Dr C Mallon v Department for Business, Energy and Industrial Strategy and The Cabinet Office: 1304814/2021
EMPLOYMENT TRIBUNALS
Case No 1304814/2021Venue BirminghamHearing 8 – 12 April 2024
Between
Dr C MallonClaimantDepartment for Business, Energy and Industrial Strategy and The Cabinet OfficeRespondent
Before
Employment Judge Gaskell
Members
Mrs M HowardMr S WoodallIn person for claimantMs J Williams (instructed by Counsel) for respondentDate 12 April 2024
JUDGMENT
[1]The claimant’s claims for unlawful discrimination on the grounds of age and race are dismissed upon being withdrawn by the claimant.[2]The respondents did not, at any time material to this claim, act towards the claimant in contravention of Section 39 of the Equality Act 2010. The claimant’s claims of failure to make adjustments, pursuant to Section 120 of that Act, are dismissed.
REASONS
Reasons were given orally at the conclusion of the hearing on 12 April 2024. These written reasons are provided to a request made by the respondent at the time pursuant to Rule 62 of the Employment Tribunals Rules of Procedure 2013
Introduction
[1]The claimant in this case is Dr Christian Mallon who presents himself as an applicant/potential applicant in respect of a number of vacant posts advertised by the respondents, the Department for Business Energy and Industrial Strategy, and the Cabinet Office, between April 2018 and August 2021.[2]The claim form was presented to the tribunal on 14 November 2021 and purported to bring claims for discrimination on the grounds of age, race, and disability. At the commencement of this trial the claimant confirmed that he was not pursuing the claims for age or race discrimination these claims will therefore be dismissed upon having been withdrawn by the claimant. The claim for disability discrimination is a claim for a failure to make reasonable adjustments in respect of applications or potential applications made in April 2018, May 2020, May 2021 and August 2021. We were provided by the parties with an agreed List of Issues for this final hearing.[3]The Respondents concede that the Claimant suffered with Autism and Dyspraxia at the material times (April 2018 to August 2021) and was disabled as defined in section 6 of the Equality Act 2010.[4]During cross-examination, when confronted with documents which clearly contradicted his case as to the events of April 2018 and May 2020, the claimant withdrew those elements of his claim. We have therefore only had to determine his claims relating to the events of May and August 2021.
The Evidence
[5]The claimant gave evidence on his own account, he did not call any additional witnesses. This the respondent relied on the evidence of four witnesses: Mr Craig Whitley – Deputy Director HR Operations, BEIS. Mrs Jodi Wilkinson – Head of Resourcing and Early Talent, BEIS. Mr Christopher Weston – Resourcing Adviser, BEIS. Ms Shiela Jensen – Campaign Manager GRS (Government Recruitment Service). In addition the respondent provided us with a witness statement made by Ms Rebecca McQueen - Campaign Delivery Officer, GRS. However Ms McQueen did not attend the hearing to give evidence and we have taken no account of the witness statement.[6]We had an agreed trial bundle running to some 679 pages. We have considered the documents within the bundle to which we have been referred by the parties during the course of the hearing. The bundle contained a number of medical and psychiatric reports relating to the claimant and his disabling conditions of Dyspraxia and Autism. The dates of the reports range from 2014 to 2023: none of this medical information was provided to the respondents at the time of the claimant’s proposed job applications.[7]The evidence given by the respondent’s witnesses was clear, consistent and compelling. The evidence given was consistent with contemporaneous documents and the witnesses were consistent with each other. The witnesses’ evidence did not vary during cross-examination.[8]The claimant was not satisfactory witness. We have already pointed out that his very first encounter with contemporaneous documents led to his withdrawal of allegations relating to April 2018 and May 2020. But his evidence relating to May and August 2021 was also highly inconsistent with the actual documents: as to the application of any alleged PCP; as to claimed disadvantage; and as to the extent of any adjustments which were offered. More importantly however our conclusion is that the claimant’s claim was fundamentally dishonest. We do not accept that he was a serious potential applicant for the various roles for which he expressed an interest. The roles were at a high level; they were very different in nature; requiring different experience and expertise. We accept the evidence of Mr Whiteley that the claimant was not a realistic candidate for any of them. Our conclusion is the claimant knew he was not a realistic candidate. He did not intend to pursue an application. What he was intent upon was setting up the potential for bringing a claim for discrimination with a view to securing an award of compensation or a settlement.[9]Where there is a direct contradiction in fact between the evidence given by the claimant and that given by the respondent’s witnesses, we prefer the evidence of the respondent’s witnesses. It is on that basis that we have made our findings of fact.
The Facts
[10]The respondents are large government departments with significant needs for recruitment. Government recruitment campaigns are conducted by the Government Recruitment Service (GRS) for which Ms Jensen was a Campaign Manager. April 2018[11]Although the claimant expressly withdrew his claim relating to the events of April 2018, those events are relevant. The claimant contacted GRS and expressed an interest in the role of Head of Performance: Highways. He submitted a CV but was told that this must be accompanied by a personal statement setting out the reasons for his interest in the role and how he met the essential criteria. Because of suffering from Dyspraxia, the claimant informed GRS that he had difficulty in formulating a personal statement in writing. It was agreed that this could be done by telephone. The claimant made his personal statement to a Recruitment Consultant (running to some 286 words). The Consultant formulated this into a written statement and submitted it to the claimant for approval. The claimant’s application was therefore accepted although it was unsuccessful. The claimant has never made any allegation of unfairness in the handling of the application once it was received. His initial claim to this tribunal was that he had been prevented from making an application. However when confronted with the relevant documents, the claimant withdrew the allegation. May 2020[12]So far as May 2020 is concerned, the respondent’s witnesses have no record of any interaction with the claimant around potential job applications in May 2020. The claimant could provide no information as to which roles he had expressed an interest in or identify any Advisers with whom he had dealt. He could provide no details at all. During cross-examination he accepted that it appeared that there had in fact been no potential applications in May 2020, and the allegations were withdrawn. May 2021[13]On 13 May 2021, the claimant emailed GRS enclosing his CV and informing them that he had been to a recruitment event that day and was interested in roles in Birmingham, Manchester or London paying salaries of more than £50,000. The claimant did not specify particular roles in which he was interested. The claimant’s CV included the following paragraph: “I have been diagnosed with both Dyspraxia and Autism. Due to my disability, I request a reasonable adjustment in the form of making an oral application. This would be a ten minute phone call to talk through my relevant experience. I also need the essential criteria in advance so I can prepare. Arrangements for these adjustments should be made directly with me via e-mail or telephone. Due to issues arising from my disability I cannot update my CV for each role, hence having a CV that’s longer than average.” The CV also provided a number of links to generic information as to how the conditions of dyspraxia and autism might affect different individuals and the types of adjustments which employers or potential employers should consider. The links did not provide any information specific to the claimant.[14]The following day the claimant received a reply advising him to make an application through the civil service jobs website and providing him with the appropriate link. The claimant replied stating that he struggled with online things and so, preferred oral applications when applying for work.[15]Later the same day, GRS emailed the claimant indicating that they would try and assist him but needed to know the particular vacancies which interested him. The claimant replied with details of eight vacancies:(a) Business Compliance Manager – BEIS – Birmingham - £49,075 - £56,350 Closing date 24 May 2021 - Reference: 116000(b) Operational Policy Manager - BEIS - Birmingham - £49,075 - £56,350 Closing date 24 May 2021 - Reference: 115990(c) Senior Strategy and Planning Advisor – BEIS - Birmingham, London - £49,075 - £56,350 - Closing date 26 May 2021 - Reference: 118996(d) Senior Policy / Programme Delivery Managers – BEIS - Manchester - £49,075 - £56,350 - Closing date 18 May 2021 - Reference: 115086(e) Head of Policy, Power Carbon Capture and Storage - BEIS – Manchester - £60,370 - £69,500 – Closing date 21 May 2021 – Reference: 116234.(f) Senior Policy Advisor, Power Carbon Capture and Storage - BEIS – Manchester - £60,370 - £69,500 – Closing date 21 May 2021 – Reference: 116254.(g) Head of sustainable behaviours for net zero (maternity cover) - BEIS – Manchester - £49075 - £59,650 – Closing date 23 May 2021 – Reference: 117964. (i) Head of Smart Metering Innovation Team – BEIS – Manchester - £60,370 - £72000 – Closing date 30 May 2021 – Reference: 118397. These were quite different roles involving different skills and experience with different hiring managers. It simply would not have been possible for the claimant to make an oral application for all eight roles in a 10 minute telephone call as he had suggested.[16]On 17 May 2021, GRS informed the claimant that his request together with details of the roles in which he was interested had been sent to the Reasonable Adjustment Specialist Team (RAST) who would consider the position.[17]On 18 May 2021, having received advice from RAST, GRS asked the claimant for additional specific information:(1) It would be much appreciated if you could please specify the aspects of the online application you are most struggle with completing.(2) Moreover, please identify what you feel are the primary advantages to you, as a candidate, of being granted an oral application rather than completing a written application.(3) Would you, if possible, be able to share any information about previous adjustments that you have received, and how you believe that these have benefited you in the application process? The claimant responded the same day. He did not provide the requested information. He did nothing more than to repeat that he has Autism and Dyspraxia. He attached another generic document with regard to those conditions. In part the claimant’s explanation for his failure to provide the requested information was that the absence of a question mark meant he was unable to discern that a response was required from him.[18]On 21 May 2021, a Recruitment Officer emailed the claimant stating that she had attempted to call him to discuss possible options they had to assist with his application. The suggested arrangement was the provision of a Scribe service - effectively to enable the claimant to make his application orally and for the scribe to transpose this into the written form. The claimant’s response was confrontational: he questioned whether the Recruitment Officer had attempted to call him at all. He did not engage with her suggestion for the provision of a Scribe or the extent to which such a service might assist.[19]In emails later the same day, the claimant moved onto requests beyond the making of an oral application. Asking for a change in the way that skills can be searched for on the government website. The claimant is an intelligent man: he would know the changes of that nature could not be made quickly if they could be made at all. In the meantime, GRS had notified the hiring managers of the claimant’s possible wish to use a Scribe and was seeking confirmation that this would be allowed. The hiring department would have to incur the cost of such provision.[20]On 26 May 2021, Ms Jensen emailed the claimant explaining that it was not possible to amend the civil service jobs platform at the present time. However to enable the claimant to submit an application via the civil service jobs website she confirmed that she had obtained agreement from the hiring department for assistance to be given by an Assessor/Scribe. By this time, only one of the vacancies which the claimant had expressed an interest was still open for applications (that set out at Paragraph 15(i) above). The claimant responded complaining of delays in meeting his request for adjustments (only 13 days had elapsed since his first contact regarding these vacancies and he had failed to provide information requested to assist), and again demanding that the structure of the website be changed. Ms Jensen responded reiterating the position so far as the website is concerned and asking for confirmation that the claimant was still interested in the outstanding vacancy. She confirmed that upon hearing from the claimant further that she would be in touch regarding the availability of an Assessor.[21]The claimant did not respond to Ms Jensen’s request regarding his ongoing interest in the remaining vacancy. There is some limited evidence of contact in June 2021, but no evidence as to who the claimant was emailing. We accept Ms Jensen’s evidence that direct contact with her did not resume until 21 July 2021. The claimant was told that an Assessor was available but that all of the positions in respect of which he had previously enquired were now closed for applications. The respondents still had very limited information as to the particular type of assistance the claimant needed or as to the particular disadvantage from which he suffered.[22]When giving evidence before us, the claimant admitted that he had taken no regard of deadlines for applications and that he did not know whether he was a suitable candidate for all or any of the vacancies to which he had expressed an interest. He had filtered them simply by reference to salary and location. August 2021[23]On 22 July 2021, the claimant made contact with GRS expressing an interest in a newly advertised vacancy: Lead Energy Technical Adviser - Closing date 2 August 2021. Ms Jensen and her team were proactive in attempts to assist the claimant with his application. A Campaign Manager telephoned the claimant on 23 July 2021 to discuss options to assist him. The Campaign Manager reported that claimant was confrontational: demanding information for example as to the number of people employed by GRS. The claimant stated that he wished all communication to be written rather than verbal. The claimant confirmed this in an email on 23 July 2021.[24]On 29 July 2021, GRS emailed the claimant advising that it wish to assist him and asking for further details as to his condition and as to how it affects him in submitting an application on the civil service jobs website. The claimant’s response was that he had provided the information in his CV and that medical information was private and would only be shared with the courts if necessary. He provided further generic information with regard to his conditions.[25]On 4 August 2021, it was confirmed that the claimant would be given the services of an Assessor to work through the online application with him. The claimant was also provided with details of the criteria for the role (although he was later to complain that these had been provided in attachment to an email where is he required in the body of the email – he has never explained why). The claimant also complained that in the information which was provided to him in the attachment there was no paragraph actually headed “essential criteria” therefore he did not know what the essential criteria were. Our judgement is that the document provided the essential criteria but under another number of other headings but was easily understandable. The claimant stated in evidence that he only ever scan read documents.[26]The application form required an applicant to provide a CV; details of experience with Low Carbon Heating Technologies; a 250 word personal statement outlining their skills and experience; a 250 word statement on “Communicating and Influencing”; a 250 word statement on “Seeing the Big Picture” and a 250 word statement providing examples of Technical and Commercial Leadership. 26 In advance of his appointment with the Assessor, the claimant made further requests. He did not wish to provide information either as to his personal statement or as to his competencies by 250 word statements (which the claimant describes as “essay format”. He suggested that this was broken down into a series of small questions which could be answered in 10 - 15 words. This request was considered but declined: the respondent’s view was that this would be to change the entire assessment process and would be unfair on other candidates. The claimant did not explained why he could not verbalise his 250 words (even if it were provided in small sections) for the Assessor to transpose into paragraphs suitable for the application form (this is exactly what had happened in 2018).[27]The claimant’s session with the Assessor was booked for 13 August 2021 but was then rescheduled to 19 August 2021 at the claimant’s request. It took place by video call. During the session, the claimant repeated his request for the Assessor to break down the competencies and to ask questions which could be answered in 10 - 15 words. It was not the Assessor’s place to do this - it was for the claimant to provide information which the assessor would assist in assimilating into a form suitable for the application form. As the Assessor was unable to assist in the way the claimant wanted the session was terminated. No application was ever submitted.[28]It is the claimant’s case that on terminating the session the Assessor had indicated an intention to seek permission to give the further assistance the claimant wanted. However this does not accord with a written report which GRS later received from the Assessor. In any event, the claimant had already had a clear response as to why this further variation from required procedure would not be permitted.
The Law
[29]We have considered the following provisions of the Equality Act 2010 (EqA):(a) Sections 20 and 21 and Paragraph 20 of Schedule 8 regarding the circumstances in which an employer has a duty to make adjustments.(b) Section 123 dealing with time limits for claims.(c) Section 136 regarding the burden of proof.[30]We have considered to following decided cases:(a) Morse –v- Wiltshire County Council [1999] IRLR 352 (EAT) A tribunal hearing an allegation failure to make reasonable adjustments must go through a number of sequential steps: It must decide whether the provisions of [EqA] impose a duty on the employer in the circumstances of the particular case. If such a duty is imposed it must next decide whether the employer has taken such steps as it is reasonable all the circumstances of the case for him to have to take.(b) Smith –v- Churchills Stairlifts plc [2006] IRLR 41 (CA) The test is an objective test; the employer must take "such steps as it is reasonable to take in all the circumstances of the case”. What matters is the employment tribunal's view of what is reasonable.(c) Project Management Institute –v- Latif [2007] IRLR 579 (EAT) In order for the burden of proof to shift to the respondent, the claimant must not only establish that the duty to make reasonable adjustments has arisen but also that there are facts from which it can reasonably be inferred that it has been breached.(d) Environment Agency –v- Rowan [2008] IRLR 20 (EAT) An employment tribunal considering a claim that an employer has discriminated against an employee by failing to comply with the duty to make reasonable adjustments must identify: (a) the provision criterion or practice apply by or on behalf of the employer, or (b) the physical feature of the premises occupied by the employer, and (c) the identity of non-disabled comparators, and (d) the nature and extent of a substantial disadvantage suffered by the claimant. Unless the tribunal has gone through that process it cannot go on to judge if any proposed adjustment is reasonable.(e) DWP –v- Alam [2010] ICR 665 (EAT) Wilcox –v- Birmingham CAB Services Limited [2011] EqLR 810 (EAT) The duty to make adjustments is not engaged unless the employer knows (or ought to know) of both the disability and the substantial disadvantage.(f) Royal Bank of Scotland –v- Ashton [2011] ICR 632 (EAT) Before there can be a finding that there has been a breach of the duty to make reasonable adjustments an Employment Tribunal must be satisfied that there was a provision criterion or practice that placed the disabled person, not merely at some disadvantage viewed generally but, at a disadvantage that was substantial viewed in comparison with persons who are not disabled. Discussion Disability
Discussion
[31]The Respondents concede that the Claimant suffered with Autism and Dyspraxia at the material times (April 2018 to August 2021) and was disabled as defined in section 6 of the Equality Act 2010. This concession comes after disclosure by the claimant impact statement and medical evidence which was never available to the respondents at the time of the decisions about which the claimant complains. Knowledge[32]We remind ourselves of the provisions of Paragraph 20 of Schedule 8 EqA. The duty to make adjustments only arises in circumstances where the employer is aware (or ought to be aware) of the disability and of the substantial disadvantage to which disabled employee or applicant is placed.[33]In this case the claimant’s CV contained an assertion that he suffered from Dyspraxia and Autism. He produced no evidence to support that assertion and no information upon which a reader could discern whether by reason of those conditions he was disabled or not. Arguably, the respondent did not have knowledge of disability and that being the case the duty to make adjustments did not arise. However, to their credit, the respondents accepted the claimant’s assertion and proceeded on the basis that by reason of those conditions the claimant was a disabled person.[34]In our judgement however the respondent simply did not have sufficient information as to the disadvantage likely to be suffered by the claimant by reason of his disability. This is not a case involving an existing employee where an employer has the option for example of seeking an Occupational Health Report. The respondents in this case relied entirely on information provided to them by the claimant. The claimant provided a great deal of generic information about the conditions of Dyspraxia and Autism. What this generic information clearly shows is that these conditions affect people in a range of ways - sufferers are affected differently and there is a huge range of severity. The generic information did not provide the respondents with sufficient information as to the actual disadvantage likely to be suffered by the claimant. Certainly, the claimant appeared to be able to communicate in writing without difficulty - he sent a great many emails. The respondents did the right thing: in May 2021, they asked the claimant for three specific pieces of information - the claimant did not respond; in August 2021, they telephoned the claimant to discuss how they could assist but the claimant did not engage.[35]Our judgement is therefore that at no time did the respondents have sufficient knowledge as to the disadvantage suffered by the claimant for the duty to make adjustments to have been engaged.[36]On this basis alone, the claims for a failure to make adjustments must fail and will be dismissed. PCPs[37]The PCP contended for by the claimant as having been applied in May 2021 is “required job applicants to complete an online form”. In August 2021, the PCP complained of is “required the claimant to “provide the scribe with full paragraph answers to questions”. In our judgement it is tolerably clear that these PCPs were applied. There is no complaint before us as to the application of deadlines for the submission of applications. Disadvantage[38]The claimant has failed objectively to establish that the PCPs complained of placed him at a substantial disadvantage compared with non-disabled applicants. The claimant has demonstrated an ability to communicate at length in writing in his many emails to the respondent and his many claims to the employment tribunal. His employment tribunal claims were presented online. The claimant has still never explained why he was unable to apply for jobs through the civil service jobs website. With regard to the August 2021 PCP, there is clear evidence from 2018 of the claimant providing a 250 word personal statement by verbalising the same to a Scribe who formatted it such that an application could be submitted. The claimant has never explained why he was unable to do this in 2021.[39]Absent any substantial disadvantage the claim for a failure to make adjustments must fail and will be dismissed. Adjustments[40]Regardless of any legal obligation to do so, the respondents did in fact make adjustments. They offered the claimant the facility of assistance from a Scribe/Assessor to work through the application form with him and convert his oral application into satisfactory written format. It follows from this that even if the claimant suffered the disadvantage which he asserts (but without having established by evidence), then in our judgement an adjustment which was reasonable was made. In May 2021, the claimant did not engage with Ms Jensen in the final confirmation that he wished to proceed with the application for the one vacancy which remained open. In August 2021, the claimant sought further adjustments via the Assessor. In our judgement, this further requirement goes beyond that which is reasonable. The claimant had an obligation to demonstrate his suitability for the role for which he wished to apply. It was unfair on other candidates and probably unlawful by reference to the standards set by the Civil Service Commission for the respondents or the Assessor to break down the competency in the way that the claimant wanted. It was for the claimant to refer to the criteria which had been provided to him and to provide the information. He could have provided this by a series of short 10 - 15 word points.[41]Accordingly, by reference to each consideration, we find that these claims are totally without merit and must fail. Firstly they fail by reference to the respondent’s knowledge of disadvantage; secondly by reference to any actual disadvantage; and thirdly by reference to adjustments which were put in place and which were reasonable. Time Limits[42]The respondent contends that in respect of the May 2021 complaint, the claim form has been presented out of time and that the tribunal therefore has no jurisdiction to consider it. We have considered the complaint substantively; we find that it has no merit; and we have dismissed it. The respondent’s analysis is that the latest date upon which the claim could have crystallised his 30 May 2021 - the closing date for the last post remaining open for applications. On this basis, the claimant would have needed to commence the ACAS EC procedure by no later than 29 August 2021. In fact he commenced the procedure on 18 September 2021 - some 19 days late.[43]Bearing in mind that there appears to have been some attempts at communication during June 2021 (albeit the evidence is unclear as to who the claimant was then communicating with), and bearing in mind that before the expiry of the primary limitation period the claimant was again engaged in communication regarding another role, our judgement is that it would be just and equitable to extend time to consider the May complaint. Accordingly we find that the claim is presented in time and we do have jurisdiction.
Findings as to Honesty and Credibility
[44]We return briefly to the findings we made and expressed at Paragraph 8 above. All of the posts to which the claimant expressed an interest in applying for were high level civil service posts reporting direct to ministers. The criteria for each post dictated a high level of skill in written communication - providing detailed reports and advice often within very tight timescales. There is a huge inconsistency in the claimant’s position in that what on the one hand the claims to have been a serious and realistic applicant for such posts but on the other hand claims that he is unable to compile a 250 word statement without having the requirements broken down into 10 - 15 word segments. It is largely on the basis of this inconsistency that we find that the claimant was never a serious candidate; did not ever intend to apply for these posts; but wished instead to create a situation where he may be able to present a claim to the tribunal.
Conclusion
[45]For the reasons we have set out, we find that the claims are totally without merit and all claims are dismissed.