Mr Z Khan v Solicitors Regulation Authority Ltd: 1301052/2021 and others

EMPLOYMENT TRIBUNALS

Case No 1301052/2021, 2201533/2021, 1301299/2022, 1301513/2022, 1302099/2023

Venue Midlands West

Hearing 19 – 21 December 2022

Between

Mr Z KhanClaimant

Solicitors Regulation Authority LtdRespondent

Before

Employment Judge Harding

In person for claimant

Ms Hodgetts (instructed by Counsel) for respondent

Date 29 August 2023

JUDGMENT

[1]The respondent’s application to strike out Case No: 1301052.21 is refused. The claimant has complied with Section 18A(1) of the Employment Tribunals Act 1996 and accordingly the tribunal has jurisdiction to hear this claim. Case Nos:131052.21 2201533.21, 1301299.22, 1301513.22

[3]The claimant’s claims under claim numbers 1301052/2021; 2201533/2021; 1301299/2022; 1301513/2022 and 1302099/2023 are struck out on the basis that they have no reasonable prospect of success.

REASONS

(1) The claimant has, over a period of time commencing in February 2021, applied for 17 different jobs with a number of different employers including the respondent. He was unsuccessful on each occasion resulting in claims being issued by the claimant in the Employment Tribunal for disability discrimination on the basis that he was unsuccessful in securing employment as a result of the respective respondents’ failure to make reasonable adjustments to its recruitment process which, the claimant says, each of them had a duty to make because of his disabilities. The claimant has a number of mental impairments including generalised anxiety disorder, depression, OCPD (obsessive compulsive personality disorder) and ADHD. The claimant’s conditions impact, amongst other things, on his ability to concentrate and process information. The respondent accepts that the claimant is disabled by reasons of these conditions.

[1]of 30 (2) The claimant’s claims were listed to be heard together for the purposes of case management. The claims that the claimant had brought at the time of the hearing before me were: Claim Case Number Respondent 1 1301052/2021 Solicitors Regulation Authority Limited (SRA) 2 2201533/2021 Solicitors Regulation Authority Limited (SRA) 3 1302664/2021 Secretary of State for Justice (SSJ) 4 2201200/2021 Department for Work & Pensions (DWP) 5 2203772/2021 Secretary of State for Justice (SSJ) 6 1302798/2021 Secretary of State for Justice (SSJ) 7 1302745/2021 Secretary of State for Justice (SSJ) 8 1303503/2021 Department for Business, Energy & Industrial Strategy (DBEIS) 9 2204644/2021 The Home Office (HO) 10 1303726/2021 Department for Business, Energy & Industrial Strategy (DBEIS) 11 1304341/2021 Secretary of State for Justice (SSJ) 12 1301491/2022 The Home Office (HO) 13 1301561/2022 Department for Work & Pensions (DWP) 14 1301299/2022 Solicitors Regulation Authority Limited (SRA) 15 1301513/2022 Solicitors Regulation Authority Limited (SRA) 16 1303609/2022 Ministry of Housing, Communities and Local Government 17 1302099/2022 Solicitors Regulation Authority Limited (SRA) (3) Following a preliminary hearing (case management) held on 21 September 2022, the claims against the respondent were listed for a Preliminary Hearing in public to consider whether(1) the claims against the respondent or any of them should be struck out under rule 37 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (the “ET Rules”) on the grounds that it or they have no reasonable prospects of success; and/or

(2) whether the claims, or any of them, or any specified allegation or argument in them, should be the subject of a deposit order under rule 39 of the ET Rules on the grounds that it or they have little prospects of success; and/or

(3) if a deposit order is to be made, how much should it be.

(4) On 23 December 2022 the Tribunal sent to the parties a Notice of the Preliminary hearing for the strike out/deposit hearing listed before me today.

[2]of 30 Claimant’s application for an adjournment (5) The hearing started at 9.45am rather than 9.30am to give me some time to read the papers. The claimant did not attend the hearing and had, instead sent an email at 16:46 pm the day before stating: “Dear Sir/Madam I would like to announce that I will not be able to attend the court hearing tomorrow on the basis of extenuating circumstances associated with my health. Known to all parties concerned including the Judges. I have written profusely to the courts about this, proving clear evidences and my testimony, but have been met with silence. I have suffered a lot of anxiety as a result of this matter with the lengthy silence. This is really concerning. Should there be a hearing in my absence, like seemingly last time, I will raise this with the necessary authority as its not fair that a party is at court gaining orders and having other matters materialize in my absence. So, to save the court time, it should be noted that I will not attend as I am not fit to. Kind regards, Zakir Khan” (6) No medical evidence was attached to the claimant’s email. (7) Ms Hodgetts explained to me that the claimant had sent an email to the Tribunal at 20:27 on 4 April 2023 in which he expressed his deep reservations about attending the hearing listed on 13 and 14 April 2023. He stated that this was due to him suffering from tension headaches for some time which the Clamant said had recently been diagnosed as chronic. In his email, the claimant indicated that as it was Ramadan he was not very keen to participate in the hearing knowing that one of the triggers to tension headache was dehydration. The claimant pointed out that fasting during Ramadan was one of the pillars of his faith which he could not miss. The claimant asked for the preliminary hearing to be rescheduled to a different date. (8) On 5 April 2023 the claimant sent, by email, a medical report to the Tribunal from a consultant Neurologist in support of his diagnosis together with his medical records. In his covering email the claimant indicated that he had been prescribed Amitriptyline, an anti-depressant, to mitigate the effects of his headaches but this caused feelings of blunted emotion, depression and drowsiness. The claimant asked for the preliminary hearing to be re-arranged after the month of Ramadan. The claimant indicated “It is expected that at least then the side effects would have safely gone away leaving, hopefully, just the benefits of the medication”.

[3]of 30 (9) By a letter dated 5 April 2023 the Tribunal asked the respondent for comments on the claimant’s application for an adjournment. (10) On 6 April 2023 the respondent’s solicitors wrote to the Tribunal objecting to the application for an adjournment on the basis that Ramadan was a foreseeable event and the claimant’s appointment with the neurologist took place on 13 March 2023. The respondent indicated that there had been significant delays in progressing the claimant’s claims as previous preliminary hearings had been adjourned and the preliminary hearing to hear the strike out/deposit order was originally listed for 19-21 December 2022. The respondent indicated that it was fully prepared for the upcoming hearing and did not want to incur further wasted time and costs should the hearing be rescheduled. (11) At the start of the hearing, Ms Hodgetts confirmed that the respondent continued to object to the hearing being adjourned. She pointed out that the neurologist letter’s letter was dated 15 March 2023 and indicated that the claimant had suffered from headaches since 2012, such headaches were predominantly frontal and brief. The neurologist indicated that the claimant experienced sharp and shock like sensations which were brief and left him with a mild headache all day which affected his concentration. The neurologist also indicated that the Amitriptyline had been prescribed 8 weeks prior to the claimant’s appointment with the neurologist on 13 March 2023 and that the claimant had noted an improvement in the headache severity and frequency. The neurologist suggested an increase in medication together with sleep hygiene, stress management and relaxation exercises and then discharged the claimant. (12) Ms Hodgetts took me to the claimant’s medical records and which showed that the claimant had a long standing history of headaches going back 10 years (e.g. entry for 29 March 2022). Ms Hodgetts submitted that the claimant’s medical records showed that there was no link between the claimant’s headaches and Ramadan, they were longstanding and the claimant had ignored a medical recommendation to desist fasting and he had made a personal choice to continued to do so. (13) Ms Hodgetts also referred me to the overriding objective to ensure that cases are dealt with fairly and justly and to the Presidential Guidance on Vulnerable parties and witnesses in Employment Tribunal proceedings. She pointed out that paragraph 4 of the Presidential Guidance indicated that there is no universal definition of vulnerability but a good test might be whether the person is likely to suffer fear or distress in giving evidence because of their own circumstances or those relating to the case. I was also referred to paragraphs 14, 26, 21 and 34 of the Presidential Guidance and the fact that the right to a fair hearing applies to both parties and I was referred to the case of O’Cathail -v- Transport for London CA

2013 ICR 614

and Shui -v- University of Manchester

[2018] ICR 77

EAT. (14) Ms Hodgetts indicated that as the claimant’s headaches were long standing there was no guarantee at all that if the hearing was postponed that the claimant would be well in 1, 2 or 6 months and there was no prognosis to justify this conclusion. Indeed, the evidence showed the contrary. Ms Hodgetts submitted that it was 4 of 30 notable that the claimant had not even logged on to the hearing to explain his position and this raised doubts as to whether the headaches were the sole reason for the claimant not attending. She pointed out that the hearing had been fixed with the Claimant’s agreement and that the claimant had presented 17 claims against different prospective employers, with 5 against the respondent. The claimant was a practised litigator and had a pattern of making job applications. Ms Hodgetts explained that, at a preliminary hearing in September 2022, the claims against the respondent were listed for a strike out hearing in December 2022. However, that hearing ended up dealing with clarification of the issues and dealing with jurisdictional issues. Since then the claimant had issued another claim against the respondent in February 2023 (his 17th claim) which had been consolidated with the rest. The first of 5 claims against the respondent were issued in April 2021 so they were already 2 years old. If the hearing was postponed it would not be relisted for several months and the parties would be running against the next strike out/deposit hearing in respect of the claims against Secretary of State for Justice which was listed for hearing in November 2023. This would cause further disadvantage to the claimant as he would have to deal with 2 strike out/deposit hearings in close proximity. (15) The respondent would also be disadvantaged as they would incur the costs of attending the hearing before me and would incur further costs in preparing for a further hearing. The prejudice to the respondent would be substantial as previously judges had taken the view that the claims were ripe for strike out. The claims were getting stale. There were also wider public interest in justice being administered and not having a litigant dictate the pace of progress. Ms Hodgetts also submitted that the Tribunal needed to have regard to the other litigants who were waiting to have their cases heard but time was being taken up by the claimant’s claims. If the matter was adjourned then the claimant would be taking up someone else’s hearing slot. It was submitted that there was a compelling case for refusing the postponement application and proceeding to determine the issues. (16) I duly adjourned to consider the claimant’s application for an adjournment. During the adjournment I considered the claimant’s request for an adjournment, his medical evidence and the emails he had sent in support of his application. I also considered the representations made by Ms Hodgetts. Having considered all the information before me and representations made I was satisfied that it would not be in accordance with the overriding objective for the case to be adjourned. In making my decision I took into account the fact that the claimant had a long history of headaches going back 10 years which were not connected to Ramadan and that he had been on his current medication for some weeks which had led to an improvement in the severity and frequency of his headaches. Given the long history of headaches there was no guarantee that if the hearing was adjourned that the claimant would be available for any revised hearing date. I noted that the claimant had not attended the hearing to indicate that he had a headache on the day of the hearing nor that he was not well enough to attend. I was also mindful of the fact that some of the claimant’s claims were commenced more than 2 years previously and I accepted Ms Hodgetts’ submission that the claims were in danger of getting stale. Taking into account the Presidential Guidance on Vulnerable parties and the overriding objective to deal with cases 5 of 30 fairly and justly avoiding delay, so far as compatible with proper consideration of the issues and saving expense I was satisfied that the interests of justice favoured the hearing proceeding particularly as it should have taken place in December 2022 but had not proceeded due to the need to clarify the issues and the fact that the claimant had agreed to the dates of the relisted. I was mindful of the fact that there would be wasted costs if the case was postponed again. Given that the application was one for strike out or a deposit order which is considered on paper and required the Tribunal to take the claimant’s case at its highest when making a decision, I was satisfied that the Tribunal could fairly assess the application without the claimant’s oral submissions. I was also mindful of the fact that considerable Tribunal resources had already been spent on the claimant’s claims and other claims awaiting judgment in the Tribunal system would be affected by a further delay – including other claims made by the claimant which were listed for hearing in November 2023. As such, I determined that the claimant’s application for an adjournment should be refused and that the hearing should proceed in the claimant’s absence. (17) I note now for the purposes of this judgment, as requested by Ms Hodgetts, that on the second day of the hearing, after I had already decided that the claimant’s application for an adjournment should be refused and I had heard the majority of the respondent’s strike out/deposit application it was brought to my attention that the claimant had written to the respondent’s solicitor and to the Tribunal regarding amendments to the bundle. He had also that morning submitted a further job application to the respondent for the role of Customer Services Adviser. He had submitted his application by sending in a CV and covering letter setting out how he met the competencies for the role. Ms Hodgetts indicated that this raised the question as to whether the claimant’s claims should be struck out for abuse of process. Although she was not making that application now Ms Hodgetts was of the view that the claimant’s actions raised concerns about his integrity. Documents (18) I was presented with a main bundle of 405 pages, a supplemental bundle containing documents relating to claim number: 1302099/2022 of some 126 pages, an authorities bundle of 363 pages and containing 17 authorities and a skeleton argument on behalf of the respondent. Ms Hodgetts also sent me a further authority (Burke -v- College of Law & anor

[2012] EWCA Civ 37

) during the course of the hearing. The Law (19) Rule 2 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) provides: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—

The Law

[6]of 30 (a)ensuring that the parties are on an equal footing; (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c)avoiding unnecessary formality and seeking flexibility in the proceedings; (d)avoiding delay, so far as compatible with proper consideration of the issues; and (e)saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” Strike out (20) Rule 37 of the Rules provides that: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success…” (21) There are number of authorities, following the House of Lords in Anyanwu v South Bank Students Union and South Bank University

[2001] IRLR 305

that strike out is not normally appropriate where there are substantial disputes of fact, most notably in fact-sensitive discrimination claims. (22) In only the clearest cases should a discrimination claim be struck out: Mechkaroy v Citibank NA

[2016] ICR 1211

. (23) A strike out is not appropriate where there is a crucial core of disputed facts that are not susceptible to determination otherwise than by hearing and evaluating the evidence as indicated in the case of Ezsias v North Glamorgan NHS Trust

[2007] ICR 1126

. (24) In Ahir v British Airways plc

[2017] EWCA Civ 1392

Underhill LJ stated that: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospects of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context….Nevertheless it remains the case that the hurdle is high, and specifically that it is higher than the 7 of 30 test for the making of a deposit order, which is that there should be “little reasonable prospects of success”. Deposit orders (25) Rule 39 of the Rules contains the power to make a deposit order. This provides: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and

(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.” (26) The purpose of a deposit order is to identify at an early stage, claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails: Hemdan v Ishmail and Another

[2017] ICR 486

27. (27) It was noted by Underhill LJ in the case of Ahir v British Airways Plc

[2017] EWCA Civ 1392

that: “16. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success’. ... [However,] Where there is on the face of it a straightforward and well documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that the explanation is not the true explanation for what happened without the claimant being able to advance some cogent basis for that being so.” Failure to make reasonable adjustments (28) Section 20 of the Equality Act 2010 provides: 8 of 30 “Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”. (29) Section 21 of the Equality Act 2010 provides: “(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person”. (30) Section 39 of the Equality Act provides: “(1) An employer (A) must not discriminate against a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment;

(c) by not offering B employment”. EHRC Code of Practice (“Code”) (31) The Code is not legally binding but the Tribunal must take into account any part of the Code that is relevant to any questions arising in the proceedings. (32) Paragraph 6.16 of the Code states: “The purpose of the comparison with people who are not disabled is to establish whether it is because of disability that a particular provision, criterion, practice or physical feature or the absence of an auxiliary aid disadvantages the disabled person in question. Accordingly – and unlike direct or indirect discrimination – under the duty to make adjustments there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s”. (33) Paragraph 6.28 of the Code sets out the factors that might be taken into account in determining whether a step is reasonable:

• whether taking any particular steps would be effective in preventing the substantial disadvantage;

• the practicability of the step;

• the financial and other costs of making the adjustment and the extent of any disruption caused;

• the extent of the employer’s financial or other resources;

• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and 9 of 30

• the type and size of the employer. (34) Ms Hodgetts in her submissions pointed out that the Code of Practice at Paragraph 6.33 provided 18 examples of what may be a reasonable adjustments – none of which include replacing a written application with assessed work experience. Furthermore, the Code of Practice references to the guaranteed interview scheme do not dispute that a candidate first has to meet the essential requirements of the role before being granted an interview. (35) It is for the claimant to establish that the PCP caused a substantial disadvantage: Bethnal Green & Shoreditch Educational Trust -v- Dippenaar

UKEAT/0064/17

. The burden is also on the claimant to show not only that the duty to make reasonable adjustments has arisen, but also to identify a reasonable adjustment that could have been made as per Elias P in Project Management Institute -v- Latif

[2007] IRLR 579

. The question of whether the proposed steps were reasonable has to be determined objectively by the Tribunal as per Smooth -v- Churchills Stairlifts plc

[2006] ICR 524

. (36) The Tribunal must be satisfied that the disadvantage would not equally arise in the case of someone without the claimant’s disability Newcastle upon Tyne Hospitals NHS Trust v Bagley

UKEAT/0417/11

although the claimant does not need to show that disadvantage arises because of his disability: Sheikholeslami v University of Edinburgh

UKEAT/0014/17

. (37) The question of whether and to what extent the step would be effective to avoid the disadvantage is an important one to weigh in the balance: Secretary of State for Work & Pensions (Job Centre Plus) v Higgins [2014] ICR, EAT. (38) There is no unlawful discrimination if any adjustment would be futile: Conway v Community Options Ltd UK

EAT/0034/12

. (39) In assessment/job application cases it would not be reasonable to require an employer to remove a PCP that, if removed, would deprive the assessment of its value. Ms Hodgetts referred me to a number of authorities in this regard including: Burke v College of Law & SRA

UKEAT/0301/10

and on appeal Burke v College of Law & SRA

[2012] EWCA Civ 37

; Lowe v Cabinet Office ET 2202187/10, Wade v Sheffield Hallam University

UKEAT/0194/12

: it was not reasonable to deploy a disabled person into a post for which she failed to meet the essential requirements; per HHJ McMullen QC [19-20]; and Government Legal Service v Brookes

UKEAT/0302/16

[36-40], per Kerr J; ruling that the ET had been entitled to find that decision-making skills could be assessed by short narrative answers rather than multi-choice answers; that the Tribunal had correctly distinguished Lowe; and that the Tribunal had been entitled to find that balancing the disadvantage against the steps required to implement a different written (i.e. narrative answer) test, it would be a reasonable adjustment. 10 of 30 (40) A failure to consult does not of itself constitute a failure to make reasonable adjustments: Tarbuck v Sainsbury’s Supermarkets Ltd

[2006] IRLR 664

[71- 72]. Respondent’s application to strike out the claim and for a deposit order (41) Ms Hodgetts began by taking me through the relevant statutory framework as summarised above. She then took me through each of the claimant’s applications for employment with the respondent in considerable detail. In relation to the 1st, 2nd, 14th and 15th claims the claimant submitted an application for each post but was not shortlisted for assessment. In relation to the 17th claim the claimant applied for the post and was interviewed, but was not offered the post. Claim 1: 1301052/2021: Fast Track Claims Handler Role (42) On 7 March 2021 the claimant applied for the role of “Fast Track Claims Handler – Level 1” within the respondent’s Client Protection Team. This involved processing a high volume of compensation fund claims against tight KPS’s in line with management guidelines. (43) The CV which the claimant submitted with his application indicates that the claimant has a law degree and a LLM in Commercial Law. In his CV the claimant indicated, inter alia, that he worked for G4S as a steward in 2010, worked for Sports Direct between 2015-2016 and that he had been involved in in undertaking charity work with UKIM Dawah and Islamic Outreach Project since 2018. (44) The job advert indicated that the successful candidate required:

• “Excellent written communication skills with strong attention to detail;

• Evidence of working successfully in a customer focused fast paced/constantly changing environment where priorities may change at short notice; .

• Experience in dealing with difficult or emotional customers (Claimants/Applicants);

• Ability to analyse large amounts of different information, to draft reports and provide recommendations on outcomes;

• Results focused and motivated, with experience of working to performance targets (both quantity and quality) to achieve outcomes”. (45) I was taken to the claimant’s application form in which the claimant failed to identify any evidence/examples to demonstrate he meets the above criteria. Under each of the criteria the claimant responded by stating: “UNABLE TO DEMONSTRATE WITH EXPERIENCES + MOTIVATIONAL PROBLEMS TO ENGAGES WITH THE QUESTIONS. PLEASE SEE CV IF THE SKILLS ARE IDENTIFIABLE. THEY MAY NOT BE TO THE STANDARD REQUIRED BUT THIS IS DOWN TO A POVERTY OF EXPERIENCES”. The claimant’s CV also did not provide evidence/ examples of how he met the above criteria and largely 11 of 30 contained generalised assertions about the roles he had undertaken and his duties. (46) There were 51 applications for this role: 45 were rejected pre-assessment including the claimant; 6 applicants were invited to interview (12% of the applicants); 3 applicants had declared a disability, of whom 2 wanted to be considered under the Disability Confident Scheme; 1 disabled applicant was invited to assessment (33% of the disabled applicants). (47) The claimant relies on 3 PCP’s as follows: PCP 1 : a requirement, when applying for a role, to demonstrate competencies for that role by reference to already acquired experience. The substantial disadvantage this is said to have cause is that the claimant was demonstrate that he had the relevant skills for each competency. The claimant asserts the work experience should have lasted 2 weeks. PCP 2: The PCP is said to be that the respondent has a practice of using an application form which does not contain a section for a person to detail impairments or adjustments needed to the recruitment process. The substantial disadvantage this is said to have caused the claimant is that it prevented the respondent from knowing what adjustments it needed to make and/or making those adjustments to the application process. had a section available in the application form for this information. PCP 3: The PCP is said to be that the respondent had a practice of using software to prevent job applicants contacting them after submitting an application form. The substantial disadvantage this is said to have caused is that it demotivated the claimant from pursuing his application. It is the claimant’s case that he is vulnerable to feelings of the demotivation because of the impairments of Anankastic Personality Disorder and depression. made available an email address for people to use to contact them after the application for had been submitted; the claimant clarified that it is his case that 12 of 30 the respondent should have made a specific email address available to job applicants, namely the email address the respondent used to communicate the outcome of applications to applicants. (48) Ms Hodgetts submitted, on behalf of the respondent that the claimant’s claim had no reasonable prospects of success and dealt with the application by considering the different PCP’s relied on. PCP 1 (49) Ms Hodgetts asserted that the claimant could not demonstrate any substantial disadvantage for three reasons. Firstly, in support of her assertion she referred to the fact that Employment Judge Camp had previously found in separate proceedings that the claimant does have experiences that he could deploy in job applications. Ms Hodgetts also pointed to the fact that the claimant’s claims in the current proceedings also demonstrate that he can marshal his experiences to present a case pointing in particular the claimant’s job application in the second claim (2201533/2021) where he had shown had submitted a completed application, and his interview answers in 17th claim (1302099/2023). In addition, Ms Hodgetts submitted that the claimant’s assertion that the was unable to demonstrate through his experience that he met the competencies was incorrect. In this regard she referred me to the claimant’s application in the second claim for Regulatory Caseworker which was made in February 2021 where he had referred to a hate incident that the claimant had dealt with whilst working with a charity in which he had to carry out an assessment and put together a report. The claimant had also provided an example of dealing with a customer complaint and wrote a dissertation at university. The claimant’s application also showed evidence of the claimant working in a fast paced environment. In addition, the claimant had referred to an incident where he was met with two aggressive individuals whilst undertaking his charity work. Ms Hodgetts submitted that whilst this was not an example of dealing with difficult or emotional customers it was experience that the claimant could have marshalled to demonstrate that he had the necessary competencies. Indeed, the claimant’s application in claim 2 showed that the claimant did have competencies which he could have used for the purposes of his application in Claim 1. Ms Hodgetts contented further that to the extent that the claimant has not acquired the particular experiences necessary to meet the particular competencies, the could not show that this was a disadvantage that he had that people without his disabilities do not have; as opposed, for example, to its being a consequence of having prioritised doing other things, such as pursuing Tribunal claims. (50) Secondly, Ms Hodgetts also asserted that offering assessed work experience was not a step that would be reasonable for the respondent to have to take in any event. In this regard I was referred to candidate feedback provided by the respondent 22 November 2021 in which the respondent had highlighted that a period of work experience would be insufficient to assess an individual’s skills and behaviours to evidence whether they meet the respondent’s standards. A period of work experience would need to be heavily supervised and therefore would be resource intensive. The respondent’s training programme lasts between two and three weeks and the respondent’s Standards and Rules are 13 of 30 complex and take a significant amount of time to fully understand. It would not be possible to undertake investigative work without completing the respondent’s training programme. Furthermore, the respondent reviews performance over a three-month period which is also an individual’s probationary period. Additionally, due to data privacy requirements and the complexity of the respondent’s work it would not allow an individual to complete any work without supervision. Therefore, any work experience placement would not truly demonstrate an individual’s skill set, as they would be unable to demonstrate the skills required such as drafting or customer service. (51) Ms Hodgetts submitted that a period of work experience could not possibly assess the required competencies sensibly anyway, given the limitations that would have to be placed on candidates in terms of interactions with stakeholders and confidentiality, and the filter of the supervision that would be required; it would be hugely resource-intensive; would significantly lengthen the application process; would require candidates to take time off their current employment. In addition, given the limited evidence that the claimant had advanced to meet the competencies, the overwhelming probability was that there is no prospect of its resolving the asserted disadvantage. Ms Hodgetts further submitted that while it was clear that the claimant did have experiences that he could marshal, on the claimant’s own case, he did not have the particular experiences necessary to fulfil the competencies. It followed that providing these adjustments could not have removed the identified disadvantage in any event. Further, given the respondent’s application of the Disability Confident Scheme already constitutes a reasonable adjustment which ensures that disadvantage experienced by disabled candidates is reduced to a reasonable extent. (52) Thirdly, a written test could not test all the competencies, particularly the requirement to work successfully in a customer focused fast paced/constantly changing environment where priorities may change at short notice; experience in dealing with difficult or emotional customer; and experience of working to performance targets (both quantity and quality) to achieve outcomes. Ms Hodgetts further argued given that the claimant relied on poor concentration as a disadvantage, a written test would give rise to equal - if not greater - disadvantage compared to a written application form designed to test ability to meet competencies by reference to experience. PCP 2 (53) The claimant refers to the PCP of using an application form which does not contain a section for a person to detail impairments or adjustments needed and in relation to comparative substantial disadvantage prevents the respondent from knowing what adjustments it needs to make, and/or making those adjustments to the selection process. (54) Ms Hodgett asserts that the first limb of the asserted disadvantage is not itself a disadvantage to the claimant: it is a position that may influence the respondent’s knowledge. Furthermore, in relation to the second limb Ms Hodgetts asserted that the adjustment contended for failed to articulate an actionable failure or a specific adjustment as a failure to consider or consult about making adjustments 14 of 30 does not of itself constitute a failure to make reasonable adjustments as per Tarbuk. In any event there was a section on the web site where a candidate could request adjustments. PC 3 (55) The claimant relies on the practice of using software to prevent job applicants contacting the respondent after submitting an application form. The comparative substantial disadvantage relied on is that this practice demotivated the claimant from pursuing his application. In relation to this, Ms Hodgetts argued firstly, that the claimant could not show that the PCP gave rise to this comparative substantial disadvantage as the claimant was apparently demotivated from pursuing the application properly anyway and he did not complete the application form properly. Ms Hodgetts further contended that the claimant could not show that this asserted disadvantage was one that a person without his disabilities who had a practice of making multiple job applications without marshalling his experiences properly, would not experience. Secondly, it was argued that providing a contact email address is not a step that would be reasonable for respondent to have to take, given: (a) The volume of applications and the need for efficiency; and (b) The fact that it would have made no difference to the quality of C’s application. Claim 2: 2201533/2021: Regulatory Caseworker role (56) On 24 February 2021 the claimant applied for the role of “Regulatory Caseworker” within the respondent’s Authorisation Team. The role involves a varied case load, making timely decisions and investigating complex applications, in a fast paced and deadline driven environment. (57) The essential criteria for the role were:

• experience of decision making and the ability to write reports;

• experience of working in a customer focused environment and willingness to engage with customers;

• ability to take responsibility for own work, and to be able to deliver to deadlines;

• experience of communicating effectively with a wide range of customers, ensuring high standards and positive outcomes;

• demonstrable ability to influence and constructively challenge internal and external stakeholders;

• experience of reviewing information and making measured decisions in a timely manner; and

• willingness to learn and develop with experience of taking on new responsibilities. (58) Unlike in his first application, the claimant addressed the criteria and provided evidence based examples in this application. The claimant provided strong evidence in relation to the first criterion and scored 3 points. However, he only 15 of 30 scored 1 point for the remaining criteria as he provided weak or insufficient evidence. For example, in relation to second criteria he did not focus on the “customer” relationship, in relation to the third criteria he provided weak evidence of “owning” a project or delivering tangible results, for the fourth criteria there was no evidence of “wide” range of “customers” and weak evidence of “communications”, for the fifth criteria there was no evidence of “influencing” someone, for the sixth criteria there was weak evidence of “making measured decisions” and for the final criteria there was weak evidence of “learning and development” and “taking on new responsibilities”. (59) There were 48 applications for this role. 38 applicants including the claimant. 8 applicants – 17% of those who applied – were invited to interview. 6 of the applicants had a disability of whom 2 wanted to be considered under disability confident scheme (DCS) and 2 disabled candidate were invited to assessment (33% of the disabled applicants). (60) The PCPs relied on by the claimant are: PCP 1: is said to be a requirement, when applying for a role, to demonstrate competencies for that role by reference to already acquired experience. asserts the work experience should have lasted 2 weeks. PCP 2: is said to be a requirement that job applicants, when applying for roles, achieve a certain pass mark in the written application form in order to be called for interview (this covers 1, 2 and 2(a) of the particulars of claim). The substantial disadvantage this is said to have caused is that the claimant could not achieve the pass mark because he had only weak examples of experience due to his ill health/inability to work (this covers 2(e), (f) and (g) of the particulars of claim), he made grammatical errors when filling in the claim form, provided inconsistent information, was repetitious and included irrelevant details (this covers 2(h), (i), (j), (k), (l) and (m) of the particulars of claim). It is the claimant’s case that these issues all arose because he suffers from poor concentration as a result of all of his impairments. 16 of 30 PCP 3: is said to be that the respondent has a practice of using an application form which did not contain a section for a person to detail impairments or adjustments needed to the recruitment process. The substantial disadvantage this is said to have caused the claimant is that it prevented the respondent from knowing what adjustments it needed to make and/or making those adjustments to the application process. had a section available in the application form for this information. PCP 4: is said to be that the respondent had a practice of using software to prevent job applicants contacting them after submitting an application form. The substantial disadvantage this is said to have caused is that it demotivated the claimant from pursuing his application and it is the claimant’s case that he is vulnerable to feelings of the demotivation because of the impairments of Anankastic Personality Disorder and depression. made available an email address for people to use to contact them after the application form had been submitted; the claimant clarified that it is his case that the respondent should have made a specific email address available to job applicants, namely the email address the respondent used to communicate the outcome of applications to applicants. PCP 5: is said to be that the respondent had a practice of ignoring letters sent to them requesting adjustments. The substantial disadvantage this is said to have caused is that it demotivated the claimant and/or upset him; feelings to which he says he is more vulnerable as a result of his impairments of Anankastic Personality Disorder and depression. responded to these letters. (61) Ms Hodgetts submits that the claimant cannot show comparative substantial disadvantage in relation to PCP 1 in claim 2 and she repeated her submissions to PCP1 in claim 1 again. Secondly, she argued that offering assessed work experience was not a step that it would be reasonable to the respondent to have to take and Ms Hodgetts repeated the submissions she had made to PCP1 in the first claim in this regard. In relating to the third reasonable adjustment of a written or multiple- choice test, Ms Hodgetts argued that this could not test all the competencies and given the claimant’s complaint of poor concentration for PCP 2 – a written test would give rise to equal – if not greater – disadvantage compared to a written application form designed to test ability to meet competencies by reference to experience. (62) In relation to PCP2 Ms Hodgetts again asserted that the claimant could not demonstrate comparative substantial disadvantage as the claimant had 17 of 30 answered the first question on the application well. She submitted that the claimant clearly did have experiences which he could marshal to meet some of the competencies. Further, the DCS provided for a lower pass mark for disabled candidates in any event (1/3 for 50% of each of the criteria and a minimum of 2/3 for the remaining 50% of the criteria) and the lowering of the pass mark even further would result in the waiver of essential criteria and this would not be reasonable. Ms Hodgetts also pointed out that the claimant had not articulated a reasonable adjustment in relation to this PCP. Furthermore, Ms Hodgetts argued that lowering the pass mark still further – if contended for - would result in a waiver of essential criteria which would not be reasonable. (63) In relation to PCP3 Ms Hodgetts pointed out that this was the same as PCP2 in Claim 1 and she repeated her submissions in this regard. (64) In relation to PCPs 4 and 5, Ms Hodgetts submitted that these repeated the complaints relying on PCP 3in claim 1 and she repeated her submissions in this regard. Claim 14: 1301299/2022: Assessment Investigation Officer role (65) The claimant applied for this role on 10 November 2021. Although the initial deadline for the applications was 8 November 2021, the claimant was granted an extension until 10 November 2021 to submit his application. In addition, was given the opportunity to submit additional information which he duly did on 16 November 2021. (66) By the time of this application the claimant was working at a GP practice with 17,000 patients as a patient liaison advisor/receptionist which he referred to in his application. (67) The essential criteria for the role were:

• Excellent decision-making skills – evidenced ability to analyse information and gather information to make sound decisions.

• A strong customer service mindset with a track record of dealing with customers concerns well and delivering excellent customer service.

• Excellent telephone handling skills which required the candidate to be confident and willing to make and receive calls and listen to customers, building rapport and managing contact.

• Excellent drafting skills – so that the candidate could explain their decisions to the respondent’s customers clearly and succinctly in writing.

• Good organisational skills to manage a caseload with ability to work to stretching targets and dealing with competing demands.

• An ability to interpret and apply regulatory rules. (68) There were 97 applications for this role. 69 applicants were rejected preassessment – including the claimant. 20 applicants (21%) were invited to interview. 13 applicants had declared a disability, of whom 8 wanted to be considered under the DCS and 5 (38%) were invited to assessment. 18 of 30 (69) The claimant answered all the questions, addressing the criteria. He also provided evidence-based examples. However, his answers were very lengthy (beyond the 300 word limit) and provided limited evidence of the criteria including the requirement to demonstrate excellent drafting skills clearly and succinctly. He scored no marks for the first, second and sixth criteria. He scored 1 mark for the third, fourth and fifth criteria. (70) At the claimant’s request the respondent provided feedback to the claimant as follows: “The candidate’s answers to the six questions provided no relevant or very limited evidence of the knowledge, skills and experience for the role. We requested for candidates to keep their answers to circa 300 words per question. This candidate greatly exceeded this. Often the candidate provided two of three examples per question. In the job advert, we outline that we are seeking excellent drafting skills; specifically, being able to communicate clearly and succinctly in writing. It is my view that regardless of the detail provided in their answer, the approach failed to evidence this skill. More generally, most answers failed to focus on or clearly explain the action taken by the individual to demonstrate relevant requirements. The candidate would benefit from following the STAR model. This role requires successful candidates to demonstrates strong analytical / decision making skills in a regulated environment. The examples of investigation / decision making this candidate provided were very short lived and generally evidences being able to follow processes, rather than undertake detailed investigation”. (71) In providing its feedback, the respondent explained why providing work experience was not an option. The respondent indicated that it had a set timescale for recruitment. Due to operational commitments the respondent would not be able to run the recruitment campaign and work experience for any candidate simultaneously. If it were to provide work experience after the recruitment campaign had ended it could not fairly compare the candidates to ensure the most suitable candidate/s secured the role. The respondent did not offer a work experience programme as a period of work experience would be insufficient to assess an individual’s skill and behaviours to evidence they meet the standard, it would need to be heavily supervised and therefore would be too resource intensive. It’s training programme lasted between two and three weeks including unit and wider organisation training. Furthermore, the respondent’s Standards and Rules were complex and took a significant amount of time to fully understand and apply. A candidate would not be able to complete any investigative work without completing the training programme. Furthermore, there would be GDPR sensitivities and the respondent would not be able to allow an individual to complete work without supervision. Therefore, any work experience would not truly demonstrate an individual’s skillset. Finally, based upon the claimant’s application, limited experience and lack of skills demonstrated the respondent took the view that a work experience placement would be insufficient 19 of 30 for the claimant to evidence the skills required to complete the role to the required standard. (72) Instead the respondent made the following adjustments: it allowed the claimant to apply after the deadline; the claimant was given a further opportunity to submit additional information, any grammatical errors were overlooked, attempts were made to identify transferable skills that the claimant identified in his answers and consideration was given to the claimant’s request for work-experience. However, this was not deemed possible for the reasons set out above. (73) The PCPs relied on by the claimant are: PCP 1: is said to be a requirement, when applying for a role, to demonstrate competencies for that role by reference to already acquired experience. asserts the work experience should have lasted 2 weeks and could have been held either in person or by Zoom. PCP 2: is said to be that the respondent had a practice of not providing feedback to candidates who were sifted out at the application form stage. The substantial disadvantage this is said to have caused is that it made it difficult for the claimant to pursue the application to make sure that it had been marked appropriately because it demotivated him, which the claimant asserts he was vulnerable to as a result of his depression. provided the claimant with feedback. (74) Ms Hodgetts again submitted that this claim should also be struck out as having no reasonable prospects of success firstly, as the claimant could not show comparative substantial disadvantage and she repeated the submissions to PCP 1 in claim 1. Secondly, she submitted that offering assessed work experience plainly was not a step that would be reasonable for the respondent to have to 20 of 30 take for the reasons provided by the respondent. She repeated the submissions to PCP1 in claim 1. Thirdly, Ms Hodgetts submitted that a written or multiplechoice test could not test all the competencies which included building rapport and managing contact and excellent telephone handling skills. Ms Hodgetts also pointed out that given the claimant relied on poor concentration as a disadvantage this would give rise to an equal – if not greater – disadvantage compared to a written application form design to test ability to meet competencies by reference to experience. (75) In relation to PCP 2, Ms Hodgetts indicated that the claimant could not show comparative substantial disadvantage. She submitted that the claimant was not any more demotivated following his rejection, than when he completed his application in the first place: on the contrary he followed up on the application and then presented his claim to the Employment Tribunal. Furthermore, providing feedback was not a reasonable step for the respondent to have to undertake given that each vacancy had a substantial number of applicants, the fact that the claimant’s application had already been rejected and therefore providing feedback would not have helped him in securing the post and finally, submitted Ms Hodgetts, the claimant would have been able to work out for himself why his application was rejected. Claim 15: 1301513/2022: Investigation Officer role (76) On 17 January 2022 the respondent advertised for the role of “Investigation Officer – full time”. The closing date for the applications was 31 January 2022 and the claimant applied for the role on 26 January 2022. (77) The essential criteria for the role were:

• Considerable, practical and comparable experience of managing complex cases or undertaking complex investigations, leading to proportionate outcomes. Including securing evidence at the earliest possible stage of investigations

• Significant experience of drafting complex documents to a high, professional standard

• Effective case management skills with the ability to prioritise competing demands and work to stretching targets

• Demonstrable experience of influencing and working collaboratively with internal and external stakeholders

• Demonstrable experience of delivering a positive experience for a diverse range of customers. (78) The claimant addressed each of the criteria with the following response: “Due to illness over the course of 7-8 years, I have not the ability to show you the skills that I strongly believe I have. I would be grateful if you could test for the skills in another more practical manner to determine if I have the skills that are required. The reason I cannot demonstrate the skills is down to the fact that I suffered from serious mental health issues. It made work of any sort impossible to get or 21 of 30 maintain. So I could not build a portfolio of experiences requiring the demonstration of the stated skills. I would like and request the proposal under s20 of the Equality Act (duty to make reasonable adjustments). I believe that this duty exists in the particular circumstances”. (79) As such, the claimant failed to identify any examples to demonstrate how he met the essential criteria. Attached to his application form was a CV setting out the claimant’s key attributes, educational achievements and the skills he had acquired as a result of his education as well as his previous work history and key skills attained. (80) There were 320 applications for this role. 243 were rejected pre-assessment including the claim. 75 candidates were invited for interview (23% of the applicants), 33 applicants had declared a disability, of whom 17 wanted to be considered under the DCS, 19 disabled applicants were invited for assessment (58% of the disabled applicants). (81) The PCP relied on by the claimant for this claim is said to be a requirement, when applying for a role, to demonstrate competencies for that role by reference to already acquired experience. asserts the work experience should have lasted 2 weeks and could have been held either in person or by Zoom. (82) Ms Hodgetts argued that the claimant could not show comparative substantial disadvantage. She referred to the fact that EJ Camp had found previously that the claimant had experiences that he could deploy in his job applications. Further, the claimant’s claim forms in the current proceedings demonstrated that the claimant could marshal his experiences to present a claim and she pointed to the claimant’s first answer in the job application in the second claim (2201533/2021), his interviews answers in the 17th claim (1302099/2023) (see further below), also demonstrated that to be the case. It was also argued that the 22 of 30 extent that the claimant had not acquired the particular experiences necessary to meet the particular competencies, however, the claimant could not show this was a disadvantage that he had that people without his disabilities did not have, as opposed, for example, to it being a consequence of having prioritised doing other things such as pursuing Tribunal claims. (83) Ms Hodgetts also argued that offering assessed work experience was not a step which would be reasonable for the respondent to take as (a) period of work experience could not possibly assess the required competencies sensibly anyway, given the limitations that would have to be placed on candidates in terms of interactions with stakeholders and confidentiality, and the filter of the supervision that would be required; (b) it would be hugely resource-intensive; (c) it would significantly lengthen the application process;

(d) it would require candidates to take time off their current employment;

(e) Given the limited evidence that claimant advanced to meet the competencies, the overwhelming probability is that there was no prospect of it resolving the asserted disadvantage. While it is clear that the claimant does have experiences that he could marshal, on the claimant’s own case, he did not have the particular experiences necessary to fulfil the competencies. It followed, Ms Hodgetts submitted, that providing these adjustments could not have removed the identified disadvantage in any event. It was further submitted that the respondent’s use of the DCS already constituted a reasonable adjustment which ensures that disadvantage experienced by disabled candidate was reduced to a reasonable extent. (84) It was also submitted that a written or multiple-choice test could not test all the competencies, which include considerable, practical and comparable experience of managing complex cases or undertaking complex investigations, leading to proportionate outcomes, including securing evidence at the earliest possible stage of investigations; effective case management skills with the ability to prioritise competing demands and work to stretching targets; demonstrable experience of influencing and working collaboratively with internal and external stakeholders; proven ability of working well both autonomously and as part of a team; demonstrable experience of delivering a positive experience for a diverse range of customers. Furthermore, given that the claimant relied on poor concentration as a disadvantage a written or multiple-choice test would give rise to equal – if not greater – disadvantage compared to a written application form designed to test ability to meet competencies by reference to experience. Claim 17: 1302099/2023: Quality Assurance Advisor role (85) On 5 September 2022 the respondent advertised for the role of Quality Assurance Adviser. The claimant applied for the role on the same day by providing a CV and 5 page covering letter. (86) The criteria of the role were:

• High level of literacy and numeracy and the ability to understand complex information 23 of 30

• some experience of quality assurance work, or ability to grasp QA techniques quickly

• Ability to work independently under own initiative

• Ability to make decisions and take responsibility

• Keen eye for detail (87) The claimant secured 2 points (good evidence- meets the required standard) for criteria 1, 3, 4 and 5 and 1 point for criteria 2. The maximum score was 15 and the recommended minimum score was 10. The claimant scored 9. Given the DCS, the pass mark was reduced to 9/15 and the claimant qualified for an interview. (88) On 29 September 2022, the respondent wrote to the claimant to advise his that he had been invited to attend an interview and that he needed to book a convenient interview slot. In it’s letter the respondent was advised that the interview stage encompassed a technical assessment lasting 30 minutes followed by a virtual interview with a panel of two individuals which would last for 1.5 hours. The claimant was asked to provide further details of the adjustments that he required for the interview process and was advised that the respondent may be able to grant the claimant additional time for both the assessment and interview; allow for breaks during the interview and provide the claimant with the interview questions in writing 30 minutes before the interview. The claimant sent a letter to the respondent in which he referred to his poverty of experience as a result of his disability. (89) Following further correspondence between the parties, the claimant was granted an extension of 15 minutes for the technical assessment and a further 15 minutes after the assessment to enable the claimant to gather his thoughts and considerations for this part of the assessment. The respondent also agreed to provide the claimant with the interview questions in writing 30 minutes before his interview thereby giving him 45 minutes between the technical assessment and the interview. The respondent also offered short breaks during the interview itself to further assist the claimant. In the event the claimant had 20 minutes over and above the 45 extra minutes he had been granted as he did not join his video interview until 1.20pm when it was due to start at 1pm. The claimant secured 1/3 on the technical assessment and of the other 7 scoring criteria he score 10 (three 2/3s, four 1/3s and one 0/3), thereby totally 10/24. On 12 October 2022 the respondent notified the claimant that he was unsuccessful for the role. (90) Feedback provided by the respondent in relation to his application was that the claimant provided some good examples to demonstrate his experience. The respondent particularly liked the claimant’s motivation for wanting to join the SRA. However, a really important aspect of the role was the interpretation of data and a large amount of the role holder’s time would be spent on the system extracting data and then using this to interpret results. The claimant did not score well on the data question and his responses to the assessment exercise didn’t demonstrate the analytical skills that the respondent was looking for. The claimant was again advised to use the STAR methodology for giving his answers. 24 of 30 (91) The PCPs relied on for this claim are: PCP 1: The assessment phase The PCP is said to be a requirement to carry out of an assessment based on a database exercise using Microsoft Excel software. unable to do this as he did not have relevant experience of Excel because of his ill heath which has prevented him from working. (i) Giving the claimant a case-based assessment; (ii) Assessing the claimant personally and devising a suitable specialised testing method for him; (iii) Providing the claimant with training on Microsoft Excel prior to the assessment; (iv) Lowering the scores required of the claimant on the assessment (v) Seeking details of the claimant’s disabilities more than a day or two before the assessment; (vi) Seeking clinical advice to properly understand the claimant’s conditions. PCP 2: The interview phase The PCP is said to be a required to demonstrate the competencies for the role during an interview based on examples from past work and life experience. unable to do this as he did not have relevant work experience because of his ill health which has prevented him from working and because his speech is disorganised and he struggles to communicate verbally when anxious. (i) Extracting relevant information to demonstrate the competencies when the claimant’s speech was disorganised; (ii) Seeking details of the claimant’s disabilities more than a day or two before the assessment; (iii) Seeking clinical advice to properly understand the claimant’s conditions (92) In relation to PCP1 Ms Hodgetts contends that the claimant cannot show comparative substantial disadvantage. To the extent that the claimant has not acquired the database experience necessary to undertake the exercise satisfactorily, he cannot show that this is a disadvantage that he has that people without his disabilities do not have, as opposed, for example, to it being a consequence of prioritised doing other things such as pursuing Tribunal claims. Furthermore, avoiding testing the ability to understand data would not be a reasonable step for the respondent to take given that this was an essential criterion. Ms Hodgetts also submitted that it would not be a reasonable step for 25 of 30 the respondent to have to train the claimant to use Microsoft Excel before undergoing the database exercise as : (a) It would be hugely resource-intensive; (b) It would significantly lengthen the application process; (c) It would require candidates to take time off their current employment; (d) Given the claimant’s performance in interview, the overwhelming probability was that there is no prospect of its resolving the asserted disadvantage. Whilst the claimant did have experiences that he could marshal, on the claimant’s own case, he did not have the particular experiences necessary to fulfil the competencies. As such, providing these adjustments could not have removed the identified disadvantage in any event. It was further submitted that the respondent’s application of the DCS already constituted a reasonable adjustment which ensured that any disadvantage experienced by disabled candidates was reduced to a reasonable event. Finally, seeking information or consulting was not of itself an adjustment. (93) In relation to PCP2 Ms Hodgetts again contended that the claimant could not show comparative substantial disadvantage and she repeated her submissions in relation to PCP1. The interview plainly reflected that the claimant did have experiences but that he did not articulate those experiences in such a way that demonstrated that he could meet the competencies. (94) Secondly, it was submitted that extracting relevant information to demonstrate competencies was clearly not a step that would be reasonable for the respondent to have to take for the following reasons: (a) It is a criterion of the role that the post-holder be able to communicate effectively and work to deadlines. If the claimant was not capable of articulating examples efficiently in interview, he would not be able to perform the role; (b) As an alternative, the claimant could have prepared written answers to all the questions he could have anticipated would be asked of him. The feedback reflects advice that the claimant had previously had: he would benefit from using the STAR methodology for giving his answers. (95) Thirdly, the claimant’s own case was that he did not the experience necessary to satisfy the competencies such as the use of Microsoft Excel. As such, extracting the information would have been futile as the claimant would not have satisfied the competencies in any event. Finally, it was submitted that the respondent had made a number of reasonable adjustments and had discharged its duty in this regard. Deposit Order (96) Ms Hodgetts submitted, as a secondary case, that the claimant should be ordered to pay a deposit in respect of any allegation in each claim that was not struck out. (97) The bundle contained copies of the claimant’s bank statements from February to September 2022 which demonstrated that the claimant received a monthly PIP payment of £334.80 and a monthly net salary of £1,117.46. 26 of 30 Conclusions (98) I have considered the information which has been presented to me and the oral submissions made by Counsel for the respondent. In considering the respondent’s application for strike out I note that I need to take the claimant’s claim at its highest. Furthermore, I have reminded myself that it is only in the clearest of cases that a discrimination claim be struck out. My conclusions in relation to each of the claimant’s claims are as follows: Claim : 1301052/2021: Fast Track Claims Handler (99) PCP 1: I am satisfied on the information before me that the claimant has no reasonable prospects of being able to demonstrate the necessary comparative substantial disadvantage. I am satisfied from the claimant’s 5 applications before me that the claimant does have experiences from his studies, his volunteering experience and from his work experience from which he could demonstrate competencies for the Fast Track Claims Handler role. Indeed, he has been able to demonstrate this on occasion e.g. his first answer to the job application in the second claim (2201533/2021) and his interview for the seventeenth claim (1302099/2023). To the extent that the claimant has not acquired the particular experiences necessary to meet particular competencies the claimant cannot show that this is a disadvantage that he has that people without his disabilities do not have. I also accept the respondent’s position that offering assessed work experience is not a step that would be reasonable for it to take for the reasons articulated by Ms Hodgetts as detailed above. I also agree that a written test could not test all the competencies and given the claimant’s reliance on poor concentration as a disadvantage I agree with Ms Hodgetts’ assertion that a written test would give rise to equal if not greater disadvantage compared to a written application form designed to test ability to meet competencies by reference to experience. (100) PCP2: I agree with Ms Hodgetts’ assertion that the first limb of the asserted disadvantage is not a disadvantage to the claimant but a position which may influence the respondent’s knowledge. I also accept as per Tarbuck that a failure to consider or consult about making an adjustment does not itself constitute a failure to make reasonable adjustments. (101) PCP 3: I accept that the claimant cannot show that the PCP relied on gave rise to a comparative substantial disadvantage. The claimant asserts that he was demotivated from pursuing his application as he appears to be demotivated from pursuing his application in any event as he did not complete his application form properly nor can he show that a person without his disabilities who had a practice of making multiple job applications without marshalling his experiences properly would not experience. I also accept that providing a contact email address would not be a reasonable steps for the respondent to take as it would not have made any difference to the quality of the claimant’s application. (102) In light of the above I am satisfied that the claimant’s first claim has no 27 of 30 Claim 2: 2201533/2021: Regulatory Caseworker role (103) PCP 1: I am satisfied on the information before me that the claimant cannot show comparative substantial disadvantage for the reasons set out above in relation to PCP 1in Claim 1. I also do not accept that offering assessed work experience would be a reasonable adjustment for the reasons set out above in Claim 1. I also agree that a written test could not test all the competencies and given the claimant’s reliance on poor concentration as a disadvantage I agree with Ms Hodgetts’ assertion that a written test would give rise to equal if not greater disadvantage compared to a written application form designed to test ability to meet competencies by reference to experience. (104) PCP2: I accept the assertion that the claimant cannot demonstrate comparative substantial disadvantage as he answered the first question on the application form well. Furthermore, it is clear from the information provided by the claimant in his various applications to the respondent that he does have experiences which he could have used to demonstrate that how he met some of the competencies. I note that the respondent provides a lower pass mark for disabled candidates under the DCS and accept lowering the pass mark further still would amount to a waiver of essential criteria which it would not be reasonable for the respondent to do. (105) PCP3: This is a repeat of PCP 2 in Claim 1 and I repeat here my conclusions in this regard. (106) PCPs 4 and 5: These are the same as PCP 3 in Claim 1 and I repeat my conclusions. (107) In light of the above I am satisfied that the claimant’s Second Claim has no Claim 14: 1301299/2022: Assessment Investigation Officer role (108) PCP 1: I am satisfied that the claimant cannot show comparative substantial disadvantage for the reasons set out in relation to PCP1 in Claim 1. I am also satisfied that offering assessed work experience is not a reasonable step for the respondent to take for the reasons set out in relation to PCP1 in Claim 1. The respondent clearly provided a number of reasonable adjustments for the claimant. I also agree that a written test could not test all the competencies and given the claimant’s reliance on poor concentration as a disadvantage I agree with Ms Hodgetts’ assertion that a written test would give rise to equal if not greater disadvantage compared to a written application form designed to test ability to meet competencies by reference to experience. (109) PCP2: I accept Ms Hodgetts’ submission that the claimant cannot show comparative substantial disadvantage, there is no evidence of the claimant being any more demotivated following his rejection than when he completed his application. On the contrary, he followed up on his application and then presented a Tribunal claim. I also agree with Ms Hodgetts’ assertion that providing the claimant with feedback is not a reasonable step for the respondent 28 of 30 to take given the substantial number of candidates. In any event, the claimant’s application had already been rejected and therefore providing him with feedback would not have assisted the claimant with securing him with the role. (110) In light of the above I am satisfied that that the claimant’s Fourteenth Claim has no reasonable prospects of success and it should be struck out. Claim 15: 1301513/2022: Investigation Officer role (111) PCP1: I am satisfied that the claimant cannot show comparative substantial disadvantage for the reasons set out in relation to PCP1 in Claim 1. I am also satisfied that offering assessed work experience is not a reasonable step for the respondent to take for the reasons set out in relation to PCP1 in Claim 1. The respondent clearly provided a number of reasonable adjustments for the claimant. I also agree that a written test could not test all the competencies and given the claimant’s reliance on poor concentration as a disadvantage I agree with Ms Hodgetts’ assertion that a written test would give rise to equal if not greater disadvantage compared to a written application form designed to test ability to meet competencies by reference to experience. (112) As such, the claimant’s Fifteenth Claim has no reasonable prospects of success and it should be struck out. Claim 17: 1302099/2023: Quality Assurance Advisor role (113) PCP1: I accept Ms Hodgetts’ assertion that the claimant cannot show comparative substantial disadvantage. The extent to which the claimant has not acquired the database experience necessary to undertake the assessment satisfactorily, the claimant cannot show that this is a disadvantage that he has that people without his disabilities do not have. I am satisfied that avoiding testing the ability to understand data is not a step that would be reasonable for the respondent to have to take given that it was an essential criterion. I also agree with Ms Hodgetts that training the claimant to use Microsoft Excel before undertaking the database exercise was not a step that would be reasonable to take given that it would be hugely resource intensive, would significantly lengthen the application process, would require candidates to take time off their current employment and was an overwhelming probability that the training would not resolve the asserted disadvantage. Furthermore, the respondent was already operating the DCS to ensure that disadvantages experienced by disabled candidates is reduced. Finally, I accept that seeking information or consulting is not of itself an adjustment. (114) PCP2: I accept that the claimant cannot show comparative substantial disadvantage as he clearly has experiences which he could have used to demonstrate competencies for the role in interview. Furthermore, extracting relevant information to demonstrate competencies is not a step that would be reasonable for the respondent to have to take given that a criterion of the role is that the post-holder be able to communicate effectively and work to deadlines. I agree with Ms Hodgetts’ assertion that if the claimant is not capable of articulating examples effectively in interview, he is going to have difficulties 29 of 30 performing the role. In any event, the claimant himself accepts that he did not have the experience to satisfy the requirement to use Microsoft Excel. As such, extracting information would have been futile. In any event, the respondent had applied a number of reasonable adjustments to assist the claimant, thereby discharging its duty in this regard. (115) In light of the above, I am satisfied that the claimant’s 17th claim has no