Mr M A Rashid v Guide Dogs for the Blind Association: 1302995/2023

EMPLOYMENT TRIBUNALS

Case No 1302995/2023

Between

Mr. M A RashidClaimant

Guide Dogs for the Blind AssociationRespondent

Before

Employment Judge Camp

Date 19 July 2024

JUDGMENT

The complaint of direct disability discrimination is struck out.

REASONS

[1]By an order made by Employment Judge Camp dated 28 June 2024 the Tribunal gave the claimant an opportunity to make representations as to why the complaint for direct disability discrimination should not be struck out because• it has no reasonable prospect of success.

[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done. The complaint is therefore struck out.

[3]The remaining complaints will be considered at the final hearing listed to commence on 28 April 2025.

[1]These are the written reasons for the decisions made at this hearing refusing the Claimant’s amendment applications. Written reasons were requested at the hearing by the Claimant after oral reasons were given. The written record of the hearing, incorporating the written record of those decisions, was sent to the parties on 2 July 2024. Decision #1

[2]The Claimant was employed by the Respondent from 6 June to 14 October 2022. He worked as a My Sighted Guide Partnership Officer. The reason his employment came to an end, according to the Respondent at least, is that his performance was deemed unsatisfactory: effectively, he failed his probationary period. He went through early conciliation from 13 January to 22 February 2023. He presented his claim form on 14 March 2023.

[3]There was a standard preliminary hearing for case management on 27 July 2023. At that stage, the Claimant had a support worker who was providing him with assistance. Unfortunately, the Claimant had to leave that hearing part of the way through because, as I understand it, he had to go to work. As a result, the hearing was largely a waste of time.

[4]Pausing there, the Claimant is blind and is a litigant in person. He may well be someone to whom the Presidential Guidance on Vulnerable Parties and Witnesses applies. However, that does not affect the fact that he is the individual making the claim and is expected to prosecute that claim. If a Tribunal hearing 1 of 10 clashes with work commitments, the proper course, if those work commitments are immovable, is to write to the Tribunal before the hearing, explain the situation and provide evidence of it, and politely ask for the hearing to be moved. The Tribunal will then consider that request. The Claimant did not do that. He did not, in the circumstances, have a good reason for leaving the previous hearing part of the way through it.

[5]The hearing carried on in the Claimant’s absence. The Employment Judge (Judge C L Taylor) and the Respondent’s representative did the best that could be done and part of the product of that hearing was a list of issues. The written record of that preliminary hearing contained the usual order stating that: “The claim and issues as discussed at this preliminary hearing are listed in the case summary below [i.e. in the list of issues]. If you think the list is wrong or incomplete, you must write to the tribunal and the other side by 24 August 2023. If you do not, the list will be treated as final unless the tribunal decides otherwise.” 24 August 2023 was more than two weeks after the written record of the hearing was sent out, so the parties, including the Claimant, had plenty of time to examine the list of issues to see if it was accurate and complete or not. He did not write in pursuant to that order. The Tribunal and the Respondent were therefore entitled to assume he accepted the list of issues as accurate and complete.

[6]There are a number of reasons why what I have just described as the “usual order” is made at a case management preliminary hearing. One of them is that claim forms are frequently unclear in terms of precisely what Tribunal complaints are being made. Such a claim form needs clarification and this is done at the hearing. Once it has been clarified, everyone should know where they stand; and the order is made to provide that knowledge, and to avoid other claims, or purported claim, ‘coming out of the woodwork’, as it were, later on, something that tends to disrupt the smooth progress of the proceedings.

[7]There had to be a further preliminary hearing for case management because of the Claimant leaving the first one part-way through. This took place on 6 December 2023. During that hearing, as is recorded in the written record of it, the Employment Judge (Judge Smart) noted that when discussing the list of issues and trying to clarify the complaints of unfavourable treatment under section 15 of the Equality Act 2010 (“EQA”), the Claimant raised two new matters which were not included in his claim form. They were:7.1 that on dates unspecified the Claimant was left alone by the Respondent with no one else around when, for example, his support worker was either on a break or the Respondent was unwilling to let the support worker work more than a particular number of hours that day. The Claimant alleged this was unsafe and breached health and safety law;

7.2 that there was no specific personal emergency evacuation plan, which the Claimant says was needed because he was blind. He needed specific arrangements in place in case of an emergency that the Respondent and he needed to know about and follow. He said this was unsafe too.

[8]In light of that, Employment Judge Smart made an order that the Claimant had until 12 January 2024 to apply to amend the claim should he wish to do so. The 2 of 10 Claimant made an application to amend on 7 January 2024. It is that application I am dealing with now. (It was originally to have been dealt with at a hearing in March 2024, but, unfortunately, the Tribunal had to postpone the hearing on its own initiative due to lack of judicial resources).

[9]I refer to the application, which was made by email and appears in the electronic file of documents that has been prepared for this hearing at pages 80 to 81. It is a relatively long and, superficially, quite detailed application, but it lacks some specifics that I would expect it to include, for example names and dates and that kind of thing. Perhaps more significantly, it is unclear from that email what type of complaint or complaints the Claimant is seeking to make, or even whether the type of complaint he is seeking to make is one which the Employment Tribunal would have the power to deal with. I say that because what immediately jumps out from the application (it also appears from the way in which Employment Judge Smart put things in his record of the December 2023 preliminary hearing) is that what the Claimant seemed to be saying was that the Respondent failed to take reasonable care for his health and safety, causing him distress. That would not be a claim for the Employment Tribunal but for the County Court.

[10]The Claimant has repeated his written application and I have also asked him some questions to clarify it. It is not until today that it has been possible fully or at least adequately to understand the new complaint(s) the Claimant is wanting to make. As I understand it, he is wanting to add to his claim by amendment two complaints of breach of the duty to make reasonable adjustments.

[11]The first complaint is about the following situation. The Claimant had two support workers. The two support workers did not work at the same time – they worked across the working week. He worked for 35 hours a week. There was time in addition to 35 hours a week potentially to be covered by a support worker for, e.g. lunch breaks and travel time to and from the workplace. Because of the need for the support worker also to have breaks for the benefit of their own health and safety (and, indeed, compliance with legislation), there were times, for example when the support worker was on their lunch break, when the Claimant would not have a support worker. The Claimant’s case is that for most of the time the only people present in his workplace were him and his support worker. This meant that if his support worker was not there, he would be by himself. His claim is to the effect that that practice of causing or permitting him at times to be by himself caused him substantial disadvantage because of his disability in that, because of his disability, he was more vulnerable in the event of fire, or if he were to fall over, or something like that, or otherwise need assistance, and that, therefore, the duty to make reasonable adjustments was engaged. The reasonable adjustment the Respondent ought to have made was to ensure that, when the support worker was not there, there was someone else present keeping an eye on him.

[12]When he raised this point during his employment – as he did – what the Respondent did was to say to the Claimant that when the support worker was not present, they would tell the owners of the building in which the Claimant’s workplace was situated, Focus Birmingham, to make sure that somebody came to get the Claimant in the event of a fire. From the Claimant’s point of view, that was all very well, but he was concerned that there might be times when nobody was available to get him if there was a fire, and that, in any event, that wouldn’t 3 of 10 deal with the situation where, for example, he had a fall or otherwise needed assistance. This is because they wouldn’t know that he had had a fall or otherwise needed assistance.

[13]That is proposed new reasonable adjustments complaint number 1. It is not entirely clear when it dates from, but it must date from well before the termination of the Claimant’s employment. Even if, then, it had been included in the claim form – and it wasn’t – then it would have had time limits problems, because the ‘cut-off date’ for time limits purposes, based on the dates of early conciliation and the date the claim form was presented, was the very last day of his employment.

[14]The second proposed reasonable adjustments complaint relates to the lack of a personal emergency evacuation plan (PEEP). The way in which such a complaint might work would be as a reasonable adjustments complaint. It would be to the effect that: the Respondent had a practice of not providing PEEPs to the Claimant or to anyone else working in his position; that practice caused him substantial disadvantage because he is blind and therefore in need of a PEEP in a way that somebody without his disability would not have been in need of one, as in the absence of a PEEP, there was a risk to health and safety which would have been mitigated by a PEEP; the reasonable adjustment that ought to have been made would have been to provide a PEEP.

[15]I have to decide whether it would be fair and just in accordance with rule 2 to give permission to amend to add these two complaints, or either of them. When making that decision, I am assisted by the well-known Selkent guidance (see Selkent Bus Company Ltd v Moore

[1996] ICR 836

). I should take all circumstances into account; important factors may include the timing and circumstances in which the application to amend is made, the type of amendment (whether a substantive new complaint is proposed or something less significant), time limits (taking into account that, in accordance with Galilee v The Commissioner of Police of The Metropolis

[2017] UKEAT 0207_16_2211

and Sheikholeslami v University of Edinburgh

[2018] UKEAT 0014_17_0510

, if I were to give the Claimant permission to amend to add substantive new complaints, time limits would apply to those complaints as if they had been presented to the Tribunal when he applied to amend), and the balance of prejudice between the Claimant and the Respondent; but no one factor is necessarily determinative.

[16]I begin by looking at the type of amendment. As I have already said in relation to the first [proposed new] complaint, and this applies to the second complaint too, it was not mentioned or even hinted at in the claim form. The two complaints are completely absent from it, not just the complaints themselves but also the facts on which they are ostensibly based. It is, then, the most substantial kind of amendment there could be.

[17]Moving on to the timing and manner of the application, a number of questions arise. There is the question as to why the original claim wasn’t made sooner, but putting that question (to which the Claimant has provided no answer) to one side, the primary relevant question is: why weren’t these complaints and/or the facts on which they are based included in the claim form? What the Claimant says in relation to that in his written application is: “The ET1 claim form was completed on behalf of myself by a third party and I made the assumption in my naivety that this 4 of 10 would be included despite requesting the third party to include this.” I am afraid that is just not satisfactory; I don’t accept it as a reasonable excuse. Any claimant making a claim in the Tribunal has to ensure that the claim that is put before the Tribunal is the claim they want to make. If, for whatever reason, they are asking someone else to put the claim in on their behalf, then, again, it is incumbent on them to make sure that that someone else communicates to them what has been put in on their behalf.

[18]The Claimant says he couldn’t access the claim form itself because of his visual impairment. That may be so, but to whatever extent it is so, there are a number of caveats or qualifications. The first of these is that there are measures in place, where someone who, because of visual impairment, needs the claim form in a different format so that they can read them can request that. Perhaps more importantly, I would assume that the Claimant is an intelligent man and he has, so far as I am aware, no cognitive impairment of any kind. There is no good reason for the Tribunal to lower its expectations in relation to him and I would expect anyone who was asking another person to submit a claim form on their behalf, if the claim form itself could not be emailed to them, to get that person to email them the text of what they were intending to write, and what they had written, on their behalf. Alternatively, they could write out the text themselves and send it to that person for them to copy into the claim form. However he did it, I would expect the Claimant, just like anyone else, to make sure he had read what was put in the claim form on my behalf and to have digested it. The Claimant did not do that and him not doing that cannot be put down to his visual impairment, nor to him being a litigant in person.

[19]Going forward in time from the submission of the claim form to the first preliminary hearing, I have already commented on the fact of the Claimant making no apparent attempt to arrange things so that the hearing took place at a time which he could make, or to rearrange his work so that he could attend the hearing as listed. His failures in this respect are not mitigated to any significant extent by him being visually impaired and a litigant in person. I also note that he had a support worker at that hearing, and presumably in the run up to it. I would have expected, at the very least, that he would have ensured, if he couldn’t access the claim form himself, that his support worker read it to him in preparation for that hearing. Either he did not get his support worker to do this, or he did so, but did not take sufficient note of the claim form’s contents.

[20]The next relevant event is the receipt by the Claimant of the written record of the preliminary hearing, containing, as I have already explained, a list of issues and the ‘usual order’. As a reasonable adjustment, it was sent to the Claimant in a different format from the usual pdf format so that the Claimant could read it. The list of issues did not include any details of the complaints he is now seeking to raise by way of amendment. If he wanted to pursue those complaints, he had to write to the Tribunal by 24 August 2023 saying so and not doing this was a breach of a Tribunal order. Once again, him being visually impaired and a litigant in person are not significant mitigating factors.

[21]The possibility of amending did not emerge until the 6 December 2023 preliminary hearing. On the face of the written record of that hearing, potentially amending the claim was even then not raised by the Claimant but by the Employment Judge. In 5 of 10 the run up to that hearing, I would have expected the Claimant to have ensured that he had reminded himself of what was in the claim form and what was in the written record of the previous preliminary hearing. He evidently did not do so. It is only because of Employment Judge Smart going through the claim in considerable detail with the Claimant that it emerged that the Claimant believed there were some things missing from the claim form. Employment Judge Smart could legitimately simply have assumed that the claims were as set out in Employment Judge C L Taylor’s list of issues, given the Claimant’s failure to challenge that list in the intervening months.

[22]The application to amend was finally made on 7 January 2024. The application was deficient, in respects I have already identified. It is eminently arguable that the application to amend was not in fact made adequately until today – 28 June 2024 – because that is the earliest date on which the complaints were clearly articulated. Before today, it was unclear even what types of complaint were being proposed and many important details were missing. Nevertheless, being as generous to the Claimant as I reasonably can be, I shall for present purposes take 7 January 2024 as the date on which the Claimant applied to amend to add the two complaints I identified above. On that basis, in accordance with what I understand now to be settled case law, if these complaints were to be added by way of amendment, time limits would apply to them as if the Claimant had presented a claim form containing them on 7 January 2024.

[23]That brings me onto time limits. I should be clear that I am not making a final decision on time limits. As my decision is to refuse permission to amend, I could not do so anyway as unless and until permission to amend to add these new complaints is given, they are not before the Tribunal. What I can do, though, and what I am doing is forming a provisional view as to how time limits would apply to these complaints were I to give permission to amend, and then taking that into account in deciding whether or not to exercise my discretion to give permission.

[24]The time limit applicable to the complaints with which I am concerned is that set out in EQA section 123, to which I refer. As they would be deemed presented well outside the primary time limit of 3 months (plus any extension for early conciliation) – they would be perhaps a year out of time – the question is whether it would be just and equitable to extend time up to 7 January 2024. As to the law applicable to that question, I note paragraphs 9 to 16 of the EAT’s decision in Rathakrishnan v Pizza Express (Restaurants) Ltd

[2016] ICR 283

, which should be deemed to be incorporated into these Reasons.

[25]I am afraid I am not remotely satisfied that it would be just and equitable to extend time to allow these complaints to proceed, were they to be added by way of amendment. It follows that granting permission to amend would be a pointless waste of everyone’s time, as the complaints would fail because of time limits.

[26]Relevant both to time limits and more generally to whether I should give permission to amend is the balance of prejudice. It seems to me that the Respondent would be prejudiced by the lapse of time. These complaints concern things that happened between June and, at the latest, October 2022. Those things were first raised by the Claimant in December 2023 and the full details have not emerged until now: late June 2024. In the intervening period, memories will have 6 of 10 faded and it may well also be that some documentation (including electronic documentation) which would have been available had the complaints been made in time or the application to amend been made sooner will no longer be available. The quality of evidence and therefore the Respondent’s ability to defend these complaints will therefore probably be significantly reduced.

[27]In terms of prejudice to the Claimant, I think this is relatively limited, for two related reasons. First, the Claimant already has before the Tribunal what are presumably his main claims, including direct race discrimination and disability discrimination complaints of various different kinds about his dismissal. This is, substantially, a claim about dismissal. The two proposed new complaints do not concern anything connected with dismissal; there is no discernible connection between the Respondent’s alleged failures to comply with the duty to make reasonable adjustments in these two respects and dismissal. If the Claimant were to win these two complaints, his compensation would consist entirely of damages for injury to feelings. It is unlikely that if he wins any of his complaints relating to dismissal, the total compensation for injury to feelings will be significantly higher if he also wins either or both the proposed new complaints.

[28]Secondly, in litigation, as in many things in life, less is very often more. The decisions of the Employment Appeal Tribunal and the Court of Appeal are full of examples of Judges saying something along these lines: claimants are well advised to refine their claims, jettisoning those claims which are weaker, focusing their energies on claims which are stronger, and not having 50 claims where 5 will do and where it will make no practical difference to the outcome if the Claimant were to succeed on 5 claims versus 50. This is for a number of reasons.

[29]First, it accords with the overriding objective: it helps the administration of justice; it avoids the Tribunal getting cluttered up dealing with unnecessarily complex claims.

[30]Secondly, litigation is stressful and it can be complicated and challenging, particularly for a litigant in person; and, in general, the more complaints being made, the more stressful, complicated and challenging it tends to be.

[31]Thirdly, as I have already said, less is very often more. The problem that in practice arises where, say, a claimant is bringing a dozen claims and three of them are very weak, three of them are weak, three of them are reasonable and three of them are strong, is that the weaker claims tend to dilute and obscure the strength of the stronger claims and sometimes it can be quite difficult to see the nuggets of gold in amongst the parts of the claim which are not gold, if I can put it that way. A sensible legal advisor would tell such a claimant: drop the six weak claims, because you’re never going to win the very weak ones, you’re not going to win the three that you are weaker unless you also win something else, and if you win something else, what difference is winning the weaker claims going to make to the overall result?; the Tribunal will end up being presented with nothing but robust claims and you will be on the front foot with the Tribunal from the start.

[32]In some ways, then, it is in the Claimant’s own best interests to refuse this amendment application, because what it means is that he doesn’t put before the Tribunal a claim which on any view is extremely weak because of time limits (and 7 of 10 which I think would be doomed to failure because of time limits), which adds layers of complexity to his claim, and which potentially distracts and detracts from the main part of his claim, which is about dismissal.

[33]For those reasons, my view is that the prejudice to the Respondent were I to give permission to amend is significant and outweighs the prejudice caused to the Claimant by my refusing permission to amend.

[34]Taking all the circumstances into account, I think it would not be in accordance with the overriding objective for me to give permission to amend and I therefore refuse the Claimant’s application. Decision #2

[35]Following on from the decision I made in relation to the Claimant’s written amendment application, a further amendment issue has risen. It has arisen during discussions of the Claimant’s complaints. In dealing with that issue, I am applying the law as previously summarised.

[36]In the run up to the date when this hearing was originally supposed to have taken place, the Respondent submitted a case management agenda. In that agenda, they raised the fact that the Claimant had not specified comparators for the purposes of his direct disability and direct race discrimination complaints. Accordingly, we went through those complaints at this hearing. I wanted to make sure for myself that the Claimant was really alleging direct discrimination, because experience suggests that litigants in person often misunderstand what direct discrimination, and in particular direct disability discrimination, is. It often turns out that, for example, what is being put forward as direct disability discrimination is in fact an allegation of unfavourable treatment under EQA section 15.

[37]On the face of the Claimant’s claim form, and as set out in the lists of issues prepared by the Employment Judges following the previous preliminary hearings, the only direct race discrimination claim is a claim about dismissal itself. Discussing this with the Claimant, I first of all ascertained that he really was alleging that his dismissal was an act of direct race discrimination, in that his case is that his race materially influenced the decision to dismiss him. We also ascertained that he is not alleging direct disability discrimination, i.e. that he was dismissed because of his disability or the protected characteristic of disability more generally. I am going to be issuing a strike-out warning in relation to that rather than putting him under pressure to withdraw his claim today, to give him an opportunity to reflect and just in case I am wrong about that complaint having no reasonable prospects of success.

[38]When discussing direct race and then direct disability discrimination, what emerged was that the Claimant is also alleging that potentially his requests for reasonable adjustments would have been accommodated, or might well have been accommodated, were he white British. What that means is that there is potentially a new direct race discrimination claim. It could, perhaps, be put in various different ways, but it boils down to: the failure to make reasonable adjustments, as well as being disability discrimination in accordance with EQA section 21, was direct race discrimination. 8 of 10

[39]There are two things I have to think about. The first is to what extent this new claim is already in the claim form, such that the Claimant can pursue it without making a substantive amendment. The second, interlinked with the first, is whether, if the Claimant does need permission to amend, he should be given it.

[40]The situation is rather more nuanced than it was in relation to the previous amendment application. It does not necessarily follow from the fact that I refused the previous application that I will refuse to allow the Claimant to pursue this new claim. The reason I say that is because there is already a complaint of direct race discrimination connected with dismissal before the Tribunal: the straightforward claim that the Claimant was dismissed because of race. There is also already before the Tribunal, as just mentioned, a complaint that the failure to make reasonable adjustments that the Claimant now wants to say was race discrimination was disability discrimination, and that that failure led to the Claimant being dismissed. Reading between the lines, one might just about be able to guess that the Claimant was alleging that the same individual was responsible both for the breach of the duty to make reasonable adjustments and for the decision to dismiss, and therefore, conceivably, one could infer a taint of race discrimination to that breach of the duty to make reasonable adjustments.

[41]Even if I accepted that the average reasonable, objective reader of the claim form would guess and infer those things – and I don’t – the claim form would still need amendment, for the sake of clarity. However, it might well make a difference to whether or not the amendment that was needed was a substantive one, to which time limits issues would apply.

[42]On any view, there is no allegation in the claim form that it was direct discrimination, or race discrimination of any other kind, to breach the duty to make reasonable adjustments. What is said in the claim form in terms is that dismissal – no more and no less – was race discrimination. An amendment is needed if the Claimant is to pursue the new claim, and not for clarification. The claim form was in fact more than adequately clear as to what was (and by inference what was not) being claimed, at least in broad terms.

[43]On the question of whether this is a substantive amendment in the sense that time limits issues (see Galilee) would arise in relation to it, my decision, which is in fact contrary to the view I initially formed when I thought about it, is that it is one. The fact that it was just about be possible to guess that the Claimant might possibly be saying that the breach of the duty to make reasonable adjustments was also race discrimination does not alter what complaints were and were not set out in the claim form. It could be said that the amendment being sought is of the ‘re-labelling’ type (or, rather, applying an additional label), but it is nevertheless a brand new claim of race discrimination relying on at least one brand new allegation of fact: that racial prejudice was present in the mind of the individual or individuals who failed to take the steps necessary to comply with the duty to make reasonable adjustments and that that was a significant part of the reason why those steps were not taken.

[44]I repeat everything I said in my reasons for refusing the previous application to amend as to the inadequacy of the Claimant’s explanations for not making this claim sooner, in particular that neither him being a litigant in person nor his visual 9 of 10 impairment provides a remotely adequate excuse for him (apparently) never reading his own claim form properly and not complying with Employment Judge C L Taylor’s order that he should highlight any omission or inaccuracy in the draft list of issues prepared following the July 2023 preliminary hearing. His failures in this respect are even more unsatisfactory in relation to this second amendment application, because this new claim was not raised with Employment Judge Smart, despite the Judge evidently taking great pains to make sure that he had captured all of the Claimant’s actual and proposed complaints, nor was it raised in the written amendment application of January 2024, nor, even, was it raised during the first part of this relatively lengthy hearing. It was actually not raised by the Claimant at all – I raised it. For much the same reasons, time limits issues are also even more acute than in relation to the amendment application I dealt with earlier.

[45]Upon analysis, it seems to me that this application to amend has little more merit than the previous one. It is true that the Claimant is already pursuing a race discrimination complaint about dismissal and the reasonable adjustments complaint upon which the new proposed race discrimination claim is based. This means that the Respondent would be unlikely to need to call additional witnesses or adduce additional evidence were I to give permission to amend. But it also means that denying him permission takes very little away from him in terms of the entire claim that he is pursuing before the Tribunal. What, in practice, would it add? Further, it is inherently unlikely that a Tribunal would find that there was a breach of the duty to make reasonable adjustments and that that breach was an act of race discrimination, but that dismissal was not. If he wins his reasonable adjustments claim or his race discrimination claim about dismissal, also winning this proposed new race discrimination claim would almost certainly make no practical difference to remedy. In summary, the prejudice caused to the Claimant by refusing permission to amend is just as limited, if not more so, than the prejudice caused to him by my earlier decision refusing permission to amend.

[46]Although there probably wouldn’t be significant prejudice to the Respondent were I to allow this amendment, weighing everything up, and in particular taking into account time limits issues, the number of opportunities the Claimant has had to advance this claim before now, and the lack of significant prejudice to him that would be caused by my refusing this application, I refuse permission to amend.