H Ahmed v Department of Work and Pensions [2025] EAT 176

[2025] EAT 176

Case No EA-2022-001403-DXA

EA-2024-000141-DXA

EA-2022-001022-DXA

EMPLOYMENT APPEAL TRIBUNAL

Venue Rolls Building, Fetter Lane, London, EC4A 1NL

Date 26 November 2025

Before

HIS HONOUR JUDGE AUERBACH

Between

MR H AHMEDAppellant

- and –

Between

DEPARTMENT FOR WORK AND PENSIONSRespondent

The Appellant in person for in person

David Tinkler (instructed by Government Legal Department) for Respondent

Hearing Hearing date: 1 October 2025

JUDGMENT

[1]The claimant in the employment tribunal was employed from 2007 to 2022 as a Work Coach at Washwood Heath Jobcentre in Birmingham. During the course of his employment he presented a number of employment tribunal claims. I heard together appeals from three decisions of the tribunal, arising from this litigation. Throughout the litigation in the tribunal and the EAT the claimant has been a litigant in person. At the hearing before me he represented himself. The respondent was represented by David Tinkler of counsel. I will consider each of the three appeals in turn. Appeal 1 – EA-2022-001403-DXA Introduction and Factual Background

Appeal 1 – EA-2022-001403-DXA

[2]This appeal is from the reserved decision of Employment Judge Gaskell, Mr D Spencer and Mr M Z Khan, in claim 5 (1310355/2020) arising from a full merits hearing in Birmingham in June 2022. In circumstances described by the tribunal the claimant did not attend the hearing, but the tribunal considered his written representations and his witness statement. It heard from five witnesses for the respondent, which was represented by Mr C Khan of counsel.

[3]The relevant factual background, as found by the tribunal, may be summarised as follows.

[4]At all material times the claimant was a disabled person, as he has Paroxysmal Nocturnal Haemoglobinuria (PNH). His specific symptoms were said by him to be continual fatigue, lack of concentration, headaches and non-restful sleep. The condition also affects his mood and motivation. His account of these effects of his disability was not disputed by the respondent.

[5]In 2016 the claimant’s managers began to have concerns about his timekeeping. In April 2016 he was issued with a first written warning, which he unsuccessfully appealed. In his May 2016 appraisal for the year ended 31 March he was issued with a “must improve” rating. In September 2016 the claimant began tribunal claim 1 (1302373/2016). He brought multiple complaints of discrimination premised on his poor timekeeping being something that arose from his disability. Arising from a hearing in April 2017 the complaint of failure to comply with the duty of reasonable adjustment was upheld. At a remedy hearing in March 2018 compensation was awarded.

[6]In 2016 the respondent wished to be able to offer jobcentre services outside of 9am – 5pm Monday to Friday and to be in a position to introduce earlier opening of jobcentres at 8am and later closing at 8pm. In June 2016 it circulated information to the workforce about proposed new terms and conditions called the Employee Deal – which the tribunal referred to as “the Deal”. The terms of the Deal, and the mechanism of its implementation, had been negotiated with the recognised unions. In summary, they were these.

[7]Employees were free to opt out. Those who did not opt out would move on to Deal terms. They would receive enhanced earnings from that point and might thereafter be called upon, not to worker more overall hours, but possibly to work a longer day and/or at weekends. The new working arrangements were not necessarily to be introduced straight away, and not necessarily at all jobcentres. Three months’ notice would be given of any actual changes, and six months’ notice if weekend working was to be required. Managers were required to have regard to individual circumstances of disabled employees. Employees on Deal terms would also have the opportunity to challenge any disproportionate impact on them, including to a newly-established Independent Panel.

[8]The opportunity to move on to Deal terms or to opt-out was clearly expressed as a “once-and-only opportunity”, meaning that those who opted out would not later have the opportunity to reverse their decision and opt in. Before deciding whether they wished to opt out of the Deal, employees had the opportunity of one-to-one consultations with line managers. The claimant met his then line manager in August 2016. He formally opted out of the Deal on 31 August 2016.

[9]The tribunal found at [28] that, as at 30 September 2016, 83% of the workforce adopted the Deal and 17% opted out. “Amongst disabled employees the proportions were almost identical with 81% accepting the Deal and 19% opting out.” At [29] the tribunal recorded that a witness told it that she was only aware of three employees out of a workforce of 85,000 who, having opted out, had later been permitted to opt in. This had been exceptionally permitted for them, as all three had been on maternity leave at the relevant time and had not had the opportunity of proper consultation.

[10]As of 2020 extended opening hours had not been implemented at Washwood Heath. At [30] the tribunal observed that “[t]he effect of this, as the claimant saw it, is that he was now working alongside colleagues who had accepted the Deal, doing the same work with the same commitment to working hours, but who were receiving substantially enhanced remuneration.” He asked to transfer to the Deal. After making enquiries his then line manager told him that was not now possible.

[11]The initial period of the Deal was four years to July 2020. In May 2020 the claimant asked his then manager, Mr Mellor, to be permitted to transfer in when it renewed in July. Mr Mellor told him managers had no information as to what would happen in July. He ceased to be the claimant’s line manager on 30 June 2020. The tribunal continued:

“32 It is the claimant’s case that, in July 2020, he received an email distributed to all staff from the DWP Cabinet Secretary Mr Peter Schofield explaining that staff would not have the opportunity to opt-in or opt-out of the Deal in July 2020. In other words employees would remain bound by the “once and only” option made in 2016. Accordingly, on 9 July 2020, the claimant wrote to Mr Schofield asking to be allowed to transfer to the Deal. His letter makes three points of what he describes as the unfairness in the situation: (a) Had he not been discriminated against by management in 2016, he would have signed up to the deal in 2016. (b) In 2016, his understanding was the proposed changes were to be implemented imminently. He had no expectation that he would work alongside colleagues for a further four years on identical terms and conditions whilst receiving considerably lower remuneration. (c) That in 2016 he had not been informed that he would not be permitted to join the Deal in July 2020. 33 On 11 August 2020, Ms Akass replied to the claimant’s letter. She Explained that the rules of the scheme clearly stated employees had a single opportunity to join the Deal or to opt-out. If they opted-out there would not be an opportunity to join at a later date. Accordingly the claimant’s application to join the Deal in July 2020 could not be accommodated.”

[12]That response from Ms Akass was the subject of claim 5. The complaints were of discrimination arising from disability – section 15 Equality Act 2010, and failure to comply with the duty of reasonable adjustment.

The Tribunal’s Decision

[13]After a self-direction as to the law, the tribunal gave its summary of the parties’ respective arguments. At [38] it summarised the claimant’s arguments in this way:

“38 Our analysis and understanding of the claimant’s claim for discrimination arising from disability is as follows: (a) The respondent’s decision in August 2020 to refuse him access to the Deal was unfavourable treatment (b) The claimant’s decision in August 2016 to opt-out of the Deal was a decision he took because he was disabled. Accordingly, that decision arose from his disability and therefore the unfavourable treatment in July 2020 was for a reason arising from disability. (c) The claimants cases that the unfavourable treatment cannot be objectively justified. 39 So far as the adjustments claim is concerned, the claimants case is that the PCP prohibiting transfer into the Deal after opting-out in August 2016 created disadvantage to him as a disabled person compared with nondisabled employees. That PCP was applied to the claimant’s disadvantage in August 2020 when he requested transfer into the Deal. The reasonable adjustment for which he contends would have been to permit late transfer into the Deal.”

[14]At [40] the tribunal stressed that the complaint was about the decision in August 2022. It was not put as being about the Deal itself or the process that was followed in 2016. Had it been put that way the respondent would have raised a time point. At [41] the tribunal continued:

“41 In summary, the claimant’s case is that in the summer of 2016 he was in dispute with management because of their having disciplined him for poor timekeeping and having downgraded his appraisal for the same reason. He therefore had no confidence that he would be treated fairly under the Deal and that he may therefore be subjected to patterns of working hours which with which he could not cope because of his disability. Once he was successful in the Employment Tribunal in August 2017, he had more confidence that managers would recognise his disability and the effects of upon him. His explanation for failing to request a transfer to the Deal at that time is that it was only later that he became aware some exceptional late transfers.”

[15]The tribunal identified that the respondent’s case was that there was no reasonable basis on which the tribunal could conclude that the claimant’s opt-out in 2016 arose from his disability. By the time he opted out he had begun ACAS EC prior to claim 1. He was well aware of the duty of reasonable adjustment, a protection which was enhanced by the Deal itself. It was apparent that the reason why in 2020 he applied to opt in was the non-implementation of the scheme at Washwood Heath, during which time he had lost out on additional income.

[16]The tribunal also set out the respondent’s case as to why, even if the August 2020 decision was unfavourable treatment, and the claimant’s opt-out in 2016 did arise from disability, the former was objectively justified. It asserted, in summary, the following legitimate aims:(a) honouring the collective agreement with the unions as to the one-time opportunity;

(b) achieving financial certainty and budgetary planning;

[17]As to the reasonable-adjustment complaint, the respondent’s case was that the PCP prohibiting late transfer to the Deal did not disadvantage disabled employees or the claimant. In 2020, as between the claimant and a non-disabled employee who had opted out in 2016, there was no disadvantage.

[18]In setting out its conclusions, the tribunal cited the words of section 15(1) and continued: “48 Our judgement is that there was no unfavourable treatment in August 2020. All that Ms Akass did was to restate the position which had been applicable since August 2016. The claimant’s right to adopt or to opt-out of the deal crystallised then. The only thing which could be described as unfavourable is the fact that the claimant did not get what he wanted. On the facts, we find this case covers similar ground to Williams. 49 Further, on the evidence available we do not accept that the claimant’s opt-out decision in August 2016 arose from his disability. Even on the claimant’s case, it arose because of the claimant’s distrust of his then managers. But, he was well aware of his rights; he knew how to implement them; and those rights were enhanced by the Deal. We find that the claimant made an informed decision to opt-out of the deal and only regretted this decision upon discovering that the new working arrangements were not in fact to be implemented at Washwood Heath Jobcentre where he worked. 50 Finally, and for the sake of completeness, we are quite satisfied that the respondent’s application in August 2020 was objectively justified. The claimant’s response to the justifications proposed in Paragraph 44 above, is that allowing him late admission to the Deal would not have destabilised it. But in our judgement that is not to the point: there may have been others wishing to transfer after the event (particularly upon becoming aware of non-implementation); the respondent would have needed a protocol to determine who why could adopt the Deal late and why? The implications went far beyond simply allowing the claimant to do so. Those who were allowed to adopt the Deal late were those who had been deprived of the opportunity to make an informed decision in the first place. There did not apply to the claimant.

[19]In relation to the reasonable-adjustment complaint the tribunal said:

“53 The PCP which was applied in July 2020, was to adhere to the Rules upon which the Deal was proposed – namely, that there was a single opportunity to adopt the Deal in August 2016. The claimant had opted-out in August 2016, and could not therefore adopt the deal in July 2020. 54 There is no basis upon which we can properly conclude that the application of this PCP in July 2020 placed the claimant at any disadvantage. We accept the respondent’s submission that the proper group for comparison at that time would be non-disabled employees who had opted-out in August 2016. Compared to that group, the claimant was not at any disadvantage. 55 The claimant’s case may have had more prospects of success if there was evidence upon which we could find that disabled employees were more likely to have opted-out in 2016; and more likely to wish to adopt the Deal in 2020. The statistical evidence provided by the respondent suggests that disabled employees were no more likely to have opted-out; and there was no evidence that disabled employees were more likely to seek to adopt the Deal in 2020. Accordingly, the claimant has simply not established before us any evidence from which we could properly conclude that the application of the PCP placed him at a disadvantage.”

The Grounds of Appeal, Discussion, Conclusions

[20]There are six grounds of appeal, although only parts of grounds 3 and 5 were permitted to proceed. Grounds 1, 2 and 3 all relate to the section 15 complaint. Ground 6 raises challenges in relation to aspects of the reasoning bearing on that complaint. Grounds 4 and 5 relate to the reasonable-adjustment complaint. I consider first the grounds bearing on the section 15 complaint.

[21]Section 15(1) Equality Act 2010 provides:

“A person (A) discriminates against a disabled person (B) if— (a)A treats B unfavourably because of something arising in consequence of B's disability, and (b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

[22]For section 15(1)(a) to be satisfied, the tribunal must first find that there has been unfavourable treatment. If so, as a well-established line of authority discusses, there are then two links in the chain of causation. That treatment must be “because” of a “something”; and that something must arise in consequence of the disability. The concept of “because of” is the same as it is in the context of direct discrimination in section 13(1). Save in obvious cases, it requires the tribunal to consider whether the “something” materially influenced the decision-maker’s mind (consciously or not). It does not need to be the main reason. But it would not be sufficient if it merely formed part of the background to, or context of, the decision. The “arising in consequence” test is an objective test for the appreciation of the tribunal. It may, potentially, be satisfied by more than one link in the chain.

[23]At [40] the Gaskell tribunal noted that the list of issues had been identified at an earlier preliminary hearing on 3 June 2021. There was indeed a list of issues attached to the minute of that hearing, which was then amended, and, as amended, agreed. The respondent did not dispute disability or knowledge. The list identified the claimant’s case that his decision to opt out in 2016 arose in consequence of disability, and how he put that. At [2.6] it formulated the following issue:

“Did the respondent treat the claimant as aforesaid in 2.1 ultimately because of the ‘something arising’ in consequence of the disability? The respondent says the deal was no longer available to anyone in the claimant’s position and his disability played no part in this.”

[24]The Gaskell tribunal’s summary of the arguments, and its conclusions, focus on three issues in relation to this complaint, being(a) whether there was unfavourable treatment;

(b) whether the claimant’s decision to opt out in 2016 was something arising from his disability; and

(c) the justification defence. It appears that this corresponded to the three aspects that were specifically at issue. In any event there has been no appeal or cross-appeal by the respondent to the effect that the tribunal erred by not separately addressing whether the communication from Ms Akass was in the requisite sense because of the “something” relied on, being the claimant’s opt-out decision in 2016.

[25]Turning, then, to the grounds relating to this complaint, ground 1 is that the tribunal erred in concluding, at [48], that there was no unfavourable treatment, and in particular in regarding the facts of this case as analogous to those of Williams v Trustees of Swansea University Pension & Assurance Scheme

[2018] UKSC 65

;

[2019] ICR 230

. Mr Williams was treated favourably because of his disability, whereas (the ground asserts) the present claimant was denied a fair opportunity to join the Deal in August 2016 due to the failure to make reasonable adjustments for him at that time.

[26]I agree that the facts in Williams are not analogous, although I do not agree that this is because of what happened in 2016. The issue raised by this ground is whether the communication from Ms Akass in 2020 was unfavourable treatment, not the reasons for it. Mr Williams was, on account of his disability, awarded a pension at a time when he would not otherwise have been entitled to a pension at all. The award of an early pension to him was not unfavourable treatment. The fact that he considered that the terms of that pension should have been more generous, did not alter that. In the present case Ms Akass’s response to the claimant did not result in any improvement to his position.

[27]Mr Tinkler drew upon the reasoning in Cast v Croydon College

[1998] EWCA Civ 498

;

[1998] ICR 500

. Mrs Cast submitted a number of requests to be permitted to work part-time, both before and after she took maternity leave. On each occasion her request was refused. In the context of a time-limit issue, Auld LJ (Walker and Otton LJJ concurring) at [39] considered it significant that the tribunal had regarded what happened on the later occasions as “more than a mere reference back to what the college had already decided before the appellant took her maternity leave.” Rather, the tribunal had spoken of the college reconsidering, or looking at the matter again, and then confirming their original decision. Mr Tinkler argued that, in the present case, by contrast, there was no fresh decision in 2020. Ms Akass merely informed the claimant again of what had been, and continued to be, the position ever since 2016. The tribunal properly concluded that merely conveying that information to him did not amount to unfavourable treatment.

[28]My conclusions are these. First, whether treatment is “unfavourable” depends upon an application of the ordinary meaning of that word. While the EHRC’s Code of Practice (2011) refers at [5.7] to treatment which puts the individual at a disadvantage, Lord Carnwath in Williams (the other Justices concurring) suggested, at [27], that little is to be gained by referring to such concepts as “detriment” and “disadvantage” drawn from other provisions. Certainly, as the examples in the Code itself illustrate, declining to do something that would advantage a worker, such as refusing an application for promotion, would naturally fall to be described as unfavourable treatment.

[29]Second, section 15(1) is engaged when A “treats” B unfavourably. So, as Lord Carnwath noted, at [28], the place to start is to identify the nature of the alleged treatment. In this case, the tribunal said at [4] that the complaint related to the “refusal to permit the claimant access” to the Deal in 2020. At [32] it said that he wrote to Mr Schofield “asking to be allowed to transfer to the Deal”, and making a number of points in support of that request. At [33] it described Ms Akass’ letter, which it said “explained” that the rules provided for a single opportunity to join, and that accordingly the claimant’s “application to join … could not be accommodated.” At [34] it described the subject of the claim as the “decision” taken by the respondent and communicated by Ms Akass.

[30]In substance, therefore, the tribunal’s findings of fact did not describe a situation in which the claimant was merely seeking information about the rules of the scheme, or the position under it in 2020, from someone who might know the answer. Rather, he was making an application for a decision permitting him to join at that point, on the footing that the person he was applying to would be in a position to so decide. Ms Akass’s response amounted, in substance, to a refusal of that application. Bearing in mind that this was, in substance, the nature of the treatment, and that, as the tribunal itself bluntly found, at [48], the claimant did not get what he wanted, I consider that the tribunal did err by concluding that Ms Akass’s response did not amount to the respondent treating the claimant unfavourably within the meaning of section 15(1). I therefore uphold ground 1.

[31]The headline of ground 2 is that the tribunal erred in its approach to causation. It advances two challenges. First, it asserts that the tribunal found that the claimant’s decision to opt out in 2016 arose because of his distrust of his managers. It then contends that the evidence was that such distrust arose from the respondent having failed to adjust the claimant’s working hours in 2016 and having disciplined him and given him a low annual appraisal for late attendance, which itself arose from his disability. Taking into account also the findings in the decision of the tribunal which had upheld the complaint in claim 1 of a failure to comply with the duty of reasonable adjustment, the Gaskell tribunal is said to have erred by not concluding that there was a chain of causation establishing that the claimant’s 2016 decision to opt out arose in consequence of his disability.

[32]Secondly, this ground contends that the tribunal’s conclusion that the claimant “regretted” his decision in 2016, upon discovering that the Deal had not been implemented at his workplace, was a “fallacy”, as he could not, in 2016, have known what would happen in the years to come, and so regret could not have formed part of his reason for opting out in 2016.

[33]My conclusions on this ground follow.

[34]Firstly, the challenge mounted by this ground is, in substance, a perversity challenge. It faces the high hurdle that all such challenges face.

[35]Secondly, I agree with Mr Tinkler that, at the start of [49] what the tribunal was referring to was the claimant’s case. It was not there making a finding of its own. Further, the tribunal plainly understood the claimant’s case as to the reason why he opted out in 2016, and how it related to his disability, which it summarised at [41]. However, it appears to me that, on a fair reading of [49] as a whole, against the backcloth of the summary earlier given of the rival arguments, the tribunal did not accept the claimant’s case. Rather, it accepted the respondent’s case as to why he had made that decision, as summarised in the remainder of [49].

[36]The claimant advanced a number of criticisms of that reasoning. He said that, at the time when he had to decide whether to opt out in 2016, he had yet to be vindicated in his first tribunal claim. But the tribunal was entitled to weigh also in the balance that he had begun the ACAS EC process, and the first claim followed shortly after he signed the opt out. It was entitled to conclude that he was aware of his legal rights as a disabled person, and not afraid to assert them, at that time.

[37]The claimant criticised the observation that those rights were “enhanced by the Deal”. That was clearly a reference by the tribunal to the fact that managers were told to take account of the circumstances of disabled employees, and to the creation of the Independent Panel. In argument the claimant stressed that the duty of reasonable adjustment is a statutory obligation on an employer in any event. He contended that making an employee go to a committee was making them jump through hoops and a backward step. However, I do not consider it perverse for the tribunal to have regarded the directive to managers, or the establishment of this panel, as positive things, which added to his legal protection. They certainly did not detract from his rights in any way.

[38]Ground 6 criticises the tribunal for making no finding about what in substance was discussed at the one-to-one meeting the claimant had with his then manager in 2016 about the Deal and the possibility of opting out. The claimant makes the point that, of the two people present at that meeting, the tribunal only had evidence from him. His case was that, although his then manager knew of his disability, and the warning he had received, he was not given any positive assurance at the meeting that his disability would be accommodated as and when Deal terms began to apply to him, should he not opt out. The ground contends that, without any finding about what was said at the meeting, the tribunal’s conclusion that the claimant took an “informed” decision is not sufficiently explained.

[39]I do not agree. The natural reading of the tribunal’s conclusion that the claimant made an “informed” decision, is that it was drawing on the facts it had set out: that he had been provided with the information circulated to the workforce about the scheme, as set out in some detail by the tribunal at [24] – [26], that he had had the opportunity of the consultation meeting to raise any questions or issues [24] (rather than the tribunal relying upon something specifically said by his manager at that meeting), and that he had signed an opt-out form which included an acknowledgement that he had read the information provided before making his decision [27].

[40]Nor was it perverse for the tribunal to make the findings of fact that it did about why the claimant opted out of the Deal in 2016. The tribunal had to make its findings of fact drawing on the picture created by all of the evidence, and facts that it found. As part of that it considered the claimant’s evidence and representations, although it properly noted that his non-attendance affected the weight that it could attach to his statement [15][17]. The tribunal also had evidence relating to the information provided to employees, of the opt-out document which the claimant had signed acknowledging that he had read the information provided [27] and of the contents of the letter that he wrote to Mr Schofield, in which he put forward a number of reasons for making his application, including his assertion that, had he not been discriminated against in 2016 he would not have opted out then, but also including his statement that he had not expected to be working alongside colleagues for four years, on identical terms, but receiving less remuneration [32].

[41]I turn to the challenge, that the tribunal’s finding at [49] that the claimant “regretted” his 2016 decision, rested on a “fallacy”. As to that, the tribunal did not say that regret formed part of the reasoning for the 2016 decision. Nor did it find that, in 2016, the claimant knew, or should have known, that, four years later, the new working arrangements would not yet have been introduced at his workplace. What it found was that, when that turned out to be the case, he came to regret his earlier decision. That is an ordinary and proper use of language. People sometimes do come to regret their past decisions, even though it is with the benefit of hindsight. The claimant did not use the word “regret”, but the tribunal was entitled to draw that inference from the evidence. Nor was this conclusion irrelevant to the tribunal’s consideration of whether the claimant’s earlier decision had, as he asserted, been influenced by a fear that proper allowance would not be made for his disability.

[42]For all of the foregoing reasons, grounds 2 and 6 challenge a conclusion which was neither inadequately reasoned nor perverse; and so both grounds fail.

[43]Because the challenge to the conclusion that the “something” relied upon by the claimant was not arising in consequence of the claimant’s disability has failed, it follows that the tribunal did not err in dismissing the section 15 complaint. Nevertheless, the tribunal also, for completeness, considered the justification defence; and I will similarly consider the ground which relates to that part of its decision, which is ground 3. Only part of ground 3 was permitted to proceed. The part that was live contended that the tribunal erred by failing to perform the exercise of balancing the respondent’s aims against the discriminatory impact on the claimant, with respect to his remuneration.

[44]The claimant raised a number of arguments, some of which went beyond the scope of the live ground. He said the tribunal had not attached due weight to the fact that he had been subjected to discrimination at the time of the opt-out in 2016. Nor had it considered whether reasonable adjustments could have been made to enable him to join the scheme in 2016. The tribunal was wrong to accept consistency as a legitimate aim, as treating all employees the same could result in discrimination. Further, three employees had been allowed to opt in late, and there was no suggestion, or finding, that this had destabilised the Deal. He also criticised the suggestion that, had it allowed his application, the respondent would have had to introduce a protocol for similar applications – but that was specifically a strand of the original ground that had not been permitted to proceed.

[45]The tribunal’s consideration of the justification defence “for completeness”, was plainly on the assumption that (contrary to its conclusion), there had been a contravention of 15(1), which would require justification. Nor do I think that the tribunal can possibly have overlooked that the specific disadvantage of the treatment of which the claimant complained, was the impact on his remuneration – given all the findings about that, and that enhanced remuneration was the benefit of being in the Deal. Nor do I consider that there was any principled error in the tribunal accepting consistency of treatment as a legitimate aim. That simply connotes treating like cases alike. The opt-ins allowed to the three employees had also been granted for the specific reason that they had not had the chance of a consultation meeting when the original exercise was carried out. That did not apply to the claimant.

[46]I am therefore not persuaded that the tribunal erred as alleged by ground 3.

[47]I turn to the grounds which challenge the decision on the reasonable-adjustment complaint. Ground 4 contends that the tribunal erred in concluding that the application of the PCP in 2020 did not put the claimant at a substantial disadvantage in comparison with persons who were not disabled. The PCP was described (at [53]) as adhering to the rule that there was a single opportunity to opt out in 2016. This ground specifically contends that the tribunal erred because it failed to take account of the fact that the claimant’s disability was the reason why he had opted out of the Deal in 2016, so that he was substantially disadvantaged by the PCP compared to non-disabled employees.

[48]In his written arguments the claimant made clear that, once again, his contention was that his decision to opt out in 2016 was because of his concern engendered by the discriminatory treatment of him by way of the earlier failure to comply with the duty of reasonable adjustment (as in due course found by the tribunal which decided claim 1). The short answer to this challenge is that, for reasons I have given, the tribunal did not err in not finding that that was the reason for the earlier opt-out. The tribunal therefore did not err in not finding that, because of that particular link to his disability, the decision taken in 2020 placed him at a disadvantage compared with non-disabled persons.

[49]Ground 5 contends that the tribunal erred in what it said at [55], because it thereby imported into section 20 a requirement to show group disadvantage, which would be apposite to a complaint of indirect discrimination but is not an ingredient of a section 20 complaint. However, I agree with Mr Tinkler, that this is simply not a correct reading of what the tribunal said at [55]. Rather, it was making the observation that, if there been some evidence of disadvantage to disabled persons generally, that “may” have provided some basis to argue that an inference should be drawn of individual disadvantage to the claimant. The tribunal also correctly refers at [52], [54] and [55] to the test being whether the application of the PCP placed “the claimant” at a disadvantage.

[50]The claimant also made the point that, even in relation to indirect discrimination, group disadvantage must be considered by reference to persons sharing the complainant’s particular disability (see section 6(3) of the 2010 Act). He also advanced an argument to the effect that, notwithstanding the narrow differences in the percentage figures of disabled and non-disabled persons who opted in or out in 2016, the difference in absolute numbers might have been significant. However, these arguments go nowhere, as the underlying premise of this ground, that the tribunal wrongly introduced an additional legal hurdle, is incorrect.

[51]The challenge to the tribunal’s conclusion dismissing the complaint of failure to comply with the duty of reasonable adjustment therefore also fails.

Outcome of Appeal 1

[52]For all of these reasons appeal 1 is dismissed. Appeal 2 – EA-2024-000141-DXA Introduction and Litigation Background

Appeal 2 – EA-2024-000141-DXA

[53]Appeal 2 is from the reserved decision of EJ Taylor, arising from a public preliminary hearing (PH) at West Midlands (by CVP) in November 2023, striking out claim 7 (1303733/2022).

[54]The relevant litigation background is, in summary, as follows.

[55]On 25 August 2022 the claimant presented claim 7, complaining of failure to comply with the duty of reasonable adjustment. In the particulars he stated that in May 2022 his then line manager, Mr Bains, informed him that the respondent was re-offering the Employee Deal that had been initially offered in 2016, and which he had not joined at that time. He had responded that he could join if a reasonable adjustment was made for his disability “whereby I only be required to work my current working pattern.” Other employees who had signed up in 2016 were still working to their pre-Deal hours. No flexibility had been required of them. The manager had not made that adjustment or any other adjustment, so the claimant could not join the Deal under the re-offer in June 2022.

[56]The respondent resisted the claim. Its grounds of resistance referred to claim 5 and the Gaskell tribunal’s decision sent on 6 September 2022. It averred that the claimant was estopped from proceeding with any allegation that was part of claim 5 or that could have been introduced by way of amendment of that claim up until the conclusion of the Gaskell tribunal hearing on 10 June 2022.

[57]As to the facts, the respondent stated that in March 2022, employees, including the claimant, had been offered the new Deal. Mr Bains had asked the claimant in May whether he wished to opt in. On 27 May the claimant replied that he would only opt in if the respondent made the reasonable adjustment of allowing him to work his existing pattern. In a call Mr Bains said that that pattern could be accommodated with the intention to review after 6 months, along with a new OH report to ensure that the claimant had the most appropriate reasonable adjustments in place. The claimant’s response was that his existing pattern should be maintained regardless. The claimant did not categorically state that he was opting in by the final deadline, and was treated as having not done so. The respondent contended that the claimant had failed to particularise to what substantial disadvantage requiring him to work to the flexible patterns of the new Deal would give rise, nor how the only specific adjustment contended for by him would have removed such disadvantage.

[58]At the PH in question the tribunal had before it an application by the claimant to amend to add a section 15 complaint in respect of the same decision, the respondent’s application to have claim 7 struck out, and an application by the claimant for the respondent’s response to that claim and another claim, claim 3, to be struck out. This appeal does not relate to the application concerning claim 3.

[59]The tribunal made a number of references to the decision of the Gaskell tribunal in claim 5. At [34] it cited their findings about the information given to employees in 2016 about the Deal. At [35] it concluded that these findings were a necessary part of that tribunal’s decision. It continued:

“36.The claimant raised the issue of being subjected to patterns of working hours with which he could not cope because of his disability. This is the same issue as requiring the claimant’s working pattern to remain the same. 37.The Judgment in respect of claim number 5 gave consideration to the working arrangements required by the Employee Deal and made findings about how any change in working pattens would be dealt with under the Employee Deal. The Employee Deal required specific consideration to be given to individual circumstances and preferences, including those of disabled employees and gave a specific way to challenge the disproportionate impact of any new working arrangements. 38.It seems to me that the factual assertion made by the claimant in respect of claim 7, and his application to amend, is that he needed to only be required to work his current working pattern, whether this is pleaded as a failure to make reasonable adjustments or a claim for discrimination arising from disability, the underlying factual assertion is the same. It is clear from the finding made in determination of claim 5 that the manner in which working arrangements would be imposed under the Employee Deal were considered by that Tribunal and the issue of the claimant being subjected to patterns of working hours with which he could not cope was also considered and determined. 39.The claimant has submitted that claim 5 relates to his application to join the Employee Deal four years after it started whilst claim 7 relates to a request for reasonable adjustments before the Employee Deal started. I do not consider that this point is relevant, the substance of both claims relates to the claimant’s working pattern, whether his request for reasonable adjustments around his working pattern was made before or after the Employee Deal started does not change the substance of the claims. 40.Whilst claim 7 relates to a further opportunity to join the Employee Deal, the essential complaint is that the respondent did not take into account the claimant’s working pattern requirements i.e. the respondent failed to make reasonable adjustments allowing the claimant to opt in to the Employee Deal. The previous Tribunal has already made a finding about how the respondent took decisions in respect of working arrangements, how these would be implemented and how a challenge could be made if an employee disagreed with those arrangements. 41.Claim 7 and the claimant’s application to amend therefore raise points which have already been determined and issue estoppel applies. On that basis, the claimant’s application to strike out the respondent’s response to that claim cannot succeed.”

Grounds of Appeal, Discussion, Conclusions

[60]Three grounds of appeal were permitted to proceed to this full hearing, in summary as follows.

[61]Ground 1 asserts that the tribunal erred in holding that issue estoppel applied, as material factual issues in claim 7 had not been determined by the decision on claim 5. The latter had not made any precise or material finding of fact in relation to the claimant’s working hours, as it was not necessary to determine the complaints in that case. Further, there was a material difference in 2022 from the position in 2016, as in 2022 joining the Deal was no longer a once and only opportunity.

[62]In argument the claimant contended that it was in fact the decision in claim 1 that had made specific findings about his working hours and the adjustments to them that the respondent was reasonably required to make to address the disadvantage caused by his disability. Mr Tinkler noted that this did not form part of the live ground; but in any event he was content to address it. He contended that the decision in claim 1 had not determined that early starts, as such, put the claimant at a disadvantage, but rather that the requirement for him to arrive at work on time did so.

[63]Ground 2 asserts that the tribunal erred at [39] in considering that when, in each case, the claimant had applied for reasonable adjustments was not a material difference. Claim 5 related to an application to join the Deal four years late, claim 7 to a timely application to do so when the fresh opportunity was given. The adjustments sought for in the two claims were also different: being allowed to join the Deal versus being allowed, upon joining, to continue to work the existing pattern. Mr Tinkler contended that this ground is a perversity challenge. The Taylor tribunal was entitled to regard it as material that the Gaskell tribunal had not accepted the claimant’s case as to why he opted out in 2016, nor that joining the Deal would, as such, itself put him at a disadvantage.

[64]Ground 3 contends that the tribunal erred at [36] in considering that the issues raised in the two claims were materially the same. Had it heard claim 7, the tribunal might have identified some working pattern required by the Deal, which might not have been the same as the claimant’s existing working pattern, but would have been sufficient to alleviate the disadvantage he claimed. That could only be properly considered and determined at a full hearing. The claimant postulated in argument that the tribunal might have decided, for example, that a reasonable adjustment would be not to require him to start earlier than hitherto, but that later finish times than hitherto were not precluded.

[65]Mr Tinkler argued that the case advanced by the claimant was that the required reasonable adjustment was keeping his existing hours exactly the same, on the basis that otherwise he might be required to work hours with which he could not cope because of his disability. The Gaskell tribunal had rejected that, because it had found that the Deal would not operate in that way.

[66]As to ground 1, I agree with the claimant that the Gaskell tribunal had not determined the particular issue raised by claim 7. The Gaskell tribunal had decided that not permitting the claimant to opt in to the deal in 2020 was not a failure to make a reasonable adjustment, as such. That claim had failed in part because it was based on an attempt to relate back a chain of causation to his decision to opt-out in 2016, which failed factually; and because, as and when Deal terms were introduced at the claimant’s workplace, the respondent would be under a duty to make reasonable adjustments, and the Deal itself provided for a duty on managers to consider that, and an Independent Panel.

[67]The application that the claimant had made in 2020 was simply to be permitted to opt in to the Deal. The complaint in claim 7 was about whether the respondent ought reasonably to have made the adjustment of freezing his work pattern, or some other adjustment, rather than requiring him to work flexibly under the Deal, were he to opt in to it, in 2022. The respondent’s factual case about how it had proposed to address that issue, if the claimant opted in, and that its approach was sufficient to fulfil the duty of reasonable adjustment in respect of any disadvantage there might have been, might or might not have succeeded at trial. But that particular factual and legal issue had not been determined by the Gaskell tribunal’s decision in claim 5. Ground 1 therefore succeeds. It is therefore not necessary for me to determine to what extent there is factual overlap between the findings made in the decision on claim 1 and the factual issues raised by claim 7.

[68]As to ground 2, in 2020 the claimant applied to join the Deal at a time when there was no general opportunity to do so, whereas in 2022 there was a current and new opportunity to do so. But, once again, the material point was that, in that context, the substantive complaint in claim 7 was now about the respondent’s handling of the issue of what adjustments would or would not be made to the actual hours he could be asked to work under the Deal, if he took up the opportunity. That was not a feature of claim 5. This ground is therefore also well founded.

[69]As to ground 3, I note that the claimant, in the particulars of claim, indicated that he had asked for the adjustment that, if he joined the Deal he only be required to work his current working pattern. However, his complaint to the tribunal was that the respondent did not make the adjustment he had asked for “or any other” reasonable adjustment. I consider that the tribunal therefore did err by not considering this feature of how he put his tribunal complaint, when deciding whether to strike it out.

Outcome of Appeal 2

[70]For the foregoing reasons I allow appeal 2.

Appeal 3 – EA-2022-001022-DXA

[71]This appeal relates to the decision of EJ Gaskell, Mr Virdee and Mr J Kelly, in relation to claim 4 (1309303/2020) arising out of a hearing at Birmingham in July 2022 (“Gaskell 2”).

[72]This particular claim was begun on 22 September 2020. In summary, the claimant claimed direct race discrimination, victimisation and failure to comply with the duty of reasonable adjustment. The complaints related to aspects of a disciplinary investigation and process in relation to allegations of misconduct against the claimant, and a related grievance raised by him. To understand the tribunal’s decision and the grounds of appeal it is necessary first to set out the relevant sequence of events in the litigation prior to the July 2022 hearing, and then as the hearing itself unfolded; and what the tribunal said about these events in its decision.

[73]As the Gaskell 2 tribunal noted at [2] there were two case-management hearings before EJ Broughton, who listed a final hearing for 13 – 26 July 2022 and determined that it should be conducted “face-to-face.” On 6 April 2022 there was an ADR hearing before EJ Perry. This did not result in a resolution. EJ Perry went on to deal with matters of case-management in relation to the full hearing. His directions and reasons were then recorded in a letter from the tribunal of 27 April 2022.

[74]Relevantly, that letter noted that the respondent’s counsel had raised that 4 of its 12 expected witnesses would prefer to give evidence remotely. One of these had medical reasons, and, although he was concerned “that any witness giving evidence remotely may drop off the hearing”, the claimant agreed in that case. EJ Perry was not persuaded on present information that the others could not give evidence in person. The judge also noted that the claimant had been permitted to join the CVP hearing by telephone on the basis that he had internet connection and laptop problems. EJ Perry observed:

“Any hearing will thus need to take place as a minimum as a hybrid as he intends to appear in person.”

[75]There was then a PH before REJ Findlay, with orders sent on 30 June 2022. These included her decision on applications by the respondent for two witnesses to give evidence remotely (being two out of those previously raised before EJ Perry about whom more information had been provided). REJ Findlay directed that one of these two would give evidence by video link and the other in person.

[76]On 7 July 2022, in accordance with REJ Findlay’s directions, the respondent’s representative emailed a draft hearing timetable, which identified the two witnesses who would be giving evidence by video link. On 12 July the tribunal informed the parties that, owing to the ill health of the judge, the hearing could not now start on 13 July; but a judge could cover a 9-day hearing starting on 18 July. Following responses from the parties the tribunal emailed them attaching a revised notice of hearing for 18 – 28 July. The notice of hearing referred to it being a video hearing, but the covering email stated:

“The parties have been directed to attend Centre City Tower in person.”

[77]Day one (Monday 18 July) was scheduled as a housekeeping/reading day. The claimant and the respondent’s counsel, Mr Khan, attended at the hearing centre in person. The judge and members joined on the link. The tribunal commented at [5] of their decision, that the panel’s first involvement had come on the afternoon of 15 July, when they had each been assigned the case and told that it was “a hybrid hearing which we were to conduct remotely”. The judge had queried this and was sent a copy of EJ Perry’s order. On the basis of that order, and having seen no other papers, EJ Gaskell had anticipated that only the claimant would attend the hearing centre in person, with the respondent, its witnesses and the panel attending remotely. The tribunal recorded at [6] that the panel was therefore surprised to find at the start of day one that all parties and witnesses had attended, or were intending to attend, the hearing centre in person, and the panel were the only remote participants.

[78]EJ Gaskell first raised the fact that he had been the judicial member of the panel that had heard claim 5, where a reserved decision was pending. Both parties agreed that this did not give rise to any need for him to recuse himself. The tribunal then turned to the question of hearing arrangements.

[79]EJ Gaskell expressed the view that if the panel was attending remotely, there appeared to be no good reason why the parties, representatives or witnesses needed to attend in person. Mr Khan said that he had understood that attendance was to be in person, but if the panel was attending remotely, then he would prefer for himself and all his witnesses also to do so. The claimant responded that the issue had already been determined by REJ Findlay. The tribunal’s decision continues:

“11. When pressed, the claimant explained that it was his preferred choice that all witnesses should attend the hearing in person. He believed that his cross-examination of those witnesses would be more effective if he were face-to-face with them in the room. 12 We considered the claimant’s position but could see no compelling reason why his cross examination of witnesses would be more effective face-to-face rather than by video link especially as the panel was conducting the hearing remotely. A hybrid hearing with only the claimant present was clearly what Judge Perry had envisaged. We went on to announce that, in our judgement, it was in the interests of justice, and consistent with the overriding objective, for the hearing to continue as a hybrid hearing. Any party or witness who wished to do so could joining remotely. But any party or witness who preferred to attend the hearing centre could do so and would be allowed to use electronic equipment provided by the tribunal to enable them to join the hearing. 13 The claimant was dissatisfied with this ruling. At this point, in his arguments became incoherent and inconsistent and his behaviour became aggressive and abusive. 14 The argument was incoherent and inconsistent in that the claimant then asserted that, by our ruling, we were forcing him to attend the hearing centre the following day during a forecast heatwave. (At no stage did the claimant request an adjournment of the proceedings because of the heatwave.) The incoherence of this position is firstly, the tribunal was not forcing him to attend the hearing centre; to the contrary, we were giving him the option not to attend. Secondly, it was the claimant’s position which would have forced attendance both of himself and of other participants because of his insistence that the witnesses giving evidence should be present in the room. 15 The claimant was further incoherent and inconsistent because he indicated that he would join the hearing remotely by telephone but could not do so by video link. Accordingly, it was the claimant’s position that if he were permitted to join by telephone he could effectively cross-examine the respondent’s witnesses even though this would inevitably mean that they were not present in the same room as him. 16 The claimant was abusive and aggressive: he consistently spoke over Judge Gaskell and Mr Khan. He refused to accept any direction from the panel and demonstrated no respect for the authority of the tribunal. The claimant accused Mr Khan of misleading the tribunal and he accused Judge Gaskell of being a racist. Several times during the course of the morning’s hearing of 18 July 2022 claimant asked Judge Gaskell to recuse himself. 17 In addition, to the Ruling made with regard to the nature of the hearing (Paragraph 12 above), the panel also made the following case management Rulings: (a) That it was not permissible in the interests of justice for the claimant either to be cross-examined or to cross-examine the respondent’s witnesses by telephone. It was essential for Mr Khan and the panel to see the claimant whilst he was answering questions. And it was essential for the claimant to see respondent’s witnesses whilst they were answering his questions. (b) The recusal applications were refused. 18 At around 12 noon, the public hearing for the day ended. As planned, the panel were to spend the rest of the day reading the papers in the case. Contrary to what has subsequently been asserted by the claimant, when he left the hearing room the tribunal did not engage in any further discussion or exchanges with Mr Khan. 19 Once the panel commenced its reading-in, it became clear that we needed more time than the half-day which was now effectively left to us. Accordingly, at around 1pm we requested the tribunal staff to email the parties advising them that the panel would continue its reading throughout the following day, 19 July 2022 and would commence the evidence at 10am on Wednesday 20 July 2022. We again made clear that the parties could join by CVP or they could attend the hearing centre and join the hearing using tribunal equipment. The effect of the decision to continue reading for a second day was that no-one was required to attend on 19 July 2022 - the day of record high temperatures.”

[80]At around 1pm that day, Monday 18 July, the tribunal emailed the parties, stating that the panel would read through the next day and evidence would begin at 10am on Wednesday 20 July. It confirmed that all parties “may attend by CVP”, or they could attend the hearing centre and join the hearing using the tribunal’s equipment. However, participation by telephone would not be permitted.

[81]Shortly after 4pm on Tuesday 19 July the claimant emailed the tribunal making a complaint, and also applying for EJ Gaskell to recuse himself, and for the whole panel to recuse themselves. He gave his account of events the day before. He complained that the tribunal had overruled REJ Findlay’s order “about witness attendance”, and that, as the discussion unfolded, the judge had displayed animosity towards him. He said that he had expressed concern at having to attend the hearing centre on the Tuesday, because of an extreme heatwave, and had asked for a postponement to the Wednesday. The claimant’s account said that had been rejected by the judge, but noted that there had then been an email designating the Tuesday as a reading day.

[82]The tribunal recorded at [20] that the judge directed the complaint to be referred to the REJ, and that he also “directed the tribunal staff to advise the claimant that issues raised in the letter would be discussed at the commencement of the day’s hearing on Wednesday 20 July 2022.” However, in the event the tribunal administration only sent a letter out the following morning. At 8.05 am on Wednesday 20 July the tribunal emailed the parties a CVP link and attached a letter to the claimant, cc to the respondent. That referred to his letter of 19 July and continued:

“The claimant should be advised that his complaint will be considered at the start of the hearing tomorrow. He should attend the tribunal in person OR by video using the link which the tribunal will send him.”

[83]At 9.33 that morning the claimant emailed in reply:

“I have informed the ET numerous times, and it has been recorded in a case management order, that I cannot attend a hearing by CVP. Regarding attending the hearing in person, that is covered in my complaint. Has the REJ directed that my complaint dated 19/07/2022 about the behaviour and conduct of the tribunal panel on Monday is to be dealt with by the panel themselves? If not, who has made that decision?”

[84]At [21] of its decision the tribunal observed of that email that, contrary to what it asserted, the complaint the previous day had made no reference to attending in person in the heatwave on the Tuesday; and the claimant had provided no explanation for his non-attendance on the Wednesday.

[85]The hearing that morning began at 10am. The claimant was absent. Mr Khan thereupon applied for an order dismissing the claim under rule 47 (of the 2013 Rules of Procedure). The decision records [22] that the panel considered that, before proceeding to hear that application, the judge should “attempt to clarify matters for the claimant and encourage his attendance.”

[86]At 10.55 the tribunal emailed the claimant a letter, cc to the respondent. This stated that the panel had considered his emails of 4.05 the day before and 9.33 that morning. His complaint had been referred to the REJ, who would no doubt respond to it in due course. The intention of the panel had been to deal with the matters impinging on the immediate continuation of the hearing. It was important that the claimant understand that neither the REJ nor the EAT had jurisdiction to intervene in the current hearing. The panel had fully explained why they were unwilling to allow the claimant to continue with the substantive hearing by telephone. Written reasons would be provided, if requested in accordance the rules. The letter continued:

“The panel of therefore resolved that the hearing will continue commencing at 2pm this afternoon. We invite you to attend either in person or to join by CVP using the link which has been provided and which can be done using your smartphone. The panel require you to respond to this email by no later than 11.30am to indicate your intentions. If the tribunal does not hear from you by that time or you indicate that you are unwilling to attend, then at 12 noon the respondent intends to apply for your claim to be struck out pursuant to Rule 47 of the Employment Tribunals Rules of Procedure 2013. The panel is content for you to join the hearing by telephone for the purpose of listening and responding to that application. We look forward to hearing from you as to your intentions.”

We look forward to hearing from you as to your intentions.”

[87]The decision records [24] that, nothing further having been heard from the claimant by 11.30, the tribunal began hearing the respondent’s application at midday. At 12.21 the claimant emailed the tribunal, and the panel interrupted counsel’s submissions to consider that email. The claimant wrote that what the panel was doing to him wouldn’t be happening “if I was white.” He complained that the tribunal had overruled REJ Findlay’s order and Presidential Guidance (he had referred in his complaint to such guidance, that hearings in discrimination cases had defaulted back to being in person). He complained of the conduct of the respondent’s counsel on the Monday. He continued:

“I will not be able to attend today. I am fatigued due to the effects of my disability, which has been exacerbated by the racially motivated bias of the tribunal, especially during Monday's session and the recent extreme temperatures which have resulted in sleep deprivation. I am experiencing high levels of stress, due to the consequence of my disability and the tribunals and respondents' evil behaviour towards me. I suffer from social anxiety and always need to prepare myself mentally when I attend hearings (and other events) and the tribunal demanding I attend by 2pm today has not given me enough time. I cannot attend by CVP which I have repeated ad nauseam. For all these reasons I cannot attend at 2pm today. On Monday EJ Gaskell tried to intimidate and threaten me when I challenged his intention to overrule REJ Findlay. He said " Me and you will not get on over the next 9 days."”

[88]The tribunal observed of this email [24]:

“For the first time the claimant provided an explanation of his failure to attend. This has not been supported by any medical evidence. Significantly, the claimant gave no indication as to his future intentions and whether, for example, he would attend the tribunal the following day. In the circumstances, we felt it appropriate to continue to hear Mr Khan’s submissions.”

[89]As to the last paragraph, the tribunal said that the context was the claimant speaking over the judge, and refusing to listen to directions, and that what the judge has said was “you and I will get on much better over the next nine days if you will please listen to me and not speak over me.”

[90]The tribunal finished hearing Mr Khan’s application. At 13.16 a letter was emailed to the claimant, stating that the application had been heard, and the panel would consider it that afternoon and give judgment at 2pm on 21 July. He could attend in person, by CVP or telephone. He was asked to confirm by 4.30 whether he would attend. A further letter, apparently sent on the morning of 21 July, indicated that the tribunal would not engage in further email correspondence, and would give its decision on the respondent’s rule 47 application and the claimant’s recusal application at 2pm. The claimant was encouraged to join, by telephone if most convenient.

[91]At 2pm the claimant did not join and the tribunal gave its judgment. In its written decision, after referring to various rules and authorities, the tribunal set out its substantive decisions.

[92]As to the mode of hearing, it considered that EJ Perry’s order was clear, that the claimant alone would be attending the hearing centre. When the tribunal discovered that the respondent was also present in person it raised the matter for discussion. Mr Khan’s response was reasonable, that of the claimant misleading, though perhaps not intentionally, as it transpired that the issue had not been determined by REJ Findlay. As the hearing had been established as a hybrid hearing there was no compelling reason for the parties to attend in person. As the claimant indicated that he could not attend by CVP he was given the option of attending the hearing centre and using the tribunal’s equipment. The tribunal had ruled against him participating by telephone, as it was not in the interests of justice for there to be cross-examination of him, or by him, where he could neither see, nor be seen. The tribunal continued that its ruling put the claimant in no different position than he had expected following the hearing before REJ Findlay. He had given no satisfactory explanation as to why he could not cross-examine a witness by CVP, as he appeared willing to do so by telephone.

[93]As for recusal, the claimant had only sought that when case-management decisions were not to his liking. That was not acceptable. The tribunal was satisfied that it had not acted with actual or apparent bias and the allegation of racism was unfounded. The recusal applications were refused.

[94]As to the rule 47 application, the tribunal noted that it had read fully into the case, including the pleadings, witness statements, orders of Judges Broughton, Perry and Findlay, and the claimant’s written submissions. It continued:

“46 The claimant has absented himself from the tribunal on two consecutive days (20 & 21 July 2022) without satisfactory explanation. It was not until 12:21pm on Wednesday 20 July 2022 as he offered the explanation that he was feeling fatigued. There has been no supporting medical evidence and even when given the opportunity to deal with discrete parts of the hearing by telephone claimant has still failed to attend. 47 In his communications with the tribunal, the claimant has not applied for an adjournment; nor has he given any indication as to when he expects to be willing/able to resume this hearing which has been allocated nine days of tribunal time. We are now on day four and the cost to the respondent is significant. 48 On this basis we do not consider it appropriate to adjourn the case to a future date. 49 We agree with the submissions made by Mr Khan that there is nothing to be gained by continuing with the hearing in the claimant’s absence. The position is that each element of the claimant’s claims depend upon the claimant establishing facts from which the tribunal could properly determine that discrimination has occurred. The claimant can only establish that such facts by his own oral evidence and by his cross-examination of the respondent’s witnesses. If the claimant is absent, then clearly he will not give evidence nor will he cross-examine the witnesses whose witness statements would then stand unchallenged. In the circumstances, the claimant could not possibly establish his case which would inevitably be dismissed. 50 In the circumstances, we conclude that the appropriate option for us, applying Rule 47, is that the claims should be dismissed in their entirety.”

[95]The written decision was sent to the parties on 13 September 2022. By two emails of 14 September the claimant sought a reconsideration. Unfortunately that application was not referred to the judge until the EAT enquired as to the position in February 2023. A letter of 28 February 2023 notified that the judge had refused the application on preliminary consideration, stated that the accurate chronology of events was given in the tribunal’s decision, and that, despite invitations, the claimant had persistently failed to engage with the tribunal or join the hearing at all after the first day.

The Grounds of Appeal, Discussion, Conclusions

[96]Of the four original grounds, the live grounds of appeal at the full hearing were 1 and 3. These grounds raise points that had largely also been raised in the reconsideration application.

[97]Ground 1 is that the tribunal erred in dismissing the claim under rule 47 when there had been no material non-attendance by the claimant. It asserts that when he received the email at 8.05am on day 3 referring to his letter being considered at the start of the hearing “tomorrow”, the claimant understood that he was not required to attend that day, and that the hearing would resume on day 4. He did not see the tribunal’s 10.55 email until the 11.30 deadline had passed. The ground complains of the short response time allowed, and of no enquiries being made when he did not attend at midday. As the tribunal heard that application then, no further attendance was thereafter required of him, in the context of that rule 47 application. His non-attendance up to that point had not been material. In argument the claimant added that his email sent at 12.21 did not state that he would not attend the hearing going forward, only that he could not join that day.

[98]Ground 3 is that the tribunal placed the claimant on an unequal footing after misinterpreting and setting aside previous case-management orders. The orders of both EJ Perry and REJ Findlay had been made on the basis that everyone would attend in person, save for those of the respondent’s witnesses who had been permitted by them to join remotely. The Gaskell tribunal wrongly set that aside and wrongly decided that, because the panel were attending remotely on day one, they would continue to do so, and other participants could now do the same, which disadvantaged the claimant.

[99]In argument the claimant submitted that cross-examining, and being cross-examined, by CVP, in a discrimination case, over a number of days, would have been fatiguing for him on account of his disability. Only he was disadvantaged in that way. As the tribunal itself noted at [11], his case was that he could best cross-examine the respondent’s witnesses in person. He was not happy to do it by telephone, but put this forward after in-person attendance was ruled out. There had been no material change of circumstances. All witnesses (save for the two who had been allowed to join remotely) could still have attended in person, as could the panel itself after day one, if they were concerned about witnesses and parties being present in person without them also being there in person.

[100]Mr Tinkler, in addition to relying on the tribunal’s reasons, made the following particular points. The decision on the mode of conduct of the hearing was a proper matter for the case-management discretion of the panel presiding. The claimant did not specifically argue before the Gaskell 2 tribunal, that not being able to cross-examine witnesses in person would disadvantage him on account of his disability. Neither the EJ Perry order nor the REJ Findlay order recorded him as having done so before them. Mr Tinkler did not accept that it necessarily required a material change of circumstances for the presiding tribunal to revisit the hearing arrangements.

[101]Mr Tinkler submitted that the tribunal had properly identified that the claimant had not attended. He accepted in oral submissions that the email sent at 8.05am on the Wednesday could have been misunderstood to mean that the tribunal would now not be sitting that day. But there was nothing in either of the claimant’s emails that morning to suggest that he had in fact misunderstood it. The concern raised by him on the Monday about the heatwave related only to the Tuesday. He himself had noted that temperatures were expected to fall thereafter. His 12.21 email did not say when he would be able to attend. He did not seek an adjournment. The tribunal did not need to make further enquiries. It had properly exercised its “wide discretion” as to how to proceed in those circumstances (he cited Roberts v Skelmersdale College

[2003] EWCA Civ 954

;

[2003] ICR 1127

[102]My conclusions on this appeal follow.

[103]First, it is clear that the members of the Gaskell 2 tribunal misunderstood, when they were first empanelled, what hearing arrangements had been directed. They were misinformed by the administration (which also issued a notice of revised hearing dates with the wrong heading) and EJ Gaskell misunderstood EJ Perry’s remark at the end of his letter. At that point none of them had seen the whole sequence of case-management orders.

[104]However, the position was, in fact, as the claimant and the respondent’s counsel both correctly understood, that EJ Broughton had listed the matter for an in-person hearing. EJ Perry had then allowed one witness for the respondent to give evidence remotely, and REJ Findlay one more witness. The draft running order documents produced by the respondent also reflected the correct position, as did the tribunal’s covering letter with the notice of hearing, which told the parties they must attend at the hearing centre, which they indeed did. This was clear from the whole sequence of documents.

[105]The Gaskell 2 tribunal’s decision referred to EJ Broughton’s order for the hearing to be in person, but stated that it made clear that the final decision was for the presiding panel. As to that, of course they had the power to vary that order, but, in principle, the hearing arrangements having been decided, to vary those earlier directions required a material change of circumstances. The fact that REJ Findlay did not make any determination as to the overall conduct of the final hearing had no significance. All that she (and EJ Perry) had dealt with, was applications for particular witnesses to be permitted to give evidence remotely. Neither of their decisions had disturbed EJ Broughton’s order that the hearing be, in general, in person, nor indeed had either been asked to do so.

[106]The panel having been misinformed, and misunderstood, the position prior to day one, might potentially have given rise to the need to revisit the hearing arrangements, if, for example, a particular panel member had committed to sitting on the basis that they would be participating remotely, and they had some practical problem with attending in person. However, neither in the course of the discussions on the Monday, nor in its decision, did the tribunal raised any such concern or difficulty.

[107]I consider that the tribunal was wrong, as they appear to have done at [10(c)], to regard the fact that the panel had been misinformed as by itself material circumstances justifying, or warranting, a change of the arrangements after day one. The tribunal’s starting point, once they understood the mistake, should have been that, after day one, the hearing would be conducted as previously directed, and as the parties had expected, unless there was some reason they could not proceed after day one, with all the panel attending in person, and all of the witnesses, save for the two had been previously been allowed to give evidence remotely. That was what the claimant was reasonably expecting.

[108]The fact that the respondent’s counsel was content for the tribunal panel to continue joining remotely, and invited the tribunal, if so, now to allow all witnesses to do so as well, did not provide a proper reason to put the onus on the claimant to persuade the tribunal why it should proceed after day 1 as had been previously directed. The claimant also properly points to the fact that the context was one in which the default position was that discrimination claims would be heard in person.

[109]Secondly, while the tribunal set out in its decision that the claimant had become abusive and aggressive after it had announced its decision on hearing arrangements, and interrupted the judge, and what the judge actually said to him in that context, this claim was not struck out on the basis of unreasonable, scandalous or vexatious conduct on the claimant’s part, nor did the respondent apply for such a strike-out order. The claim was dismissed because the tribunal granted the respondent’s rule 47 application, made following his non-attendance at 10.00am on the Wednesday morning.

[110]Rule 47 provided:

“If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim or proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party's absence.”

[111]It is established that this rule may potentially apply both in a case where a party does not attend at the start of a hearing, and in a case where, despite having initially attended, or participated, they then do not attend at some later stage. But in such a case the tribunal needs to consider with particular care what appears to, or may, have happened to cause the change; and in particular, whether it can reasonably infer that the party concerned has simply decided, for whatever reason, that they will no longer in any circumstances participate in the hearing going forward, at all.

[112]I agree with Mr Tinkler that in this case there was nothing in either of the claimant’s two emails on the Wednesday morning to suggest that he had understood the 8.05 email to mean that the tribunal would not now be sitting that day, or to alert the tribunal to the possibility that he might have thought that. While I note that the tribunal was wrong to say that the claimant’s complaint email had made no reference to his concern about the heatwave, Mr Tinkler was also correct to point out that the claimant’s stance had been that this concern on his part did not extend beyond the Tuesday.

[113]However, what the claimant had indeed done the previous day was send an email containing a complaint, as well as recusal applications. The 8.05 email said that his “complaint” would be considered at the start of the hearing, prompting him to ask in his 9.33 email who had decided that the complaint would be dealt with by the panel themselves. The tribunal did not explain that they had meant to refer, not to the complaint, but to the recusal application, until the email sent at 10.55. It was also only in that email that the tribunal – fairly, as such – made it clear to the claimant that the fact of a complaint having been lodged did not, of itself, mean that the hearing could not proceed.

[114]That email was also the first that the claimant was informed of the rule 47 application. The tribunal also in that same email(a) said it would be resuming its hearing at 2pm; but nevertheless

(b) required the claimant to state his position by 11.30 – therefore within 35 minutes’ time; and

(c) said that, in the absence of a reply, it would hear the rule 47 application at midday. It also did not, as it could have, ask the administration to attempt to call the claimant to further alert him to that email, its importance, or the very tight deadline for a response from him that it set.

[115]The tribunal was certainly entitled to take the view that neither the fact of the complaint, nor a possible appeal, meant that the hearing must be suspended or abandoned (though the recusal applications would have to be determined, and could have necessitated an abandonment if granted). Nor was it bound to accept the claimant’s explanation, in his 12.21 email, that he had not attended because he was not well enough to do so. It was entitled to consider what picture emerged to it from the sequence, and content, of the successive exchanges that day, against the backcloth of events on the Monday and Tuesday, and whether it appeared to it that the claimant had in fact voluntarily absented himself; and, if so, whether, or when, he might rejoin the proceedings. It is also right that this was, in principle, squarely a matter for the tribunal’s evaluative judgment.

[116]However, I consider that the tribunal needed to proceed with particular care and caution at this juncture. That is for a number of reasons. First, while the tribunal observed that it was only in his 12.21 email that the claimant first gave an explanation for his absence, and that there was no medical evidence, the claimant in terms in that email invoked his disability. The context was one in which his substantive complaints included disability discrimination, and the tribunal knew what the disability was, and that the respondent did not dispute disabled status as such. Given that, and the very short time window, I do not think the tribunal could safely attach much, if any, weight to the fact that the claimant had not attached medical evidence to his email, as such.

[117]Secondly, while the tribunal correctly observed, as such, that the claimant’s email at 12.21 gave no indication as to his future intentions, or whether he would return the next day, what it had stated was that “I will not be able to attend today”; and, after giving his explanation, the same paragraph concluded “I cannot attend at 2pm today”, which was the time at which the tribunal had said the substantive hearing would resume. It was open to the tribunal to consider that it was not satisfactory that he had said nothing more about the future; but, if so, bearing in mind also that he had not failed to respond at all, it would have been open to it to press the claimant for further clarification of his stance, rather than simply proceeding to finish hearing the application at that point.

[118]The claimant also fairly submitted that, as the 13.16 email on the Wednesday informed him that the rule 47 application had been heard, and the tribunal would now be deliberating and then convening at 2pm the next day to give its decision, at that point he was no longer required to attend for the remainder of that day, nor indeed the next morning. In fact the tribunal’s communications did not require him to attend for the giving of the decisions on his and the respondent’s applications, though they encouraged him to do so. All of that being so, it was, in my judgment wrong for the tribunal to rely in its decision on the claimant having “absented himself on two consecutive days without satisfactory explanation.”

[119]The tribunal also said that it was “now on day four” of nine and that the cost to the respondent was significant. But the claimant had not failed to attend on day one, nor was he required to do so on day two, which had become a reading day; nor did the tribunal find that, as a result of his non-attendance thereafter, the matter had become incapable of fair trial, nor the substantive hearing incapable of completing in the remaining time, were he to rejoin. But the consequence of its decision was the same as if it had struck his claim out: he lost the chance, when a trial was under way, to have that trial continue hearing his complaints, leading to an adjudication, on their merits.

[120]For all the reasons I have given, I uphold ground 1. I also consider that the decision to grant the rule 47 application was, in all the circumstances, unfair; and so I also uphold ground 2.

Outcome of Appeal 3

[121]For all the foregoing reasons appeal three is allowed.

Overall Outcome

[122]Appeal 1 has been dismissed. The Gaskell tribunal’s decision dismissing the complaints in claim 5 therefore stands.

[123]Appeal 2, against the strike-out decision in respect of claim 7, has succeeded. As the judge was wrong in principle to strike out claim 7 on the basis of issue estoppel, I substitute a decision refusing that particular application. Claim 7 should resume as a live claim. Consideration will need to be given to the claimant’s application to amend to add a complaint of contravention of section 15 to the reasonable-adjustment complaint. Given the nature and content of EJ Taylor’s decision I will direct that that matter not be considered by EJ Taylor, nor should EJ Taylor preside at any trial.

[124]As appeal 3 has succeeded, and the tribunal was in principle wrong to grant the rule 47 application, I substitute a decision refusing it. Claim 4 should resume as a live claim. As a starting point it should do so on the basis that it should be relisted for an in-person trial, as directed by EJ Broughton. Given the nature and content of the decision to which this appeal relates, I will direct that the relisted trial be before a panel that does not include any member of the Gaskell 2 panel. Realistically, given the passage of time since July 2022, it would be sensible for the tribunal to review whether the two witnesses who were previously wanting to give evidence remotely, still do; and it may need to consider, going forward, any other matters which may be raised, or any other applications that may be made, by either party, in view of any other changed circumstances since 2022.