Justify This 2007 - 2008 (Diabetes, Discrimination, Disability, Ableism, Disablism)

By Nostaple Limited

If a multinational employer fired you for having diabetes because you would be off sick a lot in the future, what would you do? This is a true story of discrimination in the workplace, one ordinary person against a multinational employer, multinational legal firm, barrister, appeal courts, countries and international courts, in the form of a diary including emails, correspondence, and judgments. A modern day David and Goliath with many twists along the way.

Excerpt from the book:

"Upon entering the Employment Tribunal Courtroom, my overriding impression was that this Courtroom was much bigger than I expected. It could easily have accommodated one hundred people, but probably only had seating for around thirty. There were two long desks, one for the claimant and one for the respondent, each desk had two seats, which were both located in front of the public seating, and one smaller desk and a single seat to the right for a witness, and a slightly raised stage with one long bench and three seats behind for the Tribunal panel.

Mr Davy was already in the Courtroom unpacking and setting up all his materials, and I proceeded to unpack my material, which was considerably less. Quality, not quantity was my first thought, but I also thought that if this is the amount of material to just try and prove one small point, what a waste of paper, time and effort.

After twiddling thumbs for around one minute, the Clerk announced "All rise", and a single door to the left of the Courtroom marked "Private" swung open, and a tall, thin, ever so slightly punkish mid thirties woman swiftly walked through the door with a bundle of documents clutched to her chest, paused and proceeded to sit down in the middle seat behind the long bench on the raised stage. The respondent and I then sat down. It had started."

Open the book and discover topics such as:

•diabetism (diabetic, diabetes discrimination)
•disability discrimination, disablism and ableism.
•diabetes type 1 and diabetes type 2.
•dismiss diabetes type one or two.
•direct and indirect discrimination.
•stereotypical assumption.
•insulin, hyperglycemia, hypoglycemia, and hba1c.
•unfair dismissal.
•workplace layoff.
•firing, fired and redundancy.
•employment law.
•human right campaign.

Aimed at the following audiences:

•Diabetics of any type.
•People who suffer from a disability.
•Anyone in a minority group who could suffer from discrimination at any time.
•Readers who enjoy true stories.
•Investigators who enjoy true crime and inspecting evidence (on Nostaple website).

What do you think you would have done in the same situation?

Additional topics/tags throughout this series include: diabetism, diabetic, diabetes, disability, discrimination, disablism, ableism, employment, redundancy, layoff, fired, legal, law, unfair, workplace, dismiss, type, 1, 2, one, two, i, ii, firing, exploit, unfairness, corrupt, intolerance, outrage, unequal, above the law, justice, injustice, bigotry, hypoglycemia, hyperglycemia, law and order, discriminate, enterprise, work, business, corporation, civil, right, hba1c, claim, court, trial, crime, ketoacidosis, termination, grievance, sack, human, campaign.

Other books in the series:

•Justify This 2006 - 2007 (Diabetes Discrimination Disability Ableism Disablism)
•Justify This 2007 - 2008 (Diabetes Discrimination Disability Ableism Disablism)
•Justify This 2008 - 2010 (Diabetes Discrimination Disability Ableism Disablism)
•Justify This 2010 - 2011 (Diabetes Discrimination Disability Ableism Disablism)
•Justify This 2011 - 2015 (Diabetes Discrimination Disability Ableism Disablism)

• Language: English
• Publisher: Nostaple Limited
• Release date: May 30, 2017
• ISBN: 9781370832392

Nostaple Limited

Nostaple LimitedWe try to publish books that are different from the mainstream.

Book preview

Copyright © 2016 by Nostaple Limited

All Rights Reserved.

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

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

First Edition

Other books by Nostaple Limited:

The Justify This series:

Justify This 2006 - 2007

Justify This 2007 - 2008

Justify This 2008 - 2010

Justify This 2010 - 2011

Justify This 2011 - 2015

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

Table of Contents

Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Chapter 7

Chapter 8

Chapter 9

Chapter 10

Chapter 11

Chapter 12

Chapter 13

Chapter 14

Chapter 15

Chapter 1

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