lack of trust between both parties and the lack of good faith can spill over to costs. The claimant's belief in the manner of his dismissal is genuine and the deterioration of the relationship between both parties during due process has given the claimant added thrust to this belief. The respondent stated that his costs are nearer one hundred thousand pounds than the ten thousand pounds maximum and this is done to persuade the Tribunal who will have to consider how the respondent's Tribunal costs run to one hundred and seventeen thousand pounds. They will also have to decide if it is reasonable to incur such costs and to have regard with respect to the size of costs. Is it reasonable also for the respondent to have a costs figure of forty thousand pounds in preparations for this costs hearing alone?

The Respondent has claimed costs based on their allegation of the claimant's general approach and unreasonable behaviour, particularly towards his tab 3 response letter with regard to the respondent's offer of twenty-eight thousand pounds. Their position could not be maintained because the claimant had set his six-figure sum. It is common in litigation that what you ask for is not necessarily what you get. What the claimant is asking for in his six-figure sum could be justified as not an unreasonable figure at that early stage. The tab 14 letter second-page bottom paragraph with regard to the fifty-one days it took the respondent to arrange a mediation date eleven days before the start of the main Tribunal hearing left the claimant, who was representing himself, no option but to turn it down. They then blame the claimant for unreasonable conduct when it was he who said he would consider any settlement offer made and it was they who were dilatory in setting the date so late. The claimant's expectation levels could be said to be unreasonable but he did say he would consider any settlement and no other offer was made. Twenty-eight thousand pounds was as far as they would go. Therefore, is the rejection of it really unreasonable?

In Monaghan v Close Thornton, section 98(4) is with regard to what is reasonable and what is not, and in a cost-free environment this is important. Monaghan v Close Thornton was a capability dismissal issue where costs were awarded against the claimant but at the remedy hearing the claimant was awarded one thousand pounds against the original award of one thousand five hundred pounds. It had proved easy to calculate costs as there had been 16 weeks to go, and it was impossible in law to get more. That case contrasts starkly with this case which is a much more complex case and there is no certainty as to what the claimant could have obtained. In that Monaghan v Close Thornton case, at paragraph 25 of that decision, it considers that the Tribunal could have concluded that there was unreasonable behaviour and do not doubt and confess to some reason for it but they do not say what the circumstances were. Thereby, no more that two-thirds of the original costs were awarded as opposed to the much higher awards in High Courts. Therefore, it is only in extreme cases that higher awards are made.

In another case, Capel v Safeway, costs were made against the claimant but, notably, it was with regard to the appellant putting his case high to the point that he had advanced an inconceivable case. At paragraph 16 there was the offer of the Calderbank factor, and as to whether rejection of the offer was unreasonable. Mr McLaughlin said that these are all guides to the relation of settlements. The Tab 4, page 2 letter, gave the respondent's initial view in light of the rejection of the twenty-eight thousand pounds, and that their net loss, which accrued from that, would be brought before the costs hearing where, Mr McLaughlin continued, consideration must surely be given to the mediation date belatedly set eleven days prior to the main Tribunal as time in which to enact a settlement.

Mr McLaughlin further considered that the respondent's case was conservative with regard to the withdrawal of the personal injury part of the claim and, therefore, quantification is irrelevant and not unreasonable.

Is there such a large gap? No!

All of the criticisms and assertions with regard to the claimant's conduct and to mediation matters are, in themselves, unreasonable and not competent. What is being asked is that the Tribunal should make a ruling with regard to the conduct of the proceedings. In Tribunal practice direction notes with regard to mediation, it should be noted that external mediation is not carried out in England and Wales and this irrespective of the behaviour of either party. Therefore, it is not open to the Tribunal to make a ruling without reference to practice direction. If that is not accepted then consideration must be given to the facts that the claimant agreed to take part in mediation. How can it be said to be unreasonable when he agreed and had sent an email with regard to his availability? Fifty-one days had expired from the initial agreement to take part in mediation, during which there was silence from the respondent, as they had not notified the claimant, who was representing himself, in writing. The claimant wrote to inform the Tribunal that he had not been given a mediation date. Now, the claimant might not understand but if Mr McLaughlin had been representing the claimant at that time then he would have written to Morgan Lewis and to the Tribunal in more temperate terms. It is reasonable for the claimant to draw attention to the fact that he had not received a mediation date but it goes wrong when a substantive document from Morgan Lewis, he refers to a letter from their Angela Gill, attempts to blame the claimant. The assertion in it was not true as the claimant had sent an email, document 10, to Angela Gill informing her that he would be representing himself at mediation. Morgan Lewis' response is to blame the claimant and to put the responsibility on to the claimant. What effect does this have on the claimant's attitude towards Morgan Lewis? Well, there was a flurry of emails leading up to a date being given for mediation, which was eleven days before the main Tribunal hearing. Mr McLaughlin explained that this non-progression over fifty-one days, attributing blame on to the claimant as well as accusing him of not acting in good faith, added to the fact that he was representing himself and to the effect that a late mediation date would have in putting back the commencement date of the main Tribunal, all led him to his decision to refuse that late date for mediation.

At pages 15 and 2 there was correspondence from Morgan Lewis saying that they had overlooked mediation dates and that they had received communication from the claimant on this matter. They had apologised for this but they do not apologise for blaming the claimant. If this submission is not acceptable then there is nothing wrong with the claimant's position. On the last page of document 14, it states that the claimant would consider any offer. Notwithstanding the unreasonable behaviour of the respondent, no offer came. The claimant had made an adverse inference order but he had misunderstood that part as this can only be done at a substantive hearing. This was put right at case management, it had been a misunderstanding with regard to the practise direction on this Order of 1 May 2007, where it was conceded but the spirit of the submission was reasonable and there should be no costs attached.

With regard to witness orders, Mr McLaughlin suggested that the respondent was treading on dangerous territory. The claimant had made approaches to employees of Oracle to make witness statements on aspects of his Case. When it became apparent that such statements were not forthcoming he sought Orders to be sent to the witnesses he wanted in his case, as he is entitled to do. Yet the respondent is seeking to say that this is unreasonable. Such Orders were not granted and, with regard to the respondent's application for costs, Mr McLaughlin said that he did not understand what costs were incurred. It was at a case management discussion when Ms Crone was not in the Chair when a verbal motion for costs was made. What costs were incurred when the matter was referred to the main hearing where evidence was completed in three days?

With regard to their submission on the altered documents costs the respondent's approach was proper but their cost of seven hundred pounds, in light of their seventeen thousand pounds total, seems churlish and belies reluctance on their part to recognise the circumstances that caused the claimant to raise the issue of altered documents. Whilst he didn't check, would he have remembered the scanning of documents? The goodwill had disappeared when the claimant saw the alterations and he reported that fact. Is that unreasonable? It was reasonable, as the characteristics of the documents had changed. If it is not reasonable then the calculation of seven hundred pounds is quite small.

With regard to the personal injury litigation being dropped by the claimant, this was not an issue as in the McLean v Partners case Lord Johnston rejected a ruling to make an Order for costs with regard to conduct in due process. In that context personal injury was not a separate claim but a separate loss for the claimant. There was no evidence to consider on this, therefore, the cost is not specified and the Tribunal cannot use their discretion.

In summary, under none of the heads of costs, the claimant has not acted unreasonably. If this is so then discretion should be exercised in favour of the claimant and no costs should be made. It was inevitable that the Tribunal should have gone ahead. Oracle has said that they will always challenge unmeritorious cases but they have never challenged the eligibility of this case. In document 4, at the first page, Angela Gill had made a substantive argument that this case was not misconceived. It was a highly stateable case with a genuine sense of grievance that the claimant has maintained throughout. On top of that, the failed mediation and the failure to make any offer must be taken into account.

Mr McLaughlin ended his submissions.

Mr Davy was allowed to respond and he came back by referring to Monaghan v Close Thornton, paragraph 35, which states that where there is a persistence to progress in doubtful circumstances then the party proceeding has acted unreasonably. In that context, any settlement, which does not reflect the totality of the three hundred thousand pound figure, is still pressing. The respondent says that there were appropriate circumstances in the Shalbene case with regard to items of conduct. The most recent authority lies in McPherson v BNP Paribus 2004 ICR 1398, with regard to a cost order on unreasonable conduct, in which case Lord Justice Mumberry had said that Tribunals must have regard to the nature, gravity and effect of unreasonable conduct. In Salinas v Stearns 2005 ICR 1117, Mr Davy apologised for it again being not a full copy, costs orders were exceptional in a case where there was unreasonable conduct and there was no requirement to make a causal link between unreasonable conduct and costs. Therefore, the ten thousand pounds sought is a small part of the sum and is appropriate. As a matter of law disregard of conduct pre-hearing could be actioned but if an offer is made at sist, or mediation is offered, or an offer of settlement is made then such an action is not before the Tribunal. Finally, it is reasonable to put it forward that the respondent was acting in good faith. The suggestion in tab 15 that the onus was on the respondent to make a date for mediation and to apologise when it was all done within the sist and in good faith with regard to a mediation offer, was unreasonable. Tribunal has to look at the entire context of the correspondence when considering the allegation of bad faith as it was corrected the next day. Therefore, there was no justification for the claimant to act this way.

This concluded the proceedings of the Costs Hearing.

The Chairperson announce that they would be retiring to make their deliberations and that they would set out their decision in a judgment to follow.

After the costs hearing I had a brief post-hearing meeting with Michael McLaughlin back in the Biggart Bailli offices.

Later that day I was copied on an email from Michael McLaughlin to the Employment Appeals Tribunal:

Dear Sirs,

We refer to your Rule 3(7) letter dated 19th December 2007 and request a hearing pursuant to rule 3(10) in order to address the EAT in relation the grounds of appeal set out in the Note of Appeal. We do not accept that the note discloses no stateable ground of appeal.

We do not accept that the high point of the note is in relation to a contradiction involving the emails of 11 and 12 April. The high point is that the tribunal ignored or was apparently untroubled by an internal dialogue, by meeting and email, which effectively concluded that the Claimant's diabetes would cause him to be absent from work frequently and in light of that fact did anyone have any options to "exit Kenneth from the organisation before the end of FY 06". Seven weeks later the Claimant was called to a meeting which he thought was a routine business meeting which turned out to be a redundancy consultation meeting. A short time later he was dismissed just after" the end of FY 06". It should have been apparent to any tribunal properly directing itself that the redundancy was a pretext for a capability dismissal. The essence of s98(4) is that decisions to dismiss are not taken before consultation and proper procedures. These emails make clear that the Claimant's departure had long since been determined and not for the reason ultimately given.

In addition the grounds of appeal in relation to the witness statement are of importance not only to this Claimant but also parties to Employment Tribunals in Scotland in general. Witness statements are becoming increasingly prevalent in Scotland but tribunals rarely issue guidelines on the drafting and preparation of these documents. If the note of appeal as it relates to witness statements in this regard does not disclose a stateable ground of appeal then parties should by extension be free to discuss their evidence with other witnesses before during and after the point where they give evidence and are free to discuss the evidence that they give with other witnesses who have not yet given evidence contrary to current practice in Scotland where evidence in chief is given in the traditional way.

The note of appeal is lengthy and does inevitably incorporate some evaluation of the evidence but as the authorities make clear the perversity bar is high and the practice direction stipulates that perversity appeals will be sifted if proper specification is not given in relation to the impermissible options taken by the tribunal. In order for a judge who has not had the benefit of hearing evidence to be able to evaluate the nature of the perversity appeal a certain element of discussion of the evidence is unavoidable, if for no other reason than to place the grounds of appeal into some factual context.

We do not seek a re-hearing of the evidence. The writer is well aware that this is not the function of the EAT.

On the basis of the foregoing the writer wishes to address the EAT in relation to the stated grounds of appeal contained within the original note of appeal.

We would be grateful if you would acknowledge receipt of this email by return.

Three days after the costs hearing I sent the following email to the Court of Session regarding my reasonable adjustments appeal:

Marion,

I have received a letter from the Employment Appeal Tribunal dated 9 January 2008.

In this letter and judgment the Employment Appeal Tribunal has refused leave to appeal to the Court of Session.

In this letter and judgment it does not state any Rule to follow, nor any time limits to follow.

Can you send me out relevant information, including:

1. What rule must I follow to appeal from the Employment Appeal Tribunal to the Court of Session.

2. What are the timescales for appealing from the Employment Appeal Tribunal to the Court of Session.

3. What format should the appeal take.

That same day I sent the following email to Diabetes Scotland:

Dear Sir/Madam,

I attended a meeting at Diabetes UK Scotland offices on 9 January 2008.

At this meeting I was told to inform Diabetes UK Scotland when I received my letter from the Employment Appeal Tribunal refusing leave to appeal to the Court of Session.

I have now received the letter from the Employment Appeal Tribunal refusing leave to appeal to the Court of Session, this letter was dated 9 January 2008. I have been informed by my solicitor that I now only have 14 days to appeal to the Court of Session starting from 9 January 2008. I have written to the Court of Session to confirm this timescale.

I now require an Advocate to lodge an appeal at the Court of Session in around 10 days.

Later that day I sent the following email to Michael McLaughlin:

Michael,

Thanks for this, reads very much like a best of both worlds, your original appeal and what we were discussing.

Please let me know when you obtain a response and date.

I will let you know of any further developments on my side.

Thanks once again for Friday.

On 15 January 2008 I sent the following email to Michael McLaughlin:

Michael,

I thought that you may like to see the Reasonable Adjustments Rule 3(10) Judgment, as you kindly put an appeal in for me which was ultimately not accepted.

The next day I received the following reply from Michael McLaughlin:

Kenneth,

Thanks for that.

I trust you will be taking this forward to the court of session on your own behalf.

I was now becoming a little concerned that I was fast running out of time to lodge an appeal with the Court of Session regarding the reasonable adjustments appeal, so I sent out the following three emails and received a flurry of emails in reply:

The first email was sent to Diabetes Scotland:

Dear Sir/Madam,

I sent you an email on 14 January 2008 regarding an Advocate for an appeal to the Court of Session.

Is there any news on this matter, as I now only have I believe 7 days to lodge this appeal to the Court of Session, otherwise this claim of disability discrimination for Type 1 Diabetes is lost forever.

The second email was sent to my member of parliament, Katy Clark:

Dear Katy,

I spoke with you on 12 January 2008 regarding an Advocate or the Disability Right Commission to represent me for an appeal to the Court of Session.

Is there any news on this matter, as I now only have I believe 7 days to lodge this appeal to the Court of Session, otherwise this claim of failure to make reasonable adjustments (disability discrimination) for Type 1 Diabetes is lost forever.

The third email was sent to the Court of Session:

Dear Sir/Madam,

Has there been any progress on the email below, sent on 14 January 2008, as I have not received any correspondence regarding this matter, and I have been told that an appeal from the EAT to the Court of Session only has a 14 day time limit.

I received the following reply from the Court of Session:

I have also passed this to Marion Scott and to Yvonne Anderson the office manager. If you do not receive any reply in the near future please contact me and I will arrange for someone to deal with this.

Later that day I received the following reply from Alastair Marshall, Assistant Clerk of Session for the Court of Session:

Mr Kenneth McAlpine

I refer to your enquiry and would strongly suggest that you contact a solicitor for advice . Court staff are not legally qualified and can only give procedural advice.

Time limits for lodging any appeal depends on the act. If the act does not specify a period then it is 42 days.

The rules that govern statutory appeals is covered under chapter 41 of the Court of Session. The appeal should be in form 41.19. The rules and forms are on our web site, (www.scotcourts.gov.uk) . I have sent by post copies in case you do not have access to the web.

If I can be of any further assistance please do not hesitate to contact me.

I received the following reply from Diabetes Scotland to my earlier email:

Kenneth

That's not good news. I'm phoning around but nothing positive as yet. Paul Motion from the Society of Solicitor Advocates is emailing his employment law colleagues to see if anyone is able to help.

I'll be in touch

I then sent the following reply to Diabetes Scotland:

Alan,

Thanks.

If it is helpful, please find attached a document outlining my appeal (apologies but it is a disk eating 1.5Mb due to scanned documents).

You can forward this on to any relevant parties, which will give them an idea of the points of appeal.

The last email that I sent that day was regarding a telephone conversation I had with a member of Katy Clark's backroom staff:

For the attention of Valerie,

Please find below a brief outline of my conversation with Valerie on 16 January 2008 at 15:45:

Four points were raised during the telephone conversation:

1: Disability Rights Commission and Equality and Human Rights.

I have tried various times to obtain help from the Disability Rights Commission, but as discussed at our meeting on Saturday, this has proved impossible, as they either don't represent individuals, or are in a state of 'flux' as all of these organisations are merging.

2: Union Representation.

I am not a member of a Union, so union representation is not an option.

3: Citizens Advice Bureau.

I contacted the CAB around June 2007, and after a couple of meetings, the CAB in Kilbirnie tried to get me representation from the Free Representation Unit (fru), but this was refused as I own my own house, and this takes my savings over the extremely low threshold for representation by the fru.

4: Solicitor.

I already have a pro-bono Solicitor who has represented me for the last 2 months, but as this is a Solicitor, and not a Solicitor Advocate or Advocate, so cannot represent me at the Court of Session. As my pro-bono Solicitor remit was only to work on the full appeal, and not the reasonable adjustment appeal, I cannot instruct my pro-bono Solicitor to obtain an Advocate.

I also have legal protection via my home insurance, but my insurance company has refused to provide cover, as one of their Solicitors stated that I did not raise a grievance, even although a grievance was not required (I did put my complaints in writing to my employer anyway), as this was a dismissal, and the dismissal procedure should be followed which does not require a grievance at all. The wrongness of that decision is reflected in the Tribunal allowing the claim to proceed.

As you can see from the above, this is an impossible position to be in, especially when the Respondent has one Barrister and four lawyers representing them.

Chapter 8

It was now 17 January 2008 when I sent the following email reply to Michael McLaughlin:

Michael,

"I trust you will be taking this forward to the court of session on your own behalf."

That is correct.

You are under no obligation to do this.

Please find attached my draft appeal to the Court of Session.

If you have a spare 15 minutes, could you check that this is the correct format for the form, and that the appeals that I am putting forward are not nonsense, as I do not believe that I will have an advocate in time to lodge the appeal to the Court of Session, but do not want to hamper the advocate by submitting rubbish.

I will be looking to submit this appeal very early next week, as it is dated 9 January 2008, and I believe that 14 days is the limit, although the Court of Session stated that if it does not contain instructions as to the time limit, then it is 42 days.

I also sent the following email to Michael McLaughlin after lunch that day:

Michael,

Noticed this when I was putting together my reasonable adjustments appeal, let me explain:

Please find attached a scan of  page 275 of the joint bundle of documents.

On page 275 it states the date of Phil Snowdens contemporaneous notes is 15/12/05.

It further states at the bottom of page 275 "Kenneth", "Diabetes" and "Stress level".

Now, consider the following statements in documents:

Phil Snowdens Witness Statement

"33. Following the conference call conversation which we had on 16 December 2005 and to which I have referred above, I had a separate conversation with Mr McAlpine. Again, I believe, by reference to my email confirmation of the conference call, that our conversation was also on 16 December 2005. As always, significant aspects of that conversation are noted in my day book. During this conversation, for the first time, Mr McAlpine mentioned that he was a diabetic. I had not known this before."

So, Phil Snowden is stating in his witness statement that before 16 December 2005 conversation with myself, he did not know that I had diabetes, but yet he has a note in his daybook on 15 December 2005 which states "Kenneth", "Diabetes" and "Stress level".

ET3

"It is admitted that the Claimant mentioned to the Respondent on 16 December 2005 that he suffers from diabetes. It is denied that prior to that date the Respondent had any knowledge of this matter. Nor were there were any facts or circumstances from which the Respondent should reasonably have known or suspected that the Claimant suffered from diabetes, nor, at any time during his employment, were there were any facts or circumstances from which the Respondent should reasonably have known or suspected any effect that having that condition might have on the Claimant."

Full Tribunal Judgment 13 September 2007

". ....Mr Snowden's notes of that meeting were produced at volume 2 page  274 and  275...."

The Tribunal had therefore read page 275.

". Mr Snowden learned for the first time, during his conversation with the claimant on 16 December, that the claimant was diabetic."

Simply perverse, in evidence, fact, logic and statements.

How many untruths do I have to uncover, as I am simply getting sick of reading these, as well as the perverse conclusions reached in the judgments.

Can you offer any advice on what I should be doing with regards to who I should approach to make them aware of the perjury, perverting the course of justice, and the perverse decisions reached by Tribunal(s)?

Is it the Police, CPS, should you or I write a letter to the President of the Tribunals, should it be the Justice Committee at the Scottish Parliament?

Four days later I sent an email to Diabetes Scotland that read:

Alan,

I am putting my appeal into the Court of Session tomorrow.

Has there been any news on an advocate yet?

That day I also sent an email to the Redundancy Payments Office:

Dear Mr. Rowan,

I am requesting a review of the decision as outlined in the e-mails below. As you will read I made the request to be provided with the date that the Redundancy Payments Office in Birmingham received the HR1 form from Oracle Corporation UK Limited. I gave an approximate time frame of November 2005 to August 2006.

I did not give a reason for this request but now do so in order to assist your deliberations. I was made redundant from this company during that time frame and require to know when and how they complied with the Collective Redundancy Laws.

If there are any costs attached to retrieving this limited information I would like to be informed of such costs. If you cannot provide this information then I would like to know which exemption you are relying on.

If there is any other information you require from me to assist you with this request for a review then please ask.

At lunchtime that day I sent the following email to Scotland Equality and Human Rights:

Dear Sir/Madam,

I have already phoned you, so have a reference number in your system, perform a search for "Kenneth McAlpine".

With regard to the following statement:

"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."

I already know the disability discrimination laws that this statement breaks.

What I want to know is what European law(s) on human rights the above statement breaks?

(for example, I assume that no-one has a right to try and 'predict' how long someone is going to be absent for in the future. What European law(s) would this break if it was wrong, etc).

After this email was sent, I wrote and sent an email to Family Plus, my insurance company:

Dear Sir/Madam,

I am writing to express my extreme disgust concerning the letter you wrote to my Solicitor on 9th January 2008, a copy of which I requested from my Solicitor after speaking to your helpdesk.

This letter was written by N J Stokes, and had the reference FP0212138/OS/007.

I will now be pursuing this with an independent ombudsman, and will not only be looking for compensation, but also full legal cover up to £50,000, which my policy entitles me and my family to, and which we have paid for.

The reason why I will be writing to an independent ombudsman, is as follows:

1. I refused to accept the advice of one of your panel Solicitors, because it was plainly wrong. My claim is for unfair dismissal and disability discrimination dismissal. The advice I received from your panel Solicitor was that I had not lodged a grievance in their opinion, and therefore didn't stand a chance. Despite explaining to your panel Solicitor that the claim was a dismissal, and that NO grievance was required, as the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) applied, which states:

(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

2. Your panel Solicitor then advised me to accept the offer of £28,000, despite the respondent having a valuation on the claim of at least £70,000, and having now spent £117,000 on the tribunal claim (their valuation is now way below what the respondent has just incurred in costs alone, never mind any remedy, which is unlimited for discrimination claims). I explained to your panel Solicitor the reasons why I would not be accepting such a low offer, which included reasons such as my salary loss from date of claim to date of tribunal amounting to a loss of one years salary, which equates to £45,000 alone).

3. My current Solicitor, arranged pro-bono through Diabetes UK, has already outlined my prospects of success to you, and knows the law and the minimum value of this claim.

I am just writing to you to explain the reasons why I am writing to an independent ombudsman, as your conduct, and the conduct of your panel Solicitor has been nothing short of wrong and dreadful.

I will also make you aware that not only Diabetes UK and other organisations are now involved in this claim, but I have also contacted my MSP and MP to make representations in both the Scottish and UK Parliaments.

The reason why I recently faced a costs hearing I place firmly with yourselves, as I received plainly wrong legal advice from one of your panel Solicitors, which stopped me from legal representation at the full hearing (where I alone faced one London Barrister and four London Lawyers).

Later that afternoon I received an email from Michael McLaughlin that read:

Kenneth,

I have now received a letter from the Employment Appeal Tribunal advising me that a 3(10) Hearing will now be listed. I have been asked to provide to them unsuitable dates during the next 12 month period. I am to get back to them within the next 7 days. I would be grateful if you would confirm whether or not you have any holidays booked or any plans that would mean you were unavailable to attend with me at the Employment Appeal Tribunal for the 3(10) Hearing.

Shortly after receiving this email, I received the following email from the Scotland Equality and Human Rights helpline:

Dear Mr McAlpine,

Thank you for your query. Unfortunately we are not able to help you with human rights issues at present. In Scotland, there is a Scottish Commission for Human Rights. We have different responsibilities in relation to human rights. The Equality and Human Rights Commission is barred from taking action on some human rights issues without the consent of the Scottish Commission for Human Rights. If we take action on those issues without such consent, we are breaking the law.

We are currently seeking an agreement with the Scottish Commission for Human Rights about the roles of the two Commissions on human rights training. That agreement will make sure that there is no confusing about who does what, and that we are not breaking the law. In the meantime the helpline is not in a position to give advice on these issues.

As I had received a few emails that day, I quickly sent out a number of replies, the first email reply was to Michael McLaughlin:

Michael,

Although it is hard to predict what the next 12 month period is going to be like, I have no plans at the moment for any dates that should make me unavailable for a rule 3(10) hearing.

The next email reply was to Scotland Equality and Human Rights helpline:

Rachel,

Thank you for your reply.

Can you provide me with contact details for the "Scottish Commission for Human Rights".

Also, and I don't mean this to be rude, but why is your organisation in existence, if it cannot provide basic advice on issues on human rights?

Also, where do you receive your funding from?

The last email that I sent that day was to the Employment Appeals Tribunal that read:

Dear Sir/Madam,

I have received a letter stamped 9th January 2008, which refuses leave to appeal to the Court of Session. This is also dated 9th January 2008.

So that I am sure of time limits, is the time limit to appeal to the Court of Session 42 days from 9th January 2008?

The last email that I received that day was from Michael McLaughlin:

Kenneth,

Apologies for not replying sooner. I think in the circumstances and given my previous comments in relation to the merits of this appeal it would be inappropriate for me to comment. I can't really say more than I already have.

The following morning I received three email replies, the first reply was from the Employment Appeals Tribunal:

Dear Sir,

Please contact the Court of Session direct for timescales. Link to website attached. http://www.scotcourts.gov.uk

The next reply was from Diabetes Scotland:

Nothing as yet but the extension is good news! I'll be in touch.

The last reply was from Scotland Equality and Human Rights helpline:

Kenneth,

The Scottish Commission for Human Rights is currently in the process of setting up but is not yet fully formed. They currently cannot be contacted. Information about the Commission can be accessed at the Scottish Government's website

http://www.scottishexecutive.gov.uk/Topics/Justice/Civil/17838/10235 and it would be worthwhile to keep an eye on the press for further developments.

Firstly, because of the separate Scottish Government and secondly, because of a different model of law used in Scotland, the advice, guidance and rights available to people living in Scotland will be different to those available to people in the rest of Great Britain. The decision about which issues will be devolved and which will be national will be made by the Scottish Commission of Human Rights. When this decision is made, the Equality and Human Rights Commission will deal with whichever issues it is given consent to act upon. It is very important that we do this both so that we are acting within the law and also so that we can give accurate advice and support to members of the public.

The EHRC is a non-departmental public body (NDPB) established by the Equality Act (2006). It receives public money which it is accountable for, but is independent from government.

I hope this satisfactorily answers your question. If you would like to know more about the EHRC, its purpose and history, or its visions please explore our website: www.equalityhumanrights.com

I immediately sent the following reply to Scotland Equality and Human Rights helpline:

Rachel,

Thanks for your reply.

That is simply not good enough, let me explain.

From what you are saying, and correct me if I am mistaken:

There exists no working commission on human rights in Scotland at present.

There exists no advice, guidance or rights on human rights to people living in Scotland.

There does however exist a working commission, advice, guidance and rights on human rights for people in England and Wales, however people in Scotland cannot use this.

This must surely break just about every human rights law that is currently in existence?

So, if I (I being a citizen of Scotland), suspect that a human rights violation has taken place in Scotland, and due to no commission, advice, guidance and rights I cannot receive any help to determine whether a human right has been broken, I can apply to the European Court to determine this, and if I lose, the Scottish Parliament will foot the bill, because I did not receive any advice, guidance or rights, due to no working commission at present. Is that correct?

I received an email from the Redundancy Payments Office the following morning that read:

Dear Mr McAlpine

Thank you for your e-mail asking for a review of your request for the date the Birmingham Redundancy Payments Office(RPO) received the HR1 form. Ms Roberts was informed by that office that the form was in storage and they would need to retrieve the document to ascertain the date it was received. I have contacted the RPO again and it appears that the RPO thought Ms Roberts wanted details of the HR1 not simply the date received. The date received is actually held on record at the RPO and I can inform you that the RPO received the HR1 on 1 February 2005.

I hope this is helpful.

Early the next morning I sent an email reply to the Redundancy Payments Office:

Dave,

Thank you for your reply.

Can I just check that the HR1 was received on 1 February 2005, and that this is not a typo which should be "2006"?

My initial enquiry was for the date an HR1 was received between approximately November 2005 to June 2006.

The next day I received an email reply from the Redundancy Payments Office:

Dear Mr McAlpine

I have double checked and the only record of an HR1 is the one received 1 February 2005.

If Oracle had made one hundred and twenty one people redundant in the United Kingdom in 2006, why was there no HR1 form received by that office in 2006.

That morning I received a letter by post from my insurance agent, Family Plus:

Dear Mr Mcalpine,

I refer to your email.

Unfortunately you are under a misapprehension in that your current solicitors have written only as to the costs application. Since we have no other knowledge of this, and no information as to the Tribunal matter itself, we are completely unable to consider the matter.

If you would like to ask your solicitors to furnish full details of the history of the matter and present position, we can at least consider the matter further.

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

Michael,

Received a letter from my insurance company after writing to them, and writing to the financial ombudsman, please find the letter attached.

It may be worth sending them your full appeal document, as this really explains a lot, and gives them a flavour of the injustice.

I received the following reply from Michael McLaughlin later that morning:

Kenneth,

As you know I have already written to them on the merits of the appeal albeit by email. You provided me with the email address. I will send it again. What you have to bear in mind is that they will cease upon the fact that the EAT think the appeal is hopeless to deny you cover. Cover only kicks in if they are satisfied that there are reasonable prospects of success. I am now duty bound to tell them what has happened since I sent my initial note on the merits in December.

I will copy you in on my fax to them.

At lunchtime that day I also sent Michael McLaughlin a further email:

Michael,

Can you copy me in on any correspondence you send, and also send me the original email that you sent on the merits of the appeal.

As I outlined previously, and if you have not already done so, please send the full tribunal appeal that was refused at the sift process, this will only take a couple of minutes to attach and send via email, as I want their lawyers to be made fully aware of exactly what is happening at the Edinburgh EAT.

I was beginning to run out of patience with Diabetes Scotland and sent them the following email:

Alan,

Hi, Kenneth McAlpine.

Could we arrange a meeting at Diabetes UK Scotland offices at Savoy House on Tuesday 5th February 2008.

If you are unavailable on that date, then the first available date thereafter will be fine.

The last email I received that day was from Michael McLaughlin:

Kenneth,

Further to our exchange of emails today, I attach a copy of my letter to your insurer, the terms of which are doubtless self explanatory. Please let me know if you hear from them and I will do likewise.

The attached letter read:

Dear Sirs

We refer to your letter to your insured dated 26 January 2008 and confirm that we have been passed a copy of that letter by Mr McAlpine.

Your letter states that you have had no information on the substantive Tribunal matter itself. For your ease of reference, I attach a copy of my email to your SP Claims email address dated 6 December 2008. With that email was attached a copy of the Note of Appeal in this case. A copy of that Note of Appeal is also enclosed with this letter. We would be happy to respond to any queries you have in regard to the merits of Mr McAlpine's appeal against the Employment Tribunal's substantive decision in relation to the unfair dismissal and disabilities discrimination claims.

We should advise you that since the appeal has been lodged, we have received correspondence from the Employment Appeal Tribunal in Edinburgh to the effect that in the view of the EAT the Note of Appeal does not disclose a statable ground of appeal. We were extremely surprised to receive such a letter and we have on behalf of Mr McAlpine envoked his right to seek a hearing before the EAT to make submissions as to why the Note of Appeal as currently drafted does disclose statable grounds of appeal. That Hearing is referred to as a Rule 3(10) Hearing. Such a Hearing has been granted however, we have not yet received a date for that Hearing. At that Hearing, the EAT will either be persuaded that the appeal should be allowed to proceed on the basis that it does disclose statable grounds or it will reconfirm its initial decision and reject the appeal in its entirety. We imagine that the 3(10) Hearing will take place before the end of June 2008.

Please do not hesitate to contact the writer directly if you require any further information or clarification on any matters dealt with in this letter or the enclosed documents.

The last email that I sent that day was to the Redundancy Payments Office:

Dave,

Thanks for your help on this, I only have a final three questions which should clear this matter, and the conflicting information up, and that should hopefully end my request.

1: Can you confirm that the reply I received from Barbara Roberts on 18 December 2007, which stated "My reply was to your specific question and was confirmation that a form had been received during this period (the period November 2005 to August 2006)", is wrong?

2: A definitive, yes or no, answer as to whether any correspondence regarding redundancies (eg: HR1 Form, Letter, or any other correspondence regarding redundancies) has been received by The Insolvency Service (or Redundancy Payments Office) from Oracle Corporation UK Limited since the 1 February 2005 as the only record I have is of an HR1 Form received on 1 February 2005 as stated by Dave Rowan in his email of 23 January 2008.

3: If the answer to question 2 is yes, please list any correspondence regarding redundancies (eg: HR1 Form, Letter, or any other correspondence regarding redundancies) which has been received by The Insolvency Service (or Redundancy Payments Office) from Oracle Corporation UK Limited since the 1 February 2005, please state company name, date, and whether an HR1 form or letter was received?

The next day I decided to email Morgan Lewis with an attached letter:

Dear Sir/Madam,

Please find attached a response and further request to your letter of 12 December 2007.

Attached document read:

Simeon Spencer

Dear Sir,

I acknowledge receipt of your response to my e-mail of 13 November 2007, which was properly sent to Oracle Corporation UK Ltd., your client.

It was properly sent to Oracle in the first instance on advice taken with the Redundancy Payments Office in Birmingham. Indeed, on the first page of the HR1 form you will note the reference to the Data Protection Act 1998 and to the sentence in that section which states "We will not give it to any other agencies or organisations without first obtaining your consent." Therefore, I was acting quite properly by sending this part of my requests to Oracle who, by virtue of submitting an HR1 form, would have entered into a confidentiality agreement with this government department. I trust that you are now clear as to the basis of this request with regard to the 'Notification' part of legislation.

In response to the four questions I asked with regard to the 'Consultation' part of legislation I note that you, and your client, do not answer each question directly but offer only the one sentence response "We understand that consultation took place on 19 January 2006 and 9 May 2006.". As timing and information are key components of the consultation process this vague reply does not answer the four questions specifically put by me to address the lack of factual evidence at the Tribunal. I genuinely believe that the Tribunal erred in accepting Ms Temple's verbal assurance in evidence that there had been collective consultation with the Employee Consultation Forum regarding the redundancy and in ignoring Ms Temple's reply to Ms Crone's key question about the Claimant's consultation process. How can the written judgment conclude that Ms Temple's evidence was not challenged when the Chairperson, Ms Crone, challenged it in cross-examination and I, the Claimant, continually challenged throughout the whole Tribunal process the assertion that I had been consulted on my redundancy? I trust that you are now clear as to the basis of my four questions with regard to the 'Consultation' part of legislation.

In your letter of reply you also comment on the draft Notice of Appeal and that it is still subject to the sifting process. I feel sure that you will appreciate that the Appeal process is at an early stage and was at an even earlier stage when my letter of request to Oracle Corporation UK Ltd. was sent on 13 November 2007.

I, therefore, ask again for a response from your client to all of the requested information and data. If I do not receive this information then I believe that I have the right to appeal to the Information Commissioner's Office.

I sent the following request to Michael McLaughlin:

Michael,

Can you send your email "06-12-07 \- (45539.1) OUR CLIENT AND YOUR INSURED - KENNETH McALPINE" and the attachment to that email "MCALPINE-ORACLE-EAT.FINALdoc" with a covering letter to:

EHRC Disability Helpline

Freepost MID 02164

Stratford-upon-Avon

CV37 9BR

England

Mark it F.A.O. Neil Tustin with the ref. no. 1613241.

The EHRC interest is in the disability discrimination aspects of this case and you should concentrate on emphasising the following :-

My request for reasonable adjustments was made due to an excessive workload, which led to stress affecting my type 1 diabetic control. I requested "allocating some of my duties to another person" or of "transferring me to fill another vacancy".

I believe that this request led to the stereotypical assumptions that my disability "could result in a prolonged period of time off due to illness" by my Manager, and that my disability "might lead him to go off sick again" by the Human Resources Manager. Because of these stereotypical assumptions, I believe that the ongoing solution from then on was the option of making me redundant, which eventually happened without any consultation with, or prior knowledge of, myself. The retention of my employment within the company did not appear to be an option seriously considered.

This request to the EHRC is for a referral of this case on important disability discrimination principles and can only be pursued on the basis that I have a solicitor acting for me. It is asked for as per the Equality Act 2006 section 28 Legal assistance and section 30 with regard to intervention and means, and if successful, that the EHRC can, in some way, assist my solicitor in Appeal proceedings.

On 30 January 2008 I received the following letter from Financial Ombudsman Service:

Dear Mr McAlpine

Acknowledgement

Thank you for your correspondence, which has been received safely.

We are currently receiving very high volumes of enquiries and we will provide you with a full response as soon as we can.

If you need to contact us in the meantime, please quote reference number 7621674/AR/CCHR.

Two days later I received an email from the Redundancy Payments Office:

Dear Mr McAlpine

Sorry for the delay in replying. I have been out of the office for a couple of days running a training course.

Regarding the 3 questions you ask:

1. I confirm that the only record of an HR1 form being received from Oracle Corporation Ltd was that received on 1 February 2005.

2. As above - there are no records of any other HR1's letters etc relating to Collective redundancies having been received by the Redundancy Payments Office.

3. Not applicable.

I hope this is helpful.

On 4 February 2008 I wrote an email to my Member of the Scottish Parliament, Kenneth Gibson:

Dear Sir/Madam,

Can you please arrange for me to have a further meeting with Kenneth Gibson, at the next available surgery.

I also sent a similar email to Katy Clark MP, requesting a meeting.

I received an email reply from Katy Clark MP:

Hi Kenneth

Would Friday suit?

I also received an email reply from Kenneth Gibson:

Dear Kenneth,

I held three surgeries last Friday, three on Saturday and three today. Feel free to come to any one.

Later that evening I sent an email reply to Katy Clark MP:

Katy,

Friday would be fine, anytime.

Will the location be your office?

The next day I sent another email to Diabetes Scotland as I hadn't received any reply to my last email:

Alan,

Could we arrange a meeting at Diabetes UK Scotland offices at Savoy House for an update on this diabetes discrimination claim.

On 6 February 2008 I received an email from Michael McLaughlin:

Kenneth,

I have now received confirmation from the EAT that the 3(10) Hearing will take place on 29 April 2008 at the EAT at 52 Melville Street, Edinburgh. I have been advised that the estimated duration of the hearing is no longer than one hour.

That same afternoon I sent an email to Katy Clark:

Patricia,

I have not received a reply from Katy regarding a location and time for a meeting with her on Friday.

Do you know if this meeting is still going ahead, and if so, the location and time?

Around lunchtime the next day I sent an email reply to Michael McLaughlin:

Michael,

Ok, date noted, thanks for this.

In case you were ever in any doubt as to how wrong this decision was:

http://www.rnib.org.uk/xpedio/groups/public/documents/PublicWebsite/public_rnib003559.hcsp#P39_2955

"Discrimination is:

1. Treating a disabled person less favourably, on the ground of disability, than he 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.

This is known as "direct" discrimination, and it cannot be justified. It is generally where the disability itself is the reason for the treatment - treatment which is based on prejudice.

For example, an employer refuses to offer a job to a visually impaired person, despite his qualifications and experience being the same as the appointed candidate, purely because he does not wish to employ a blind person, as he believes that he will take more time off work than a non-disabled employee. This is likely to amount to direct discrimination and will be unlawful."

http://www.personneltoday.com/articles/2006/09/13/38564/sensitive-pregnancy-issues.html

"If, however, an employer dismisses an employee based on assumptions about her future attendance record, for example the assumption that she will be taking more time off if she gets pregnant, this may amount to direct discrimination."

http://64.233.183.104/search?q=cache:HCJB3APT2HoJ:www.scottishpower.com/uploads/DisabilityDiscriminationPolicy.v3.pdf+%2B%22direct+discrimination%22+%2B%22more+time+off%22&hl=en&ct=clnk&cd=44&gl=uk

"The DDA prohibits 2 main types of discrimination – direct discrimination and disability-related discrimination. The principal difference is that direct discrimination is automatically unlawful and cannot be justified, unlike disability-related discrimination. Direct Discrimination. A person directly discriminates against a disabled person if, on the grounds 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. Example: An employer refuses to offer a job to a blind person, despite his qualifications and experience being the same as the appointed candidate, purely because he does not wish to employ a blind person, as he believes that he will take more time off work than a non-disabled employee. This is likely to amount to direct discrimination and will be unlawful."

http://64.233.183.104/search?q=cache:x1ACIYinSzwJ:armed.ilrt.bris.ac.uk/intranet/files/27/template/template.doc+%2B%22direct+disability+discrimination%22+%2B%22time+off%22&hl=en&ct=clnk&cd=11&gl=uk

"Age discrimination

Sickness absence should be managed in the same way for all employees, regardless of age. Assumptions regarding age and health need to be avoided, such as a belief that older workers take more time off sick."

http://64.233.183.104/search?q=cache:fw2QqDsOAzUJ:pubsites.uws.edu.au/rdlo/disclosure/pdfs/leg/dda.pdf+%2B%22direct+discrimination%22+%2B%22more+time+off%22&hl=en&ct=clnk&cd=14&gl=uk

"Direct Discrimination is where someone receives less favourable treatment than a person without a disability in similar circumstances."Jacinta was denied an interview for a position for which she applied, even though she demonstrated in her application and resume that she could meet the selection criteria. She was denied the interview because the selection panel decided her disability may result in her needing more time off work, than her peers."This is a form of direct discrimination, which the legislation aims to address. Nobody should be denied an interview on the basis of a disability. The assumptions made by the panel in relation to Jacinta's application, were based on preconceived beliefs about people with a disability. Jacinta was not given the opportunity to demonstrate, at interview, her capacity to fulfil the requirements of the job in the same way as other applicants."

http://www.industriallawsociety.org.uk/papers/dandridge.htm

"London Borough of Hammersmith and Fulham v Farnsworth 2000 IRLR 691 EAT is a pre-Jones decision. Here, the occupational works doctor concluded that the Applicant, a job applicant, had a history of mental illness and was likely to take time off work due to ill-health in the future. This advice was accepted by the employer. The Tribunal, supported by the EAT, held that this assumption was not justified on the facts : the Applicant had a good sickness record in her previous job and there was simply no evidence to justify an assumption that she was liable to take more time off. (See also Marshall v Surrey Police and Fielden v Edenfield Soap, both summarised EOR 98)."

Hopefully you may be able to use this information at the Rule 3(10) hearing.

After this email I received the following email from Katy Clark MP:

Good afternoon Kenneth

If it is suitable to you, Katy will visit you at home at 12.15pm tomorrow afternoon. Please let me know if this is convenient.

To which I replied:

Patricia,

Yes, the date, time and location are fine.

On 8 February 2008 I sent the following email to Katy Clark:

Katy,

Thanks once again for taking the time to meet with me today.

Please find below contact details and addresses for Diabetes UK, Diabetes Scotland and EHRC:

Diabetes UK

I have checked my emails and was dealing with no-one in particular, but just through their careline.

Diabetes UK Central Office

Macleod House,

10 Parkway,

London

NW1 7AA

Diabetes Scotland

Alan McGinley

Policy & Public Affairs

Diabetes UK Scotland

Savoy House

140 Sauchiehall St.

Glasgow

G2 3DH

EHRC

Ref. No. 1613241

Neil Tustin

EHRC Disability Helpline

Freepost MID 02164

Stratford-upon-Avon

CV37 9BR

England

Late at night that same day I sent the following email to my parents:

Read  page 280 of entry in Phil Snowdens daybook (writing is hard to read).

Importance:

1. Date 2/2/06 or 2nd February 2006.

2. Notes on discussion with me "KM" (must have been my discussion with Phil Snowden at Edinburgh Office)

3. 4th line states " - not going down payout route"

 Another one:

1. Date 1/3/06 or 1st March 2006.

2. Compare attached scanned document with page 287, blanked out bits, speaking about me, are:

"After June go-live

\- Production and bugs issues

Get through go-live then review position."

This was blanked out and didn't make it to the tribunal.

 And lastly:

1. Date 28/3/06 or 28th March 2006. Page 291.

"MT (Malcolm Thompson) not wanting to pay off due to recent previous experiences."

"Nick re Kenneth"

"- poss discuss with MT (Malcolm Thompson) re payoff"

Looks like Nick Cooper was the instigator of the redundancy all along.

The next morning I received a letter by post from the Financial Ombudsman Service that read:

Dear Mr McAlpine

Your complaint about The Society of Lloyd's represented by Familyplus

Thank you for sending us your completed complaint form.

Before we can look into a complaint you must first have given the business concerned a chance to put things right. The Society of Lloyds is responsible for any complaints regarding to Familyplus legal expenses policy and must be given the opportunity to address the issue.

I have therefore sent Society of Lloyds details of your complaint and have asked them to deal with the matter. They should issue a final response in writing within 8 weeks of the date they hear from us.

For your information Society of Lloyds's address is:

Ms Edwards

The Society of Lloyd's

1986 Building

One lime Street

London

EC3M 7HA

On receipt of Society of Lloyds's final response, if you feel that they have not put things right, or alternatively you have not heard from them after 8 weeks, please return the complaint form together with any other supporting documentation.

I return any papers you may have sent us as they may be of help when you are dealing with Society of Lloyds.

We will take no further action unless you contact us again.

Relevant parts of the attached copy of complaint form read:

Please tell us what your complaint is about

The reason why I am writing to this ombudsman, is as follows:

1: I refused to accept the advice of one of the insurance company panel Solicitors, because it was plainly wrong. My claim is for unfair dismissal and disability discrimination dismissal. The advice I received from the insurance company panel Solicitor was that I had not lodged a grievance in their opinion, and therefore didn't stand a chance. Despite explaining to the insurance company Solicitor that the claim was a dismissal, and that NO grievance was required, as the Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) applied, which states:

(5) Neither of the grievance procedures applies where the grievance is that the employer has dismissed or is contemplating dismissing the employee.

2: The insurance company panel Solicitor then advised me to accept the offer of £28,000, despite the respondent having a valuation on the claim of at least £70,000, and has now spent £117,000 on the tribunal claim (their valuation is now way below what they have just incurred in costs alone, never mind any remedy, which is unlimited for discrimination claims). I explained to the insurance company panel Solicitor the reasons why I would not be accepting such a low offer, which included reasons such as my salary loss from date of claim to date of tribunal amounting to a loss of one years salary, which equates to £45,000 alone).

3: My current Solicitor, arranged pro-bono through Diabetes UK, has already outlined my prospects of success to the insurance company, and knows the law and the minimum value of this claim.

The next morning I sent an email to Morgan Lewis:

Dear Sir/Madam,

I have not received a response to my request for information and data regarding my letter dated 28 January 2008, sent as an attachment to the email listed below.

If I do not receive a response to my request for information and data by Monday 25 February 2008, I will exercise my right to appeal to the Information Commissioner's Office.

I received an immediate email reply from Morgan Lewis stating that Simeon Spencer was on holiday from 7 February to 18 February 2008.

Two days later I received a letter by post from Biggart Bailli that read:

Dear Kenneth

EXPENSES HEARING

I refer to the above and enclose my note of fee for all preparation and conduct of the Expenses Hearing. I look forward to receiving your remittance of same in due course.

I imagine we will receive the Judgment in the next 2-3 weeks. It may be that they Judgment is sent directly to you and not to me because the Employment Tribunal do not have a record on file that I am acting on your behalf. I would be grateful if you would email or telephone me if and when you receive the Judgment.

FOR PROFESSIONAL SERVICES rendered January 2008 in connection with Employment Appeals Tribunal hearing on expenses, to include perusing and considering papers; preparing for and attendance at Employment Appeals Tribunal Hearing on 11 January 2008; meeting with you prior to Hearing; all other matters incidental thereto.

NET £2600.00

VAT 17.5% £455.00

TOTAL £3055.00

Later that same morning I sent the following email to Michael McLaughlin:

Michael,

Please find attached another document which I accidentally noticed has been altered.

The background to this  document is as follows:

During early 2007, the Respondent sent me preliminary unblanked copies of Phil Snowden's daybook.

The filename "real entry in daybook for 1 Mar 2006" is the unblanked entry in Phil Snowden's daybook for 1 March 2006.

During the full tribunal, a joint bundle of documents was used.

The filename "p287" is the blanked copy in Phil Snowden's daybook for 1 March 2006 on page 287 of the joint bundle.

Although it is hard to read the writing, as you can see from these two documents, the following two paragraphs have been blanked out in page 287:

"After June go-live

\- Production and bugs issues"

"Get through go-live then review position"

These two paragraphs seem to suggest that it was important to keep me on the GE account until June 2006, after which the GE project would then be 'live' (in production rather than implementation phase), at which point I would have to work on 'production and bugs issues' after June 2006. Phil Snowden would then review whether I could be taken off the GE contract, depending on the amount of production and bugs issues encountered after 'go-live'.

These two paragraphs don't 'fit in' with the respondents story of me on the redundancy list on 7 February 2006, and my role being made redundant, hence blanked out.

This is also another altered document, as information pertaining to the claim, which didn't suit the respondent, has been blanked out.

Chapter 9

On 13 February 2008, I sent the following email with attached appeal to the Court of Session, the highest Court in Scotland.

Dear Sir/Madam,

Please find attached an Appeal from the Edinburgh Employment Appeals Tribunal to the Court of Session.

I am an Appellant who is representing himself.

Attached document reads:

Form 41.19

Form of appeal in appeal under statute to the Court of Session

APPEAL to THE COURT OF SESSION

under

Section 37(1) of the Employment Tribunals Act 1996

by

Mr K R McAlpine

Appellant

against

A judgment of the Employment Appeal Tribunal dated 21st day of December 2007 communicated to the appellant on 9th day of January 2008.

The judgment of the Employment Appeal Tribunal dated 21st day of December 2007 is appended to this appeal in the Appendix.

The appellant appeals against the foregoing judgment on the following grounds.

GROUNDS OF APPEAL

Background

The Appellant raised one ET1 form on 25 August 2006. In this ET1 form the Appellant outlined that this was an unfair dismissal and Disability Discrimination claim. The Appellant outlined in Section 6.2 various meetings where concerns over workload, stress and disability were raised, no reduction in workload until selected for redundancy, and redundancy. The Appellant was ordered by the Tribunal to provide additional information on 27 October 2006 for this claim, and throughout the questions and answers provided, and in the last page, stated "The failure to make reasonable adjustments, unfair dismissal and disability discrimination could all be linked, hence the Claimant would wish to bring all under the same claim.". At a Pre-Hearing review on 9 March 2007, the Chairman dismissed only the reasonable adjustments part of the claim, and this was appealed to the Employment Appeals Tribunal, where it was also dismissed.

The four main points to be advanced in the Court of Session on various points of law, are:

Appeal (A)

Points of law:

Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, Rule 18(7)(b).

The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b).

The Chairman, at the Pre-Hearing review struck out the 'Failure to make reasonable adjustments' part of the claim without considering the time bar issue. At the Pre-Hearing Review, 12 points were due to be considered, but only points 1 and 2 were considered, and points 3 to 6 were time bar issues reserved to the hearing on merits. Points 7 to 12 were also reserved to the hearing on merits.

In the judgment of the Employment Tribunal dated 13 March 2007, and entered into the register and copied to parties on 15 March 2007, it states:

"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"

However, In the same judgment of the Employment Tribunal dated 13 March 2007, and entered into the register and copied to parties on 15 March 2007, it states under reasons:

"6. The respondent subsequently confirmed to the Tribunal (and claimant) that, following receipt of information from the claimant regarding his diabetes, they conceded he was a disabled person within the meaning of the DDA. 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. The respondent requested that any determination of the issue of compliance with the statutory grievance procedure, be dealt with by way of written submission."

How could the Employment Tribunal strike out "the claim of disability discrimination in respect of an alleged failure to make reasonable adjustments" without considering at all "the issue of time bar" in paragraph 6 of the "Reasons"?

Without considering at all, any further advancement of arguments concerning "the claim of disability discrimination in respect of an alleged failure to make reasonable adjustments", the Employment Tribunal has erred in law by striking out the claim too early, without any consideration of further advancement of arguments concerning The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b), or the further appeals set out in this document, namely Appeal (B), Appeal (C) and Appeal (D).

If the two points of law, The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b), and Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, Rule 18(7)(b), are accepted and interpreted correctly, then this appeal should succeed, Appeal (B), Appeal (C) and Appeal (D) do not need to be explored, and the reasonable adjustments claim should be remitted back to another Tribunal to be reheard on Appeal (B), Appeal (C) and Appeal (D).

Appeal (B)

Points of law:

The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5).

The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b).

As this was an alleged discriminatory dismissal The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) applies.

The Appellant's discussions on reasonable adjustments in December 2005 were raised and referred to in an email dated 12 April 2006 regarding diabetes and redundancy, sent by the Appellant's manager to directors and HR, and which 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."

An email dated 13 April 2006, influenced by the preceding email of 12 April 2006, sent by the Appellant's HR manager to the Appellant's senior director, stated:

"... 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 (i.e. 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."

With explicit reference to "December" in the 12 April 2006 email, this directly links the discussions on 12 April 2006 back to the reasonable adjustments request made in December 2005.

With explicit reference to "exit Kenneth from the organisation prior to the end of FY06" in the 12 April 2006 email, and "It might be more appropriate to action redundancy from the role he is currently doing...I have no timescales for when redundancies will be actioned at the moment, but assume it will be anytime around end FY06/beginning FY07." this directly links the Appellant's redundancy on 10 July 2006 back to discussions on the 12 and 13 April 2006.

Due to the preceding two paragraphs, a direct link is indisputable, and is in writing, directly linking the Appellant's redundancy on 10 July 2006 ("exit Kenneth from the organisation prior to the end of FY06" and "It might be more appropriate to action redundancy from the role he is currently doing... I have no timescales for when redundancies will be actioned at the moment, but assume it will be anytime around end FY06/beginning FY07.") back to the Appellant's request for reasonable adjustments made in December 2005 ("December").

The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b), recognises that discrimination can be an ongoing state of affairs, and categorically states:

(b) any act extending over a period shall be treated as done at the end of that period;

The 'act extending over a period' of alleged discriminatory dismissal extended from December 2005 to July 2006 by explicit reference to "December" and "exit Kenneth from the organisation prior to the end of FY06" in the 12 April 2006 email, and "It might be more appropriate to action redundancy from the role he is currently doing... I have no timescales for when redundancies will be actioned at the moment, but assume it will be anytime around end FY06/beginning FY07." in the 13 April 2006 email.

As such, The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) applies, rather than Section 32 Employment Act 2002, and as such, the claim for failure to make reasonable adjustments should not have been struck out under Rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, as it was not a standalone failure to make reasonable adjustments claim for which a grievance would have to have been raised, but it was part of an act extending over a period (ongoing alleged discriminatory dismissal) for which the statutory grievance procedure did not apply, but instead the statutory dismissal procedure applied (the dismissal being the end period of the ongoing alleged discriminatory dismissal).

If the two points of law, The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b), and The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5), are accepted and interpreted correctly, then this appeal should succeed, and the reasonable adjustments claim should be remitted back to another Tribunal to be reheard.

Appeal (C)

Points of law:

Employment Act 2002, Section 32, paragraph 2.

Employment Act 2002, Schedule 2, paragraph 6.

Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, Rule 18(7)(b).

The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b).

The Appellant followed the respondent's grievance procedure. The Appellant also put his grievance in writing to the employer.

The Respondent's grievance procedure states as follows:

"If you have a problem or complaint relating to your employment with Oracle this must be raised as soon as possible, either verbally or in writing."

The Appellant on the 16 December 2005 discussed the problem of work conflicts "verbally" with his manager, Phil Snowden, while working on two very, very large contracts simultaneously. The outcome of these verbal discussions by telephone was stated in the 16 December 2005 email:

"just to confirm the outcome of the earlier conference call -

\- Kenneth will write up the minutes of the meeting from November 23rd and send to Julie for review;

\- Kenneth will incorporate review comments and distribute the minutes;

\- Going forward, Kenneth's remit on EA is to focus on the monthly reporting, attend the review meetings, and take minutes at these meetings;

\- The above is agreed to take 50% or less of Kenneth's time; the remainder of Kenneth's time is on non-EA activity - currently GE;

A discussion on Kenneth's continued involvement in EA and GE took place after this conference call, and will continue when I meet/talk with Kenneth again in early January 2006."

On 10 January 2006, there were a number of email exchanges between the Appellant and two employees of the Respondent, one employee being Phil Snowden, the Appellant's manager. In the email of 10 January 2006, the Appellant put the problems of work conflicts down in writing, stating:

"I spoke to Phil and Nick regarding working on EA and GE, and potential clashes with work. The amount of work, and time contraints on the work, means that most of my time in the first week, to week and a half, of each month, will have be mainly devoted to EA (EA Monthly Report, collating data, chasing all parties involved, writing report, reviewing, sending for internal review, attending EA Monthly Meeting at BVP, taking minutes, writing and reviewing minutes, sending minutes for internal review, etc).

If you need someone to help with GE work during the first week, to week and a half, of each month, I would inform Phil or Nick."

Because this email outlines the problems with work conflicts, and has been put in writing, and refers specifically to the verbal discussions that the Appellant had with his manager Phil Snowden, and director Nick Cooper, when following the Respondent's Grievance Procedure and has been sent to the employer, this email must constitute a step 1 grievance letter, in which case Section 32 Employment Act 2002 and Rule 18(7)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 has been complied with, or is irrelevant.

The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b) states:

(b) any act extending over a period shall be treated as done at the end of that period;

The 'act extending over a period', being that of alleged discriminatory dismissal extending from December 2005 to July 2006 by explicit reference to "December" and "exit Kenneth from the organisation prior to the end of FY06" in the 12 April 2006 email, and "It might be more appropriate to action redundancy from the role he is currently doing... I have no timescales for when redundancies will be actioned at the moment, but assume it will be anytime around end FY06/beginning FY07." in the 13 April 2006 email. As such, the failure to make reasonable adjustments claim is not time barred, as these discussions in December 2005 are directly linked to the dismissal on 10 July 2006, and therefore constitute an act extending over a period.

If the two points of law, Employment Act 2002, Schedule 2, paragraph 6, and The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b), are accepted and interpreted correctly, then this appeal should succeed, as step 1 of the grievance procedure was complied with, and the grievance was raised in writing and sent to the employer, and because the act of alleged discriminatory dismissal extended from the reasonable adjustments request in December 2005 to the Appellant's redundancy on 10 July 2006, the reasonable adjustments claim is not time barred and should be remitted back to another Tribunal to be reheard.

Appeal (D)

Points of law:

The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5).

The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b).

As this was an alleged discriminatory dismissal The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5) applies, and as such, a grievance was not required.

The Appellant on the 16 December 2005 discussed the problem of work conflicts "verbally" with his manager, Phil Snowden, while working on two very, very large contracts simultaneously. The outcome of these verbal discussions by telephone was stated in the 16 December 2005 email:

"just to confirm the outcome of the earlier conference call -

\- Kenneth will write up the minutes of the meeting from November 23rd and send to Julie for review;

\- Kenneth will incorporate review comments and distribute the minutes;

\- Going forward, Kenneth's remit on EA is to focus on the monthly reporting, attend the review meetings, and take minutes at these meetings;

\- The above is agreed to take 50% or less of Kenneth's time; the remainder of Kenneth's time is on non-EA activity - currently GE;

A discussion on Kenneth's continued involvement in EA and GE took place after this conference call, and will continue when I meet/talk with Kenneth again in early January 2006."

With explicit reference to "and will continue when I meet/talk with Kenneth again in early January 2006." in the 16 December 2005 email, and the Respondent's concession in the Respondent's Voluntary Further Particulars of Defence that the Appellant worked on both the EA and GE contracts from 16 December 2005 until being selected for redundancy, the workload conflict between the EA and GE accounts still existed, and therefore no reasonable adjustments to stop the workload conflicts were made to the Appellant's role from December 2005 to June 2006, and as such, this was an act extending over a period, a continuing state of affairs.

As the failure to make reasonable adjustments continued from December 2005 to June 2006, The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b) states that any act extending over a period shall be treated as done at the end of that period, the end period being June 2006, in which case the reasonable adjustments claim is within the 3 month time limit when the Tribunal claim was lodged on 25 August 2006.

If the two points of law, The Disability Discrimination Act 1995, Schedule 3, Part 1, Section 3(3)(b), and The Employment Act 2002 (Dispute Resolution) Regulations 2004, regulation 6(5), are accepted and interpreted correctly, then this appeal should succeed, and the reasonable adjustments claim should be remitted back to another Tribunal to be reheard.

At this point I was not one hundred percent sure that my parents were understanding the importance of stereotypical assumptions in discrimination cases, so late in the evening of 13 February 2008 I sent my parents an email that read:

Read below, from the Department of Work and Pensions:

http://www.dwp.gov.uk/asd/asd5/IH91.pdf

Monitoring the Disability Discrimination Act 1995 (Phase 2)

Page 56

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.

Page 62

One example of a case in which arguments based on ill health did not justify an employer's actions is Farnsworth v (1) London Borough of Hammersmith & Fulham (2) Cooper (unreported, ET Case No.2201799/98). The applicant in that case had undergone treatment for a depressive illness for six years. In November 1997 the respondent offered her a post as a residential social worker subject to a medical assessment. The offer was withdrawn in February 1998 on the ground that she had not obtained satisfactory medical clearance.

The tribunal held that the refusal to confirm the offer of employment to the applicant was due to her disability and therefore discriminatory. The employers had made the assumption, without good reason, that her attendance would be poor. This assumption was contradicted by a reference of which the employers had taken no account, and by the fact that the applicant had been in good health since June 1996. In these circumstances it was not open to the employers to rely on the defence of justification.

It was now St Valentine's Day in 2008, and I sent Katy Clark MP the following email:

Dear Katy,

I have just received a bill from my Solicitor for £3,055 for the expenses hearing which should never have taken place in the first place, if the Glasgow Employment Tribunal (part of Central Government) had performed their job properly in the first place, let me explain.

http://www.dwp.gov.uk/asd/asd5/IH91.pdf

Department of Work and Pensions

"Monitoring the Disability Discrimination Act 1995 (Phase 2)"

On page 62, it states:

"One example of a case in which arguments based on ill health did not justify an employer's actions is Farnsworth v (1) London Borough of Hammersmith & Fulham(2) Cooper (unreported, ET Case No.2201799/98). The applicant in that case had undergone treatment for a depressive illness for six years. In November 1997 the respondent offered her a post as a residential social worker subject to a medical assessment. The offer was withdrawn in February 1998 on the ground that she had not obtained satisfactory medical clearance.

The tribunal held that the refusal to confirm the offer of employment to the applicant was due to her disability and therefore discriminatory. The employers had made the assumption, without good reason, that her attendance would be poor. This assumption was contradicted by a reference of which the employers had taken no account, and by the fact that the applicant had been in good health since June 1996. In these circumstances it was not open to the employers to rely on the defence of justification."

I have yet to receive the judgment on expenses from the Glasgow Employment Tribunal (part of Central Government), but if any expenses are awarded against me, this will go exponential, and I will refuse to pay, as I am not paying £ 000's to be discriminated against on the grounds of my disability.

Prior to my discrimination, I had taken just two days sick leave in 15 months (as admitted by my ex-employer). The 'average' person in the UK takes 11 days sick leave in 12 months.

I quickly received the following email reply from Katy Clark MP:

Thanks Kenneth

I am away for a few days

Shall we speak next week

I replied to Katy Clark MP with the following email:

Katy,

No problem, enjoy your break.

No need to speak next week, let's wait until you have spoken with Diabetes UK, EHRC and other organisations, and see what feedback they provide.

In the meantime, I will await the judgment of the expenses hearing, expected in the next 2-3 weeks, and we can arrange to discuss then.

The next day I received the following email from Alastair Marshall of the Court of Session:

Mr McAlpine

I refer to your E- Mail applicaton to this court for leave to appeal and have to inform you the application cannot be accepted in its current form because of the undernoted reasons.

1. Application cannot be made by E-Mail because the principal signed document must be lodged .

2. The rule of court that covers leave is 41.2 and the form it should take is form 40.2 NOT 41.19 (Rules of court and forms are available on our web site scotcourts.gov.uk). Please note that a schedule for service should be attached to the appeal and your appendix should include the decision 9 January 08 and the tribunals decision of 7 November 07.

3. A full Court of Session process should be lodged. This shall comprise of

Inventory of process

3.1. Principal Appeal

3.2. Certified copy Appeal

3.3. Interlocutor Sheet

3.4. Motion Sheet

3.5. Minute of Proceedings.

4. You should also lodge an additional 6 copies of your appeal

5. You must enclose a fee of £120.00. Cheques should be made payable to "Scottish Court Service"

Please note that court staff cannot give legal advice. They can only give guidance on court of session procedure. I would suggest you consult a solicitor to act for you.

There then followed a series of emails that afternoon between Alastair Marshall and myself, the next email was my reply:

Alastair,

Due to my inexperience of this procedure, and the courts refusal to accept the application in its current form, can you indicate the timescale that I have to lodge a claim in the process which you outlined?

To which Alastair Marshall replied:

Kenneth McAlpine

I refer to rule of court 41.2 and 41.20.

Rule of court 41.20(1)(b) states that if there is no period prescribed by the enactment, then your appeal should be lodged within 42 days after the date on which the decision appealed against was intimated to the appellant.

The last email that day was my reply to Alastair Marshall:

Alastair,

I refer to Chapter 02: http://www.scotcourts.gov.uk/session/rules/Chapter02.asp, which states:
Chapter 2 - Relief from compliance with rules

Relief for failure to comply with rules

2.1.- (1) The court may relieve a party from the consequences of a failure to comply with a provision in these Rules shown to be due to mistake, oversight or other excusable cause on such conditions, if any, as the court thinks fit.

(2) Where the court relieves a party from the consequences of a failure to comply with a provision in these Rules under paragraph (1), the court may pronounce such interlocutor as it thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred.

Under Chapter 02, Rule 2.1. - (1), I request this cause to proceed on the following grounds:

I refer to the email from the Court of Session, dated 'Wed 16/01/2008 14:14', which states:

"Time limits for lodging any appeal depends on the act. If the act does not specify a period then it is 42 days."

"The rules that govern statutory appeals is covered under chapter 41 of the Court of Session. The appeal should be in form 41.19."

As I am a party litigant in person, I followed the instructions given by the Court of Session in the required timescale.

Hence, I request that "the court may pronounce such interlocutor as it thinks fit to enable the cause to proceed as if the failure to comply with the provision had not occurred".

Chapter 10

On 15 February 2008, I received the following letter from Michael McLaughlin:

Dear Mr McAlpine

I refer to the above and enclose a copy of the Tribunal's Judgment. As we both expected, an award of expenses has been made. The figure is £3,700. I suspect that this will come as something of a disappointment to Oracle but that perhaps does nothing to lessen the blow to you.

You indicated to me previously that you had no intention of paying any award of expenses that was made against you. It is entirely a matter for you however, I would urge you to seek advice from the Citizen's Advice Bureau or some other organisation as to the consequences of being sequestrated.

The attached Judgment read:

Held in Glasgow on 11 January 2008

Employment Judge: Ms L J Crone

Members: Mr J Love, Mrs M C Fee

Mr Kenneth McAlpine

Claimant Represented by: Mr M McLaughlin, Solicitor

Oracle Corporation UK Ltd

Respondent Represented by: Mr N Davy, Counsel

JUDGMENT OF THE EMPLOYMENT TRIBUNAL

REASONS

1. The claimant presented a claim to the Employment Tribunal Service on 25 August 2006 claiming his dismissal had been unfair and that he had been discriminated against contrary to the Disability Discrimination Act (the DDA). The claimant asserted his dismissal for reasons of redundancy had been unfair and that he had been selected for redundancy because of his disability and/or because he had requested a reduction in his workload because of his disability.

2. The respondent entered a response admitting the claimant had been dismissed for reasons of redundancy, but denying the dismissal had been unfair. The respondent further denied the claim of disability discrimination.

3. The claim was heard by this Tribunal on the 2, 3 and 4 July and 6 August 2007. The judgment of the Tribunal dated 6 September 2007 dismissed both claims.

4. The respondent's representative, by letter of 3 October 2007, made an application for expenses on the basis the claimant's conduct of the case had been "wholly unreasonable". The letter relied in particular on the following grounds:

(i) the claimant unreasonably rejected each of the respondent's offers of settlement;

(ii) the claimant's unreasonable settlement expectations and his refusal to enter into a meaningful dialogue effectively prevented any settlement being achieved and

(iii) the manner in which the claimant had pursued the claim resulting in the respondent having to incur additional costs dealing with unmeritorious and unjustified applications.

5. The respondent, in addition to the above, made an application for expenses in respect of having to respond to the very serious allegation made by the claimant that the respondent had deliberately altered/tampered with documents in order to gain advantage in the case. The cost of making the response was £700.

6. This hearing was arranged to consider the respondent's application for expenses.

7. We heard evidence from the claimant regarding his position in respect of the alteration of documents and his current financial position. We were referred to a number of productions. We found the following facts to have been established.

(A) The alteration of documents

8. The claimant had, in preparation for the merits Hearing, been asked by the respondent to provide hard copies of the documents he wished included in the productions. The claimant refused to provide hard copies notwithstanding the respondent's offer to pay for photocopying charges.

9. The claimant, instead, provided a soft copy - that is, he emailed the respondent with an attachment containing a number of documents which had been cut and pasted or scanned in.

10. The claimant referred, for the purposes of this hearing, to five documents -(i) a letter of offer of employment; (ii) an organisation chart; (iii) a graph; (iv) a letter dated 30 May 2006 and (v) a letter. The claimant agreed that he had, at the merits hearing, referred to a larger number of documents: he had not felt it necessary to produce the other documents for today's hearing because he acknowledged that only the format and not the content of those documents had been changed.

11. The claimant referred to a letter of offer of employment (C1): the letter in the productions was unsigned. The claimant believed he would only have a signed version of the letter and accordingly believed that that was what he had scanned in and sent to the respondent. The claimant rejected the respondent's suggestion that he had not in fact sent a scanned copy and the respondent had produced their unsigned copy of the letter.

12. The claimant accepted the content of the letter of offer of employment had not been altered.

13. The claimant next referred to an organisational chart (C2): he had wanted is the chart dated 25 April 2005 included in the productions, but the respondent had included one dated 30 April 2005 notwithstanding the fact they had put the correct date in the index of documents. The claimant accepted the only difference between the documents was the date.

14. The claimant next referred to a graph (C3) where the figures for the Environment Agency account had been "blanked out". The claimant agreed he had highlighted the figures in red, but this had not copied. The claimant denied he had suggested this had been a deliberate alteration.

15. The claimant next referred to a letter dated 30 May 2006 (C4) where the Oracle header on the notepaper, and the signature, were missing. The claimant maintained he had scanned a copy of the letter to be included and what had been produced was not what he had sent. He acknowledged the content of the two letters was the same.

16. The claimant lastly referred to a letter (C5) regarding his redundancy where certain paragraphs relating to a compromise agreement had been removed.The claimant acknowledged the respondent's solicitor had explained to him that compromise agreements and negotiations were "without prejudice" and this had been the reason for removing the paragraphs. The claimant, notwithstanding the explanation, wanted the paragraphs to be included.

17. The claimant rejected the respondent's position that he had, at the hearing on merits, asserted the respondent had deliberately altered documents to improve their position and mislead the Tribunal. He maintained that his position was that documents had been altered, amended or removed. The documents were of a different physical appearance.

18. The claimant accepted that he had not checked the content of the attachment to the email against the documents produced prior to making the allegation.

(B) Claimant's financial position

19. The claimant has been in receipt of Jobseekers Allowance from March 2006 until March 2007. He does not believe he is entitled to any other benefits, but has not contacted the Benefits Agency.

20. The claimant is still looking for alternative employment. He is using the same avenues as previously: that is, recruitment agencies, web based searches and local newspapers. The claimant is still using a job search for "On Demand Service Delivery Manager", in the belief this description is wide enough to include all managerial posts.

21. The claimant is living off savings at present. He estimated there was £30,000 in a joint account with-his wife. The claimant has personal savings in Oracle shares of $15,000; and in addition to this he also has a small number of shares in utility companies from which he earns a small income. The claimant was unable to state a value for the shares.

22. The claimant's house is valued at £350,000/400,000. There is a mortgage of £5000 on the house.

Respondent's submissions

23. Mr Davy acknowledged that the award of expenses was an exception to the general rule in Tribunals, but in this case he considered there were two reasons why an exception should be made:

(i) conduct of the claim was unreasonable and

(ii) the allegation of altered documents was so unreasonable as to alone justify an order of expenses.

24. The legal position was that if the Tribunal were satisfied the claimant acted unreasonably in conducting the proceedings, the Tribunal has a duty to consider an order for expenses. The Tribunal thereafter, having so considered, have a discretion to make an order if appropriate. The discretion is unfettered, but having found the claimant's actions to be unreasonable, the Tribunal must give cogent reasons if they refuse to order expenses. Mr Davy noted the purpose of the order was to compensate and not to punish.

25. The first reason for the application for expenses was the claimant's conduct of the claim, and in particular the fact the claimant:

(a)

(i) refused an offer of settlement;

(ii) maintained an unrealistic position regarding settlement

(iii) refused to enter into discussions;

(b) repeated unmeritorious applications, and

(c) withdrew part of the claim very late.

26. Mr Davy dealt with each of the above points in turn. He submitted, with regard to point (a)(i), that the mere fact the claimant failed to do better than beat the offer of settlement the respondent had made, did not justify an order of expenses. However, the offer of £28,000 had been a substantial one, close to the maximum value of the claim. Mr Davy submitted the rejection of that offer had been unreasonable. The totality of this plus the other conduct referred to, justified an order for expenses.

27. Mr Davy referred to the letter produced at R1 (of the productions for this hearing), which was a letter of 3 October 2007 from the respondent's solicitor to the Employment Tribunal Office. Page 2 of that letter set out the steps taken by the respondent to settle the claim. The letter set out the following points:-

* before the claimant's employment ended, settlement offer of £12,000 (in a compromise agreement given to the claimant in June 2006);

* on 13 November 2006: settlement offer of £12,000 (made through experienced ACAS officer David Graham who we understand endeavoured to encourage the claimant to settle this dispute on a reasonable basis);

* On 31 January 2007: settlement offer of £28,000 together with an offer of a contribution of £2000 towards taking legal advice in respect of the accompanying compromise agreement, and an offer of £1000 towards outplacement services;

* On 12 February 2007: explanation of basis for offer made on 31 January 2007; explanation of calculation of Tribunal awards; offer of £1000 towards claimant taking employment law advice as to his claims from a specialist employment solicitor;

* On 20 March 2007: suggestion of mediation in this dispute -costs of mediation to be borne by the respondent; at 9 March 2007 CMD it was agreed that the case should be sisted for mediation from 10 March to 30 April 2007. During this period the respondent took the following steps:

(i) wrote to/emailed the claimant on the 20, 21 and 22 March 2007;

(ii) 27 March 2007: informal without prejudice discussion between claimant and the respondent's counsel;

(iii) On 29 March 2007: indication to the claimant that respondent was considering contribution to costs of claimant's legal representation at mediation - in response to his indication that he would represent himself;

(iv) Between 9 March and 27 April: identifying Edinburgh-based mediator and co-ordinating their available dates for mediation with those of respondent representative and Counsel, as well as agreeing mediator with claimant;

(v) On 1 May 2007: offer of mediation date to claimant together with offer of contribution of up to £2000 towards cost of claimant being legally represented at mediation;

(vi) On 9 May 2007: email to claimant encouraging him to attend mediation;

(vii) Payment to proposed mediator in relation to cancellation of date provisionally reserved for mediation and in respect of costs incurred - including in relation to correspondence between claimant and mediator (not disclosed to respondent).

* On 18 May 2007: explanation of difference between the parties' valuation of the claimant's claim for future losses (which totaled over £700,000). It was pointed out that this differing approach was the only thing then preventing a solution."

28. Mr Davy referred to production R2, being a copy of a letter of 31 January 2007 regarding the compromise agreement. The letter confirmed that "in order for a Compromise Agreement to be valid and binding, an individual must receive independent legal advice as to its terms and effect, and we would therefore urge you to seek legal advice in relation to its contents as soon as possible. You will notice that, in the event that we are able to conclude an agreement on the proposed terms [£28,000], a contribution towards your legal fees is provided for."

29. The claimant's response to this offer, dated 1 February 2007, was produced at R3. The response was in the following terms:-

"I would not waste my time, or a solicitor's time on this offer, as I received independent legal advice back in July 2006, and the legal advisor stated that I could receive more than your offer dated 31 January for unfair dismissal alone. Considering only unfair dismissal claim, loss of salary to tribunal claim and expenses claim will amount to around £100,000 alone (without even considering discrimination, personal injury, loss of future earnings, continuing loss of pension etc) if you wish to reach a settlement before tribunal proceedings, do not waste my time, your time and any other legal advisors time, by sending any offers less than a 6 figure sum.

In light of your latest offer, this is to confirm that Mr K R McAlpine would be willing to reach full and final settlement for the sum of £707,000 of all employment related termination claims, including those made in the above tribunal case."

30. The respondent's solicitor, in response to that letter, wrote to the claimant on 12 February 2007 (R4) setting out why they considered the sum of £707,000 to be unreasonable. The letter explained the basis upon which tribunal's calculate compensation and set out a calculation of compensation assuming both his claims were wholly successful. They calculated the most the claimant could hope to recover in compensation to be £63,362. However, the letter made it clear the respondent believed they had substantive arguments in defence of the claims, and a 50% discount was factored in to take into account the possibility of the claimant losing.

31. Mr Davy submitted the claimant could have been left in no doubt about how the respondent had valued his claim. Further, the claimant should have been aware of the reasonableness of the respondent's offer of settlement of £28,000, and the fact it was wholly unreasonable to pursue his claim. The respondent, in that letter, urged the claimant to take legal advice regarding the value of his claim, and offered to make payment of £1,000 to him towards the cost of taking that legal advice.

32. Mr Davy drew the Tribunal's attention to page 4 of that letter where the respondent's solicitor had made it clear to the claimant that if he refused the offer to contribute towards the cost of seeking specialist legal advice, or if, having taken such advice, he persisted in his wholly extraordinary and unreasonable settlement demands, and in the event the respondent was successful in defending the claim, or if any award of compensation was less than £707,000, the respondent would refer the letter to the Tribunal and seek an order for a contribution towards its legal costs incurred thereafter.

33. Mr Davy submitted, with regard to points (a) (ii) and (iii), that the claimant at the merits hearing gave evidence to the effect that he believed his prospects of finding a similar role were 0.00003181%. This had to be considered against the fact the claimant was seeking £707,000 loss. The claimant had refused to countenance any offer under 6 figures: he had demanded an unreasonably high settlement.

34. The parties had agreed to sist for mediation for a period of three months, ending on 30 April 2007. The respondent's solicitor had written to the claimant on 29 March 2007 (R11) advising that settlement of all claims, whether by way of mediation or otherwise, would have to be by way of a compromise agreement, and that the claimant would need to have taken independent legal advice regarding the terms and effect of the agreement. The respondent's solicitor advised the claimant that it was important for him to be accompanied by a solicitor at the mediation, and the solicitor was taking instructions regarding whether the respondent would agree to contribute towards his legal costs.

35. Mr Davy submitted the respondent had subsequently agreed to contribute £2,000 towards the costs of the claimant having a legal representative present for the mediation. The claimant had refused this offer and confirmed he wished to represent himself at the mediation.

36. Mr Davy submitted that it had not been possible for the respondent to make all the necessary arrangements for mediation prior to 30 April. The claimant had, the day after the end of the sist, written to the Tribunal (R12) stating the respondent had failed to take part in the mediation, and seeking an order debarring the respondent from responding to the claim, and an order seeking preparation time expenses.

37. The respondent responded to that letter on 1 May (R13) confirming it had been difficult to co-ordinate everyone's availability for the mediation, but a date had been agreed for 21 June 2007. The letter confirmed the respondent would pay £2,000* towards the cost of the claimant having a legal representative present at the mediation.

38. Mr Davy submitted the claimant had thereafter informed the respondent he did not wish to participate in the mediation, and notwithstanding further correspondence from the respondent's solicitor encouraging him to attend (R16) he refused to do so.

39. Mr Davy referred the Tribunal to production R17 being an email he had sent to the claimant on 18 May 2007 again encouraging him to engage in mediation. The letter included reference to the earlier letter of 12 May where it had been made clear the respondent would seek an order for expenses. Mr Davy, in the email, confirmed the respondent would argue that if both parties had taken a sensible view regarding the value of the claim it could have been resolved by mediation, without the need for a hearing.

40. The claimant responded to the email (R18) stating that he believed he had a 100% chance of succeeding in the unfair dismissal claim and a 90% chance of succeeding in the discrimination claim. The email included reference to the sum of £300,00 excluding compensation for future loss and injury to health. It also included a reference to "the potential negative implications for various parties if the claimant wins".

41. Mr Davy submitted the respondent accepted the date finally agreed for mediation had been close to the date set for the hearing of the case, but given the offer by the respondent to pay a contribution towards legal costs, he questioned why the claimant had refused to take the opportunity of mediation and failed to take legal advice regarding the value of his claim. Mr Davy submitted the claimant could not be expected to be aware of legal issues regarding compensation, and in those circumstances he questioned why the claimant had rejected the opportunity to inform himself.

42. Mr Davy submitted the respondent had no opportunity to enable the claimant to get a more realistic view of settlement. This had been an expensive case for the respondent and the claimant's unrealistic expectation and refusal to take legal advice meant the respondent could not settle the claim and had to incur the cost of defending it.

43. Mr Davy moved on to the issue of the claimant having made unmeritorious applications. Mr Davy referred to the claimant (a) having applied to the Tribunal to debar the respondent from defending the claim; (b) wishing to draw adverse inferences; (c) seeking witness orders for clients of the respondent; (d) seeking to have the respondent's defence struck out and (e) being dissatisfied with statements and productions. Each of these applications had to be responded to by the respondent.

44. Mr Davy submitted the claimant had advanced a claim of personal injury and repeated his intention to pursue this as part of his claim up to March 2007. The claimant withdrew this aspect of the claim in June 2007, some weeks prior to the case proceeding to a hearing. Mr Davy submitted that by this time the respondent had incurred costs preparing to respond to that aspect of the claim, and those costs had been wasted. Mr Davy submitted the withdrawal could have come earlier.

45. Mr Davy submitted that taking all of the above points into account, the claimant's actions crossed the threshold of unreasonableness. In addition to this, there had been an allegation that the respondent had deliberately altered documents to gain an advantage. This was a very serious allegation. Mr Davy referred to the Judgment of the Tribunal at  paragraph 8(g) and the conclusions. He submitted that despite the Tribunal's conclusions regarding this matter, the claimant was still unwilling to accept that.

46. Mr Davy submitted the allegation had been unfounded and had been made by the claimant without checking if the documents produced by the respondent were the same as those in the email copy he had sent. Mr Davy submitted that no legal training was required to know that you should check your facts before making a very serious allegation. The claimant had referred to comparing original documents to the productions, but he had not sent original documents to the respondent, and this was not the allegation he had made.

47. Mr Davy referred to the letter at production R1 where the respondent's costs had been stated as having been £117,000. The cost of responding to the allegation regarding the altered documents was £700. Mr Davy acknowledged the Tribunal could award expenses of up to £10,000 and this was the sum he sought.

48. Mr Davy noted from the claimant's evidence today that his living expenses were met from savings, and that his Oracle, and other, shares were untouched. Mr Davy submitted there was no issue regarding the claimant's ability to pay an order of expenses of up to £10,000.

49. Mr Davy submitted the claimant was still relying on the same job search terms as previously. The claimant was still of the belief this search was adequate and included all manager posts, notwithstanding the tribunal found this to be incredible at the merits hearing.

50. Mr Davy acknowledged the right to bring a Tribunal claim was an important and invaluable right in a normally cost-free environment. But, he submitted, there was a duty on parties to act reasonably. The respondent acknowledged the claimant had not been legally represented, but their criticism was of his failure to take free legal advice.

51. Mr Davy concluded by submitting that his position was that the conduct taken as a whole, or when considering each of the four points highlighted, was unreasonable and in those circumstances the Tribunal must consider making an order for expenses.'

Claimant's submissions

52. Mr McLaughlin submitted the main thrust of the respondent's submission was that there had been a pattern of unreasonable behaviour. He referred to the case of Cooper v Shaldene Ltd EAT/0452/03 where it had been held that a tribunal must relate an award of expenses to the particular conduct -that is, the respondent must link the unreasonable conduct to the cost they incurred because of it. Mr McLaughlin acknowledged the respondent had done this for one element of their claim in relation to the altered documents, but thereafter they had not specified what particular costs they had incurred which were attributable to particular conduct.

53. Mr McLaughlin submitted Tribunals were still "cost free" environments, and this was so even where settlement offers had been made and refused.

54. Mr McLaughlin referred to the claimant's response to the respondent's offer of settlement of £28,000 (R3), and submitted there was a vast difference between quantification of a claim and the sum a person may be prepared to settle for. He submitted he could reasonably have quantified the claim in six figures, particularly as the respondent's solicitor had quantified the claim in the region of £60/70,000. Mr McLaughlin submitted that on this basis the claimant's position had not been an unreasonable first position.

55. Mr McLaughlin submitted the respondent had had 51 days to do the mediation but had not done so. The date of 21 June 2007 was 11 days prior to the tribunal hearing and the claimant no longer wished to participate. In the claimant's letter of 1 May (R14) he confirmed this to the respondent, but also stated he would be willing to consider any offer of settlement. Mr McLaughlin submitted this had been a significant change in the claimant's position, but no further offer of settlement had been made by the respondent.

56. Mr McLaughlin submitted the Tribunal had to have regard to the rejection of the offer when considering if it had been unreasonable; and, unreasonable meant it had to be extreme.

57. Mr McLaughlin referred to the case of Monaghan v Close Thornton Solicitors EAT/3/01 where the employee had been dismissed for reasons of capability and remained unfit for work. The Tribunal found the employee had been unfairly dismissed and the matter proceeded to a remedies hearing. The respondent made an offer of settlement of £800, whilst the employee considered the settlement should be in the region of £40,000. Mr McLaughlin referred to paragraph 25 of the judgment which provided:-

"We do not doubt that where a party has obstinately pressed for some unreasonably high award despite its excess being pointed out and despite a warning that costs might be asked against that party if it were persisted in, the Tribunal could in appropriate circumstances take the view that that party had conducted the proceedings unreasonably. But this was far from being an extreme case of that nature. The offer of £1500 was made on the 22nd September, relatively shortly before the remedies hearing on the 11th October. The award was of £1007. Whilst we would not want to deter the making and the acceptance of sensible offers, if it became a practice such that an applicant who recovered no more than two thirds of the sum offered in a rejected Calderbank offer was, without more, then to be visited with the costs of the remedies hearing or some part of them, Calderbank offers would be so frequently used that one would soon be in a regime in which costs would not uncommonly be treated as they are in the High Court and other Courts. Yet it is plain that throughout the life of the Employment Tribunals the legislature has never so provided. It can only be that that was deliberate. Miss Cunningham rightly distinguishes the Employment Tribunal costs regime from that applicable in the High Court and County Court where costs commonly follow the event, where a Calderbank letter can in turn be given particular significance and where a system of payment into Court is long established.."

58. Mr McLaughlin also referred to the case of Kopel v Safeway Stores plc EAT/0281/02 where the claimant had advanced a misconceived case. The EAT referred at paragraph 16*to an offer of the Calderbank type being a factor which the Employment Tribunal can take into account when considering the issue of costs.

Further, paragraphs 18 and 19 provided that "it does not follow that a failure by an appellant to beat a Calderbank offer, should, by itself, lead to an order for costs being made against the appellant. The Employment Tribunal must first conclude that the conduct of an appellant in rejecting the offer was unreasonable before the rejection becomes a relevant factor in the exercise of its discretion under Rule 14.

59. Mr McLaughlin submitted the claimant had rejected an offer equating to 50% of the respondent's conservative value of his claim, and in those circumstances his refusal had not been unreasonable.

60. Mr McLaughlin submitted that Mr Davy's submission regarding mediation was not competent given the terms of the rule states "unreasonable in bringing or conducting" the proceedings. The notes to the Practice Direction refer to "external mediation": it was not judicial mediation. Proceedings were sisted, so regardless of behaviour, it could not be relied upon as part of the proceedings.

61. In any event, the claimant had agreed to participate in mediation and this undermined the respondent's submission that his conduct had been unreasonable. The claimant had had a fruitful discussion with Mr Davy on the 29th March and had sent dates of availability. The claimant had no further contact from the respondent regarding mediation. Accordingly, on the day after the sist expired the claimant wrote to the Tribunal: he was of the view the respondent had failed to comply with an order regarding mediation and, in this context, his application to debar the respondent from defending the claim was reasonable - albeit, his language had been extreme.

62. Mr McLaughlin submitted the respondent had thereafter had a flurry of activity regarding the mediation and a date was arranged 11 days prior to the hearing. In the circumstances Mr McLaughlin questioned whether it was unreasonable for the claimant to think the respondent had done this in bad faith to put pressure on him? He submitted that in fact it had been reasonable to discontinue his participation in the process.

63. Mr McLaughlin submitted, with regard to the various applications made by the claimant, that the claimant had misunderstood the position. For example, he had asked in correspondence that the Tribunal draw adverse inferences from the respondent's conduct: the claimant had read about the drawing of inferences in the questionnaire and had misunderstood its application.

64. The claimant had asked for the respondent to be debarred form defending the claim, but this had been based on a misunderstanding that there had been an order regarding mediation.

65. The claimant had sought witness orders for employees of the Environment Agency and the respondent. He had approached them regarding appearing at the tribunal, but they had been reluctant to do so and he had properly sought witness orders. Mr McLaughlin acknowledged this may have been misconceived, but it had not been unreasonable.

66. The claimant had, at the Case Management Discussion on 26 June 2007, made a verbal motion to strike out the response. Mr McLaughlin submitted that as the Case Management Discussion was taking place, and the respondent was present there had been no prejudice or cost to them in dealing with this matter.

67. Mr McLaughlin submitted it was churlish of the respondent to seek the sum of £700 expenses regarding the issue of the documents. It appeared to the claimant that documents in the bundle of productions were of a different physical appearance to those emailed. The claimant had not checked what had been emailed against what had been produced, but, it was submitted, he would have recalled what had been scanned. Mr McLaughlin submitted that in the context of a breakdown between the parties, it had not been unreasonable to think there had been an ulterior motive. It had been reasonable of the claimant to raise it as an issue, and Mr McLaughlin questioned what additional cost had been incurred by the respondent in addressing the question.

68. Mr McLaughlin referred to the case of Maclaine v Adpartners Ltd EAT/447/99 which concerned the withdrawal of a claim. He submitted, with regard to the claimant's case that personal injury was not a head of claim: rather it was part of the claimant's loss had he been successful. In those circumstances, and given the fact the respondent had not quantified their costs incurred in respect of this matter, Mr McLaughlin invited the Tribunal to make no award of expenses.

69. Mr McLaughlin submitted there had been no unreasonable actings. If however the tribunal was persuaded the claimant had acted unreasonably, he invited us to make no award of expenses given all the circumstances of the case. Furthermore, the claimant had a stateable case and a genuine sense of grievance.

Respondent's response to claimant's submission

70. Mr Davy noted in the Monaghan case that paragraph 25 referred to an order for expenses being made in "appropriate circumstances", and he submitted that those circumstances included continuing to press for an unreasonably high settlement, even when free advice had been offered. Mr Davy did not dispute that in the claimant's letter of 1 May, he had referred to considering any offer, but this did not reflect the totality of the situation which was that the claimant had referred to the sum of £707,000 and thereafter £300,000 not including future loss.

71. Mr Davy, with regard to the Shaldene case submitted the most recent authority regarding this matter was MacPherson v BNP Paribas 2004 ICR 1398 where it was held that when making an order, discretion is not fettered by having to make the link between the award and the conduct. The Tribunal had to take into account the nature, gravity and effect of the conduct: there was no need to prove that particular conduct caused particular costs to be incurred.

72. Mr Davy also referred to the case of Salinas 2005 ICR 1117 where it was held there was no requirement for a causal link between the costs and the conduct, and no need for a warning to have been given.

73. Mr Davy submitted the claimant's position regarding mediation was not correct. He submitted that conduct of the proceedings included offers of settlement and matters not before the Tribunal.

Considerations

74. We referred to Rule 38 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which gives Tribunals a general power to make costs and expenses orders. The rule provides that:-

"(1) Subject to paragraph (2) and in the circumstances listed in Rules 39, 40 and 47 a Tribunal or Chairman may make an order (a costs order) that - a party (the paying party) make a payment in respect of the costs .incurred by another party (the receiving party)."

75. Rule 40(2) provides that a Tribunal or Chairman shall consider making a costs order against a paying party where, in the opinion of the tribunal or chairman, any of the circumstances in paragraph (3) apply. Having so considered, the Tribunal or Chairman may make a costs order against the paying party if it or he considers it appropriate to do so.

76. Rule 40(3) provides that the circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or he or his representative has in conducting the proceedings, acted vexatiously, abusively, disruptively or otherwise unreasonably...

77. Rule 41 sets out the ways in which the amount of a costs order against the paying party shall be determined, and includes the Tribunal specifying the sum which the paying party must pay to the receiving party provided that sum does not exceed £10,000.

78. We noted that "unreasonable" has its ordinary English meaning and is not to be interpreted as if it means something similar to "vexatious" (Dyer v Secretary of State for Employment EAT 183/831 We further noted that reasonableness is a matter of fact for the tribunal.

79. We were referred to the case of Monaqhan v Close Thornton Solicitors (supra) where an offer to settle had been made by the respondent prior to the remedies hearing.

We noted from the Judgment of the EAT that the Employment Tribunal, when speaking of the offer, had stated "A reasonable offer was put forward to settle in September. It is, in our view, a very reasonable offer which should have been accepted. By making the respondent come to the Tribunal today we consider that the applicant has acted unreasonably and therefore we make an award of costs."

80. The EAT noted that by making the final sentence above, the Tribunal appeared "not to have had in mind that it is not enough merely to point to the applicant having acted unreasonably to justify the exercise of discretion. The fact the applicant has acted unreasonably justifies only the existence or availability of the discretion. The sense of that sentence seems to overlook that an award of costs is properly a two stage exercise: first the question is whether the discretion under [Rule 12] has arisen. That was answered affirmatively. But the second question, which the Tribunal should then have gone on to, is whether that discretion should be exercised by making any award and, if so what award of costs. That seems not to have been considered. Instead the Tribunal moved directly from the existence of the discretion to the award without intervening pause to consider whether the exercise was appropriate."

81. We were also referred to paragraph 25 of the EAT's Judgment, which is set out above, and we noted from that paragraph the general principle that the costs regime in the Employment Tribunal differs from other Courts where costs commonly follow the event. There is, deliberately, no "Calderbank" system in Employment Tribunals. We also noted the statement that where a party has obstinately pressed for some unreasonably high award despite its excess being pointed out and despite a warning that costs might be asked against that party if it were persisted in, the Tribunal could in appropriate circumstances take the view that that party had conducted the proceedings unreasonably.

82. The above views were endorsed by the EAT in the case of Kopel v Safeway Stores Ltd (above). In that case the Employment Tribunal held that where a respondent was faced with a claimant who refused to negotiate through ACAS or directly, the respondent should be able to protect their position by making a "Calderbank offer". The EAT held "there is no question of any rule " in Calderbank v Calderbank applying to proceedings before the Employment Tribunal." The EAT did however hold that an offer of the Calderbank type is a factor which the Employment Tribunal can take into account under [Rule 14].

83. The EAT referred to the Monaqhan decision (above) and held that "from those decisions and from a reading of the Rule itself, it does not follow that a failure by an appellant to beat a Calderbank offer, should, by itself, lead to an order for costs being made against the appellant. The Employment Tribunal must first conclude that the conduct of an appellant in rejecting the offer was unreasonable before the rejection becomes a relevant factor in the exercise of its discretion under [Rule 14]."

84. We, having considered the guidance set out in the above authorities, turned to consider the respective submissions. The respondent invited the Tribunal to make an award of expenses on the basis the claimant's conduct of the proceedings had been unreasonable. There were three strands to Mr Davy's submission: (i) refusing the offer of settlement; maintaining an unrealistic view of settlement and refusing to enter into discussions; (ii) repetition of unmeritorious applications and (iii) late withdrawal of part of the claim.

85. We decided to deal with these matters in reverse order. The background to point (c) was that the claimant had initially intimated to the respondent that he intended to pursue "injury to health" as part of his discrimination claim. The claimant, approximately one month prior to the hearing, informed the respondent that he was not pursuing injury to health as part of his discrimination claim because he may wish to pursue a separate personal injury claim. The respondent raised the matter at the commencement of the hearing because they wished the claimant to withdraw that aspect of his claim if he no longer intended to pursue it, whereupon they would seek to have it dismissed.

86. The claimant was given time to consider his position and to take legal advice if necessary. The claimant subsequently agreed to withdraw the injury to health complaint.

87. There can be no doubt that withdrawal of an aspect of a complaint one week before the hearing, is late notice to the other party who will have prepared their defence. We however had regard to two matters: firstly, the claimant was an unrepresented claimant unfamiliar with the legalities of pursuing an injury to health complaint in the Employment Tribunal or a personal injury claim in the other Courts. It could quite reasonably have been said that it was for precisely this reason the claimant ought to have taken legal advice, however that is a matter we deal with below.

88. Secondly, injury to health is not a head of claim, but can be pursued as an element of loss if a discrimination claim is successful. The claimant continued to pursue his disability discrimination claim and the respondent required to defend this claim. We acknowledged the claimant led evidence from Dr Derek Gordon, which may not have been necessary if injury to health was not to be an issue, however that evidence was helpful to the disability discrimination case in general.

89. We decided, having taken the above two points into account, that the claimant's conduct in relation to the late withdrawal of the injury to health aspect of the claim was not unreasonable.

90. We next considered the respondent's submission that the claimant had repeatedly made unmeritorious applications to the Tribunal. The respondent referred to an application by the claimant to draw adverse inferences; an application to debar the respondent from defending the claim; an application for witness orders and an application to strike out the response.

91. The claimant wrote to the Tribunal stating he wished an adverse inference to be drawn regarding the respondent's behaviour. The claimant was advised by the Employment Judge that the drawing of adverse inferences was a matter for the Tribunal hearing the case. We accepted this was a genuine mistake on the part of the claimant.

92. The claimant, on the day after the sist for mediation had been lifted, wrote to the Tribunal applying to have the respondent debarred from defending the claim. The claimant understood there had been an Order, or Practice Direction, regarding the issue of mediation. In fact the sist had been put in place with the agreement of the parties to allow mediation to take place. We accepted the claimant had misunderstood the arrangements.

93. The claimant, in the opinion of this Tribunal, followed the correct procedure in seeking witness orders for various witnesses employed by the respondent and the Environment Agency. We acknowledged that it may have been uncomfortable for the respondent to have employees of one of their biggest clients cited to attend an Employment Tribunal, however we considered the claimant was entitled to make the application - which was, in any event refused.

94. The claimant did, at a Case Management Discussion on 26 June, make a motion to have the respondent's response struck out. This request was refused and, in any event, the striking out of a response was not within the remit of an Employment Judge at a Case Management Discussion.

95. We decided, for the reasons set out above that the claimant had not acted unreasonably in making the above applications.

96. We next considered the respondent's submission that the claimant had acted unreasonably in refusing the offers of settlement; maintaining an unrealistic settlement figure and refusing to enter into discussions. We noted the respondent had gone to some length to try to resolve matters with the claimant: their efforts can be summarised as follows:

* an offer of £12,000 (in a compromise agreement) prior to the termination of the claimant's employment in June 2006;

* an offer of £12,000 made via ACAS in November 2006;

* an offer of £28,000 in January 2007, together with £1,000 towards outplacement services;

* an informal meeting with the respondent's Counsel;

* the offer of mediation.

97. The respondent, in addition to the above, had, in January 2007, offered to pay a contribution of £2,000 towards the cost of the claimant taking legal advice regarding the quantification of his claim. The respondent made a further offer of a contribution of £2,000 towards the cost of the claimant being legally represented at the mediation.

98. We firstly considered whether the conduct of the claimant in rejecting the respondent's offer was unreasonable. We focused on the offer of £28,000 made by the respondent in January 2007. We noted a number of points regarding this offer.

99. Firstly, the respondent did not simply "up their offer" from £12,000 to £28,000 in the abstract. The respondent's solicitor set out what we considered to be a careful explanation of the awards of compensation made by Tribunals generally in disability discrimination cases, and thereafter provided a quantification of the claimant's claim should he be successful. The claimant's representative, in his submission, described the quantification as "conservative": that perhaps was not unexpected, but importantly, the quantification provided the claimant with a realistic, albeit conservative, insight to what a Tribunal may award,

100. Secondly, the respondent, as stated above, additionally offered to contribute £2,000 towards the cost of the claimant taking legal advice specifically regarding the quantification of his claim.

101. Thirdly, the claimant's response to this was to tell the respondent not to "waste [his] time", and, if they wished to settle the matter, to make an offer of a six figure sum.

Mr McLaughlin, in his submission, invited the Tribunal to find that no six figure sum had been specified by the claimant; accordingly, if one considered the six figure sum to be £100,000, it was not so far removed from the respondent's quantification of £60,000 as to be unreasonable. We could not accept Mr McLaughlin's submission because it was clear from the terms of the claimant's letter that the six figure sum he was considering was £707,000 (the letter confirmed the claimant would be willing to reach full and final settlement for the sum of £707,000).

102. Fourthly, the claimant also made it clear in his letter that he did not intend to "waste" a solicitor's time seeking legal advice in relation to an offer of £28,000. The claimant did not accept the respondent's offer to seek legal advice regarding the quantification of his claim.

103. Fifthly, the claimant's figure of £707,000 for settlement of his claim was wholly unrealistic. The claimant, as stated above, was given the opportunity to take free legal advice regarding quantification of his claim, but he stubbornly refused to do so.

104. We concluded, having taken the above points into account, that the claimant did unreasonably reject the respondent's offer of settlement. We, in particular considered it wholly unreasonable for the claimant to refuse the offer of a monetary contribution towards legal costs, to seek advice regarding quantification of his claim. The issue of compensation is not an easy one, and we considered that a reasonable person would have seized the opportunity to obtain specialist advice on this complicated area of law, particularly in circumstances where it was clear the respondent was willing to enter into negotiations to resolve the case.

105. The respondent, in a further effort to resolve the matter offered mediation to resolve the claim. The claimant agreed to participate in mediation. The respondent considered it important for the claimant to be legally represented at the mediation and, to this end, offered to contribute £2,000 towards the cost of the claimant having a legal representative present. The claimant again refused to accept this offer and confirmed he intended to represent himself. We again had to question why the claimant refused an opportunity of free legal advice and the opportunity to properly inform himself of the amount of compensation he could expect if he was successful.

106. We considered that legal advice would have provided the claimant with a realistic basis for settlement negotiations. We acknowledged the claimant did amend his settlement figure to £300,000 but this excluded future loss, and accordingly could not be viewed as a realistic figure, or basis, for settlement. Mr McLaughlin drew the attention of the Tribunal to a letter from the claimant dated 1 May (R14) where the claimant had referred to considering any settlement offer. We noted this, but also noted there was no suggestion the claimant had altered his unrealistic settlement expectations. Accordingly we did not consider this to be a genuine attempt by the claimant to consider settling this claim for a realistic sum.

107. We concluded the claimant had unreasonably maintained a wholly unrealistic figure of settlement. We could not accept, for the reasons set out above, that the claimant had altered his settlement expectations.

108. The mediation process did not take place. The respondent was unable to arrange mediation within the period of the sist, and we accepted this was due to the number of diaries that required to be co-ordinated. The respondent was, on 1 May - that is, one day late - able to confirm a date for mediation. The claimant refused to participate in mediation because the date arranged was 11 days prior to the hearing. The respondent, in the period from 1 May onwards, endeavoured to encourage the claimant to attend the mediation, but he refused.

109. Mr McLaughlin suggested in his submission that the claimant could not be faulted for thinking that mediation 11 days prior to the hearing may be an attempt by the respondent to put pressure on him. We had regard to this submission, but noted there had been no suggestion by the claimant in his correspondence that this was his concern. The claimant, in the opinion of this Tribunal, refused to attend mediation simply because it had not been arranged within the agreed period.

110. The refusal of the claimant to attend mediation compounded his earlier unreasonable behaviour: he not only rejected the offer of a contribution towards the cost of having a legal representative present, but denied the respondent (and himself) the very real opportunity of resolving this matter.

111. Mr McLaughlin invited the Tribunal to find that because the case had been sisted for mediation, it was not appropriate to consider the claimant's behaviour during this period because he had not been "conducting" proceedings. We could not accept this submission for two reasons: firstly, Mr McLaughlin provided no authority for his position and, secondly, it did not appear to this Tribunal to be a reasonable proposition that parties could behave as unreasonably as they wished during the period of a sist with no sanction being available to the other side.

112. 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.

113. We must now decide whether to exercise our discretion to make an award of expenses against the claimant for his unreasonable conduct, which resulted in the respondent's efforts to settle this case being in vain, and consequently a four day hearing being necessary.

114. We decided to exercise our discretion and to make an award of expenses. We acknowledged the claimant was an unrepresented claimant, and it was for precisely this reason the respondent offered to pay for him to seek legal advice regarding quantification of his claim. The claimant stubbornly refused their offers of assistance in circumstances where, it appeared to this Tribunal, there was certainly scope to reach a settlement in excess of £28,000.

115. We also noted the claimant had been warned in various letters (for example, R2) from the respondent's solicitor that the respondent would be seeking an order for expenses. The claimant persisted in his position notwithstanding he had been put on notice.

116. The respondent is seeking an award of expenses in the sum of £10,000, which is the maximum the Tribunal may award. We, in considering the level of award, took into account, on the one hand, the fact the Employment Tribunal is a "cost free environment". The claimant had a stateable case and was entitled to have that claim heard. On the other hand, the claimant acted unreasonably in the conduct of the proceedings. The claimant was an unrepresented claimant, but is still under a duty to behave reasonably. Furthermore, the claimant had been put on notice by the respondent, when he was given a very clear warning that the respondent would seek an award of expenses in the circumstances set out in their letter of 12 February 2007.

117. Mr McLaughlin referred the Tribunal to the case of Monaqhan (supra) and submitted the respondent's application for expenses based on the claimant's unreasonable conduct of the proceedings, should not be accepted because they had not identified the cost attributable to particular unreasonable conduct. We could not accept that submission because it was held by the Court of Appeal, in the case of McPherson v BNP Paribas (London Branch) 2004 ICR 1398 that the Tribunal rules did not impose any requirement that the costs must be caused by, or at least proportionate to, the particular conduct that has been identified as unreasonable.

118. Rule 41(1) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 states that the amount of a costs order will be determined in any of the following ways which includes the Tribunal specifying a sum not exceeding £10,000.

119. We noted the case of Lodwick v Southwark London Borough Council 2004 IRLR 554 where the Court of Appeal reiterated that it remained a fundamental principle that the purpose of an award of costs was to compensate the party in whose favour the order is made, and not to punish the paying party.

120. Mr Davy invited the Tribunal to make an order for expenses in the sum of £10,000: this was based on the cost to the respondent of defending the claim being £117,000, with costs of £40,000 incurred for the actual hearing of the case.

121. We decided, in the circumstances of this case, to make an award of expenses in the sum of £3,000. We, in considering the amount of expenses to award and in deciding not to award the sum of £10,000, took into account the following factors. Firstly,- the fact the award of expenses in an Employment Tribunal is still the exception to the rule. Secondly, the fact that it was unfortunate mediation was not arranged within the period of the sist. This, we have acknowledged above, was not the respondent's fault. We equally acknowledged the claimant had done everything asked of him during this time regarding the arrangements for mediation.

122. We next considered the respondent's application for expenses based on the claimant's conduct of the proceedings being unreasonable in respect of the serious allegation made by the claimant regarding the alteration of documents. This was an allegation taken very seriously by the respondent, and it is helpful to set out some background to the issue.

123. We referred to the Judgment of this Tribunal dated 6 September 2007, and to  paragraph 8(g) where details were set out regarding the claimant's submission that "documents in the productions had been deliberately altered by the respondent to mislead the Tribunal and improve their prospects of success at this Hearing." The paragraph then detailed the documents referred to and concluded by recording the [Chairman's] direction that the claimant should put his position to the relevant witnesses for comment: thereafter the Tribunal would make a specific finding of fact regarding the matter.

124. The Judgment, at  page 19, confirmed the claimant had not questioned the respondent's witnesses regarding his position that documents had been deliberately altered.

It was further noted that the claimant's issue was more one of a question why certain documents had not been produced in the right format.

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.

126. We noted the following points regarding this issue:-

* the claimant had been asked by the respondent to provide a hard copy of the documents he wished included in the bundle of productions;

* the claimant refused to send hard copies notwithstanding the respondent's offer to pay photocopying charges;

* the claimant sent the respondent an email attachment containing documents which he had cut and pasted, or scanned, in;

* the claimant did not check the content of the documents in the attachment against the documents in the productions before alleging the respondent had altered the documents;

* the claimant did allege the respondent had deliberately altered the documents in order to gain an advantage at the Hearing;

* the claimant, in cross examination, became uncertain of that position and confirmed it was more a question of why documents had appeared in a different format;

* the claimant maintained at today's hearing that the documents had a different physical appearance.

127. We considered it important to note that the claimant's position prior to the hearing on merits was that the respondent had deliberately altered documents in order to gain an advantage at the hearing. The claimant had prepared a folder of "original" and "altered" documents, and, it was apparent from the Case Management Discussion that this would be raised as a preliminary issue. The respondent had to come prepared to deal with this matter. They incurred expense in doing so, and this was one of the bases for their application for expenses.

128. We noted that a number of documents referred to during the hearing on merits were not referred to by the claimant at today's hearing. The claimant was questioned about this in cross examination and accepted he had not felt it necessary to refer to those documents because he accepted the content of them had not been altered.

129. We noted with regard to the letter of offer of employment (C1) that the claimant accepted the content of the letter had not been changed. We also noted that this letter was not referred to during the course of the hearing: it was not material to the issues before the Tribunal and the claimant did not ever offer any explanation why removing the signature from the letter would have advantaged the respondent in this case.

130. We noted, with regard to the.organisational chart (C2) that the claimant accepted the content of the chart produced was the same as the chart he had: the only difference between the two was the date.

131. We noted, with regard to the graph (C3) that the claimant was in possession of this document and had highlighted the figures for the Environment Agency in red. The red highlighter photocopied as black. The claimant, notwithstanding he had highlighted the section, and was in possession of his own copy of the document and therefore knew what the figure should read, proceeded to allege the respondent had "blanked out" this information.

132. We noted, with regard to the first letter (C4) that the claimant accepted the content of the letters was the same and the only difference was the lack of an Oracle header on the notepaper and a signature to the letter.

133. We noted, with regard to the second letter (C5) that the claimant acknowledged an explanation had been given to him regarding the removal of reference to the compromise agreement. The claimant took a different view and notwithstanding the legal explanation he had been given for the respondent's actions, wished the paragraphs to be included.

134. There are three key points arising from the above facts: (a) the claimant accepted that he had not checked the format of the cut and pasted, and scanned, documents against the documents produced by the respondent, prior to alleging the respondent had deliberately altered them, (b) The claimant at no time explained what advantage the respondent could have obtained from removing signatures from letters, or "blanking out" information the claimant already had. (c) The claimant, notwithstanding he knew (i) why the figures on the graph had not photocopied and (ii) why the paragraphs referring to a compromise agreement had been removed, insisted the respondent had deliberately altered the documents to gain an advantage.

135. We, in considering the claimant's conduct of this aspect of the proceedings, had no hesitation in concluding the claimant had acted wholly unreasonably in making the unfounded allegation. The claimant has persisted in this matter notwithstanding the explanation given by the respondent that they produced what was in his email attachment, and notwithstanding the fact he knew exactly why certain documents (for example, the highlighted graph) appeared in a different format.

136. We must now consider whether to make an order for expenses in the circumstances. Mr McLaughlin submitted it was "churlish" of the respondent to seek to recover expenses in these circumstances. We could not accept that submission. The claimant made a very serious allegation: he was warned it was a serious allegation and was taken very seriously by the respondent. The claimant persisted with the allegation in circumstances where he knew very well why certain documents had appeared in a different format - for example, the "blanked out" figures on the graph appeared in that format because the claimant had highlighted the figures. He further persisted in the allegation in circumstances where he access to the original documents and had not been denied information.

137. We decided, having taken the above points into account, to make an order for expenses in the sum of £700.

The Judgment of the Tribunal was to grant the respondent's motion for expenses, and to order the claimant to pay to the respondent the sum of £3,700 (Three Thousand, Seven Hundred Pounds).

Chapter 11

I received a letter by post on the morning of 15 February 2008 from Lloyds that read:

Dear Mr McAlpine

Insurance at Lloyd's - Case Number: 260/2008

The Financial Ombudsman Service (FOS), under their reference number 7621674 have referred your complaint to us as it appears to relate to an insurance policy underwritten at Lloyd's of London. It appears that you have not yet exhausted the Complaints Procedure as set out in your policy.

We have therefore passed details of your complaint to a senior representative for the underwriters in question (the Insurer), in accordance with our usual procedures in the hope that this will enable the matter to be amicably resolved. You should receive a response from the Insurer within 14 days of the date of this letter.

What YOU need to do next:-

* Await a detailed response from the Insurer to your complaint.

* Any queries about the Insurer's response, should be directed to them in the first instance.

* If, however, you remain dissatisfied with their response, you MUST complete and return the enclosed Feedback Form.

* In the unlikely event that you do not receive a response from the Insurer within 14 days, please complete the Feedback Form and return it to us.

Please note: if you wish to pursue this complaint further, having received the Insurer's response, it is essential that you return the enclosed Feedback Form to us, as described above.

We will assume that your complaint has been resolved, or you do not wish to pursue the matter, if we do not hear from you again within 8 weeks of the date of this letter.

Our file on this case will then be closed.

The next afternoon I sent the following email to Michael McLaughlin:

Michael,

Thank you for sending out the costs judgment, which I received this morning.

I have noted your advice on seeking advice from the CAB.

Due to the following, from the Department of Work and Pensions:

http://www.dwp.gov.uk/asd/asd5/IH91.pdf

Monitoring the Disability Discrimination Act 1995 (Phase 2)

Page 62

"One example of a case in which arguments based on ill health did not justify an employer's actions is Farnsworth v (1) London Borough of Hammersmith & Fulham (2) Cooper (unreported, ET Case No.2201799/98). The applicant in that case had undergone treatment for a depressive illness for six years. In November 1997 the respondent offered her a post as a residential social worker subject to a medical assessment. The offer was withdrawn in February 1998 on the ground that she had not obtained satisfactory medical clearance.

The tribunal held that the refusal to confirm the offer of employment to the applicant was due to her disability and therefore discriminatory. The employers had made the assumption, without good reason, that her attendance would be poor. This assumption was contradicted by a reference of which the employers had taken no account, and by the fact that the applicant had been in good health since June 1996. In these circumstances it was not open to the employers to rely on the defence of justification."

I will not be seeking advice from the CAB.

As I explained to you on 11 January 2008, I will not be paying to be discriminated against, as this is nothing short of farcical. I also fully understand the consequences of such an action.

If the Glasgow Employment Tribunal had performed their roles properly, direct discrimination should have been the ONLY judgment, and as stated above, there is no 'defence of justification' (eg: RIF lists, CIM roles, or any other 'story', etc). The fact that the Glasgow Employment Tribunal failed to perform their roles properly, allowed the respondent a 'defence of justification', and have now requested that I pay for being directly discriminated against, which takes this whole perversity out of all of our hands, as what will start to happen in the next few months will certainly make this case go exponential.

In the meantime, please continue with preparations for the Rule 3(10) Hearing, unless you hear otherwise due to future developments.

Shortly after sending that email to Michael, I sent an email to Katy Clark MP:

Katy,

I am afraid that the worst news in this case for Central Government has just happened.

The Glasgow Employment Tribunal (part of Central Government) has just issued a judgment which states that I should pay the Respondent £ 3,700.

This I will not be paying, as I will not be paying for the incompetence of the Tribunal system (Glasgow Employment Tribunal and Edinburgh Employment Appeals Tribunal) in finding that no discrimination whatsoever had taken place in this case. This totally perverse decision has resulted in the wrong judgment against the disabled party, which has now directly resulted in the Tribunal system awarding costs against the discriminated party.

Disability has now become an issue in which disabled employees pay discriminating employers to discriminate against them, as 'judged' by the Tribunal system.

What will happen in the forthcoming period will probably take all of this out of our hands.

Whilst my 'crime' was being disabled, at least I could do my job, something which the Glasgow Employment Tribunal is completely incapable of performing properly.

I will once again reiterate the following:

My ex-manager stated on 12 April 2006:

"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?"

To which, the senior HR manager replied on 13 April 2006:

"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"

All these untruths for Kenneth McAlpine, who had only taken 2 days sick leave in the previous 15 months.

http://www.dwp.gov.uk/asd/asd5/IH91.pdf

Department of Work and Pensions

"Monitoring the Disability Discrimination Act 1995 (Phase 2)"

On page 62, it states:

"One example of a case in which arguments based on ill health did not justify an employer's actions is Farnsworth v (1) London Borough of Hammersmith & Fulham(2) Cooper (unreported, ET Case No.2201799/98). The applicant in that case had undergone treatment for a depressive illness for six years. In November 1997 the respondent offered her a post as a residential social worker subject to a medical assessment. The offer was withdrawn in February 1998 on the ground that she had not obtained satisfactory medical clearance.

The tribunal held that the refusal to confirm the offer of employment to the applicant was due to her disability and therefore discriminatory. The employers had made the assumption, without good reason, that her attendance would be poor. This assumption was contradicted by a reference of which the employers had taken no account, and by the fact that the applicant had been in good health since June 1996. In these circumstances it was not open to the employers to rely on the defence of justification."

If you, or Central Government, are going to do something, I make the suggestion that it is soon, as I have now paid £ 6,733 and counting, to be directly discriminated against, and by not paying the cost of £ 3,500 will soon be facing sequestration, and all that this will involve.

I will also state now, that Central Government must have a full investigation into the Glasgow Employment Tribunal and the three Tribunal members who 'judged' on this case, and the Edinburgh Employment Appeals Tribunal, who didn't even allow the appeal to get by the sift process. I will expect nothing less.

Three days later I received the following letter by post from Biggart Bailli that read:

Dear Mr McAlpine

FAMILY PLUS LEGAL COVER

I refer to the above and enclose a copy of a response from your insurer, the terms of which are doubtless self explanatory.

Attached letter read:

Dear Sirs,

Thank you for your letter of 29th January, which now explains the history of the matter and our gaps in the understanding. With respect, Mr Mcalpine's account of his dealings with our panel solicitors do not account with their own.

It is clear from the information sent to us by our panel solicitors that they felt that Mcalpine's was unrealistic in his expectations as to making a claim, particularly with regard to quantum. As such he withdrew his instructions from them. Upon this basis, the policy was terminated. We must therefore consider whether or not there are reasonable prospects to extend cover to your costs at the present stage.

We have to say that in this regard matters do not look particularly good. You have lodged a Notice of Appeal within time on behalf of your client, but unfortunately we understand that EAT have rejected this. We appreciate that you have now made an application for hearing so that the EAT can consider your contention that the Notice of Appeal disclosures grounds for appeal but unless/until the EAT rule that is does disclosure such grounds, we cannot say that there are reasonable prospects of success within the meaning of the policy and cannot extend cover.

If and when the hearing takes place, and assuming that your application is successful please revert to us at that stage and we will consider extending cover from that date. However, please note that cover would not be retrospective.

We regret that we cannot be of further assistance at the present time, given the apparent prospects of the claim.

That same day I sent the following email to Michael McLaughlin:

Michael,

I must correct you on your cover letter attached to the costs judgment. The statement "As we both expected, an award of expenses has been made.", whilst being correct, this statement does read like we expected costs to be awarded because we knew we were in the wrong. This statement has to be qualified within the context in which we, or certainly I, was expecting costs to be awarded against me. As stated by myself on 11 January 2008 to you after the costs hearing, I expected costs to be awarded against me simply because of the perversity of previous judgments, not for any other reason.

I noticed in your cover letter that you did not mention anything concerning a review, or appealing the costs judgment.

Are you planning to write to the Tribunal asking for a review, or appeal the costs judgment to the EAT. I want this to be reviewed or appealed?

On another topic, I have not received your views on the email I sent to you on 12 February 2008, subject heading "Further altered document".

Can you provide me with your stated position on this document, as the text which has been blanked out on the 1 March 2006 does not fit in with the story of the 'Service Desk' and 'CIM role' making my role redundant as early as January 2006 when the 'Service Desk' and 'CIM role' were introduced. Also, if Phil Snowden did not know about the alleged RIF list in February 2006, then why did this text in March 2006 have to be blanked out at all?

Immediately after sending this email, I received an email from the Court of Session that read:

Mr Kenneth McAlpine

I confirm that the Appeal should be in form 41.20

Should you wish to insist on proceeding with your appeal in its current form you will have to lodge the Principal appeal , Court Process and £120.00 fee as stated in my E-Mail 15/2/08.

You will have to lodge a motion in form 23.2 . The fee for this is £31

Please note that any motion before the Inner House that asks to relief a party from compliance with the rules of court will be starred The motion should be in form 23.2 and a fee of £31.00 is payable.

If a motion is starred then you will require to appear personally or be legally represented at the hearing.

The Division Clerk has confirmed the above position.

I immediately sent the following email reply to the Court of Session:

Alastair,

Thanks for your reply.

I am still extremely unclear as to what form(s) must be lodged for the following reasons:

1: In the email dated 16 January 2008 14:14 it states "form 41.19".

2: In the email dated 15 February 2008 14:00 it states "form 40.2".

3: In the email dated 18 February 2008 11:35 it states "form 41.20".

I am sure you can see where my confusion is coming from, so can I suggest the following:

Someone at the Court of Session reviews and states exactly which forms have to be completed, and sends all relevant forms which have to be lodged, with instructions, to me personally either via email or post, so that the correct forms have been lodged and the correct procedures followed.

As the last date for lodging my appeal is today, this will obviously have to result in an extension of time.

Hopefully this should ensure that everything is correct, and I have not been disadvantaged in any way.

Later that afternoon I received another reply from the Court of Session:

Mr Kenneth McAlpine

I am sorry for the confusion

To clarify

The rules of court that are referred to are 41.2 and 41.20

The form the appeal should take is form 40.2 (Note a schedule of service should be attached and the decisions being appealed against should be attached as an appendix to the appeal)

If you are lodging the appeal late then a motion will have to be lodged in form 23.2 (fee £31.00)

IF THE STATUTE STATES A TIME LIMIT TO LODGE YOUR LEAVE TO APPEAL THEN YOU MUST LODGE IT WITHIN THAT TIME. THE COURT CANNOT EXTEND ANY TIME LIMITS GOVERNED BY STATUTE.

I refer to my E-Mail of 15/2/08 sent 14.00 which states what you should lodge with your appeal

I attach copy of form 40.2 and 23.2 for you info

After reading this email and looking into the relevant laws and statutes, I sent an email reply to the Court of Session that read:

Alastair,

"IF THE STATUTE STATES A TIME LIMIT TO LODGE YOUR LEAVE TO APPEAL THEN YOU MUST LODGE IT WITHIN THAT TIME. THE COURT CANNOT EXTEND ANY TIME LIMITS GOVERNED BY STATUTE."

Does the above statement mean that if the last day to lodge my appeal is today, then I have missed that date, and my leave to appeal cannot be accepted?

The next day I sent an email reply to Michael McLaughlin:

Michael,

Thank you for sending me the latest letter received from my household insurance.

Can you please write my household insurance company a letter from yourself, or if you wish, I can do the letter, outlining that Mr McAlpine has contacted the Financial Ombudsman Service (FOS) who have referred my complaint to Lloyd's of London. This is now between myself, the FOS, and the insurance company, and as such, you have no involvement in this matter.

I immediately received an email reply from Michael McLaughlin that read:

Kenneth,

I think it would be best that you write directly otherwise they will continue to correspond with me.

I then sent an immediate email reply back to Michael that read:

Michael,

Okay, I will do this immediately.

In the meantime, I expect to pay your full bill on the costs hearing within the next seven days.

Later that afternoon, Michael sent me an email reply:

Dear Kenneth,

I am surprised at the interpretation which you have placed on the words in my letter to the effect that we had anticipated an award of expenses would be made against you.

That statement in my letter is a direct reference to your response to my question during our afternoon meeting following upon the hearing. My question was how you thought the hearing had gone and what you thought the outcome would be. You made it clear that you thought an award of expenses would be made but that that award would be entirely unjust. It should be evident to you by now that I think that you have been very harshly and unjustly dealt with particular reference to the Tribunal's substantive judgement. I wouldn't be pursuing any form of appeal on your behalf if I didn't think that was the case.

With regard to the possibility of a review or an appeal of the costs order it would not be appropriate to seek a review rather the only route would be to appeal that decision to the EAT. There is absolutely no prospect of a successful appeal of this decision. Employment Tribunals have a very very wide discretion indeed in relation to costs and expenses awards and the upper courts will only interfere with a decision of an Employment Tribunal on costs if it can be shown to be absolutely perverse. I do not think we have any prospect of characterising with the "latest judgement" as perverse. Two specific matters lead me to that conclusion. One is your valuation or quantification of your claim. It has to be accepted that it was wildly unrealistic. In addition, the other matter which counted very much against us at the expenses hearing was your refusal to accept the offer of paid employment advice particularly in relation to quantification.

In setting out my view that you have no reasonable prospect of success of appealing the costs judgement that is not to say that I think that it is right, fair or just that such an award has been made, however, in the circumstances in which we find ourselves quite simply an appeal has no prospect of success.

As regards your e-mail of 12 February 2008 in respect of further altered documents, I think two issues arise out of your e-mail and the attachments. The first issue is that if you had been placed on the RIF list as early as February 2006 and being on that list made your redundancy inevitable why would Phil Snowdon be writing in his daybook on 1 March words that indicated that you would have an active role to play as late as June. The second issue is that the document has been altered. I think there is merit in both points, however, it is also clear that these matters could have been raised both in submissions and in cross examination at the Employment Tribunal hearing and were not. The Employment Appeals Tribunal will not entertain submissions in relation to factual matters which were not matters which were put before the Employment Tribunal.

As  page 287 was clearly in the bundle which was before the Employment Tribunal it would appear that no particular reference was made to that document either by you or anyone else. The apparent contradiction of your being place on the RIF list on 7 February as compared with Phil Snowdon's daybook as of 1 March was not put to any witness in cross examination and therefore the Employment Tribunal could not make any finding in fact in relation to this apparent contradiction.

The note of appeal which I have drafted seeks to rely on factual matters which were put before the Employment Tribunal but which were apparently ignored or misunderstood by that Tribunal. Accordingly for the purposes of the Rule 3(10) hearing on 29 April, there is no mileage for us in raising these further altered documents with the Employment Appeal Tribunal.

As you are very well aware by now you have 42 days from the date that the costs judgement was sent to me in which to appeal against that decision. The costs judgement was sent to me on 14 February 2008.

I enclose a copy of my letter to Neil Tustin.

The next email that I received that day was from the Court of Session:

Mr Kenneth McAlpine

If there is NO time limit stated in the statute then I calculate the last day for lodging your application by our rules of court would be 20 February 08 .

If the statute does state a time limit then you must comply with that time scale. It is for you to satisfy yourself whether the statute states a time limit or not.

I then sent an email reply to the Court of Session that read:

Alastair,

Thank you for your reply.

I suggest that we end this email trail now, as clearly I will not be able to lodge my signed by hand application via post in time.

I will speak to my MP concerning this matter, with a view to raising my application in the next level of the hierarchy (eg: House of Lords, European Court, etc).

I also sent an email reply to my insurers:

Dear Sir/Madam,

As this claim is now between myself, yourselves and the FOS, and my Solicitor is not involved in this matter, can you direct any correspondence from yourselves to myself.

The last email that I received that day was from Katy Clark MP:

Hi Kenneth

Just a note to let you know I am meeting with Diabetes UK on Thursday to discuss your case.

Will let you know how it goes.

The next afternoon I received the following email from the Court of Session:

Mr Kenneth McAlpine

I agree that you now do not have time to lodge your appeal by post, however as I stated in my E-Mail of 18/2/08 you could enrol a motion to allow the appeal to be received late assuming that there was no statutory time limit.

I have looked at the act and it would be my interpretation is that there is no statutory time limit, however I would suggest that you would check this for yourself.

If you decide to lodge your appeal late then I would suggest that you do this as soon as possible because it is at the discretion of the Judges in the Innerhouse whether to allow late lodging. Your motion in form 30.2 should give a reason for late lodging and a fee of £31 is payable. (Cheques should be made payable to Scottish Court Service)

If you have any questions please do not hesitate to phone me, or I could arrange a 30 minute appointment at the General Department Court of Session to discuss.

Two days later I received the following letter by post from Morgan Lewis:

STRICTLY PRIVATE AND CONFIDENTIAL TO BE OPENED BY ADDRESSEE ONLY

Dear Mr McAlpine

We refer to your letter dated 13 November 2007 and 28 January 2008, and respond to the questions raised in your November letter as follows:-

1. Consultation with employee representatives:-

1.1 We have revisited this issue with our client. We understand that redundancy issues were discussed with Oracle's ECF, during 2006, on the following dates :-

19 January

31 January

13 March

9 May

11 July 2006

1.2 On 19 and 31 January and 13 March, discussions took place concerning proposed redundancies, rationale, the timing, process to be followed (including with regard to selection criteria where applicable), and the severance package.

On 9 May, further discussions took place regarding proposed redundancies. On 11 July, discussions included reporting to the ECF in relation to the redundancies made.

1.3 Please see above

1.4 We understand that the ECF was comfortable with the proposals made and supportive of the severance package offered.

2. Notification to the Secretary of State.

2.1 & 2.2 We are instructed that no forms HR1 relating to the 2006 redundancies were filed at the time.

3. Please see above.

Our client is happy nonetheless to confirm the details which would have been included in the HRls in respect of the 2006 redundancies and we will forward these to you early next week.

My initial reaction to the Morgan Lewis letter was one of confusion. If, buts and maybes spring to mind, and according to the above letter, discussions concerning redundancies continued up to 9 May 2006, but according to the Reduction In Force list 54 of the 121 redundancies had taken place before May 2006. It was also interesting to note that they had not lodged an HR1 form, which is a legal obligation for any organisation making more than 20 employees redundant.

On 25 February 2008 I sent the following email to the Court of Session:

Alastair,

Thanks for the offer of a 30 minute appointment at the General Department of the Court of Session, can I take you up on this offer, if so, please arrange a time between the hours of 11:00 and 15:00, any date, as my diary is pretty free over the next few weeks.

Later that day I sent Michael McLaughlin the following email reply:

Michael,

Thanks for the email below.

I have considered your advice, and the costs judgment, and would comment as follows:

* If I do not appeal the costs judgment, the law system in this country will use 'not appealing' against me, and state that I must have agreed with the decision.

* As I find the judgment to be totally perverse, I obviously do not agree with it.

* On that basis, I will ask the Glasgow ET to review it, and lodge an appeal with the Edinburgh EAT.

* As you do not agree with these actions, I will do this myself.

The reasons why I do not agree with the costs judgment can be summarised as follows:

1: I was 'fined' £3,000 for not taking up the respondents offer of obtaining legal advice.

2: I was 'fined' £700 for the respondent having to pay for independent advice on whether documents had been altered.

With regards to 1, the 'not taking up the respondents offer of obtaining legal advice' is simply ludicrous in a 'civil' system. The whole basis of the Tribunal system was built around the principle that it is a forum where the public can take organisations to task regarding wrongs. I had/have every right to represent myself, as many, many people do in the Tribunal system on a daily basis. I do not need to accept any legal advice in a 'civil' system. The remedy in any discrimination claim is unlimited, and my high figure is not as high as some notable claims that have went in front of the Tribunal system.

I will leave this topic with one question, if the respondent was paying for a Solicitor to provide legal advice, who's best interests is the Solicitor representing?

With regards to 2, myself and my two witnesses did not pay £700 to determine that documents had been altered, either documents have been altered or they have not, it is a black and white issue, which would be apparent immediately, and certainly does not require a third party, who charge £700 to determine.

In summary, the Glasgow ET have now set ludicrous examples within the 'civil' legal system in this country, namely:

1: Any party representing themselves in the 'civil' legal system faces costs in £ 000's for not obtaining legal advice, tantamount to a monopoly.

2: It now pays for any party to alter, amend or remove evidence.

I quickly received an email reply from Michael that stated:

Kenneth,

Your position is noted.

There is no point seeking a review. A review is not competent on this point. Your only avenue is appeal.

The last email I received that day was from Katy Clark MP:

Hi Kenneth

Just a note to let you know I met with Diabetes UK on Thursday. They would like a copy of the original ET1 and ET3 and the Employment Tribunal decision if possible.

Could you let Valerie in my office have them?

Two days later I received a letter from Lloyds by post that read:

INSURANCE AT LLOYD'S - CASE NO: 260/2008

Thank you for returning your recent correspondence dated 19 February.

I see from our file Equity wrote to you on 19 February (copy attached) and it seems that your form may have crossed with the response to your complaint. In any event, Equity's letter explained their involvement and have asked for the papers for their consideration.

In the circumstances, it would appear prudent to allow underwriters to complete their enquiries into your complaint in order that they may give the matter proper and detailed consideration. If once having received a response to your complaint, you should remain dissatisfied, I would ask that you return the enclosed feedback form indicating on it the outstanding issues from your perspective.

Later that morning I emailed the Employment Tribunal:

Dear Sir/Madam,

Please find attached documents requesting a review of the costs judgment held at the Glasgow Employment Tribunal on 11 January 2008 regarding Case Number S/116267/06.

Attached document read:

"JUDGMENT OF THE EMPLOYMENT TRIBUNAL" Date of Judgment: 13 February 2008

Dear Sir/Madam,

The Claimant is writing to request that the Tribunal review the "JUDGMENT OF THE EMPLOYMENT TRIBUNAL" in Case Number 116267/2006, issued after the Costs Hearing held in Glasgow on 11 January 2008, according to The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Rule 34(3)(e) and consider the following points:

1. In the 'civil' legal system that the Glasgow Tribunal operates in, a Claimant has every right to represent themselves, as this was the underlying principle why the 'civil' legal system, particularly Employment Tribunals, was set up in the first place.

2. The Claimant represented himself throughout this claim, as was his right.

3. The Respondent offered to pay for legal advice for the Claimant to be represented during mediation.

Who, in their right mind, would ever refuse something for free?

Incidentally, whose interests would be best served by legal advice given to the Claimant, but paid for by the Respondent?

4. The Claimant quite rightly declined the offer of legal advice paid for by the Respondent, as the Claimant's interests would not be best served by this 'advice'.

5. The Claimant, in the document referred to in the judgment dated 13 February 2008 as R14 stated the following:

"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."

6. The Claimant had clearly stated "but as a further gesture of goodwill, will consider any settlement offer made before the full tribunal."

7. This clearly left the door well and truly open for the Respondent to settle before the Tribunal. They did not do so.

8. It is simply perverse to award £ 3,000 to the Respondent for the Claimant refusing to accept legal advice paid for by the Respondent. Even if the Claimant had accepted this offer of legal advice, the Claimant would not have been under any obligation to listen to this advice, especially when the Respondent had ample opportunity to send further offers of settlement, but did not do so, so would not have agreed to settle for any more than £28,000, as proven by there last offer?

9. I will now tackle the ludicrous perversity of the £ 700 cost award to the Respondent.

10. A document is altered, amended or removed, or it is not. It is a yes or no issue, and if a document is altered, amended or removed, it is done so with deliberation. This is not open to interpretation.

11. So, why has this Tribunal ruled that the Claimant has to pay costs of £ 700 to the Respondent, for the Respondent to determine that documents had been altered, amended or removed, when this is clearly evident to the Claimant, Claimant's witnesses, and the Tribunal?

12. Were these altered documents not clearly evident to the Respondent?

13. I have included a full email attachment from the Respondent regarding this matter, which clearly shows that the Respondent was in possession of the original documents, particularly the attached, scanned document 'prov_red1.jpg', which is signed, but yet produced the document in the joint bundle at  page 452.

14. This totally and utterly disproves the whole rant in the costs judgment concerning altered documents.

15. I have included in  Appendix 1, a document that was contained in the joint bundle of documents used at the full tribunal, and the original document, Appendix 2, which was sent to the Claimant, by the Respondent, months before the full tribunal. The whited out section, even although it was the respondent's evidence, and not the Claimant's evidence, was very important to this claim, as it is from Phil Snowden's daybook (1st March 2006), and states "After June go-live, production and bug issues, get through go-live then review position".

Why was Philip Snowden writing this in his daybook on 1st March 2006, if Philip Snowden knew in January 2006 that the Service Desk and CIM role was going to make the Claimant redundant?

The reason why it was whited out was that it didn't fit with the Respondent's 'story'.

Another altered document.

In summary, I would ask that this Tribunal review the costs award against the Claimant in this claim, as this Tribunal has not just unanimously judged that disability equates to prolonged sickness absence in the future, and it is acceptable for employers to state disability equates to prolonged sickness absence in the future when dismissing the disabled employee for that reason, but that the disabled employee must now pay for that 'privilege'.

Chapter 12

After emailing the Employment Tribunal a document requesting a review of the costs judgment, I received the following email reply on 27 February 2008:

Your email has been received at the Glasgow Employment Tribunal Office and is receiving attention

Later that morning I emailed Katy Clark MP regarding her email stating that she had met with Diabetes UK who required seeing some more documents:

Katy,

Thanks for this.

I have handed in the following documents to your office yesterday, ET1, ET3, Judgment and my closing submission. Valerie should have received them this morning, as she was on a training course yesterday.

Have you had a chance to contact the EHRC or the Disability Minister as discussed at our last meeting?

Two days later I sent the following email to Michael McLaughlin that read:

Michael,

Regarding your statement in the email below "I enclose a copy of my letter to Neil Tustin.", can you email a copy of this letter to:

Roy Conlan at info@equalityhumanrights.com

and quote Ref: 1609531, as this person at the Equality and Human Rights commission has asked for an electronic copy for their computer system.

When you send this, can you cc me on the email so that I can chase them up at their end when it is sent.

I quickly received a short email reply from Michael that stated, "I will do that".

On 3 March 2008 I received by post a letter from the Employment Tribunal that read:

Dear Sir

I refer to your application for a review of the above case. I have to advise you that the Chairman (Ms MacLean) has refused to grant a review.

The review request is refused because it has no reasonable prospect of success. The issues raised were issues before the Employment Tribunal and considered by them at the expenses hearing.

A copy of your request and this information has been sent to the respondent's solicitor.

The next day I sent a letter and completed complaint form by post to the Information Commissioners Office:

Dear Sir or Madam,

Please find enclosed a complaint form, which I have completed, and accept it as a complaint against Oracle Corporation UK Ltd. and their legal representatives, Morgan Lewis.

The basis for the complaint is that I initially asked Oracle, my former employer, to provide information and data relating to my dismissal in order to substantiate the late 'evidence' that was introduced to their submissions fourteen days prior to the commencement of the Employment Tribunal on the 2 July 2007 as I am in the process of making an appeal to the Employment Appeals Tribunal. This is a complex case and I have no wish to over-complicate this complaint to you, therefore, I will simply inform you that my request was not fully complied with and important information has not been received. You may ask why I do not approach the Employment Appeals Tribunal and ask them to oblige Oracle and Morgan Lewis to provide this information but, as you may be aware, appeals can only go forward based on points of law and new evidence can only be introduced if it has a substantial bearing on the appeals process. Further to that, my appeal has still to progress beyond a sift process. I also believe that I am still well within the year requirement, as applies to the timing of my complaint, and that your Office can investigate it.

The enclosures, which accompany the complaint form, are set out in an order, and with explanations, that will enable you to understand the nature of the complaint and the importance of providing proper information as it relates to the particular circumstances of an Employment Tribunal case. The documents of the enclosures are numbered in the following order:-

1. My letter of request to Oracle composed on 12.11.07, which specified the information and data that I required.

2. My e-mail of 13 November 2007, to which I had attached letter of 12.11.07, and their reply from a Nick Foster who forwarded it all on to Morgan Lewis.

3. This is a small part of the Written Judgment where the relevant focus is on page 24  paragraph 114, page 31  paragraph 154 and page 33  paragraph 161.

4. The letter of reply from Morgan Lewis, dated 12 December 2007, which demonstrates a reluctance to provide the information requested.

5. My letter dated 28.01.08 was sent to Morgan Lewis after careful consideration and further investigation on my part. [ In this letter the Ms Crone referred to was the Chairperson at the Employment Tribunal and the Ms Temple referred to is Catherine Temple, the HR Senior Manager at Oracle UK, who was a key witness for the Respondent. ]

6. This is a copy of the two-page HR1 Form that employers are required to complete and send to the Redundancy Payments Office in a collective redundancy situation.

7. The Morgan Lewis reply dated 22 February 2008 reveals that they did not send an HR1 form but that they would forward on the details, which would have been included in the HR1 Form, early next week. These details have not yet been sent and I feel that I have given Oracle and Morgan Lewis more than enough time to comply with this request for information.

8. This is a copy of part of a Reduction in Force (  RIF ) list compiled in February 2006 following the acquisition by Oracle of Siebel and is part of the organisational changes brought in as a result of that acquisition. The EMEA in Oracle EMEA stands for Europe, Middle East and Africa and it is important to take this into consideration as a large majority of the countries in this part of the list are countries outwith the UK.

9. There are three  e-mails in this 17 May 2006 trail, which imply that I was the only name left on the UK RIF list. I was informed of my potential redundancy on 30 May 2006.

10. These two e-mails dated 12 and 13 April are crucial examples of the ongoing discussions, unknown to me, which followed on from my discussion with my immediate Manager, Phil Snowden, in December 2005 when I put in my request for reasonable adjustments to be made to my work on the two largest accounts within the OnDemand group. I had been suffering from stress, which was affecting my type 1 diabetic control, and this request went on from there to be used against me by my immediate manager, his superiors and by HR. It should be noted that I did not take time off during the period from December 2005 and 30 May 2006 and had an excellent attendance record with the company.

My belief is that I was selected for redundancy on a stereotypical assumption about my diabetes disability, that it was a one-off redundancy in my Line of Business and there was no need to submit an HR1 Form, that the 121 redundancies (if that is a correct figure) were from elsewhere in EMEA, that there were no consultations with the Employee Consultative Forum (ECF) in the UK and that is the reason there is a reluctance to provide information to go along with the dates (if they are ECF dates) and decisions of ECF meetings.

I trust that I have not overburdened you with details, which I have provided to give you an understanding of a fairly complex case, and that my complaint can be summarised as follows:-

* I have not received the important information from the HR1 Form, information that the ECF would have been required to be given for their deliberations.

* I have not received the information on the conclusions of the ECF deliberations, particularly on the selection criteria used as there were five new oSDMs started after my employment termination.

* The information I did receive was vague, undocumented and the timing of the dates of the ECF meetings did not match the requirements of consultative redundancy legislation.

I am happy to co-operate with you in any enquiries that you have to make, I will send on any further information I do receive and I thank you for taking the time to consider my complaint.

Relevant parts of the attached data protection complaint form read:

6. Details of the problem.

A failure to provide information to substantiate the late evidence used in defence of my claim of unfair dismissal and disability discrimination, heard at the Employment Tribunal Hearing in Glasgow on the dates of 2, 3, and 4 July and 6 August 2007. Such information is required as a part of the appeal to the Employment Appeals Tribunal.

I began my employment with Oracle Corporation UK Ltd. in 1998 and worked in various roles until July 2004 when I secured the role of OnDemand Service Delivery Manager (oSDM), working in a team of oSDMs, and this was the role that I was in at the time of the termination of my employment. During all of my employment years with Oracle I worked from home, although I was required to attend meetings in the UK and in other countries. The basic facts of my claim were that I was informed of my potential redundancy on 30 May 2006 at a meeting I was called to attend in the Edinburgh Office, this came as a complete surprise to me as it was given to me by a Manager who was unrelated to my line of work, I was given a vague reason as to why I was being made redundant and a termination date of 28 June 2006 was given, although this was extended to 10 July 2006 because I was suffering from an illness related to my diabetes disability. During the short consultation period I also asked the question "Within my role and group, how many employees were provisionally selected for redundancy?" and the answer given by Catherine Temple, HR Senior Manager, was "We do not share this information with individual employees. (Please note the reasons and criteria for selection were validated with the UK Employee Consultation Forum)". I was only informed that my redundancy was one of a 121 collective redundancy 14 days prior to the start of the Tribunal Hearing, when I received the Witness Statement of Catherine Temple, and when most of my preparations to represent myself had been made.

I also sent ten documents that related to this complaint.

That day I received a letter from Morgan Lewis sent by post:

STRICTLY PRIVATE AND CONFIDENTIAL TO BE OPENED BY ADDRESSES ONLY

Dear Mr McAlpine

We refer to our letter of 22 February 2008 and apologise for the short delay in sending you the below details of the redundancy dismissals which we understand were made by our client within Oracle Corporation UK Ltd over summer and autumn 2006, and which would be included in an HR1.

1. Employer's details

Oracle Corporation UK Limited,

Oracle Parkway,

Thames Valley Park,

Reading,

Berkshire RG6 IRA

Telephone: 01189 240000

2. Employer's contact

Name: Nick Foster

3. Establishment where redundancies proposed

Address at 1 and various offices across the UK and home workers.

4. Nature of main business

Computer software

5. Reasons for redundancies

Changes in work methods or organisation

6. Staff Numbers/redundancies at this establishment

Occupation/Group, Number of employees, No of possible redundancies

Manual, 0, <blank>

Clerical, 200, <blank>

Professional, 800, 55

Managerial/Technical, 2400, 40

Other, <blank>, <blank>

Totals, 3400, 95

7. Closure of establishment

Do you propose to close the establishment?

No

8. Timing of redundancies

Date of first proposed redundancy 25 April 2006

Date of last proposed redundancy 29 September 2006

9. Method of selection for redundancy

Please give brief details of how you will choose the employees to be made redundant

Selection criteria (used where appropriate) related to skill-set, competency and performance as consulted with employee representatives.

10. Consultation

(a) Are any of the groups of employees who may be made redundant represented by a recognised trade union?

No

Recognised Trade Unions:

N/A

(b) Have you consulted any of the trade unions listed above?

N/A

(c) Have you consulted elected representatives of the employees?

Yes

(d) Have you given a copy of this form to the trade union representatives and/or elected representatives?

Late filed form

(e) Date consultation started:

13 March 2006.

Later that day I sent an email to Michael McLaughlin stating that I had not received any email that I should have been copied on that Michael was due to send to the Equality and Human Rights Commission.

Regarding the letter that I had just received from Morgan Lewis, I discussed this letter with my parents and we noted the following:

* The words "and which would be included in an HR1" were used instead of "and which were included in an HR1", so no HR1 was lodged.

* The words "No of possible redundancies" were used instead of "actual redundancies", did any of these redundancies take place.

* The words "proposed redundancy" were used instead of "actual redundancy" twice for the first and last dates, again, did any redundancies take place on these dates.

* The total number of redundancies stated in the letter were 95, however Human Resources stated 121 and the redacted full Reduction In Force list in front of the Tribunal showed 149.

* The date of first proposed redundancy was 25 April 2006, but the redacted full Reduction In Force list in front of the Tribunal showed that the 'Actual Termination Date' of 53 employees had happened before 25 April 2006.

* The date when consultation started was "13 March 2006" in this letter, but the redacted full Reduction In Force list in front of the Tribunal showed that 3 employees had been made redundant before 13 March 2006.

But my utter disgust lay firmly with the Tribunal who had dismissed all my claims and even awarded costs against me based on the evidence that my surname and employee identification had been handwritten in pen when all other information spanning some twelve pages of this Reduction In Force spreadsheet was typed. Why was my surname and employee identification not typed like all the other one hundred and forty-eight employees in the Reduction In Force spreadsheet list?

I also received an automated email reply from Michael McLaughlin that read:

I am currently out of the office. If you require assistance in my absence please contact my colleague Ingrid O'Neill.

Three days later I received the following email from Michael's colleague Ingrid O'Neill:

Dear Kenneth,

Michael is currently on paternity leave and I will be dealing with matters in his absence.

I have received a letter from Morgan Lewis offering a form of settlement. Essentially, Oracle Corporation will not enforce the cost award of £3700 against you if you agree to withdraw all current, and any future, claims (including appeals) you may have against them. If you were to agree, this would be a full and final settlement of all applications, pending appeals and complaints whatsoever.

I have attached a scanned copy of the letter for your consideration, and would be grateful if you could confirm your instructions as to whether this is something you are willing to agree to.

I look forward to hearing from you in due course.

Attached document read:

Dear Sirs

Your client: Mr K R McAlpine

Our client: Oracle Corporation UK Limited.

We refer to the Tribunal's decision in respect of our client's costs application against Mr McAlpine. As you know that costs application was successful and the sum of £3700 was awarded to our client from Mr McAlpine.

Notwithstanding this award, our client is prepared to make the following offer of settlement to yours:

1. That your client:

(a) within 7 days of execution of a binding settlement between the parties withdraws all pending appeals and all other applications or complaints of whatsoever nature against our client (including any application to the Tribunal for a review of its costs award and/or any appeal and/or complaint of whatsoever nature in respect of such award, and including also any application and/or appeal and/or complaint of whatsoever nature in respect of the Tribunal's judgments in Mr McAlpine's claims made on 13 March 2007 (and Entered in the Register and copied to the parties on 15 March 2007) and/or on 6 September 2007 (and Entered in the Register and copied to the parties on 13 September 2007 and

(b) accepts in full and final settlement of all such applications, pending appeals and complaints of whatsoever nature; and

2. That your client shall not bring any further proceedings or complaints of whatsoever nature in relation to, arising out of or connected in any way with his employment with our client and/or its termination and accepts in full and final settlement of all such further proceedings and complaints of whatsoever nature; and

3. That your client enters into such confidentiality, non disparagement and non repetition of allegations obligations as our client may reasonably require; and

4. Our client will then not enforce the costs award made against yours; and

5. Any such settlement shall be incorporated into a compromise agreement if we consider it necessary to do so in order to ensure that the settlement is final and binding.

This settlement offer is open for acceptance for 14 days from the date of this letter, and any resulting settlement agreement must have been executed and become fully binding within 7 days thereafter.

We look forward to hearing from you.

I considered this email and attached letter for the length of time it took me to write and send an email reply to Ingrid O'Neill that read:

Ingrid,

I am frankly astonished that the respondent, when they are winning absolutely everything, including costs of £3700, feels it necessary to make a settlement offer?

This claim has gone too far for any settlement to now be reached, it is now simply a win or lose claim.

At this moment I have lost, but Michael is trying to overturn these decisions and win.

The time for any settlement was before the Tribunal, and the respondent chose not to explore further settlement offers. I now have been discriminated against, and this has not been found, so in essence have an unfounded Tribunal claim awarded against me, which has incurred costs against me, and a Tribunal judgment which states that I was "not a credible witness".

I have to get all overturned, and a settlement will not overturn these.

Please let the respondent know that I will not be entertaining any form of settlement, as stated previously, it is now simply a case of win or lose.

Please also let the respondent know that they should enforce the cost award of £3700.

I quickly received the following automated email reply from Ingrid O'Neill:

Thank you for your email. I am currently out of office, Friday 7 March, and shall return Monday 10 March. If your query is urgent, please contact my secretary Fiona McCallum on 0141 228 8000 and she will direct your query to another member of the Employment Team. Otherwise I shall deal on my return.

Your message has not been forwarded.

I was also concerned that Michael was now on paternity leave and that no one had sent the email to the Equality and Human Rights commission, so I sent an email to Ingrid O'Neill and Michael's Secretary:

Ingrid/Lesley,

I sent this email to Michael below, but notice that he is off on paternity leave, can someone send a copy of Michael's letter to Neil Tustin via email, and cc me on the email, as Neil is waiting on this email.

I never received a reply, so that evening I decided to look out and send the following email and document to the Equality and Human Rights commission:

For the Attention of Roy Conlan:-

Your Ref 1609531

Please find attached the missing email (below) and attached document of Appeal outlined in the email subject "07-03-08 - (45539.1) COSTS, AWARDS AND OTHER ISSUES".

The attached document was the Employment Appeals Tribunal appeal that Michael McLaughlin had lodged for the main discrimination appeal.

On 10 March 2008 I received the following letter from Biggart Bailli:

Dear Sir/Madam

Monthly Statement - Invoices over 30 days old

I attach your monthly statement showing those invoices over 30 days old as at 10 March 2008 and which are now due for payment to this firm.

If you disagree in any way with the balance shown as owed by you or if you have any queries in relation to this statement please contact me.

If you have settled any of the items on the statement within the last 7 days then please disregard the item from the statement.

We look forward to receiving payment of all sums due.

The attached is a statement and not a valid VAT invoice.

Statement as at: 10-Mar-2008

Debtor Ref: 45539

Mr Kenneth McAlpine

Invoice Date,BB Ref, Invoice No., Matter, Amount Due

31-Jan-2008, MJM, 305508, Expenses Hearing, 3,055.00

Total Outstanding: 3,055.00

Current, 31-60 days, 61-90 days, Over 3 months, Over 6 months, Over 12 months

0.00, 3055.00, 0.00, 0.00, 0.00, 0.00

All invoices over 30 days old are now due for payment

I immediately phone Biggart Bailli, as I had paid the full amount of this bill some two weeks ago, and the person from Accounts confirmed that it had been paid in full.

That morning I also received a letter from Lloyds that read:

Dear Mr McAlpine

Insurance at Lloyd's - Case Number: 260/2008

I refer to your complaint to Lloyd's and am writing to advise you that I will be responsible for conducting an investigation into the matter. I will consider carefully all of the available information taking into account general legal principles, good insurance practice and whether all of the circumstances involved have been considered fairly. I will contact you in the event that I need further information or clarification on certain issues.

As soon as my investigation has been completed, I will write to you setting out my conclusions in a "Final Response", but in the meantime, I will keep you informed on the progress of my enquiries.

Sixteen days passed before I sent the following email to the Employment Appeals Tribunal:

Dear Sir/Madam,

Employment Tribunal Case Number: 116267/2006

Mr K R McAlpine v Oracle Corporation UK Limited

Please find attached an appeal against the costs hearing held at Glasgow Employment Tribunal on 11 January 2008.

Attached appeal read:

Notice of Appeal from Decision of Employment Tribunal

3. The appellant appeals from (here give particulars of the judgment, decision or order of the employment tribunal from which the appeal is brought including the location of the employment tribunal and the date).

JUDGMENT OF THE EMPLOYMENT TRIBUNAL

The  Judgment of the Tribunal was to grant the respondent's motion for expenses and to order the claimant to pay to the respondent the sum of £3,700 (Three Thousand, Seven Hundred Pounds).

Date: 13 February 2008

Location: Glasgow Employment Tribunal

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?

Later that same day I emailed Katy Clark MP:

Dear Katy,

It has been one month since I last received any news regarding Diabetes UK and my disability discrimination claim. I have not received any correspondence from anyone regarding this matter.

Has there been any news, or any update regarding this matter?

I quickly received an automated email reply that read:

Thank you for getting in touch. I receive a large number of emails every day along with letters, faxes and phone calls. In order to ensure your email is responded to as quickly as possible please make sure you have provided your full address and postcode . Please also note that in order to comply with a strict Parliamentary protocol I am only able to take up cases on behalf of constituents who live in North Ayrshire and Arran.

If you need urgent assistance you may wish to redirect your email to my caseworker Valerie Reid at reidv@parliament.uk or by phoning my constituency office on 01505 684127 providing your full postal address in order to receive the quickest response possible.

Should you wish an appointment or to meet me at one of my regular advice surgeries or have a diary related matter please contact my secretary Trish Wallace on wallacep@parliament.uk or by phoning 01505 684127. Please note that my drop in surgery times are advertised on my website www.katyclarkmp.org.uk

Around twelve minutes later I received the following email reply from Katy Clark MP:

Hi Kenneth

I am Westminster so don't have the file here, but understand that Valerie in my constituency office forwarded the further information to Diabetes UK some time ago.

Valerie - could you chase up Diabetes UK for a response?

I also received an email from the Employment Appeals Tribunal that read:

Dear Sir,

Your documents have been received and printed off. Thank you.

The next day I sent an email to the Information Commissioners Office:

Dear Sir/Madam,

I sent a Data Protection Act 1998 Complaint Form to the Information Commissioner's Office (Wycliffe House address) in early March 2008, but I have not received any correspondence.

Can you confirm that this complaint form was received?

If this complaint form has been received, can you provide me with a reference number?

On 31 March 2008 I had not received many replies to the emails I had sent out over the previous few weeks, so I emailed Katy Clark MP for an update:

Valerie,

Can you provide me with any update on my file, since the start of March 2008.

I also emailed the Information Commissioner's Office for an update:

Dear Sir/Madam,

I have not received a reply to my email below, can you provide me with an update.

Later that afternoon I received a reply from Katy Clark MP:

Hi Kenneth

I am awaiting an update today from Donna Castle at Diabetes UK. As soon as I hear from her I will be back in touch with you.

Two days passed and it was now 2 April 2008 when I emailed Katy Clark MP again:

Valerie,

Any update from Diabetes UK yet?

I quickly received an email reply from Katy Clark MP that read:

Hi Kenneth

I have left messages for Donna Castle every day this week, I will try her again today. Sorry I am having no response from them

Twelve days passed before I received a letter by post from the Information Commissioner's Office:

Dear Mr McAlpine

Thank you for your correspondence dated 4th March 2008, regarding Oracle Corporation UK Ltd.

Please accept my apologies for the delay in acknowledging you, our office is currently dealing with large volumes of work. This has meant that we have been unable to deal with incoming correspondence as promptly as we would like.

The matters you have raised will be assigned to one of our casework teams before being allocated to a case officer who will respond in line with our current service standards, copy enclosed.

Should you wish to contact us about this matter please quote the above case reference number. Failure to do so may delay the processing of your request.

That morning I also received a letter by post from Lloyds:

Dear Mr McAlpine

I write further to our previous correspondence.

My enquiries into this matter are continuing. There are a number of issues under consideration but I hope to have some further news for you shortly.

I am obliged to inform you, at this stage, that you have the right to refer your complaint to the Financial Ombudsman Service. I enclose a leaflet for your information. I hope, however, that you will await the outcome of my investigation before taking any further action. In the meantime, please do not hesitate to contact me should you have any questions.

On 21 April 2008 I sent the following email to the Information Commissioner's Office, and attached the Morgan Lewis letter to my parents and my notes regarding 'proposed redundancies' and the different figures given for the alleged redundancies:

Dear Sir/Madam,

Thank you for your letter dated 14th April 2008, enclosing the above case reference number and the ICO Service Standards information.

With regard to my letter of 4th March 2008 and, in particular, to the last sentence of that letter when I stated that I would send on any further information received by me, I now do so.

The next day I sent an email to my parents regarding the respondent's witness statements, when these were written and received:

Please see table below for ordered Morgan Lewis document references.

This gives an idea of dates when witness statements were written, and in the sequence they were written.

Don't know if there is anything untoward here, apart from some witness statements arriving a day late, and others I didn't get to a few days later.

Document, Doc Reference, Actual Date, Estimated Date

Letter, 1-LO/292963.1, 23-May-07, <blank>

Indices, 1-LO/293171.1, 4-Jun-07, <blank>

Witness Statement of Philip Snowden,  1-LO/293453.1, <blank>, 7-Jun-07

Witness Statement of Nicholas Cooper,  1-LO/293465.1, <blank>, 7-Jun-07

Letter, 1-LO/293635.1, 11-Jun-07, <blank>

Witness Statement of Fiona Vickers,  1-LO/293709.1, <blank>, 12-Jun-07

Letter, 1-LO/293826.1, 13-Jun-07, <blank>

Witness Statement of Simone Harch,  1-LO/294134.1, <blank>, 15-Jun-07

Witness Statement of Catherine Temple,  1-LO/294221.1, <blank>, 18-Jun-07

Letter, 1-LO/294270.1, 18-Jun-07, <blank>

Witness Statement of Malcolm Thompson,  1-LO/294446.1, <blank>, 20-Jun-07

Witness Statement of William Gemmell,  1-LO/294521.1, <blank>, 21-Jun-07

Witness Statement of Sue Scates,  1-LO/294546.1, <blank>, 21-Jun-07

Letter, 1-LO/294843.1, 25-Jun-07, <blank>

We all know what happened:

Philip Snowdens witness statement written first, every other witness statement follows on from Philip Snowdens.

I wonder why I didn't get the four witness statements prepared before the 18 June 2007, on the 18 June 2007?

Chapter 13

In the run up to the main disability discrimination appeal to be heard at a Rule 3(10) hearing in front of a judge alone at the Employment Appeals Tribunal later this month, I sent Michael McLaughlin the following email reply on 22 April 2008:

Michael,

Firstly, congratulations on becoming a father.

Can you notify me of the time of the Rule 3(10) Hearing at the Edinburgh EAT on 29 April 2008?

On the 10 January 2008 you stated in an email:

"One issue that you raised was whether or not I should incorporate further submissions in our revised Note of Appeal relative to Phil Snowdon's email of 12 April 2006. In particular, you assert that that email of itself, entirely unrelated to any other event before or after and in particular the selection for redundancy, constitutes an act of direct discrimination. The point that I understand you to make is that even if you treat that email in complete and utter isolation, it constitutes direct discrimination. I will therefore give my view as to whether or not I agree without reference to anything that happened before or after that email. If I am wrong in these assumptions, you will doubtless correct me.

As you are well aware, an act of direct discrimination requires two separate elements which are as follows:-

(a) Less favourable treatment;

(b) As a result of the existence of a disability.

What I am struggling to see is in what way the email of itself represents less favourable treatment. If I am understanding you correctly, you perceive the mere fact that stereotypical assumptions have been made about your disability is sufficient to constitute direct discrimination. Perhaps that understanding has been influenced by the examples given. It is not enough that stereotypical assumptions have been made, the employer must have taken some form of action or less favourable treatment as a result of those stereotypical assumptions. In the example which you quote in your note, an employer refuses to make a job offer to an applicant because that job applicant has schizophrenia. This refusal is based on stereotypical assumptions about the effects of the condition. The less favourable treatment here is the failure to make a job offer NOT the stereotypical assumptions. Stereotypical assumptions without some form of action on the basis of those assumptions cannot constitute less favourable treatment.

On the basis of the foregoing, I do not accept the analysis which you place on Phil Snowdon's email of 12 April 2006. It may offend the law and breach the Disability Discrimination Act in a number of other respects linked to other events however, it does not in itself constitute an act of direct discrimination and accordingly, I do not intend to amend the Note of Appeal to incorporate any submissions to that effect."

You have stated above "offend the law and breach the Disability Discrimination Act in a number of other respects linked to other events", what do you mean by "other events"?

I would ask you to reconsider this, for the following reason:

The stereotypical assumption, disability equals more time off sick, alone, constitutes the less favourable treatment.

The stereotypical assumption is not based on fact, in my case I only had 2 days sick leave in the previous 15 months, way below the average 11 days sick leave for the 'average' UK employee. So it was not based on any fact, ie: an assumption, and no-one can predict the future.

A stereotypical assumption alone constitutes direct discrimination, as Phil Snowden could have used this same stereotypical assumption to dismiss me, or not hire me, or not promote me, etc. It is circumstance independent.

If you still do not believe me, then consider the following:

http://www.iambeingfired.co.uk/sex.html

If an applicant for a job who happens to be a woman applies for it and is refused on that basis, this would be Sex Discrimination. The person who discriminates does not have to intend to discriminate, they can still discriminate without the intention. What this means is that because a certain person may have a hidden prejudice or there may be a hidden prejudice against one sex to do a particular job or to a job in a particular way, then if someone makes such a stereotypical assumption, that in itself can amount to less favourable treatment on the grounds of sex.

https://www.rjw.co.uk/news-events/directnews/woman-wins-compensation-in-age-discrimination-case_257

Springwell Engineering was accused during the hearing of relying on a "stereotypical assumption that capability equals experience and experience equals older age," with the tribunal adding "age was the predominant reason for the decision to dismiss".

http://83.137.212.42/sitearchive/DRC/employers_and_service_provider/employment/a_practical_guide_to_the_law_a/section_321_health_and_safety.html

An employer has a policy of not employing anyone with diabetes because it believes that people with this condition are a health and safety risk. Someone with diabetes applies for a job and is turned down on the basis of her condition, without regard to her personal circumstances. A stereotypical assumption has been made which is likely to amount to direct discrimination and be unlawful.

I will be utterly astounded if you do not spend a reasonable time at the Rule 3(10) Hearing hammering the point that a stereotypical assumption was made not based on facts.

I also want you to hammer the following to show that the stereotypical assumption resulted in the claimant's redundancy:

Note: It is irrelevant whether the claimant was, or wasn't, on any RIF list before or after this date, if there ever was a RIF list.

Was Mr Malcolm Thompson arguing for the claimant to be given another account in his email dated 11 April 2006 (Page 414)?

Yes.

Did Mr Phil Snowden raise the claimant's disability as a stereotypical assumption stating that the claimant's disability would cause future prolonged period of time off due to illness in his email dated 12 April 2006 (Page 418)?

Yes.

Was Ms Catherine Temple influenced by the use of the claimant's disability as a stereotypical assumption stating that the claimant's disability would cause him to go offsick again, and didn't even bother to check the claimant's attendance record, in her email dated 13 April 2006 (Page 423)?

Yes.

Did this result in the claimant's redundancy being actioned (Page 423)?

Yes.

The factual evidence speaks for itself.

This whole claim is contained in these three pages, you need nothing more.

Please remember, can you notify me of the time of the Rule 3(10) Hearing at the Edinburgh EAT on 29 April 2008?

The next morning I sent Katy Clark MP an email:

Valerie,

As Katy met with Diabetes UK in February 2008, it has now been 2 months since any further contact from Diabetes UK.

As I intimated to Katy at our meeting in February 2008, I require an Advocate or Barrister to be in place for 29 April 2008. Time is fast running out.

Can you contact Katy and inform her that you have heard nothing from Diabetes UK, and not through your lack of trying, and also whether Katy has raised this matter of discrimination with the Disability Minister, and has there been any progress on some form of Government inquiry or investigation.

Just to update Katy, the reasonable adjustments appeal has now skipped the Court of Session due to two administrative errors which resulted in my appeal being lodged at the Court of Session in the wrong Form which was sent to me by the Court of Session. The Court of Session stated in an email that they wanted a meeting with myself, and I sent a reply stating I would like to meet with them, but I have heard nothing.

The next stage is the European Court, and I plan to fill out my application form within the next month.

Later that afternoon Michael McLaughlin sent me an email to enquire:

Kenneth,

Would you refresh my memory about why and when the ET decided that (a) the Respondent's evidence could be given by witness statement. The statements were taken as read.

Shortly after I sent the following email reply to Michael McLaughlin:

Michael,

From what I can gather, the first mention was at the CMD on 20 October 2006,  Page 176, point (6):

"The claimant will not prepare a witness statement. The respondent's witness will prepare witness statements, and these will be disclosed to the claimant 14 days prior to the Hearing."

Very quickly I received the following email reply from Michael McLaughlin:

I thought Lucy Crone disallowed them and then changed her mind on the second or third day and said that evidence in chief would be by way of witness statement

I immediately replied via email:

Michael,

No, it was always the case that the respondent would prepare witness statements.

Maybe you are thinking about what Lucy Crone said on the final day (third day of three day tribunal) that the tribunal would take the witness statements as read as time was running out for the respondent witnesses to read out their witness statements. The first respondent witness did not take the witness stand until around early afternoon on the third day.

Michael immediately sent me the following email reply:

Kenneth,

Did the Respondent's witnesses who had not yet given evidence sit through the evidence of others or did they wait in the waiting room until it was there turn?

I replied via email:

Michael,

The respondent's witnesses sat in the respondent's waiting room until they had given evidence. After giving evidence they sat in the Tribunal.

I then sent two emails to Michael McLaughlin, the first email read:

Michael,

Regarding witnesses and statements, I don't know if you will find this useful, but it clearly shows, using Morgan Lewis document reference numbers, what witness statements were prepared in what order, and reasonably accurate dates. All witness statements had to be exchanged 14 days before the tribunal, ie: 18 June 2007 at the latest:

Document, Doc Reference, Actual Date, Estimated Date

Letter, 1-LO/292963.1, 23-May-07, <blank>

Indices, 1-LO/293171.1, 4-Jun-07, <blank>

Witness Statement of Philip Snowden, 1-LO/293453.1, <blank>, 7-Jun-07

Witness Statement of Nicholas Cooper, 1-LO/293465.1, <blank>, 7-Jun-07

Letter, 1-LO/293635.1, 11-Jun-07, <blank>

Witness Statement of Fiona Vickers, 1-LO/293709.1, <blank>, 12-Jun-07

Letter, 1-LO/293826.1, 13-Jun-07, <blank>

Witness Statement of Simone Harch, 1-LO/294134.1, <blank>, 15-Jun-07

Witness Statement of Catherine Temple, 1-LO/294221.1, <blank>, 18-Jun-07

Letter, 1-LO/294270.1, 18-Jun-07, <blank>

Witness Statement of Malcolm Thompson, 1-LO/294446.1, <blank>, 20-Jun-07

Witness Statement of William Gemmell, 1-LO/294521.1, <blank>, 21-Jun-07

Witness Statement of Sue Scates, 1-LO/294546.1, <blank>, 21-Jun-07

Letter, 1-LO/294843.1, 25-Jun-07, <blank>

The second email read:

Michael,

While you are on the subject of the Rule 3 (10) Hearing can you let me know the time of the Hearing.

Also, as the Tribunal placed so much emphasis on my role being made redundant due to the Global Service Desk and CIM role, you may want to take a look at the following, which completely disproves this:

Bundle of Documents,  Page 433.

Bundle of Documents,  Page 311.

Bundle of Documents,  Page 327.

Bundle of Documents,  Page 340.

Bundle of Documents,  Page 347.

Bundle of Documents,  Page 364.

Bundle of Documents,  Page 376.

New Evidence if required, attached email.

In essence, the Global Service Desk and CIM role existed in 2004 as the On Demand Hub and Affinity Engineer role, they were just renamed in 2006, and I started the oSDM role in July 2004, and was made redundant in July 2006.

So why wasn't I made redundant in 2004?

The following day I received an email reply from Michael McLaughlin:

Kenneth,

Was any explanation given for his failure to appear in person as a witness.

I replied to Michael McLaughlin with the following email:

Michael,

No, not that I can remember, but I believe Malcolm Thompson, and most of the other witnesses, were not scheduled to attend the tribunal, see attached page from letter from Morgan Lewis to tribunal, and the tribunal refusal of witness orders made by myself.

To which Michael McLaughlin replied by email:

Did you ask for an order for Thompson or did you assume that he was coming along

I then sent Michael McLaughlin the following email reply with an attached email that did not ask for a witness Order for Malcolm Thompson to attend the Tribunal:

Michael,

Just found this email, which was a request by me for witness orders, one month prior to the CMD.

I then sent the following email to Michael McLaughlin to explain why I had not asked for a witness Order for Malcolm Thompson:

Michael,

I asked for orders for witnesses that I definitely wanted at the tribunal.

When I asked for the orders (May 2007), I had not seen any witness statements or the final bundle of documents, so was unaware of the story that the respondent was hatching.

If I had got the EA witnesses, everything would have been blown out the water, Morgan Lewis knew that, hence they were fighting tooth and nail against these orders.

Malcolm Thompson would have been completely unimportant, as the EA witnesses would have testified to me being an extremely customer facing oSDM (Spoke to M. Francis multiple times per day), along with verifying the existence of the On Demand Hub and Affinity Engineers as far back as 2004.

Which disproves most of all the witness statements never mind Malcolm Thompson's witness statement.

I then sent an email to Michael McLaughlin that read:

Michael,

This whole case, the respondent's case and judgment, revolves around one thing, and one thing only:

The existence of the Service Desk and CIM role which resulted in my redundancy.

If you can prove that the Service desk and CIM role existed as far back as 2004 (albeit in another disguise), then this whole case falls down like domino's:

2004, On Demand Hub and Affinity Engineer roles working to resolve On Demand customers incidents.

2004, Claimant joins oSDM team as OSDM, and works with On Demand Hub and Affinity Engineers to manage and resolve incidents.

2005, Claimant overworked and has work conflicts.

2005, Claimant raises this with management.

2006, Introduction of Service Desk and CIM role (new names for On Demand Hub and Affinity Engineer)

2006, Claimant allegedly put on RIF list due to Service desk and CIM role.

2006, Claimant selected for redundancy and made redundant.

2006, Claimant raises tribunal claim.

2007, Respondent invents story about Service Desk and CIM role making claimant redundant.

Why was the claimant not made redundant back in 2004, as the Service desk and CIM role existed in 2004 in the disguise of the On Demand Hub and Affinity Engineer role?

The judgment, respondent's case, and witnesses all heavily rely on the Service desk and CIM role.

Solve the root cause of the problems (On Demand Hub and Affinity Engineer renamed to Service desk and CIM role), and you solve all of the problems.

Almost immediately I received the following email reply from Michael McLaughlin:

Kenneth,

It is therefore a great pity that this was not put to the tribunal, does not feature in their judgement nor in my note of appeal. I will be restricted to addressing the EAT on matters contained within my note of appeal.

I quickly sent the following email reply to Michael McLaughlin:

Michael,

It was put to the tribunal by myself, and is the overriding reason in their judgment for my redundancy?

You did base your appeal on the judgment, so even if you have not mentioned "Service Desk" or "CIM role" specifically, you must have mentioned my redundancy, and the reason for my redundancy according to the Glasgow ET is the Service Desk and CIM role.

So if you are discussing the reason for my redundancy, the Service Desk and CIM role must be discussed.

I then followed this email up with the following email to Michael McLaughlin:

Michael,

Just checked your appeal, in paragraph 7.5 you discuss "reorganisation" as the reason for being placed on the RIF list, the reorganisation here was the introduction of the Service Desk and CIM role.

From the judgment:

". In January 2006 an announcement was made of a merger between the respondent and CBL, resulting in a reorganisation. Employees, including the claimant received email announcements regarding the merger, and also confirming the establishment of an Oracle Global On Demand Service Desk and dedicated Customer Incident Managers (CIMs) for large clients. The Global On Demand Service Desk was to provide incident management and escalation functions......"

". Ms Temple confirmed that candidates for possible redundancy had been sought in February 2006, when senior Managers had been asked to identify employees in their area who may be at risk of redundancy due to the recent announcement of reorganisation. A Reduction In Force (RIF) list was compiled and the claimant's name was added to that list by Mr Malcolm Thompson (Mr Cooper's line manager). The RIF list was, at that stage, highly confidential and was not known of by Mr Snowden, Mr Cooper or the claimant."

". Two questions had to be asked - (i) has there been a reorganisation, reduction in work or some other reason meaning there was a diminished need for an employee doing the kind of work the claimant did and (ii) was the dismissal wholly or mainly attributable to those circumstances. Mr Davy submitted that given the claimant had not challenged the witnesses' evidence on these points, the Tribunal must find the answers to the questions to be yes."

". There had been a diminishing need for employees to perform the role the claimant did. Mr Davy submitted it was the role, and not the job title, that was crucial. The incident management role decreased and the reorganisational changes meant that element of the job would move to the Global Service Desk. This had resulted in a reduced need for the claimant's role."

Reorganisation = Service Desk and CIM role = Alleged reason for claimant's redundancy.

Just as well you mentioned "reorganisation" at least now you can discuss Service Desk and CIM role.

The following morning I sent Michael McLaughlin an email that read:

Michael,

As I didn't receive your email that you sent concerning your comments on stereotypical assumptions, I am working in the dark here.

However, I am instructing you at the Rule 3(10) Hearing on 29 April 2008, to state the following:

1. When you mention Phil Snowdens email 12 April 2006, and the statement "the combination of diabetes and high blood pressure - which could result in a prolonged period of time off due to illness.", I simply want you to utter the two words "stereotypical assumption". It is up to the Chairman to know that a stereotypical assumption is less favourable treatment, and therefore constitutes direct discrimination (you can lead a horse to water, etc, etc). You can still speak about the cause and effect of the stereotypical assumption (cause) being redundancy (effect).

2. When you discuss the reorganisation which allegedly led to my redundancy, I simply want you to state that the Service Desk and CIM role existed as far back as 2004 in the guise of the On Demand Hub and Affinity Engineer role, so why was the claimant not made redundant in 2004? There is plenty of evidence in the bundle which both the claimant and respondent produced at the tribunal, and which any tribunal properly directing itself would have picked up on.

This is not even a change to your appeal, it is simply an instruction to utter two words and a sentence.

Everything else is fine, and remains as is.

Five minutes after sending the last email, I received a one-word email reply from Michael McLaughlin that simply stated, "Noted".

Later that afternoon I received an enquiring email from Michael McLaughlin:

Kenneth,

Did you refer the tribunal to these documents. You did not argue that CIMs was a new name for an existing job or department?

I was also copied on an email from Michael McLaughlin to the Employment Appeals Tribunal that read:

Dear Sirs,

I attach a note of arguments in advance of Tuesday's 3(10) Hearing.

Attached document read:

EMPLOYMENT APPEAL TRIBUNAL (SCOTLAND)

KENNETH McALPINE (THE APPELLANT)

against

ORACLE CORPORATION (UK) LIMITED (THE RESPONDENT)

NOTE OF ARGUMENTS - 3(10) HEARING

1. Burden of Proof

The Tribunal has erred in directing itself to the effect that there rested on the Claimant the burden of proof to demonstrate that the reason for his dismissal was related to his disability.

Page 36 numbered  paragraph 178 the Tribunal stated as follows:-

"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 dismiss the claim".

The burden of proof to show the reason for dismissal in unfair dismissal cases is always on the Respondent. That has recently been emphasised by the Court of Appeal's decision in Kuzel v Roche Products Limited [2008] ALL ER (d) 234. The decision makes it is clear that in asserting that the reason for his dismissal was an inadmissible reason, there was no burden of proof on the Claimant to prove that the true reason for his dismissal was disability and the burden is on the employer to prove that the reason for dismissal was one of the four potentially fair reasons.

The tribunal has erred in law.

2. Email Exchange of 11 & 12 April 2006

The Tribunal rejected the Claimant's assertion that the real reason for his dismissal was related to his diabetes and his employers' perception that his condition would result in significant periods of absence as evidenced by the exchange of emails on 11 and 12 April (pages  81,82 and 98 of the 3(10) bundle). They did so on the basis that they were satisfied that no causal link had been established between his disability and his subsequent dismissal. There reasons for doing so were threefold:-

1. "Firstly, the communication to and from Mr Snowden did not lead to the selection of redundancy of the Appellant because his name was already on the RIF list..... there was no suggestion that this discussion lead to the Claimant's selection for redundancy – he was already on the RIF list". Page 34  paragraph 168

"We accepted that Mr Thompson.....had been unaware of the Claimant's diabetes at the time of putting him on the RIF list" Page 34  paragraph 167

2. "We were not prepared to accept that the mere mention of the fact that the Appellant had diabetes was sufficient to link the subsequent treatment to the Claimant's disability" page 36  paragraph 177

3. "We were satisfied the email exchange centred on alternatives for the Claimant". Page 34  paragraph 177 the Tribunal stated.

There was an overwhelming weight of evidence before the Tribunal which rendered these conclusions impermissible and in ignoring this evidence or in failing to place on it sufficient weight, the Tribunal has acted perversely. Each conclusion will be dealt with in turn.

The Claimant Was On The RIF List

The case turned almost entirely on the Tribunal's finding in fact that Malcolm Thompson placed the Claimant on the RIF list in February 2006 and when he did so he had no knowledge that the Claimant had diabetes. There was no evidence whatsoever before the tribunal that would have entitled them to reach this conclusion.

Whilst Malcolm Thompson's witness statement contained statements confirming his decision in February to place the Claimant on the RIF list and of his lack of knowledge of the Claimant's diabetes, he did not attend the tribunal. No suggestion was made by the Respondent that Mr Thompson was unable or unwilling to attend to give evidence.

No explanation was given for the fact that he was not to give evidence. The Claimant was given no opportunity to cross examine him and accordingly the tribunal was not entitled to place any evidential value on the content of his witness statement.

The tribunal appeared to have acknowledged that fact in the judgement. At page 34  paragraph 167 the Tribunal stated:-

"The Claimant did not have the opportunity to cross examine Mr Thompson regarding the matter, but Ms Temple spoke to this matter and the Claimant did not seek to challenge her evidence. On that basis we accepted that Mr Thompson , the senior manager who put forward the Claimant's name for the RIF list had been unaware of the Claimant's diabetes at the time of putting him on the RIF list"

Firstly Ms Temple's witness statement makes no reference whatsoever to Malcolm Thompson's decision to put the Claimant on the RIF list let alone his state of knowledge about the Claimant's diabetes. Her statement actually contradicts the conclusion that the tribunal reached regarding the decision to place the Claimant on the RIF list. At page 5  paragraph 3 of her witness statement (page 103 of the 3(10)) bundle she stated:-

"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 (Snowden) or Nick (Cooper), he would not have specifically told them have told them that candidates were being sought"

The only possible interpretation of those words is that Thompson may well have consulted Nick Cooper and Phil Snowden regarding the Claimant prior to putting the Claimant on the RIF list. Both Cooper and Thompson had known about the existence of the Claimant's diabetes since the previous December and could have imparted that knowledge to Malcolm Thompson. Temple's evidence undermines Thompson's statement rather than supporting it.

The possibility that the tribunal has become confused with one of the other witnesses has been entertained however the witness statements of Cooper, Snowden and Harch are also silent on these matters.

The tribunal was bound to conclude that Thompson's statement did not constitute evidence. There was no other evidence led by the Respondent to the effect that Thompson put the Claimant on the list and that he knew nothing of the Claimant's diabetes. The tribunal therefore had no evidence whatsoever of those facts and therefore in finding those facts as proved it erred in law.

Leaving to one side the absence of evidence of Thompson's thought process there was an abundance of uncontested evidence before the tribunal from which the tribunal was bound to conclude that that Mr Thompson had not placed the Claimant on the RIF list or if he did then he did not do so until April.

Firstly the Tribunal had before it an email from a Cathy Temple to Debbie Gardner dated 2 April in which Ms Gardner is asked by Ms Temple to add the Claimant's name to the RIF List (page 80 of the 3(10) bundle). Mr Thompson was not party to this exchange of emails. The Tribunal was bound to ask itself why this was being done by others in April if it had been done by Mr Thompson in February. The judgement discloses not so much as recognition that such contradictory evidence was led let alone an analysis of why the evidence did not undermine the contention that it was done in February.

The Tribunal was bound to ask itself why, if the Claimant had truly been placed on the RIF list as at February 2006, what need would Mr Thompson have to participate an email exchange in mid-April about the Claimant's capability to carry out his contractual role. It fails to register with the Tribunal that Mr Thompson would have no conceivable reason to ask his colleagues the question "What options do we have?" or to ask himself "Whichever we go for we need to outline to Kenny in clear terms what our expectations are of him in the role he is currently employed in". The Tribunal was bound to conclude from those words that as at 12 April Mr Thompson had not contemplated that the Claimant would be made redundant as a result of being on the RIF list. It was bound to conclude that the exchange was not in any way linked to the RIF list. Mr Thompson's email clearly indicates that he was of the view that the Claimant's employment was to continue and that notwithstanding his health issues he must be made to carry out his contractual duties. Mr Thompson's participation in the email exchange and the words that he uses in his email cannot be reconciled with his having put the Claimant on the RIF list in February. No other reasonable interpretation can be placed on the words "we need to outline to Ken in clear terms what our expectations are of him in the role that he is employed in".

In addition the Tribunal appeared to be entirely unconcerned that Cathy Temple, having been given an instruction by Phil Snowden in the email exchange to produce options to exit the Claimant from the business, sent an email to Malcolm Thompson on  13 April pointing out that "the Claimant is on the RIF list, I want to make sure that we are not making matters more complicated by trying to bring him back into a customer facing role which might lead him to go off sick again". The Tribunal was bound to ask why Cathy Temple was telling Thompson that the Claimant was on the RIF list.

Mere Mention of Diabetes Not Sufficient To Establish Causal Link

This conclusion of the Tribunal quite simply flies in the face of reason.

It is not the mere mention in Phil Snowden's email of the fact that the Claimant has diabetes that gives rise to an irresistible argument that there existed a causal link between disability and dismissal. Had it been the case that the email made no reference to dismissal or redundancy there may be force in the Tribunal's conclusion. The fact that a mere 3 lines of text separate the word "diabetes" from the words "exit Kenneth from the business by the end of FY06" in the email of  12 April renders the Tribunal's conclusion absurd. There is a clear and obvious connection between the discussion about the perceived effects of the Claimant's disability and the termination of his employment. The Judgement makes no reference whatsoever to the instruction by Phil Snowden regarding the termination of the Claimant's employment.

The Tribunal has either failed to notice those words or has failed to interpret those words as referring to the termination of the Claimant's employment. The only permissible conclusion open to the Tribunal from an analysis of the exchange of emails of 11 and 12 April is that the Respondent questioned the Claimant's capability to carry out his job role, was concerned about absenteeism and as a result a decision was taken to identify an "option" which would lead to the termination of his employment. The Tribunal was bound to conclude that the Respondent had firstly decided to terminate the Claimant's employment and thereafter look for a reason. The Tribunal was bound to conclude that the reason was his disability or the perceived consequences of that disability.

The Emails Were About Alternative Employment

The Tribunal was satisfied that the real purpose of the exchange of emails was to establish what alternatives roles existed that would avoid the need for the redundancy dismissal of the Claimant. This conclusion is entirely unsupported by the terms of the emails themselves.

The Tribunal was bound to conclude that the emails were not about the issue of alternative roles as a result of the Claimant's role being made redundant.

The exchange pre-dated the commencement of the redundancy consultation process by 7 weeks.

The fact that the Claimant is on the  RIF list is not mentioned not even by the individual who allegedly placed the Claimant on that list.

No mention is made by any party that the Claimant is at risk of redundancy. Redundancy itself is not mentioned.

The only role that is discussed is the role which the Claimant was employed to carry out namely the OSDM role.

The discussion is entirely about the Claimant's capability to carry out his contractual role.

There is no mention of the fact that due to the modifications made to the Claimant's role, his role was unique and was no longer required.

The Tribunal had no basis to conclude that the email was about alternatives. It was bound to conclude that the emails were about capability and dismissal.

On the basis of the foregoing, the conclusions of the Tribunal regarding the reason for redundancy and dismissal are not so much unsupported by the evidence as directly contradicted by the evidence. The Tribunal reached a conclusion which no Tribunal properly directing itself to the evidence would have reached,

3. RIF List

If Mr Thompson did place the Claimant on the RIF List in February 2006 without having knowledge of the Claimant's diabetes, the decision to dismiss may not have been tainted by discriminatory motives but was nevertheless unfair. The actual RIF list was before the tribunal at the hearing. From the face of that document alone the tribunal was bound to conclude that the decision to dismiss the Claimant had been taken as of the date his name was put on the list. As a result the tribunal was bound to conclude that any subsequent redundancy procedures were nothing more than a sham and as a result the dismissal was unfair.

The only permissible conclusion available to the Tribunal from any proper analysis of the RIF list was that the Respondent had identified a need for the employment of the Claimant to be terminated. The Respondent maintained that the Claimant's name was placed on the RIF list in February 2006. The Tribunal accepted that and accordingly the Tribunal was bound to conclude that the Respondent has resolved to terminate the employment of the Claimant as at February 2006.

On the list which is in the 3(10) bundle at  page 79 there are 3 separate columns bearing the titles "required exit date (by business)", "estimated termination date" and "actual termination date".

The only permissible interpretation that the Tribunal could have placed on the words "required exit date (by business)" is that the Respondent had identified a need to terminate the employment of the Claimant as at that date. That submission may be countered by an argument that the list only identified those at risk of redundancy and that the list was subject to change depending on the existence of alternative employment. If the RIF list had gone no further than identifying those whose roles were potentially redundant or who were at risk of redundancy, that counter submission may have some force. The list however only refers to termination dates.

The force of that counter submission is also diluted by the fact that the purpose of the RIF list was to "calculate severance accrual costs associated with the SIEBEL acquisition and confers no contractual entitlement to severance". The Tribunal was bound to ask itself why the Claimant's severance package was being calculated in February 2006 when his role had not yet been identified as redundant and consultation would not begin for a further 3 months.

The only permissible conclusion from any proper analysis of the RIF list is that a decision to dismiss the Claimant was taken as early as February 2006. It was not until 30 May 2006 that the Claimant was advised of his impending redundancy. He received a letter from Sue Scates dated 30 May 2006 at  page 84 of the 3(10) bundle which advised him:-

"As a consequence of a global business realignment within the Oracle Corporation group of companies affecting the Oracle Corporation UK Limited ("the Company") regrets to inform you that you have been provisionally selected redundancy"

Any sensible analysis of the RIF list document and the exchange of emails of April would have lead to the unavoidable conclusion that there was nothing provisional about the Claimant's selection for redundancy.

A consultation process which commences after a definitive decision to dismiss an employee has been reached and can only be regarded as a sham to attempt to put some form of reasonable and lawful gloss on a decision to dismiss. The EAT in Rowell v Hubbard Group Services Limited [1995] IRLR 195 highlights that the obligation to consult is separate and distinct from an obligation to forewarn. Consultation requires that an employer do more than simply inform an employee of a decision that has already been taken. The EAT in Rowell made reference to the guidance provided by Glidewell J in the decision in R v British Corporation and Secretary or State of Trade & Industry, ex-party Price [1994] IRLR 72 at paragraph 24:-

"It is axiomatic that the process of consultation is not one in which the consulter is obliged to adopt any of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodson J & R v Gwent County Council ex party – Bryant, reported, as far as I know only at [1998] Crown Digest P19, when he said

'fair consultation means:-

a) consultation when proposals are still at a formative stage

b) sufficient information on which to respond

c) adequate time in which to respond

d) conscientious consideration by an authority of the response to consultation"

If a decision has been taken to dismiss an employee and where consultation only commences after that decision then it follows that the consultation cannot begin or take place whilst the proposal to dismiss is still at a formative stage.

In addition, one of the main purposes of consultation is for an employer and an employee to discuss possible alternative roles which the employee could be offered in order to avoid redundancy. Sue Scates letter of 30 May 2006 recognises that that is a requirement of consultation where it is stated "we recognise that this is a difficult time for you and we will be working through an individual consultation process with you which is aimed at providing both personal support and identifying any suitable alternative opportunities in the Oracle Corporation Group of companies".

In so far as the exchange of emails in April can be regarded as discussing alternatives to any extent, that exchange of emails had concluded that there were no alternative which should (not could) be offered to the Claimant having regard to his disability and general capability issues. Any genuine meaningful discussion as regards alternatives to redundancy was concluded by Phil Snowdon's instruction for options to exit the Claimant from the business to be identified. The discussion on alternatives had therefore begun and ended long before the commencement of the so-called redundancy consultation process. The discussion of alternatives in April did not involve the Claimant to any extent.

The purpose of consultation procedures including discussion regarding alternative employment is to create a forum for employees and employers to enter into meaningful discussions about impending redundancy and ways of avoiding that redundancy. If all such considerations have been exhausted long before the commencement of the consultation period but then consultation is clearly a sham.

4. Collaborative Evidence

It was decided at a CMD prior to the full hearing that evidence in chief would be lead by way of witness statements. Rule 27 of the 2004 Employment Tribunal Rules of Procedure states as follows:-

"The Tribunal may exclude from the Hearing any person who is to appear as a witness in the proceedings until such times as they give evidence if it considered it in the interest of justice to do so".

The Respondent's witnesses were not permitted to sit through evidence before they themselves gave evidence. The tribunal had clearly exercised its discretion under Rule 27(4) and it must be presumed therefore that they considered it in the interest of justice to do so. It is of course standard practice in Employment Tribunal Hearings in Scotland that all witnesses still to give evidence are excluded from the Tribunal room and it appears therefore that there is a presumption amongst Employment Tribunals and Judges in Scotland that to allow witnesses being called by a particular party to sit through other witnesses giving evidence on behalf of that party is to create scope for witnesses yet take the stand to change and alter the content and tone of their evidence so as not to contradict other evidence that has been given. The tribunal in this case must have had in mind this concern when exercising its power under rule 27(4)

The witness statements of Nick Cooper, Phil Snowdon and Cathy Temple all indicate clearly that each of them had had sight of the others witness statements at the time of preparing their own witness statements. In effect therefore, each of Thompson, Cooper and Temple had in effect sat through each other's evidence and in effect each of them had been exposed to the evidence in chief of the others prior to giving evidence themselves. There was clearly scope therefore for the Respondent's witnesses to have colluded regarding the evidence that they would give.

The Employment Tribunal exercised its discretion to prevent each of the Respondent's witnesses from listening to the other's evidence in advance of witnesses giving evidence themselves. It would appear that the Tribunal has failed to realise that the witnesses had in effect already heard each others evidence in chief. The judgement makes no reference to the fact that each witness prepared their own witness statements with a copy of the other witnesses to hand. It is not clear whether or not the tribunal even realised that this had happened. Given that the Tribunal had already ruled that it was in the interests of justice that the Respondent's witnesses did not hear each others evidence prior to giving evidence, the interest of justice were clearly offended by the Respondent's evidence having been prepared and lead in this manner.

The problem is compounded by the fact that the tribunal made a decision on the third and last morning of the hearing to take as read the Respondent's 87 pages of evidence in chief. The decision was taken due to the fact that "time was running out". The Claimant had been made to read his statement aloud.

The tribunal should have realised that the Respondent's witnesses had collaborated in the preparation of evidence. It should have ordered that evidence in chief proceed in the traditional manner not by way of witness statements. The tribunal did neither and has thus relied on evidence, the preparation of which gave scope for evidence to be changed in order to ensure consistency.

If the tribunal had changed its view in relation to its exercise of rule 27 (4) it was bound to state clearly why it had changed its view. The Judgement is silent on the matter and thus it must be presumed that the tribunal did not change its view but instead failed to realise that the Respondent's evidence had been complied in this way.

The tribunal's approach to the giving of evidence in chief gives rise to a clear inference of apparent bias.

Michael McLaughlin sent me the following email later that day:

Kenneth,

Did either party make specific reference during evidence or submissions to the fact that the CIM role was nothing new. I recall that no such reference was made but you felt by lodging the documents you had put the issue in evidence.

Chapter 14

It was now 25 April 2008, four days to go to the Rule 3(10) hearing on the main disability discrimination appeal. I sent the following email reply to Michael:

Michael,

It was in my Witness statement which was fully read out to the tribunal:

Line 1228

"The email 28th April 2006 (Reference: Claimant's Bundle, Document 50, Page 67 OR Reference: Joint Bundle, Bundle of Documents Volume III, Document 78,  Page 433), discusses "the CIM (Customer Incident Manager) role – this is the new name for the affinity engineer"."

Within thirty minutes I also sent the following email reply to Michael on another topic:

Michael,

Page 433 was specifically referenced in my witness statement, contents quoted, and read out to the tribunal.

The other documents were supplied by the respondent, so I don't know if the respondent specifically referenced individual page numbers, but the respondent stated, and it is in the judgment, that these emails/attached documents were my step 1 letter in the statutory dismissal procedure, so document number 44, "13 January 2006 On Demand Service Desk" announcement was referenced by the respondent, and pick up and used in the judgment (Page 303 to 308), this could also apply to the next document 45 (Page 309 to 313) which is from the same date 13 January 2006.

Basically, all these documents are stating the same as Page 433, and I only included these references to show that it was true (more proof the better).

Later that evening I was confused about Michael's note of argument, and sent an email to Michael with my concern:

Michael,

One question, the Note of Argument, is this to supplement or replace your original note of appeal?

My comments on your Note of Argument:

1. Ignore if I am wrong, but the only point I would make is that the burden of proof in discrimination claims is initially on the claimant, and if enough proof is shown, the burden of proof then switches to the respondent. However, I would imagine that there was more than enough evidence in front of this tribunal for the claimant to have shown a prima facia case of discrimination, and hence the burden of proof switches to the respondent, in essence, agreeing with your paragraph, but from a different perspective.

2. "Both Cooper and Thompson" should be "Both Cooper and Snowden"

The rest of this section is fine.

3. One thing that has always annoyed me about the legalities (if the law has been applied correctly) of this judgment, is this:

Redundancy (selection for redundancy, dismissal, et al) overrides any form of discrimination.

Surely this cannot be right?

In this judgment, it comes, exactly to that conclusion.

I will now give you some examples as to why this is ludicrous, for every ****** insert a swear word to emphasise this point:

Calling someone an old ******. (age discrimination)

Calling someone a black ******. (race discrimination)

Calling someone a ****** bitch. (sex discrimination)

The world would agree that the above statements are wrong, untrue and cannot be right under any circumstance, but what this tribunal is stating is that being selected for redundancy overrides discrimination.

So any employer can freely discriminate (use the above ****** terminology), without penalty, after selecting someone for redundancy?!??!!

This is a complete nonsense, and must be wrong in law.

Note: This is why a stereotypical assumption is direct discrimination and therefore constitutes less favourable treatment, because it doesn't depend on anything that has happened before or after the event, it is just about the here and now, and certainly isn't overridden by selection for redundancy.

4. Ok, although I did, on first reading, have alarm bells ringing when you stated that witnesses had sat through other witnesses evidence, but now understand that it is in keeping with your argument concerning how the tribunal operates when it is taking place.

The next day I received an email reply from Michael McLaughlin:

Kenneth,

It does neither replace nor supplement my original note of appeal. I am not under any obligation to lodge one but I know that Lady Smith likes parties to use them so I thought it would be tactically astute to lodge it. I would have to have prepared one to speak to on the day anyway.

I take on board what you say about redundancy. I am well aware that you do not want to win on the basis of some legal technicality regarding redundancy consultation but I must use everything at my disposal to get over this hurdle and get the appeal in.

The burden of proof on the reason for dismissal is always on the employer even when the reason claimed by the employee is discriminatory.

I will speak to you on Monday.

Later that day I received another email reply from Michael McLaughlin:

Kenneth,

It is clear that the role was not new just a new name for affinity engineers. If however a decision was taken in Jan - Feb to pass to AEs or CIMS more or total responsibility for incident management then your own workload will still have been reduced. Even if AEs had not been re-branded as CIMs but a decision had been taken to give them more incident management work, then they can still say your role and that aspect of other oSDMs would have reduced?

It was not the creation of the department (or not) that effected your role but the re-allocation of work?

I quickly sent the following email reply to Michael McLaughlin:

Michael,

"It is clear that the role was not new just a new name for affinity engineers. If however a decision was taken in Jan - Feb to pass to AEs or CIMS more or total responsibility for incident management then your own workload will still have been reduced. Even if AEs had not been re-branded as CIMs but a decision had been taken to give them more incident management work, then they can still say your role and that aspect of other oSDMs would have reduced?

It was not the creation of the department (or not) that effected your role but the re-allocation of work?"

If there was a reallocation of work from the oSDM to Service Desk/CIM role, then less employees would be required in the oSDM role. The oSDM role would also have much less/zero incident management.

If that logic holds true, then the respondent would have to explain the following:

Why the oSDM Team, since January 2006, recruited an additional 8 employees to work in the oSDM role?

 Page 431.

Page  34 and  35.

 Page 306, Customer Incident Management Role is Affinity Engineer role with no change to duties (ie: no total incident management with zero incident management for oSDM)?

Page  340 \-  341, On Demand Service Desk is On Demand Hub with no change to duties (ie: no total incident management with zero incident management for oSDM)?

In all the documentation outlining the Service Desk and CIM role, it does not state a workload reduction for the oSDM?

The respondent would also have to explain  Page 432 (right from the horses mouth)?

The facts speak for themselves.

As  stated by the tribunal in the judgment:

"46. The introduction of the Service Desk did impact significantly on the support role carried out by the claimant, because his duties predominantly comprised incident management - and this function would, in future, be dealt with by the centralised Global Service Desk and CIM function. The introduction of the Service Desk and CIMs effectively removed the need for the claimant's role because the only part of the role left would be production of the monthly report, and there was no requirement to have a person dedicated to this one task."

In summary, there was no re-allocation of work, it was the status quo with a new name.

Early the next day I received the following email reply from Michael McLaughlin:

Kenneth,

You quote paragraph  number 46 of the Judgement in your email below. Is para 46 true and accurate. You appear to confirm that it is.

I immediately sent the following email reply to Michael McLaughlin:

Michael,

"Is para 46 true and accurate"

It is exactly as quoted in the judgment, so with regards to quotations from the judgment, it is "As stated by the tribunal in the judgment: "

With regards to my feelings on this paragraph regarding the tribunal, it is not true and accurate. It is factually wrong, and the facts either prove it wrong, or do not prove it to be correct, hence it must be an assumption not based on facts.

Maybe I confused you by quoting the paragraph from the judgment last.

Later that morning I sent Michael McLaughlin another email:

Michael,

Some notable points from the  ET3:

1. There is NO mention of any RIF list or of the claimant being placed on a RIF list as early as February 2006.

2. There is NO mention of either Service Desk or CIM role, THE main reason for the claimant's redundancy.

The two major points of the respondents claim, and the two major findings of the tribunal are not contained in THE main rebuttal of my ET1 claim, only two months after all these 'events' were meant to have happened?

Very strange?

I quickly received a short email reply from Michael McLaughlin:

Did they amend the ET 3 to include those arguments at a later stage. If so when did that happen?

I was then copied on the following email from Michael McLaughlin to the Employment Appeals Tribunal:

Dear Sirs,

Please find attached the updated Note of Arguments. The initial note lodged on Friday of last week should be disregarded.

Attached document read:

EMPLOYMENT APPEAL TRIBUNAL (SCOTLAND)

KENNETH McALPINE (THE APPELLANT)

against

ORACLE CORPORATION (UK) LIMITED (THE RESPONDENT)

NOTE OF ARGUMENTS - 3(10) HEARING

1. Burden of Proof

The Tribunal has misdirected itself in relation to the burden of proof in the Disability Discrimination claim. At page 36 numbered  paragraph 178 (page 36 of the 3(10)) bundle, the tribunal sets out its view in relation to the reason for selection for redundancy:-

"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 our 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 that his selection for redundancy related to his disability and all the circumstances that aspect of his claim must fail "

Section 17A (1C) of the Disability Discrimination Act does placed no such burden on the Claimant. The burden on the Claimant was to prove facts from which a tribunal could conclude in the absence of an adequate explanation, that the Respondent, has acted in a way that is unlawful. The Tribunal clearly contemplated a one stage process and not the two stage process that is required. The Tribunal appears not to recognise the transfer of the burden of proof. Had the Tribunal had in mind the correct approach to the burden of proof it was bound to conclude that the exchange of emails between 11 and 13 April was enough to transfer the burden of proof onto the Respondent.

It could of course be stated that, notwithstanding any apparent misdirection or confusion in relation to the burden of proof, the Tribunal satisfied itself that the Respondent did indeed have an adequate explanation regarding the diminution in the Claimant's role and the re-organisation of the Respondent's business.

Accordingly even if the burden did transfer to the Respondent it had satisfied that burden and the apparent misdirection of the Tribunal had no effect on the overall decision. The arguments set out below are to the effect that the Tribunal had no evidence on which to base its factual conclusions regarding the Respondent's explanation. If those arguments succeed then the Respondent has not presented an adequate explanation and has not satisfied the burden of proof and the Tribunal was bound to uphold the Claimant's complaint.

2. Email Exchange of 11 & 12 April 2006

The Tribunal rejected the Claimant's assertion that the real reason for his dismissal or selection for redundancy was related to his diabetes and his employers' perception that his condition would result in significant periods of absence as evidenced by the exchange of emails on 11, 12 and 13 April (pages  81,82 and  98 of the 3(10) bundle).

The Tribunal accepted the evidence of the Respondent that the reason for dismissal was redundancy and the reason for the Claimant's selection for redundancy was because of the Respondent's diminished requirement for the Claimant's "unique" oSDM role. The Tribunal was not satisfied that a causal link had been established between the disability and his subsequent dismissal. There reasons for doing so were threefold:-

1. "Firstly, the communication to and from Mr Snowden did not lead to the selection of redundancy of the Appellant because his name was already on the RIF list..... there was no suggestion that this discussion lead to the Claimant's selection for redundancy – he was already on the RIF list". Page 34  paragraph 168 "We accepted that Mr Thompson.....had been unaware of the Claimant's diabetes at the time of putting him on the RIF list" Page 34  paragraph 167

2. "We were not prepared to accept that the mere mention of the fact that the Appellant had diabetes was sufficient to link the subsequent treatment to the Claimant's disability" page 36  paragraph 177

3. "We were satisfied the email exchange centred on alternatives for the Claimant". Page 34  paragraph 177 the Tribunal stated.

There was an overwhelming weight of evidence before the Tribunal which rendered these conclusions impermissible and in ignoring this evidence or in failing to place on it sufficient weight, the Tribunal has acted perversely. Each conclusion will be dealt with in turn.

* The Claimant Was On The RIF List

The case turned almost entirely on the Tribunal's finding in fact that Malcolm Thompson placed the Claimant on the RIF list in February 2006 and when he did so he had no knowledge that the Claimant had diabetes. There was no evidence whatsoever before the tribunal that would have entitled them to reach this conclusion.

Whilst Malcolm Thompson's witness statement contained statements confirming his decision in February to place the Claimant on the RIF list and of his lack of knowledge of the Claimant's diabetes, he did not attend the tribunal. No suggestion was made by the Respondent that Mr Thompson was unable or unwilling to attend to give evidence.

No explanation was given for the fact that he was not to give evidence. The Claimant was given no opportunity to cross examine him and accordingly the tribunal was not entitled to place any evidential value on the content of his witness statement. The tribunal appeared to have acknowledged that fact in the judgement. At page 34  paragraph 167 the Tribunal stated:-

"The Claimant did not have the opportunity to cross examine Mr Thompson regarding the matter, but Ms Temple spoke to this matter and the Claimant did not seek to challenge her evidence. On that basis we accepted that Mr Thompson , the senior manager who put forward the Claimant's name for the RIF list had been unaware of the Claimant's diabetes at the time of putting him on the RIF list"

Firstly Ms Temple's witness statement makes no reference whatsoever to Malcolm Thompson's decision to put the Claimant on the RIF list let alone his state of knowledge about the Claimant's diabetes. Her statement actually contradicts the conclusion that the tribunal reached regarding the decision to place the Claimant on the RIF list. At page 5 paragraph 3 of her witness statement (page  103 of the 3(10)) bundle she stated:-

"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 (Snowden) or Nick (Cooper), he would not have specifically told them have told them that candidates were being sought"

The only possible interpretation of those words is that Thompson may well have consulted Nick Cooper and Phil Snowden regarding the Claimant prior to putting the Claimant on the RIF list. Both Cooper and Thompson had known about the existence of the Claimant's diabetes since the previous December and could have imparted that knowledge to Malcolm Thompson. Temple's evidence undermines Thompson's statement rather than supporting it. At page 34  paragraph 169 the Judgement states "Mr Cooper and Mr Snowden were initially unaware of the RIF list and could not have influenced his decision". The evidence of Ms Temple directly contradicts this assertion.

Not only is she of the view that the opinions of Snowden and Cooper would have been known by Thompson, she is of the view that Mr Thompson would have actively canvassed their views.

The possibility that the tribunal has become confused with one of the other witnesses has been entertained however the witness statements of Cooper, Snowden and Harch are also silent on these matters.

The tribunal was bound to conclude that Thompson's statement did not constitute evidence. There was no other evidence led by the Respondent to the effect that Thompson put the Claimant on the list and that he knew nothing of the Claimant's diabetes. The tribunal therefore had no evidence whatsoever of those facts and therefore in finding those facts as proved it erred in law.

Leaving to one side the absence of evidence of Thompson's thought process there was an abundance of uncontested evidence before the tribunal from which the tribunal was bound to conclude that that Mr Thompson had not placed the Claimant on the RIF list or if he did then he did not do so until April.

Firstly the Tribunal had before it an email from a Cathy Temple to Debbie Gardner dated 2 April in which Ms Gardner is asked by Ms Temple to add the Claimant's name to the RIF List (page 80 of the 3(10) bundle). Mr Thompson was not party to this exchange of emails. The Tribunal was bound to ask itself why this was being done by others in April if it had been done by Mr Thompson in February. The judgement discloses not so much as recognition that such contradictory evidence was led let alone an analysis of why the evidence did not undermine the contention that it was done in February.

The Tribunal was bound to ask itself why, if the Claimant had truly been placed on the RIF list as at February 2006, what need would Mr Thompson have to participate an email exchange in mid-April about the Claimant's capability to carry out his contractual role. It fails to register with the Tribunal that Mr Thompson would have no conceivable reason to ask his colleagues the question "What options do we have?" or to ask himself "Whichever we go for we need to outline to Kenny in clear terms what our expectations are of him in the role he is currently employed in". The Tribunal was bound to conclude from those words that as at 12 April Mr Thompson had not contemplated that the Claimant would be made redundant as a result of being on the RIF list. It was bound to conclude that the exchange was not in any way linked to the RIF list. Mr Thompson's email clearly indicates that he was of the view that the Claimant's employment was to continue and that notwithstanding his health issues he must be made to carry out his contractual duties. Mr Thompson's participation in the email exchange and the words that he uses in his email cannot be reconciled with his having put the Claimant on the RIF list in February. No other reasonable interpretation can be placed on the words "we need to outline to Ken in clear terms what our expectations are of him in the role that he is employed in".

In addition the Tribunal appeared to be entirely unconcerned that Cathy Temple, having been given an instruction by Phil Snowden in the email exchange to produce options to exit the Claimant from the business, sent an email to Malcolm Thompson on 13 April pointing out that "the Claimant is on the RIF list, I want to make sure that we are not making matters more complicated by trying to bring him back into a customer facing role which might lead him to go off sick again". The Tribunal was bound to ask why Cathy Temple was telling Thompson that the Claimant was on the RIF list.

* Mere Mention of Diabetes Not Sufficient To Establish Causal Link

This conclusion of the Tribunal quite simply flies in the face of reason.

It is not the mere mention in Phil Snowden's email of the fact that the Claimant has diabetes that gives rise to an irresistible argument that there existed a causal link between disability and dismissal. Had it been the case that the email made no reference to dismissal there may be force in the Tribunal's conclusion. The fact that a mere 3 lines of text separate the word "diabetes" from the words "exit Kenneth from the business by the end of FY06" in the email of 12 April renders the Tribunal's conclusion absurd. There is a clear and obvious connection between the discussion about the perceived effects of the Claimant's disability and the termination of his employment. The Judgement makes no reference whatsoever to the instruction by Phil Snowden regarding the termination of the Claimant's employment.

The Tribunal has either failed to notice those words or has failed to interpret those words as referring to the termination of the Claimant's employment. The only permissible conclusion open to the Tribunal from an analysis of the exchange of emails of 11 and 12 April is that the Respondent questioned the Claimant's capability to carry out his job role, was concerned about absenteeism and as a result a decision was taken to identify an "option" which would lead to the termination of his employment. The Tribunal was bound to conclude that the Respondent had firstly decided to terminate the Claimant's employment and thereafter look for a reason. The Tribunal was bound to conclude that the reason was his disability or the perceived consequences of that disability.

* The Emails Were About Alternative Employment

The Tribunal was satisfied that the real purpose of the exchange of emails was to establish what alternatives roles existed that would avoid the need for the redundancy dismissal of the Claimant. This conclusion is entirely unsupported by the terms of the emails themselves.

The Tribunal was bound to conclude that the emails were not about the issue of alternative roles as a result of the Claimant's role being made redundant. The exchange pre-dated the commencement of the redundancy consultation process by 7 weeks.

The fact that the Claimant is on the RIF list is not mentioned not even by the individual who allegedly placed the Claimant on that list.

No mention is made by any party that the Claimant is at risk of redundancy. Redundancy itself is not mentioned.

The only role that is discussed is the role which the Claimant was employed to carry out namely the OSDM role.

The discussion is entirely about the Claimant's capability to carry out his contractual role.

There is no mention of the fact that due to the modifications made to the Claimant's role, his role was unique and was no longer required.

The Tribunal had no basis to conclude that the email was about alternatives. It was bound to conclude that the emails were about capability and dismissal.

On the basis of the foregoing, the conclusions of the Tribunal regarding the reason for redundancy and dismissal are not so much unsupported by the evidence as directly contradicted by the evidence. The Tribunal reached a conclusion which no Tribunal properly directing itself to the evidence would have reached.

* Impact On the Judgement As A Whole

If it is accepted that the Tribunal had no evidence to base its conclusion regarding Malcolm Thompson and the RIF list or that the overwhelming weight of evidence rendered impermissible the Tribunal's conclusions in that regard, what impact does that have on the Judgement as a whole?

The Tribunal did have evidence before it from Messrs Snowden and Cooper regarding the Siebel merger and the consequent re-organisation of the business.

The Tribunal also had evidence before it regarding the impact of those events on the Claimant's job role, albeit from the perspective of Snowden and Cooper who had no part in the composition of the RIF list. The Tribunal therefore had before evidence on which it could base a factual conclusion that certain economic circumstances existed which gave rise to a possible redundancy situation that might have affected the Claimant. What the tribunal did not have however is any causal link between the existence of that state of affairs and the decision to dismiss the Claimant. Malcolm Thompson and the RIF list constituted the essential link between the state of affairs and the dismissal.

Without his evidence that link cannot be established.

The House of Lords decision in Murray and Another v Foyle Meats Ltd (Northern Ireland) [1999] 3 WLR 356 makes it clear that it is not sufficient for a Respondent to prove the existence of a redundancy situation. The Respondent must also show that the dismissal is wholly or mainly attributable to that "economic state of affairs" that gives rise to the redundancy situation. Without any evidence of Thompson's decision to place the Claimant on the RIF list, his reasoning for doing so and his state of knowledge of the Claimant's diabetes, the tribunal is left simply to analyse the exchange of emails of 11-13 April as the starting point of any consideration of the Claimant's dismissal. In those circumstances the only conclusion available to the Tribunal was that this exchange was about the Claimant's diabetes and his capability to carry out his job role. The exchange concluded with a resolution on the part of the Respondent to "exit" the Claimant from the business by the end of June 2006. This establishes a clear link between the disability, it possible consequences and the termination of the Claimant's employment.

If this submission is accepted then the burden of proof in respect of the Disability Discrimination Claim had shifted from the Claimant to the Respondent. The Respondent has failed to prove that the reason for dismissal was redundancy or related to the re-organisation and therefore it has not discharged the burden of proof. That being the case the Tribunal was bound to uphold the complaint.

3. RIF List – Pre-determined Outcome

If Mr Thompson did place the Claimant on the RIF List in February 2006 without having knowledge of the Claimant's diabetes, the decision to dismiss may not have been tainted by discriminatory motives but was nevertheless unfair.

The actual RIF list was before the tribunal at the hearing. From the face of that document alone the tribunal was bound to conclude that the decision to dismiss the Claimant had been taken as of the date his name was put on the list. As a result the tribunal was bound to conclude that any subsequent redundancy procedures were nothing more than a sham and as a result the dismissal was unfair.

The only permissible conclusion available to the Tribunal from any proper analysis of the RIF list was that the Respondent had identified a need for the employment of the Claimant to be terminated. The Respondent maintained that the Claimant's name was placed on the RIF list in February 2006. The Tribunal accepted that and accordingly the Tribunal was bound to conclude that the Respondent has resolved to terminate the employment of the Claimant as at February 2006.

On the list which is in the 3(10) bundle at  page 79 there are 3 separate columns bearing the titles "required exit date (by business)", "estimated termination date" and "actual termination date".

The only permissible interpretation that the Tribunal could have placed on the words "required exit date (by business)" is that the Respondent had identified a need to terminate the employment of the Claimant as at that date. That submission may be countered by an argument that the list only identified those at risk of redundancy and that the list was subject to change depending on the existence of alternative employment. If the RIF list had gone no further than identifying those whose roles were potentially redundant or who were at risk of redundancy, that counter submission may have some force. The list however only refers to termination dates.

The force of that counter submission is also diluted by the fact that the purpose of the RIF list was to "calculate severance accrual costs associated with the SIEBL acquisition and confers no contractual entitlement to severance". The Tribunal was bound to ask itself why the Claimant's severance package was being calculated in February 2006 when his role had not yet been identified as redundant and consultation would not begin for a further 3 months.

The only permissible conclusion from any proper analysis of the RIF list is that a decision to dismiss the Claimant was taken as early as February 2006. It was not until 30 May 2006 that the Claimant was advised of his impending redundancy. He received a letter from Sue Scates dated 30 May 2006 at  page 84 of the 3(10) bundle which advised him:-

"As a consequence of a global business realignment within the Oracle Corporation group of companies affecting the Oracle Corporation UK Limited ("the Company") regrets to inform you that you have been provisionally selected redundancy"

Any sensible analysis of the RIF list document and the exchange of emails of April would have lead to the unavoidable conclusion that there was nothing provisional about the Claimant's selection for redundancy.

A consultation process which commences after a definitive decision to dismiss an employee has been reached and can only be regarded as a sham to attempt to put some form of reasonable and lawful gloss on a decision to dismiss. The EAT in Rowell v Hubbard Group Services Limited [1995] IRLR 195 highlights that the obligation to consult is separate and distinct from an obligation to forewarn. Consultation requires that an employer do more than simply inform an employee of a decision that has already been taken. The EAT in Rowell made reference to the guidance provided by Glidewell J in the decision in R v British Corporation and Secretary or State of Trade & Industry, ex-party Price [1994] IRLR 72 at paragraph 24:-

"It is axiomatic that the process of consultation is not one in which the consulter is obliged to adopt any of the views expressed by the person or body whom he is consulting. I would respectfully adopt the tests proposed by Hodson J & R v Gwent County Council ex party – Bryant, reported, as far as I know only at [1998] Crown Digest P19, when he said

'fair consultation means:-

a) consultation when proposals are still at a formative stage

b) sufficient information on which to respond

c) adequate time in which to respond

d) conscientious consideration by an authority of the response to consultation"

If a decision has been taken to dismiss an employee and where consultation only commences after that decision then it follows that the consultation cannot begin or take place whilst the proposal to dismiss is still at a formative stage.

In addition, one of the main purposes of consultation is for an employer and an employee to discuss possible alternative roles which the employee could be offered in order to avoid redundancy. Sue Scates letter of 30 May 2006 recognises that that is a requirement of consultation where it is stated "we recognise that this is a difficult time for you and we will be working through an individual consultation process with you which is aimed at providing both personal support and identifying any suitable alternative opportunities in the Oracle Corporation Group of companies".

In so far as the exchange of emails in April can be regarded as discussing alternatives to any extent, that exchange of emails had concluded that there were no alternative which should (not could) be offered to the Claimant having regard to his disability and general capability issues. Any genuine meaningful discussion as regards alternatives to redundancy was concluded by Phil Snowdon's instruction for options to exit the Claimant from the business to be identified. The discussion on alternatives had therefore begun and ended long before the commencement of the so-called redundancy consultation process. The discussion of alternatives in April did not involve the Claimant to any extent.

The purpose of consultation procedures including discussion regarding alternative employment is to create a forum for employees and employers to enter into meaningful discussions about impending redundancy and ways of avoiding that redundancy. If all such considerations have been exhausted long before the commencement of the consultation period but then consultation is clearly a sham.

4. Evidence Tainted By Collaboration

It was decided at a CMD prior to the full hearing that evidence in chief would be lead by way of witness statements.

Rule 27 of the 2004 Employment Tribunal Rules of Procedure states as follows:-

"The Tribunal may exclude from the Hearing any person who is to appear as a witness in the proceedings until such times as they give evidence if it considered it in the interest of justice to do so".

At the full hearing, the Respondent's witnesses were not permitted to sit through evidence before they themselves gave evidence. The tribunal had clearly exercised its discretion under Rule 27(4) and it must be presumed therefore that they considered it in the interest of justice to do so. It is of course standard practice in Employment Tribunal Hearings in Scotland that all witnesses still to give evidence are excluded from the Tribunal room. It must be presumed therefore that there is a general presumption amongst Employment Tribunals and Judges in Scotland that to allow witnesses being called by a particular party to sit through other witnesses giving evidence prior to giving evidence themselves creates scope for witnesses yet take the stand to change and alter the content and tone of their evidence so as not to contradict other evidence that has been given. The tribunal in this case must have had in mind this concern when exercising its power under rule 27(4)

The witness statements of Nick Cooper, Phil Snowdon and Cathy Temple all indicate clearly that each of them had had sight of the others witness statements at the time of preparing their own witness statements. In effect therefore, each of Thompson, Cooper and Temple had in effect sat through the other's evidence and each of them had been exposed to the evidence in chief of the others prior to giving evidence themselves. There was clearly scope therefore for the Respondent's witnesses to have colluded regarding the evidence that they would give. The Employment Tribunal exercised its discretion to prevent each of the Respondent's witnesses from listening to the other's evidence in advance of witnesses giving evidence themselves. It would appear that the Tribunal has failed to realise that the witnesses had in effect already heard each others evidence in chief. The judgement makes no reference to the fact that each witness prepared their own witness statements with a copy of the other witnesses to hand. It is not clear whether or not the tribunal even realised that this had happened. Given that the Tribunal had already ruled that it was in the interests of justice that the Respondent's witnesses did not hear each others evidence prior to giving evidence, the interest of justice were clearly offended by the Respondent's evidence having been prepared and lead in this manner.

The problem was compounded by the fact that the tribunal made a decision on the third and last morning of the hearing to take as read the Respondent's 87 pages of evidence in chief. The decision was taken due to the fact that time was running out. The Claimant had been made to read his statement aloud.

The Tribunal having read the Respondent's witness statements should have realised that those witnesses had collaborated in the preparation of evidence. It should have ordered that evidence in chief proceed in the traditional manner not by way of witness statements. The tribunal did neither and has thus relied on evidence, the preparation of which gave scope for evidence to be changed in order to ensure consistency.

If the tribunal had changed its view in relation to its exercise of rule 27 (4) it was bound to state clearly why it had changed its view. The Judgement is silent on the matter and thus it must be presumed that the tribunal did not change its view but instead failed to realise that the Respondent's evidence had been compiled in this way.

The tribunal's approach to the giving of evidence in chief gives rise to a clear inference of apparent bias. Justice must be seen to be done.

With Malcolm Thompson not having given evidence and the evidence of two other witnesses tainted in this manner, the Judgement must be set aside in its entirety.

I then sent the following email reply to Michael McLaughlin:

Michael,

ET3 is Pages 11 to 22, written 25 September 2006.

Respondent's reply to DDA Questionnaire is Pages 32 to 35, written 15 November 2006, starts to change story and bring in reorganisation (Service Desk and CIM).

Respondent's voluntary further particulars is Pages 43 to 58, written late November 2006, breaking down claimant's duties to differentiate from other oSDMs.

After reading the edited note of appeal, I sent Michael McLaughlin the following email:

Michael,

On first reading of your edited Note of Appeal:

"Both Cooper and Thompson had known about the existence of the Claimant's diabetes since the previous December and could have imparted that knowledge to Malcolm Thompson."

replace "Thompson" with "Snowden", to read:

"Both Cooper and Snowden had known about the existence of the Claimant's diabetes since the previous December and could have imparted that knowledge to Malcolm Thompson."

Also, upon reading, at certain parts (in 2) aren't you arguing that the RIF list didn't exist, then (in 3) arguing that the RIF list did exist.

Will this undermine one, or the other, or both arguments?

If it is ok to argue both, then ignore, as I can see both arguments.

Michael McLaughlin sent me the following email reply:

Arguing both is what I have to do. If she is not with me on one I am allowed to rely on the other argument

To which I replied by email:

Michael,

Ok, but if you feel that 3 detracts from 2, and don't feel comfortable arguing it, don't argue it, as a discriminatory dismissal is automatically unfair anyway.

I know it is putting all your eggs in one basket, but 2 makes it a good basket, 3 maybe deemed as a rotten egg in the basket.

The last email from me to Michael McLaughlin the day before the main disability discrimination appeal hearing was:

Michael,

Just one final thought on tomorrow.

If the appeal fails, can you ask for the judgment in writing, and extended reasons for it, as it will be onwards and upwards, ie: the Court of Session.

On 29 April 2008, I drove through to Edinburgh with my mother and father for the main Rule 3(10) appeal hearing on disability discrimination at the Employment Appeals Tribunal. Before the hearing, which was due to start at two o'clock, I had arranged to meet Michael McLaughlin in a coffee house ten minutes walk from the Employment Appeals Tribunal. Both myself and my mum met with Michael in the coffee house and talked very briefly about the hearing which was due to start in around half an hour.

As Michael was finishing his coffee, he asked how I had obtained the email from Philip Snowden which stated diabetes, prolonged period of time off in the future and exit him from the organisation, to which I replied that Morgan Lewis had sent it to me in their bundle of documents that were supplied to the Barrister in February 2007. Michael stated that if he had been the lawyer, he would not have disclosed such an email to me at all. It was at that point that I knew all my struggles up until now had not been in vain.

We left the coffee house and started the walk to the Employment Appeals Tribunal. Michael informed me on the short walk that he had two other lawyers coming to the hearing, an associate and a lawyer on work experience from the United States of America.

Ten minutes before the hearing was due to start, we arrived outside the Employment Appeals Tribunal entrance where we were met by Michael's associate who informed Michael that the hearing had been cancelled. This was at the very last minute as Michael had not even been informed, and the first people to be informed were Michael's associate and the lawyer from the United States of America when they had arrived to sign themselves in at reception.

We had no option but to bid farewell to Michael and head home, but before we went, Michael said that it was unusual for a hearing to be cancelled at such short notice, and said he would contact reception at the Employment Appeals Tribunal and find out why, and get back to me as soon as possible.

Chapter 15

It was now 29 April 2008, and on my drive home after the main disability discrimination Rule 3(10) hearing had been cancelled at the Employment Appeals Tribunal at the very last minute, I had time to think of what needed to be done in the future.

The first appeal I had to tackle was the reasonable adjustments appeal, which had initially been dismissed way back in March 2007. I had now taken this through the Employment Tribunal and Employment Appeal Tribunal, and tried to lodge an appeal with the Court of Session but failed due to the Court of Session sending out the wrong form twice, and eventually getting the correct form to me too late to lodge the appeal in time, and requesting that I pay for their mistakes. Time was ticking, and I had six months to decide whether to appeal to the House of Lords, the European Court of Justice or the European Court of Human Rights.

I would have to look into all these appeal routes and select the best route, employ the services of a Barrister or Advocate, or prepare an appeal myself.

The next appeal I had to consider was the cancelled main disability discrimination Rule 3(10) hearing. This was easier to plan out, as obviously the Rule 3(10) hearing would have to be rescheduled. This was Michael's last chance, as his appeal for the reasonable adjustments had already failed, and his representation on my behalf at the Employment Tribunal costs hearing, had, in my eyes, failed as well, as costs had been awarded against me. After the main disability discrimination Rule 3(10) hearing I also knew that Michael could not represent me at the Court of Session, as a normal lawyer cannot go in front of the highest judges in the land, only Advocates have this privilege, and, strangely enough, any other person that isn't a lawyer.

So, if Michael's appeal at the main disability discrimination Rule 3(10) hearing was dismissed, then it would have to be appealed to the Court of Session by an Advocate or myself.

The costs appeal would be the most difficult. Even although I had lodged an appeal at the Employment Appeal Tribunal, it was impossible to win in Michael's view, and I had the added complication that other appeals were outstanding, so how would future appeals on costs be handled when appeals that had a determination on the decisions taken on costs were still being appealed. If the costs appeal was dismissed during the sift process, then I would have to request a Rule 3(10) hearing, and if the costs appeal at this hearing was dismissed, it would have to be appealed to the Court of Session.

Nearing the end of my journey home, I knew that I had still the support of Diabetes UK and that they, some other organisation or my MP may be able to get a Barrister or Advocate for future appeals. I could also try and obtain the services of a Human Rights lawyer for all the appeals, as it had become apparent to me that the battle had switched from being against the respondent, to being against the legal system itself.

One other possible avenue that I had come across during Internet searches was the United Nations. But I had not looked into this in any depth.

Like any grand plan, there would be problems in the future, time, money and willpower were getting low, as well as the ability of one person to beat a multinational company, multinational legal firm and now the legal system itself.....

Note From The Publisher

Hello, this is Nostaple Limited. Thank you for reading this book. Your support means a lot to us.

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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

