Mr A Rehman v DHL Services Ltd: 1306691/2019 and 1306804/2019
EMPLOYMENT TRIBUNALS
Case No 1306691/2019, 1306804/2019
Between
Mr A RehmanClaimantDHL Services LtdRespondent
Before
Employment Judge PerryIn person for claimantMs V Brown (instructed by counsel) for respondentDate 8 March 2023
JUDGMENT
[1]The claimant was not a person with a disability within the meaning of section 6 Equality Act 2010 at the material time.[2]The claimant’s application to amend his claim is refused.[3]The claim is listed for a telephone case management discussion at 2:00 pm on 17 February 2021 before any judge sitting alone to identify any issues that remain to be determined and if so, the means by which they shall be addressed. A notice of hearing shall follow.
REASONS
These reasons are in 16-point font by virtue of the claimant’s request for documents to be prepared in large point fonts. Case Number: 1306691/2019 - 2 - References in square brackets below are to the page of the bundle and those in semi-circular brackets to the paragraph of these reasons.[4]This hearing arises from an order of Employment Judge Meichen made at a case management hearing conducted on 15 July 2020 at which the claimant and Ms Brown were both in attendance. It was listed to address:- ‘A. Was the claimant a disabled person within the meaning of s.6 Equality Act 2010 (EqA) at all material times for the purpose of his claim. B. Does the claimant require permission to amend to proceed with any of his claims, and if so, should permission be granted. C. Case management including listing a final hearing.’[5]As to ‘A’ the impairments relied upon are5.1 (bi-lateral) keratoconus (an eye condition),5.2 chronic jaw pain (although the claimant states this is actually a temporo-mandibular joint disfunction (‘TMJ’)), and5.3 mental health conditions (stress/anxiety/depression).[6]The respondent accepts they are impairments but not that they had a substantial (that is a non-trivial) adverse effect on the claimant’s ability to carry out normal day-to-day activities and even if that was so that any substantial adverse effect was not long term which requires:- “(a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or Case Number: 1306691/2019 - 3 - (c) it is likely to last for the rest of the life of the person affected.” 1[7]The time at which to assess whether there is a substantial adverse long-term effect on normal day-to-day activities is the date of the alleged discriminatory act 2.[8]As to the meaning of “likely” Appendix 1 of the Code follows the ratio of the pre Equality Act 2010 (EqA) authority in SCA Packaging Ltd v Boyle [2009] ICR 1056 where the House of Lords unanimously approved the meaning of ‘likely’ in this context was “could well happen” in preference to “probable” or “more likely than not”[9]As to substantial this is defined in s. 212(1) EqA as than minor or trivial. Section B of the Guidance refers (as do paragraphs 8-10, of Appendix 1 of the Code). In particular paragraph 10 reminds us an impairment may not prevent someone from undertaking a task, but they may suffer pain in so doing, cause greater fatigue or prevent the task being repeated.[10]The EAT in Aderemi v London and South Eastern Railway Ltd UKEAT 0316/12 [14] Langstaff P presiding, approved decisions of different divisions in Paterson v Metropolitan Police Commissioner [2007] IRLR 763, and in Chief Constable of Dumfries & Galloway Constabulary v Adams [2009] IRLR 612, and in so doing gave guidance on the meaning of substantial adverse effect in the definition in s. 6(1)(b) of the Equality Act 2010:-10.1 the Tribunal has to consider whether there is an adverse effect upon his or her ability to carrying out normal day-to-day activities; 1 Paragraph 2 Schedule 1 EqA 2 Cruickshank v VAW Motorcast Ltd [2002] ICR 729 Case Number: 1306691/2019 - 4 -10.2 in doing so a Tribunal must necessarily focus upon that which a Claimant maintains he or she cannot do as a result of his or her physical or mental impairment. That is because section 6 refers to the effect being adverse.[11]Ms Brown reminded me (and I explained and took the claimant to) the following points:-11.1 In considering substantial adverse effect, medical treatment which reduces or extinguishes the effects of the impairment and but for that treatment it would be likely 3 to have that effect the impairment is to be treated as having a substantial adverse effect unless in the case of a person’s sight the impairment can be corrected by the use of spectacles, contact lenses or in other ways as may be prescribed 4.11.2 Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial avoidance strategy and thus overestimating their ability 5 - ‘B7 … In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities’.[12]The Code of Practice issued by the Equality and Human Rights Commission ("the EHRC Code") provides: "2.18. [Sch. 1, para. 6] Cancer, HIV infection, and multiple sclerosis are deemed disabilities under the Act from the 3 In this context that is to be read as may well happen 4 para. 5, Sch. 1 EqA 5 paras B7 and B9 of the Guidance Case Number: 1306691/2019 - 5 - point of diagnosis. In some circumstances, people who have a sight impairment are automatically treated under the Act as being disabled.”[13]Whilst the claimant forwarded a factsheet from the RNIB [75-78] essentially that refers to certification. The forms of sight impairment deemed to fall within the definition of disability include persons who are certified as blind, severely sight impaired, slight impaired or partially sighted by a consultant ophthalmologist are deemed to have a disability 6. The claimant was not able to take me to any such certification. Nor has he applied for and been granted any form of disability benefits because of his sight impairment or other disabilities.[14]Those deeming provisions aside the issue whether there is or was a disability as defined is one for the tribunal rather than for doctors 7 and the onus is on the claimant to prove that, in the relevant period, he was disabled for the purposes of the Act.[15]Whilst the claimant alleges that the material times for his complaints was between December 2018 or January 2019 and April 2019 Ms Brown commendably accepts that the material time is for a longer period extending until the claimant’s engagement was terminated on 27 August 2019. That being so I treated the material time as between the longest extent of those dates namely December 2018 and August 2019.[16]As to ‘B’ a potential application to amend to bring a claim under the agency worker’s regulations identified Employment Judge Meichen not having been pursued, the respondent was ordered to identify which of the complaints it argued the 6 Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128 (re-enacting the Disability Discrimination (Blind and Partially Sighted Persons) Regulations 2003) 7 Abadeh v British Telecom plc [2001] IRLR 23. Case Number: 1306691/2019 - 6 - claimant required permission to amend. They were confirmed before me and I list them below at [74].
Background
[17]The claimant suffered an accident in 2014 as a result of which he had a plate inserted in his jaw. The plate and screws was removed via an operation in 27 June 2018 (see (0)). On 17 September 2018 [117] the claimant was involved in another road traffic accident (the RTA) that gave rise to the claimant suffering a head injury.
The Evidence
[18]The claimant was cross examined on the contents of two impact statements were provided by him dated March and August 2020 [81-82] and [83-197] respectively.[19]I was also referred to various medical reports and letters (some of which appear to have been prepared for a civil claim arising out of the RTA):-19.1 A letter from Mr P McDonnell Consultant Ophthalmic Surgeon addressed to whom it may concern dated 02/05/2012 [88]19.2 A letter from Suaad Alasow, an Optometrist at Birmingham Midland Eye Centre dated 03.06.20 [89]19.3 A report from Mr Bernard Speculand an Oral and Maxillofacial Surgeon 12/07/17 [91-100 and attachments 101-113] and a follow up report dated 1/10/19 [114-125 plus attachments thereafter]19.4 Letter Mr Kevin Macmillan Oral and Maxillofacial consultant 20/05/19 [139-140]19.5 A report from Dr Marc Whittington an independent consultant psychiatrist dated 10/02/20 [145-168] Case Number: 1306691/2019 - 7 -19.6 An undated Birmingham Healthy Minds Patient self-assessment form (GAD7 Anxiety Test/PHQ7 Depression/IAPT Phobia/work and social adjustment scales) [169-170]19.7 A report from Dr K Misra, a chartered clinical psychologist dated 28/04/20 [171-195 plus appendices]19.8 The claimant’s GP records [205-214] and19.9 Additional documents added by the claimant to bundle shortly before the hearing that were not objected to by the respondent 215-218 The Disability Issue(s) Keratoconus[20]The respondent argues is no substantial adverse effect on day-to-day activities as the claimant does not purport to experience any particular adverse effects when wearing contact lenses 8.[21]The claimant told me he has suffered from bilateral keratoconus for more than 10 years and it is a lifelong condition. He has been offered a corneal transplant but has not taken up that offer because of the risk of post infection.[22]He told me he wears a contact lens in only one (the left) eye because of scarring in the other (right) eye and can only wear that for approximately 10 hours a day. At another point the claimant told me he struggled to wear a lens in right eye. That second statement is a different to an assertion that there was no medical benefit in him wearing a contact lens in his right eye or that that was medically impractical or ineffective due to the scarring for him to wear one. 8 Schedule 1 paragraph 5(3)(a) Equality Act 2010 Case Number: 1306691/2019 - 8 -[23]As to the length of time he could wear the contact lenses for he did not tell me that he could not wear them for longer than 10 hours because his eye needed to breathe (again he took me to no medical evidence suggesting he had been advised not to do that) and at another point that the eyes became sore wearing the lens for longer than 10 hours.[24]He told me that because his lenses have previously fallen out he does not ride a bike or play football and because of the risk of infection does not shower or sleep in them (and he orally told me he did not swim or indeed iron clothes either). He told me he is liable to eye infections if water gets in his eye(s).[25]In contrast he told me it was difficult to iron even with his contact lens(es) in and similarly to do things such as make tea.[26]He told me he has difficulties with his vision at night and uses a magnifier to read and did so before me, although as Ms Brown pointed out, it appeared he could read the document without the same. He did not seek to dispute that.[27]He also told me he does not use public transport and his car has parking sensors/a camera for reversing and bigger mirrors which can enlarge. He took me to no supporting evidence that suggests those revisions have been recommended by a medical practitioner. I say that because he told me his ophthalmologist has advised him not to drive at night if he is not confident. That is very different to him not being advised not to drive at night at all.[28]I remind myself of the point made in paragraph 5(3)(a), Sch. 1 EqA that something more was required other than the need to wear contact lenses alone and the fear of them falling out and absence of any medical evidence concerning a prohibition on swimming and ironing. Case Number: 1306691/2019 - 9 -[29]I asked the claimant to take me to any medical evidence that supported those being recommendations made by medical or other professionals rather than matters that stemmed from choices he made. He could not. Given that many sportspeople wear contact lenses and that includes participants in very physical sports such as rugby that reinforces the point made in paragraph 5(3)(a).[30]A wider point however the respondent makes concerns the claimant’s credibility and the weight I should give to his evidence. The minor differences in his account that I highlight above aside, within his impact statement the claimant states he finds it hard to drive at night. Despite it being in the claimant’s interests to give full account of the effects of any impairment in the various medical reports (given they were obtained to support a claim following the RTA) no mention of that is made in any despite his sight being discussed at length in those reports and indeed Dr Misra indicates the opposite (see (54)).[31]I return to the other inconsistency and credibility issues the respondent raises below. The TMJ/jaw pain[32]The claimant asserts that whilst this dates back to the initial accident in 2014 since his operation in 2018 (which had been recommended because the claimant was experiencing referred discomfort from the plate and screws) the claimant alleges he was not able to eat properly [207] and as a result stated he did not go to restaurants because he could chew and drink from cups, people laughed at him when he was eating and had lost sensation and experienced a burning feeling on the left side of his face.[33]Dr Speculand in October 2019 describes the way the claimant relayed the effects to him. In addition to the matters the Case Number: 1306691/2019 - 10 - claimant told me about above Dr Speculand indicated the claimant told him that he had difficulties with his speech and voice. Dr Speculand detected no effect on the claimant’s speech in October 2019 [121]. Whilst that is not a medical diagnosis (for the reasons Dr Speculand gives) I can take that into account as a contemporaneous record of fact.[34]The loss of sensation the claimant describes to me and Dr Speculand (60%) was broadly consistent with Dr Speculand’s own subjective rating of 50-60% [120] and Dr Speculand records that the claimant described loss of sensation as a numbness that was intermittent and when present was like a pins and needles feeling [119-121].[35]Dr Speculand also recorded the fractures had healed “extremely well” and there was “no evidence of any arthritis or degenerative change at either TMJ” [120] and joint clicks, locking and potential for pain [122] is minor or trivial.[36]That latter point is reinforced by Dr Speculand’s assessment using the standard scoring system for TMJ as 2 on a scale of (0 to) 5 (being the most severe) [122 point 9].[37]Yet the claimant described the pain as chronic and that was also the way it was recorded by Drs Misra (28/04/2020) [188] and Macmillan (20/05/19) [117] (who also described it as long term), a GP (8 May 2019) [210] and a pharmacist at his GP surgery in his GP notes (30 October 2019) [212].[38]I remind myself that some but not all of those notes recording chronic pain fall within the material time.[39]Whilst Dr McMillan [139] and Dr Speculand also supported the claimant’s assertion that his ability to open his mouth was reduced [121 point 8] Dr Speculand indicated that the cause appeared to be poor dental hygiene (that something that was Case Number: 1306691/2019 - 11 - also highlighted prior to the second operation in June 2018) and advised if dental hygiene was maintained, there was a 66-75% prospect of permanent cure [122]. If that was unsuccessful, he indicated a non-surgical treatment, namely use of a soft mouth guard for 3-6 months which would in turn have a 75% chance of resolving the problem. Dr Speculand thus characterised the problem as chronic gingivitis [120] and likened the TMJ to a sprained jaw joint [121].[40]The respondent argues the claimant can reasonably be expected to maintain good dental hygiene in order to alleviate those symptoms.[41]In my judgment whilst some of the symptoms the claimant reports are supported by what the claimant told the various medical practitioners several I find are exaggerated (the effect on his speech, the characterisation of the pain as chronic when it was characterised as 2 on a scale of 1 to 5, the potential for pain as being assessed as minor or trivial and that the way the claimant described the pain was like pins and needles when present but that it came and went). That is supported by Dr Misra [183 9.3] who identified a probable link between the claimant’s pain tolerance, level of behavioural activity and mood variability and they may contribute to ‘unconscious magnification of symptoms’.[42]I return to Dr Misra’s assessment below. The mental health impairments[43]The respondent alleges there is no evidence led of the effects of the mental health impairments upon the claimant’s ability to undertake normal day-to-day activities; no medication has been prescribed specifically for that condition (the medical records indicate it was instead prescribed for the jaw pain – Case Number: 1306691/2019 - 12 - see (47)) or other evidence that might support the continuation being substantial or long-term.[44]The claimant told me in his impact statement that he is always in a low mood because he feels hopeless and struggles to eat and socialise with people as he thinks they are reading his thoughts and that his low mood is aggravated by chronic jaw pain and he has self-harmed [142]. He also told me he found it difficult getting out of bed and also the reverse, difficulties with sleeping [143].[45]The claimant’s medical records show he was referred to Birmingham Healthy Minds at the latest by April 2019 (GP records [210] and Dr McMillan [140]) and the report of Dr Whittington also refers to the claimant’s post June 2018 operative jaw problems led to an aggravation of underlying mental symptoms [148] and thus they were historic.[46]Although medication was prescribed by Dr McMillan that was originally in May 2019 (Amitripine 10mg in May and November 2019) [159], contrary to what the claimant alleged [142] that was for his jaw [139]. Whilst the claimant refers to the dose having increased recently no evidence was provided of that or the reason for it.[47]The claimant told me his low mood and struggle to eat and socialise stemmed from the jaw pain. That is supported by Dr Whittington who in February 2020 concluded that the mental symptoms the claimant exhibited were symptomatic of a psychiatric disorder known as Mixed Anxiety and Depressive Disorder and the mental symptoms had led to psychological distress and an impairment of the quality of the claimant’s life. He stated the claimant’s mental health symptoms were secondary to his persistent physical symptoms following the operation in June 2018 [149]. Case Number: 1306691/2019 - 13 -[48]Dr Whittington concluded the claimant did not require any formal psychiatric treatment arising from the 2014 road traffic accident upon which he had been asked to advise and they had resolved 12-18 months after the operation in June 2018 and any other symptoms arose from his underlying constitutional disorder or other factors [149].[49]That in turn was supported by Dr Misra [174 A: 2.1(d)] whose report of 28 April 2020 [171] recommended CBT and/or EMDR for 3-6 months, or 8-10 sessions and diagnosed that the claimant was clinically depressed.[50]Dr Whittington referred to symptoms arising from an accident lasting in some form until between June 2018 and December 2019 [150] but he too gives no detail of what those symptoms were, how long they lasted or their impact on the claimant’s day-to-day life.[51]Given Dr Whittington reported in February 2020 the respondent argues it is clear by then they had concluded because if not he would have said otherwise. The respondent argues those matters being so, it is implicit any symptoms had ceased by December 2019 [150] and there is a lack of evidence to show they had a substantial adverse effect before that.[52]Of the various Mood Disturbance features Dr Misra indicated had been relayed to him by the claimant when he reported in April 2020 [179-9 7.2] variable low mood reactive to pain, sleep disturbance, worthlessness/low self-esteem, reduced appetite/weight loss, lethargy and reduced motivation, loss of interest activities irritability exacerbated by physical discomfort he made no mention of the effects on socialisation and indeed did not say he found it difficult to eat but instead Case Number: 1306691/2019 - 14 - that he had a loss of appetite. No mention was made of self-harm.[53]Dr Misra thus recommended CBT and as result of which advised the clinical depression should improve over 6 months, that the claimant increase his levels of activity (both generally and exercise wise) and social relationships.[54]As I state above whilst Dr Misra went on to refer to travel and pedestrian anxiety Dr Misra indicated there was no significant avoidance of driving [180 - 5.4.2].[55]Thus, again doubt is cast as to the claimant’s account generally on matters. It was in the claimant’s interest to relay the existence of adverse effects to the providers of the medical reports in the context of his personal injury claim.[56]Dr Misra stated that she had no reason to doubt the claimant’s veracity and his account was consistent verbally and the symptoms and psychological problems were highly consistent and thus an honest report of his difficulties and there was no evidence of conscious exaggeration or other consistency factors [186 paragraph 13]. However, no GP or hospital records were provided to Dr Misra and the only other medical report she had was that of Dr Whittington [185 Section E]. I should also record that Dr Misra’s assessment was undertaken by videoconference. She thus did not have the other reports and claimant’s impact statements, nor has she heard the claimant’s account before me.[57]For the reasons I give above there are inconsistencies in those accounts and I also note Dr Misra acknowledged (see (41)) an ‘unconscious magnification of symptoms’ by the claimant.[58]That consistency and credibility point is reinforced by another issue the respondent refers me to, namely that one of Case Number: 1306691/2019 - 15 - the principal adverse effects the claimant gives concerning his mental health impairments was the effect that has had on him socialising. In contrast Dr Misra indicated there was no significant disruption to the claimant’s life and socialisation was not affected [181 - 5.4.3].[59]Those matters collectively call into question the account the claimant has given to different practitioners and the Tribunal over time, concerning matters that go to the core of his complaints here, whether there was a substantial adverse effect on his ability to undertake day to day activities.[60]They spread across the depth and breadth of his account and combined with the credibility points I refer to above lead me to conclude notwithstanding the assessment Dr Misra made as to the veracity of the claimant’s account (see (56)) that I should place no weight on the claimant’s account (unless supported elsewhere) and that includes that given to the various practitioners and thus the conclusions they reach as a result. My conclusions on the disability issue[61]As to Keratoconus I find there is no medical evidence to suggest that the adverse effects the claimant describes are firstly matters that cannot be corrected by wearing contact lenses (paragraph 5(3)(a)), secondly (albeit unconsciously) his account of the effects is to be given little weight by virtue of the other inconsistency and credibility points I make above (including but not limited to (60)) and are for the reasons I give (30) (as supported by Dr Misra, see (41)) unconsciously exaggerated.[62]I conclude that the claimant has therefore not shown, the burden being upon him to do so, that at the material time there was a substantial (non-trivial) adverse effect on his Case Number: 1306691/2019 - 16 - ability to undertake day to activities by virtue of the Keratoconus.[63]As to the jaw/TMJ for the reasons I give above the way the claimant categorised his pain (and speech) was at odds with the characterisation by the medical practitioners and the same credibility and exaggeration issues arise as I identify above. Whilst medication was prescribed within the material time, doubt is cast on the basis for that in my judgment for the reasons I give above concerning exaggeration and the medical opinions being based on the claimant’s account, to which little weight should be given. Further Dr Speculand indicated that any ongoing issue appeared to be as a result of poor dental hygiene. That in my judgement would appear to be a reasonable coping strategy in that the claimant was to be expected to do something he should have been undertaking in any event.[64]For those reasons again I conclude that the claimant has therefore not shown, the burden being upon him to do so, substantial (non-trivial) adverse effect on his ability to undertake day to activities at the material time by virtue of his jaw/TMJ impairment.[65]As to the Mental Health impairment in February 2020 Dr Whittington concluded that the mental symptoms the claimant exhibited were symptomatic of a psychiatric disorder known as Mixed Anxiety and Depressive Disorder whereas in April 2020 Dr Misra diagnosed that the claimant was clinically depressed.[66]Thus, the experts coming to contrasting views albeit both diagnosing a mental health condition and neither of those assessments took place at the material time, December 2018 to August 2019. However, as I state above the claimant was referred to the claimant’s medical records show he was referred to Birmingham Healthy Minds at the latest by April Case Number: 1306691/2019 - 17 - 2019, that is within the material time and Dr Whittington identified underlying mental symptoms that were historic.[67]For the same reasons I give above and notwithstanding the assessment of veracity undertaken by Dr Misra little weight has to be given to the claimant’s account to the medical practitioners and thus the conclusions they came to. Similarly, in relation to his account as to the alleged adverse effects.[68]Again, I conclude that the claimant has not shown, the burden being upon him to do so, his mental health impairments had a substantial (non-trivial) adverse effect on his ability to undertake day to activities at the material time.[69]Some of the medical practitioners identified that some of the alleged impairments have impacted on others. As a result I have considered if viewed collectively the impairments mean the s.6 threshold is met. For the same reasons I give above (see for instance (67)) it is not.[70]Accordingly, I conclude the claimant did not satisfy the definition of disability within the meaning set out in s. 6 Equality Act 2010 at the material time.
Disposal
[71]My findings above are not necessarily determinative in relation to the claim as a whole because it is pursued on the basis of victimisation (for which the claimant does not necessarily have to satisfy s.6). Accordingly, I have listed a Telephone Case Management Hearing to address how the claim should be addressed going forward.[72]For completeness I also intend to address the amendment issue:- Case Number: 1306691/2019 - 18 - Amendment[73]Of the issues identified by Employment Judge Meichen those that the respondent takes issue with as not being raised in the claim form essentially are as follows:-[74]Of the issues identified by Employment Judge Meichen those that the respondent takes issue with as not being raised in the claim form essentially are as follows:- ‘EQA, section 15: discrimination arising from disability (vi) Did the following things arise in consequence of the claimant’s disability: … b. The claimant’s outbursts and mood swings. The claimant says these occurred as a result of his mental health conditions and they happened frequently while he was working for the respondent. EQA, section 19: indirect disability discrimination (xi) A “PCP” is a provision, criterion or practice. Did the respondent have the following PCP:a. A practice of expecting candidates who were sitting the ability test for permanent positions to cope with distractions during the test. The Claimant’s case is that during his re-sit of the ability test the mobile phone of the invigilating manager (Assam Khan) rang and also Eimante Miseviciute came into the room and spoke. When he raised that he had been distracted by those matters with Ian Guest he was told that he had provided Case Number: 1306691/2019 - 19 - further evidence that he was not suitable for a permanent position. Reasonable adjustments: EQA, sections 20 & 21 (xviii) A “PCP” is a provision, criterion or practice. Did the respondent have the following PCPs: a. Warehouse operatives were expected to use a handheld scanner which involved reading a scanned product number on the scanner’s display.b. Warehouse Operatives were only permitted one break of 30 minutes per shift.c. Warehouse operatives were expected to achieve a pick rate of 500 per shift. (xix) Did any such PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that: a. The claimant’s eye condition made it difficult for him to read the product number on the scanner. b. The claimant’s mental health condition caused him to have outbursts and mood swings which meant he needed the opportunity to take a short break in order to calm down and compose himself. c. The claimant’s mental health condition made it difficult for him to concentrate and achieve the expected pick rate.’[75]As to amendments in Selkent 9 Mummery J as he then was said this 9 Selkent Bus Co. Ltd v Moore [1996] ICR 836 (EAT) Case Number: 1306691/2019 - 20 - “(4) … the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.” and of the factors to be considered “(5) …It is impossible and undesirable to attempt to list them exhaustively 10, but the following are certainly relevant: …” and include the nature of the amendment 11, whether the claim is out of time and if so, whether time should be extended under the applicable statutory provision; and the extent of any delay and the reasons for it 12.[76]In Selkent Mummery J made clear that a “relabelling” did not include a “new complaint or cause of action” ([843H to 844A]). That is reinforced in Cocking 13 where Sir John Donaldson when setting out the procedure to be adopted by tribunals where an amendment of the claim form was sought made it clear that applied whether the application related to adding/substituting respondents or by changing the basis of the claim.[77]Of them the claimant confirmed that only the s.15 discrimination because of something arising from disability head was argued in the claim form [13] the section he referred me to was the first paragraph of that page specifically “… when I told them about my health problem they would run their mouth at me …”.[78]When placed in the context of the unfavourable treatment complained about at (vii) 10 A point repeated by Underhill LJ in Abercrombie v Aga Rangemaster Ltd [2014] ICR 209 (CA) at [47], adding that neither should they be approached in a tick-box fashion. 11 an amendment which changed the basis of an existing claim will be more difficult to justify than an amendment which essentially places a new label on already pleaded facts and the greater the difference between the factual and legal issues raised by the new claim and by the old the less likely it is that it will be permitted, but that will be a discretionary consideration and not a rule of law (see Safeway at [13]) 12 Approved in Kuznetsov v The Royal Bank of Scotland Plc [2017] EWCA Civ 43 13 Cocking v Sandhurst [1974] ICR 650 NIRC Case Number: 1306691/2019 - 21 - “a. Not offering the claimant a permanent contract. The claimant says this occurred in around April 2019 and the people responsible were Chris Askew and Anna Polenska.”[79]The amendment sought at (vi)(b) in my judgment is of a fundamentally different complexion to that. The complaint at [13] essentially relates to the claimant essentially alleging that he was harassed when he described his problems to his employer whereas the complaint he seeks to bring at (vi)(b) is that he was not offered a permanent contract because of his mood swings and they in turn arose out of his disability.[80]That cannot in my judgment be said to be a relabelling.[81]As to timing, any issues concerning just and equitable extensions aside the claims having been presented on 21 & 13 August 2019 and the claimant’s engagement having lasted from 9 June 2018 to 27 august 2019 (albeit he did not attend site from mid May 2019) given the application was not made until 15 July 2020 it is notionally out of time.[82]Following Galilee if I allow the addition of the proposed second respondent that does not mean that I am determining any timing point 14.[83]Not least because that was not an issue identified for today by Employment Judge Meichen it is not for me to determine any out of time issue now, I record in what follows below I am not making such a determination. I am required to consider whether the amendment is out of time as part of my consideration of the amendment application and any reference I make to timing or delay below is to my consideration of the matters I need to take into account.[84]The claimant told me the reason he did not bring those complains now in issue at the time his claims were presented 14 Galilee v The Commissioner of Police of The Metropolis [2017] UKEAT 0207/16 approved in Reuters Ltd v Cole [2018] UKEAT/0258/17 Case Number: 1306691/2019 - 22 - was because of his mental health problems and the reason he did not seek to amend earlier was because he did not know he needed to or the time limits for doing so.[85]The claimant has shown from the cases and principles he has referred me to he is very able to research detailed points of law. Prior to his claim he raised a grievance and understood he needed to conciliate via ACAS, he had the wherewithal to discover how to bring a claim and did so (twice). He referred in his claim to complaints the general public might not be aware of (discrimination because of something arising from disability) and told me he obtained advice from the CAB. He has also sought and obtained advice from the RNIB and has instructed solicitors to bring his PI claim. In my judgment he is able to locate means by which he can familiarise himself with the law and its requirements.[86]The context for this application is that the claimant raised a grievance about not being offered a permanent contract. The grievance outcome was received by him on 12 July 2019. Whilst I accept his engagement continued until 27 August 2019 the complaints he seeks to include in those applications are essentially matters that he should have been aware of prior to him presenting the claims as they relate to the work he did throughout his engagement or the test adopted for permanent contracts.[87]Whilst he tells me it was his mental health impairments that prevented him bringing those other complaints I asked him to explain how he was able to bring the complaints he did raise including the discrimination because of something arising from disability complaint but not the others. He was not able to provide a cogent reason.[88]If I refuse the amendment application the claimant will be prevented from pursuing a claim. If I allow it the respondent will be put to the costs of revising its pleading and defending Case Number: 1306691/2019 - 23 - additional complaints. The trial will be longer and also take up more tribunal time and resources. The claim is not yet listed for trial and given the longer time estimate it is highly likely to listed at a later date. That leads on to another issue.[89]The respondent will in my judgment be prejudiced in that the new matters may substantially affect the cogency of evidence. By way of examples of this some of the complaints concern pick rates and by implication the claimant’s pick rate. The claimant was an agency worker and thus the respondent was unable to indicate whether the claimant’s pick rates etc would still be available now just over a year after his engagement ceased and almost 18 months after he last worked on site. Those records could clearly have been destroyed in the twelve months after his engagement terminated before he sought to bring the amendment application. They may be highly relevant. The same applies to the individuals the respondent complains about. Even if they remain engaged by it –more than twelve months have gone by and those matters not having been raised the respondent will not have been able to take statements from them on the new points whilst those matters were fresh in their minds.[90]They are merely examples of the effects the delay will have on the cogency of evidence. Case Number: 1306691/2019 - 24 -[91]For the reasons I give above this application gives rise to new complaints and not re-labellings (or anything approaching that). The application is notionally out of time. When considering the circumstances as a whole the claimant not having provided what in my judgment is a cogent explanation for the delay (noting that it is not for me to determine timing points) and when set in the balance against the cogency issues and the effect on the length of trial, the balance falls overwhelmingly in favour of refusing the amendment application. signed electronically by me Employment Judge Perry Dated: 12 November 2020 Case Numbers: 1306691/2019 & 1306804/2019 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mr A Rehman AND DHL Services Limited
Disposal
Disposal
[1]The claimant was not disabled within the meaning of the Equality Act 2010 (EQA) because of keratoconus.[2]The claimant was disabled within the meaning of the EQA because of a combination of the conditions:(1) temporo-mandibular joint dysfunction and(2) mixed anxiety and depressive disorder. Case Numbers: 1306691/2019 & 1306804/2019 2 Signed by on 8 March 2023 Employment Judge Dimbylow Notes: (1) Reasons for the judgement having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing (and no such request was made) or a written request is presented by either party within 14 days of the sending of this written record of the decision. (2) All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant and respondent.(3) Further orders for the just disposal of an application to be made by the claimant were agreed at the end of the hearing, and these will be confirmed in a separate document. Case Numbers: 1306691/2019 & 1306804/2019 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mr A Rehman AND DHL Services Ltd[3]The law. THE DEFINITION OF DISABILITY Case Numbers: 1306691/2019 & 1306804/2019 4(1) Section 6 of the EqA provides that a person (P) has a disability if— “(a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”(2) Schedule 1 of the EqA sets out Supplementary Provisions in relation to disability.(3) Paragraph 2 of Schedule 1 provides the effect of an impairment is long-term if: - “(a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.”(4) Paragraph 5 of Schedule 1 provides that: - “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if: (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of prosthesis or other aid.”(5) I also read and considered the Equality Act 2010 Guidance (“the Guidance”) on matters to be taken into account in determining questions relating to the definition of disability.[4]The evidence. I received oral evidence from the claimant. I received no oral evidence from the respondent. Case Numbers: 1306691/2019 & 1306804/2019 5 I also received documents from the parties, which I marked as exhibits in the following way: C1 Letter from the claimant (4 pages -undated) C2 Claimant’s skeleton argument R1 Agreed bundle of documents (329 pages – although this was added to later) R2 respondent’s skeleton argument R3 an email chain from the respondent (3 January to 14 February 2023) The parties also asked me to consider the following cases: Goodwin v Patent Office [1999] ICR 302 J v DLA Piper [2010] ICR 1052 Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19 Elliott v Dorset County Council UKEAT/0197/20/LA(V) James v Chief Constable of Norfolk [referred to by the claimant but no copy produced or found by Miss Brown] Ginn v Tesco Stores Limited [2005] UKEAT 0197_05_2608 Patel v Oldham Metropolitan Borough Council and Another [2010] ICR 603 Cruickshank v VAW Motorcast Ltd [2001] UKEAT 645_00_2510 SCA packaging Ltd v Boyle [2009] UKHL 37 Rehman v DHL Services Limited [2022] EAT 90[5]My findings of fact. I make my findings of fact on the basis of the material before me taking into account contemporaneous documents where they exist and the conduct of the claimant at the time. I have resolved such conflicts of evidence as arose on the balance of probabilities. I have taken into account my assessment of the credibility of the claimant and the consistency of his Case Numbers: 1306691/2019 & 1306804/2019 6 evidence with the surrounding facts. Having made my findings of primary fact, I have considered what inferences I should draw from them for the purpose of making further findings of fact.[6]In the preamble to the Guidance it includes this: “In the vast majority of cases there is unlikely to be any doubt whether or not a person has or has had a disability, but this guidance should prove helpful in cases where the matter is not entirely clear.” In the case before me, it is not entirely clear and therefore I have considered the contents of the Guidance carefully.
The law
[7]The claimant was born in 1992 and is now 30 years of age. The claimant’s evidence in chief to me in this hearing was in his 2 impact statements (the first on pages 28 and 29 (thought to be from March 2020) of the bundle, and the second running from page 32 to 144 (thought to be from August 2020), wherein he described suffering from both physical and mental impairments. The claimant relied upon the contents of a number of medical notes and reports contained in the bundle.[8]In his impact statements the claimant sets out his substantial adverse effects on normal day-to-day activity. In the first statement the claimant asserted that he cannot ride a bike, is unable to go swimming and cannot play football properly. I find that the first two items are normal day-to-day activities but the third is not. He goes on to state he struggles to eat food, struggles to socialise and to keep a job. Eating and socialising are normal day-to-day activities. Working is a normal day-to-day activity. In his second impact statement the claimant expands the points raised in the first statement. Even wearing his contact lens in his left eye, he finds it difficult to iron and make tea. These are normal day-to-day activities. Walking at night is difficult because of his eye condition. The claimant Case Numbers: 1306691/2019 & 1306804/2019 7 describes the vision in his right eye as being blurred and he has difficulty reading very small print. The claimant describes not being able to drive since Covid 19 happened, and since the statement is not dated, I take it that it was written after the onset of Covid 19 in March 2020, this being after the relevant time.[9]In relation to his chronic jaw pain the claimant finds it difficult to sleep without medication. Because of his inability to chew properly he no longer goes to restaurants as he felt he was being laughed at.[10]The claimant states that he loses control easily because no one understands him. There is no doubt that the claimant has anger management issues. I have seen the claimant’s GP notes from May 2018 until November 2019 (152-161). The claimant registered with his then GP practice on 29 May 2018. He had to change from his previous surgery because of the fact he behaved in a way which conflicted with its zero-tolerance policy. Very early on at his new practice in May 2018 it is noted that when the claimant asked for and was refused a form MED 3 he left upset and rude, and a note was added: “consider zero tolerance-intimidating behaviour”. The claimant does not like it when he does not get his own way. Fortunately for the claimant the new practice did not go down the route of removing him from the practice in view of his outburst. In 2018 there are numerous entries in the notes confirming that the claimant did not attend for an appointment: 21 September, 19 October, 25 October, and 15 November. This conduct continued into 2019 when he failed to attend on 15 January, and 18 January. It was also noted that he failed to attend a hospital appointment on 7 February 2019.[11]When we get closer to the relevant time the notes refer to another failed appointment on 4 April 2019 and a failure Case Numbers: 1306691/2019 & 1306804/2019 8 with an eye specialist on 23 April 2019. The notes confirm the claimant being prescribed zopiclone on 5 April 2019. He was issued with a fit note confirming he was unable to work on 8 April 2019. This appears to cover the period from 25 March 2019 to 5 April 2019. Reference is made on 8 May 2019 that the claimant “suffers from chronic pain in his jaw following an injury in 2014 and operated subsequently…..he suffers from insomnia and because of mental health issues he has been referred to Birmingham healthy minds.” The notes confirm that on 16 May 2019 the GP practice referred the claimant to hospital to see a consultant ophthalmologist. The claimant saw his GP on 17 May and matters troubling the claimant at work were recorded in the notes. On 28 May 2019 the claimant was prescribed amitriptyline for 28 days. The claimant failed to attend an appointment on 30 May 2019. On 5 June 2019 the claimant was diagnosed with anxiety and recorded as not fit for work from 1 May 2019 to 6 June 2019. At an appointment on 17 June 2019 there was a diagnosis of anxiety and a new MED 3 issued confirming the claimant was not fit for work from 6 June 2019 to 20 June 2019. A further failed appointment is noted on 25 July 2019. On 29 July 2019 the claimant is at the surgery again, asking for a letter to confirm that he has mental health issues. The note goes on to say that there was nothing in the record, “so maybe in the paper records as patient is insisting that he had mental health issues, only one letter in the records that he has not attended the appointment, he had issues with previous surgery and was deregistered on zero tolerance. Requested…to pull out paper record.” The claimant was asked to contact the practice the following day to find out the outcome. Unfortunately, there is nothing on the GP records until 27 August 2019. On that day, the claimant failed to attend a hospital appointment, and the same occurred on 18 October 2019. Case Numbers: 1306691/2019 & 1306804/2019 9[12]Plainly the GP records are incomplete as we only have a relatively short period of time. The mental health issue is described elsewhere. At page 118 is a report from Dr Kavita Misra dated 2 May 2020, following an interview with the claimant on 28 April 2020. Dr Misra is a chartered clinical psychologist who specialises in personal injury, trauma and related disorders, chronic pain and effects of stress and abuse in both adults and children. The claimant was referred to Dr Misra by his solicitors whom he instructed following a road traffic accident on 15 September 2018. In a short summary, Dr Misra said this: “Taking into account claimant self-report, accident and non—accident factors, my opinion is that following the index event he had an exacerbation of a pre-existing low mood and anxiety disorder.” Dr Misra dealt with causation and said this: “There was relevant pre-accident history which impacted on his accident-related problems in terms of his predisposition or vulnerability to mood disturbance and anxiety and his pre-existing mood disturbance and anxiety.” Furthermore, she stated this: “The claimant’s pre-accident symptoms were exacerbated by the accident for a period of 1 year 7 months.” More specifically, she went on to say: “Taking into account self-report, accident and non-accident factors, my opinion is that following the index event he had an exacerbation of a pre-existing low mood and anxiety disorder.” The expert plainly acknowledges that she relied upon the claimant’s own account of his problems but still came to her opinion based upon it.[13]It is worth reciting some of Dr Misra’s observations: “Mood Disturbance: He is clinically depressed. Mood variability should continue to improve over the next 6 months. Travel Anxiety: This will continue to improve with practice and advice given. It would be accelerated by brief CBT Case Numbers: 1306691/2019 & 1306804/2019 10 therapy focusing on gradual re-exposure and repeated, regular practice. General Anxiety: This will continue to improve especially with use of general anxiety management techniques and positive thinking. His feelings of pessimism, reinforced by low level of behavioural and social activity are, in all probability, maintaining his low mood and low self-confidence. He could be encouraged to increase his level of activity. Brief CBT therapy...…...would accelerate this process. Social Relationships Impairment: This should start to improve with increased social activity over the next 6 months. Chronic Pain: In all probability, there is an interaction between his ongoing pain tolerance, level of behavioural activity and mood variability. He needs to gradually and incrementally increase his behavioural and social activity levels, recognise the significant efforts he has already made and continues to make and also understand more about pain coping strategies. Cognitive Impairment: This continues. I would recommend a neuropsychological assessment to identify any residual cognitive deficit. However, in my opinion this is most likely to be due to his low mood and anxiety. Accident-related psychological symptoms of travel anxiety should resolve within 3-6 months of starting psychological therapy. These residual symptoms are, in my opinion, attributable to the index accident. His low mood and anxiety are not attributable to the index accident.” Case Numbers: 1306691/2019 & 1306804/2019 11[14]I do not wish to recite anything further from the numerous reports at this stage. What is plain is that as a fact the claimant had numerous matters troubling him at the relevant time. He was involved in 2 accidents, the trip and the RTA which resulted in litigation which was ongoing at the relevant time, and which bring their own pressures. He had surgery on his jaw in the year before. There were personal family matters causing worry to him.[15]The submissions. I heard from Miss Brown first. She spoke to her written submissions and there is no need for me to recite everything she said here. I note some of her supplementary submissions. There was nothing in the EAT decision which was binding on me, and I had a free hand to determine the issue unfettered by any findings of fact from the EAT. Miss Brown raised the issue of credibility of the claimant. She submitted that I should find that he was prone to exaggeration, avoided questions in cross examination, either subconsciously or consciously he was motivated by furthering his own cause, which caused conflict in his evidence, and furthermore he was simply implausible. Miss Brown then directed her attention to the three impairments and asked me to note various factors which pointed away from me concluding that the claimant was disabled whether looking at the conditions individually or collectively. I take the opportunity of thanking Miss Brown for her commendably professional approach to the hearing and the help she gave in providing me with links to the case law and other documents, which included those referred to by the claimant.[16]I then heard from the claimant with his submissions. He too spoke to his written skeleton argument, and I do not repeat it all here. He accepted that Miss Brown had made an appealing argument. This concession was short lived for in his later letter to me he said: “The respondents Case Numbers: 1306691/2019 & 1306804/2019 12 brutally twisted my honest words even though I had taken an affirmation.” Nevertheless, he submitted that I should find that he was an honest and truthful witness. He urged me to look at the overall position and be open-minded about it. He submitted that s.6 of the EQA meant that I should look at the impairments collectively at the same time. He directed me to the deduced effect, and in relation to his eye problem the aids of glasses and contact lenses did not correct the problem. In relation to his mental health, he accepted that there may be an unconscious magnification of the symptoms, but this was part of the symptomatology of his impairment, and I should read the EAT decision on this point. He drew my attention to specific parts of the bundle which he submitted provided evidence of a substantial adverse effect with mood disturbance at the relevant time. If I did the things he asked of me and looked at disability collectively then the threshold in s.6 is met. He then touched upon the case law briefly. In relation to Goodwin, he submitted that this case supported his argument over adverse effect, the fact that he took his medications intermittently did not detract from his case, and once again he assured me that he was being honest with me. Turning then to Elliott, he asked me to adopt this case as the current approach to the analysis, which required me to look at what a claimant cannot do, and this includes his low self-esteem. Then looking at the DLA case, I should accept that he is predisposed to depression. That case also directed me to look at the cumulative effect. The case of Leonard was relevant because the claimant in that case had depression, as he does, with a dosage of 20mg of amitriptyline. He rounded off his submissions by urging me again “to be open-minded”.[17]My conclusions and reasons. I apply the law to the facts and explain my analysis. I remind myself that the burden of proof is on the claimant to show that he satisfies Case Numbers: 1306691/2019 & 1306804/2019 13 the definition of disability. The EQA is different to prior legislation, and a non-exhaustive list of examples of how the effects of an impairment might manifest themselves in relation to those capacities is contained in the Guidance at the appendix. It is considered that the effect of the change in the law with the EQA makes it easier for a claimant to show that an impairment has a substantial adverse effect on normal day-to-day activities.[18]The material time for establishing disability is the date of the alleged discriminatory act or acts. This is the time to determine whether the impairment had a long-term effect. In this case I must consider the period from 14 April 2019 to 27 August 2019 which time span was agreed between the parties at the outset of the hearing.[19]I recite some parts of the Guidance which influenced my decision, taking into account the way the case was put by the claimant. Meaning of likely C3 and C4. The Act states that, if an impairment has had a substantial adverse effect on a person's ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of 'long-term' (Sch 1, Case Numbers: 1306691/2019 & 1306804/2019 14 Para 2(2), see also paragraphs C3 to C4 (meaning of likely).) C6. For example, a person with rheumatoid arthritis may experience substantial adverse effects for a few weeks after the first occurrence and then have a period of remission. See also example at paragraph B11. If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. Other impairments with effects which can recur beyond 12 months, or where effects can be sporadic, include Menières Disease and epilepsy as well as mental health conditions such as schizophrenia, bipolar affective disorder, and certain types of depression, though this is not an exhaustive list. Some impairments with recurring or fluctuating effects may be less obvious in their impact on the individual concerned than is the case with other impairments where the effects are more constant. [My emphasis]. 'A young man has bipolar affective disorder, a recurring form of depression. The first episode occurred in months one and two of a 13-month period. The second episode took place in month 13. This man will satisfy the requirements of the definition in respect of the meaning of long-term, because the adverse effects have recurred beyond Case Numbers: 1306691/2019 & 1306804/2019 15 12 months after the first occurrence and are therefore treated as having continued for the whole period (in this case, a period of 13 months). C7. It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the 'long-term' element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether. 'A person has Menières Disease. This results in his experiencing mild tinnitus at times, which does not adversely affect his ability to carry out normal day-to-day activities. However, it also causes temporary periods of significant hearing loss every few months. The hearing loss substantially and adversely affects his ability to conduct conversations or listen to the radio or television. Although his condition does not continually have this adverse effect, it satisfies the long-term requirement because it has substantial adverse effects that are likely to recur beyond 12 months after he developed the impairment.' Likelihood of recurrence Case Numbers: 1306691/2019 & 1306804/2019 16 C9. Likelihood of recurrence should be considered taking all the circumstances of the case into account. This should include what the person could reasonably be expected to do to prevent the recurrence. For example, the person might reasonably be expected to take action which prevents the impairment from having such effects (e.g. avoiding substances to which he or she is allergic). This may be unreasonably difficult with some substances. C10. In addition, it is possible that the way in which a person can control or cope with the effects of an impairment may not always be successful. For example, this may be because an avoidance routine is difficult to adhere to, or itself adversely affects the ability to carry out day-to-day activities, or because the person is in an unfamiliar environment. If there is an increased likelihood that the control will break down, it will be more likely that there will be a recurrence. That possibility should be taken into account when assessing the likelihood of a recurrence. (See also paragraphs B7 to B10 (effects of behaviour), paragraph B11 (environmental effects); paragraphs B12 to B17 (effect of treatment); and paragraphs C3 to C4 (meaning of likely).) Assessing whether a past disability was long-term C12. Case Numbers: 1306691/2019 & 1306804/2019 17 The Act provides that a person who has had a disability within the definition is protected from some forms of discrimination even if he or she has since recovered or the effects have become less than substantial. In deciding whether a past condition was a disability, its effects count as long-term if they lasted 12 months or more after the first occurrence, or if a recurrence happened or continued until more than 12 months after the first occurrence (s 6(4) and Sch 1, Para 2). For the forms of discrimination covered by this provision see paragraph A16. Section D: Normal day-to-day activities This section should not be read in isolation but must be considered together with sections A, B and C. Whether a person satisfies the definition of a disabled person for the purposes of the Act will depend upon the full circumstances of the case. That is, whether the adverse effect of the person's impairment on the carrying out of normal day-to-day activities is substantial and long term. D1. The Act looks at a person's impairment and whether it substantially and adversely affects the person's ability to carry out normal day-to-day activities. Meaning of 'normal day-to-day activities' D2. Case Numbers: 1306691/2019 & 1306804/2019 18 The Act does not define what is to be regarded as a 'normal day-to-day activity'. It is not possible to provide an exhaustive list of day-to-day activities, although guidance on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix. D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Adverse effects on the ability to carry out normal day-to-day activities D11. Case Numbers: 1306691/2019 & 1306804/2019 19 This section provides guidance on what should be taken into account in deciding whether a person's ability to carry out normal day-to-day activities might be restricted by the effects of that person's impairment. The examples given are purely illustrative and should not in any way be considered as a prescriptive or exhaustive list. D16. Normal day-to-day activities also include activities that are required to maintain personal well-being or to ensure personal safety, or the safety of other people. Account should be taken of whether the effects of an impairment have an impact on whether the person is inclined to carry out or neglect basic functions such as eating, drinking, sleeping, keeping warm or personal hygiene; or to exhibit behaviour which puts the person or other people at risk [My emphasis on the 2 words]. A man has had paranoid schizophrenia for five years. One of the effects of this impairment is an inability to make proper judgements about activities that may result in a risk to his personal safety. For example, he will walk into roads without checking if cars are coming. This has a substantial adverse effect on his ability to carry out the normal day-to-day activity of crossing the road safely.'[20]The claimant, during his submissions, asked me to say something kind about him in my judgement. He also asked me to find that he was not exaggerating. The Case Numbers: 1306691/2019 & 1306804/2019 20 claimant presented to me as articulate and intelligent. He had a good understanding of the law and procedure. For a litigant in person, he was quite adept at presenting his case. However, he did not develop the detail that I thought he might do in the way he explained his case. He presented as courteous to me, Miss Brown and my clerk. In many ways, the claimant has an engaging personality. Unfortunately, he is not always reliable. This manifested itself in various ways, and I refer to 2 of them. Firstly, when considering his GP notes, it was quite apparent that the claimant made a number of appointments which he simply failed to attend. Secondly, he was given a fairly straightforward task to undertake and did not carry it out. This was quite apparent when Judge Findlay ordered him to provide a copy of a letter that he or his solicitors wrote to Dr Misra which caused her to write the letter of 29 January 2021. This was to be done by 2 January 2023. The claimant said this on 4 January 2023: “I have not been able to provide the letter because the solicitor firm have told me they are not able to locate the file. As there is a lot of information in my file.” It would have been easy for the claimant to have asked Dr Misra for a copy of the letter. The claimant appeared to have lost interest in the subject. The claimant explained his frequent failure to attend appointments by reference to his depression and anxiety, but this seemed improbable. He was not always a good witness in his own cause. The claimant was not a convincing witness. He lacked attention to detail on the issue I had to decide, although I bear in mind, he is representing himself and this is not always an easy task. He also went off at a tangent on a number of occasions during cross examination.[21]I will look at the three impairments individually and collectively. Turning to the claimant’s eye condition of keratoconus first of all. I record the fact that the respondent accepted the claimant has the condition, and Case Numbers: 1306691/2019 & 1306804/2019 21 that it is long-term. However, the respondent does not accept that there is a substantial adverse effect because the claimant wears contact lenses or glasses which correct the problem. As Baroness Hale of Richmond (as she then was) said succinctly in SCA, although in relation to the previous legislation: “48. Most important for our purposes is paragraph 6(1): “An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.” In other words, if a person has an underlying impairment within the meaning of the Act, the effect of medical treatment and other corrective measures which enable the person concerned to function more normally is to be ignored. A blind person who can get about with a guide dog is still disabled. A person with Parkinson’s disease whose disabling symptoms are controlled by medication is still disabled. An amputee with an artificial limb is still disabled. (This provision does not apply to people with poor eyesight which is correctable by spectacles or contact lenses: otherwise no doubt most of the population would be disabled.)”[22]The claimant’s evidence to me was that for many years he had not worn glasses, as they did not improve his sight. He was moved on to use contact lenses. However, in recent years, he has not been able to wear a lens in his right eye because of the irregular shape of the surface and it is very sensitive. Accordingly, he asserted his eyesight in his right eye remained uncorrected. I considered this very carefully. The issue is not discussed in the way the claimant presented his case in the documentation in the bundle, and the claimant asked me to accept his oral evidence. The documents referred to Case Numbers: 1306691/2019 & 1306804/2019 22 “lens” and “lenses”. Judge Findlay’s list of issues refers to “lenses”. The claimant did not correct that when the order was sent to the parties. I have already found that the claimant can be unreliable. The issue is finely balanced. Am I prepared to accept that the claimant has established that the eye condition falls outside the exemption because his right eye is not corrected by glasses or lenses at the relevant time? It is a good argument to advance. The claimant has a substantial adverse effect on normal day-to-day activities in that he cannot ride a bike, cannot go swimming, has difficulty with ironing or making tea, and has difficulty in navigating the footway at night. He is at risk of contracting an infection called “microbial keratitis.” He has had this in the past and will be at risk of getting it in the future; and when he has it, he is unable to drive and is unable to identify family members by facial recognition. I was able to observe the claimant whilst he was giving his evidence. He used a laptop in the hearing. Frequently, he held this a couple of inches away from his eyes to be able to read a document. The issue of the right eye not being corrected by glasses or lenses is not developed in the 2 impact statements. I could see no reference to it in the GP notes. Perhaps the most significant contemporaneous document was an Occupational Health Assessment report dated 19 July 2019 (original date) and 24 July 2019 (altered to include amendments provided by the claimant) which includes this (at page 146): “At work, [the claimant] says that he has no problems seeing the display on the handheld digital devices he uses and if he uses display screen equipment (DSE) he adjusts the brightness and text size. He tells me that it was whilst he was adjusting one of his contact lenses [my emphasis] that a picking error occurred, and this is what led to his dismissal.” The claimant did not amend this part of the report. I conclude that the problems the claimant now has with his Case Numbers: 1306691/2019 & 1306804/2019 23 right eye were not present at the relevant time. If they had been, they would have been noted in various places (and the claimant certainly would have made sure of that) and I would probably have found the claimant to be disabled because of this condition. However, my conclusion is that he does not fall outside the exemption and therefore was not disabled because of keratoconus at the relevant time. I concluded the claimant was plainly not telling me the truth over this issue.[23]I then turned to the issue of chronic jaw pain. The respondent accepts that at some stage the claimant had this condition. However, it disputes that it was long-term and asserts that there were no substantial adverse effects. The claimant had an accident in 2014 when he tripped on a pothole in the pavement and landed on the side of his face. He had surgery which included having a plate inserted. This was removed in further surgery in 2018. The claimant complained of ongoing problems, which included: difficulties in eating food properly (the claimant was not going to restaurants as people laughed at him on account of the way that he eats and drinks), losing sensation in the left side of his face, his mouth locking and being painful. These things cause him to become agitated. He has been prescribed zopiclone to help with sleep and pain. He has also been prescribed amitriptyline as a painkiller and antidepressant.[24]The claimant relies upon medical reports from Mr Bernard Speculand dated 12 July 2017 and 1 October 2019. In between these reports the claimant was involved in a road traffic accident on 15 September 2018, although this does not appear to have had an impact upon the issues being discussed by the expert. The second report refers to the claimant being seen on 20 May 2019 by Mr K McMillan, consultant oral and maxilio facial surgeon (page 64). It was noted that the claimant was suffering with chronic pain. There was some muscle spasm and the Case Numbers: 1306691/2019 & 1306804/2019 24 claimant resisted wide mouth opening. Some altered sensation on the left side was noted. “The impression was of a very significant myofascial (muscle spasm) component. He was recommended to try amitriptyline 10 mg at night (to help with jaw muscle relaxation) and would be seen in four months.” Of course, this is during the relevant time. The comments and prognosis are at pages 67 to 70. Stated shortly, the claimant complains of discomfort and numbness or altered sensation over his left cheek area, both intra-orally and extra-orally. The consultant accepted a 60% overall reduction in feeling in the relevant areas, directly due to the index injury. Once the consultant asserted that most nerve recovery occurs within the first 18 months after injury, he advised that there was no prospect of further improvement over time with regard to those symptoms and saw that a consultant psychiatrist might be of assistance to help develop a coping strategy and to address the claimant’s low mood and low self-esteem. It is confirmed that the claimant’s mouth opening was reduced and had tenderness on two of the four main jaw muscles on the left side. Unfortunately, the claimant has poor oral hygiene adversely effecting his gums, with chronic marginal gingivitis. It was down to him to sort this out. Once this has been done the consultant said: “…he can consider some treatment for his TMJ problem which is consistent with temporo-mandibular joint dysfunction.” Using a five-point grading scale, the consultant assessed the claimant as being at stage 2 for TMJ. Some non-surgical approaches were suggested, and the claimant was advised it would be helpful to resume his amitriptyline 10mg at night. Again, these were described as an antidepressant, also providing jaw muscle relaxation and pain relief. It was indicated that it might be better for the claimant to see a consultant psychiatrist before resuming amitriptyline.[25]At this point of the analysis, I conclude the claimant has established a substantial adverse effect on a normal Case Numbers: 1306691/2019 & 1306804/2019 25 day-to-day activity, which is more than minor or trivial. The claimant can eat; but with difficulty and is self-conscious when eating in public. The appendix to the Guidance refers to difficulty eating: “Difficulty eating; for example, because of an inability to co-ordinate the use of a knife and fork, a need for assistance, or the effect of an eating disorder;” This is a substantial adverse effect caused by the jaw locking and pain. A notable contemporaneous document is a letter dated 22 May 2019 from Mr K McMillan to the claimant’s GP (pages 86-87). This recites the claimant having long-term problems with fairly chronic pain affecting the left mandibular angle region. It continues: “He has ongoing complaints of quite significant trismus as well as generalised altered sensation and discomfort down the left side of his face.” The claimant was found to be “well”, but in “obvious low mood. His mouth opening is restricted, although with stretching there is significant improvement suggesting a strong myofascial component.” Mr McMillan saw the benefit in referring the claimant to mental health services, as he was sure this would benefit the claimant. I find there is a link established between the jaw problem and the claimant’s mental health issues.[26]Turning to the issue of the claimant’s mental health, he produced a report from Dr MJ Whittington dated 20 February 2020 (following examination on 4 February 2020) starting at page 92. In a summary of conclusions Dr Whittington said this: “Mr Rehman developed significant mental symptoms which in my opinion are characteristic of a psychiatric disorder known as a mixed anxiety and depressive disorder-the evidence appears to indicate that his ongoing jaw problems following his operation in June 2018 [my emphasis] led to an aggravation of his underlying mental symptoms. His mental symptoms have led to significant a) psychological distress b) impairment of Case Numbers: 1306691/2019 & 1306804/2019 26 his quality-of-life.” Dr Whittington also said this (at page 108): “Mr Rehman developed significant mental symptoms exemplified by: · Persistent emotional distress and upset. · Felt increasingly fed up and depressed. · Experienced increasing difficulty sleeping as his mind wouldn’t switch off. · Felt angry and frustrated. · Struggled to enjoy life and tended to think more negatively. · Suffered a loss of self-confidence and self-esteem. · Felt anxious and unable to relax. · Felt stressed and worried. · Felt snappy and irritable. In my opinion, these mental symptoms are characteristic of a psychiatric disorder known as mixed anxiety and depressive disorder-the evidence appears to indicate that his ongoing jaw problems following his operation in June 2018 led to an aggravation of his underlying mental symptoms.” Dr Whittington went on to say the claimant’s “Mental Symptoms have led to significant a) Psychological distress b) Impairment of his quality of life.”[27]I find and conclude that the claimant has established that he has mixed anxiety and depressive disorder. What was it that the claimant could not do in the relevant time? I find as follows. He could not eat in public because of Case Numbers: 1306691/2019 & 1306804/2019 27 restrictions in his jaw movement and associated pain. He did not socialise. He had problems sleeping, although this was intermittent, and was at least in part due to pain. He had low mood, and again this is something that appears in the Guidance appendix as follows: “Persistent general low motivation or loss of interest in everyday activities.”[28]The claimant was unreliable. He could not be relied on to keep appointments during the relevant time and misled me about his eye condition. Nevertheless, I find that if the claimant suffers from psychological distress, it has an impact upon his physical symptoms (a point made in a letter dated 29 January 2021-page163-from Dr Misra). That is particularly so in relation to pain and sleep. When these things are more troubling for the claimant, he can use zopiclone and amitriptyline to get through the worst moments. Without them the pain and sleep would be worse and his ability to cope with life would be compromised.[29]I concluded that when I considered the claimant’s jaw problem and mixed anxiety and depressive disorder taken together, they gave a cumulative effect which led me to find that the claimant was disabled at the relevant time.[30]In coming to my conclusions I had regard to the way in which the claimant presented to me. The respondent, for the various reasons advanced, wanted me to find that the claimant could not be believed, and that I should find against him on all 3 conditions. I did find that the claimant was unreliable in a number of ways; for example, by not attending GP and other medical appointments or complying with the order of the tribunal concerning the production of his solicitor’s letter. He misled me over his eye condition. Does that mean that someone who is Case Numbers: 1306691/2019 & 1306804/2019 28 unreliable or whose evidence to me in part was unbelievable and contradictory, could or should not be considered disabled? I thought about that point very carefully. However, I conclude that the negative points that I identified about the claimant and his presentation of his case do not preclude him from a finding that he is disabled within the meaning of the EQA. Employment Judge Dimbylow on 22 March 2023 Case number: 1306691/19, 1306804/19 1 of 26 EMPLOYMENT TRIBUNALS Claimant: Mr A Rehman Respondent: DHL Services Ltd Heard at: Birmingham On: 24, 25, 26, 27, 28 July 2023 Before: Employment Judge Meichen, Mr D McIntosh, Mr J Kelly Appearances For the claimant: in person For the respondent: Ms V Brown, Counsel JUDGMENT was sent to the parties dated 4 August 2023. The claimant’s claim of discrimination arising from disability was dismissed following a withdrawal of that claim by the claimant. The claimant’s claims of direct disability discrimination and victimisation failed and were dismissed. Written reasons were subsequently requested by the claimant in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013. The following reasons are provided. Oral reasons were given at the end of hearing and so these written reasons are based on the reasons given orally. The reasons are provided in 16 pt font as requested by the claimant.[1]The claimant’s claim includes a claim for disability discrimination. The claimant had claimed that he was disabled by reason of three conditions. However at a preliminary hearing Employment Judge Dimbylow decided Case number: 1306691/19, 1306804/19 2 of 26 that the claimant was not disabled because of Keratoconus, which is an eye condition.[2]Employment Judge Dimbylow decided that the claimant was disabled because of a combination of the other two conditions which the claimant relied upon. These were firstly temporo-mandibular joint dysfunction (which is a condition causing pain in the claimant’s jaw) and secondly mixed anxiety and depressive disorder.[3]The issues in the case were identified and agreed at a preliminary hearing held by Regional Employment Judge Findlay and recorded in her case management order. At the start of the hearing before us the parties both confirmed that that was still a correct and comprehensive list of the issues for us to determine, with the following clarifications:a. As a result of the decision of Employment Judge Dimbylow we do not need to determine the question of disability.b. In light of Employment Judge Dimbylow’s decision the claimant decided to withdraw his discrimination arising from disability claim and so we do not need to determine that.c. The respondent agreed that the remaining claims brought by the claimant are in time and so we do not need to determine any question of time limits.[4]Therefore the issues left for us to determine relate to the claimant’s claims of direct disability discrimination and victimisation. The agreed issues in respect of those claims are as follows:[5]Direct disability discrimination (Equality Act 2010 (“EqA”) section 13)5.1 Did the respondent not offer the claimant a permanent contract? The claimant says this occurred in around April 2019 and the people responsible were Chris Askew and Anna Polomska. Case number: 1306691/19, 1306804/19 3 of 265.2 Was that less favourable treatment?5.3 The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s.5.4 If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated.5.5 The claimant says he was treated worse than Umar Mohammed. If so, was it because of disability?5.6 Did the respondent’s treatment amount to a detriment?[6]Victimisation (EqA section 27)6.1 Did the claimant do a protected act as follows:6.1.1 On or around 23 April 2019 in a meeting with Chris Askew the claimant informed the respondent that he had made the picking mistake on 14 April due to his eye condition and he made the respondent aware of the nature of his disabling conditions. The claimant’s case is that in circumstances where he was being criticised for the mistake this amounted to a complaint of discrimination, alternatively it caused the respondent to believe that the claimant might make a complaint of discrimination.6.1.2 On or around 31 May 2019 the claimant raised a grievance. The claimant’s case is that the grievance included reference (express or implied) to allegations of disability discrimination. Case number: 1306691/19, 1306804/19 4 of 266.2 Did the respondent do the following things: 6.2.2 In the meeting on 23 April 2019 Chris Askew said he didn’t care about the issues the claimant was raising with his disabilities and he also said the claimant had no chance of being offered a permanent contract. 6.2.3 Shortly after the meeting on 23 April 2019 Chris Askew accused the claimant of making false allegations. 6.2.4 The respondent informed the claimant’s agency that they did not want him back on site. The claimant’s agency informed him about this on or around 17 May 2019. The claimant is unsure who in the respondent was responsible for this decision but he suspects it may have been Chris Askew. 6.2.5 The claimant was not offered any right of appeal in the grievance process.6.3 By doing so, did it subject the claimant to detriment?6.4 If so, was it because the claimant did a protected act?6.5 Was it because the respondent believed the claimant had done, or might do, a protected act? The law The burden of proof[7]Section 136 EqA sets out the burden of proof provisions which apply to claims under the EqA. Section 136(2) states: “if there are facts from which the court could decide in the absence of any other explanation that a person (A) contravened the provision concerned the court must hold Case number: 1306691/19, 1306804/19 5 of 26 that the contravention occurred”. Section 136(3) then states: “but subsection (2) does not apply if A shows that A did not contravene the provision”.[8]These provisions enable the employment tribunal to go through a two-stage process in respect of the evidence. The first stage requires the claimant to prove facts from which the tribunal could conclude that the respondent has committed an unlawful act of discrimination (aka the prima facie case).[9]The second stage, which only comes into effect if the claimant has proved those facts, requires the respondent to prove that he did not commit the unlawful act. That approach has been settled since the case of Igen Ltd v Wong [2005] IRLR 258 and it was reaffirmed in Efobi v Royal Mail Group Limited [2019] IRLR 352.[10]It is well established that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status and a difference in treatment. Those facts only indicate the possibility of discrimination. They are not, without something more, sufficient material from which the tribunal could conclude that the respondent had committed an unlawful act of discrimination. This principle is most clearly expressed in the case of Madarassy v Nomura International plc 2007 [IRLR] 246.[11]The Supreme Court has emphasised that it is for the claimant to prove the prima facie case. In Hewage v Grampian Health Board [2012] IRLR 87 Lord Hope summarised the first stage as follows: "The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden”. The claimant must prove facts from which it could Case number: 1306691/19, 1306804/19 6 of 26 be decided not simply that discrimination is a possibility but that it has in fact occurred (see South Wales Police Authority v Johnson [2014] EWCA Civ 73 at paragraph 23).[12]Before the burden can shift there must be something to suggest that the treatment was discriminatory (see B and C v A [2010] IRLR 400). Mere proof that an employer has behaved unreasonably or unfairly would not by itself trigger the transfer of the burden of proof, let alone prove discrimination (see in particular Bahl v The Law Society and others [2004] IRLR 799). Therefore, inadequately explained unreasonable conduct and/or a difference in treatment and a difference in status and/or incompetence is not sufficient to infer unlawful discrimination (Quereshi v London Borough of Newham [1991] IRLR 264; Glasgow City Council v Zafar [1998] ICR 120 HL; Igen, Madarassy).[13]In Chief Constable of Kent Constabulary v Bowler EAT 0214/16 it was held that an employment tribunal had impermissibly inferred direct race discrimination solely from evidence of procedural failings in dealing with the claimant’s grievances and internal appeal against the rejection of those grievances. The EAT memorably observed: ‘Merely because a tribunal concludes that an explanation for certain treatment is inadequate, unreasonable or unjustified does not by itself mean the treatment is discriminatory, since it is a sad fact that people often treat others unreasonably irrespective of race, sex or other protected characteristic.’[14]The statutory burden of proof provisions only have a role to play where there is doubt as to the facts necessary to establish discrimination. Where the tribunal is in a position to make positive findings on the evidence one way or another as to whether the claimant was discriminated against they have no relevance. This was confirmed by Lord Hope in Hewage and is consistent with the views expressed in Laing v Manchester City Council and anor 2006 ICR 1519, EAT. Case number: 1306691/19, 1306804/19 7 of 26 Direct discrimination[15]Section 13 EqA provides that: “a person(a) (A) discriminates against another(b) (B) if because of a protected characteristic A treats B less favourably than A treats or would treat others”. Section 23 EqA provides that on a comparison of cases for the purposes of section 13, there must be no material difference between the circumstances relating to each case.[16]In Nagarajan v London Regional Transport [1999] IRLR 572, the House of Lords held that if the protected characteristic had a ‘significant influence’ on the outcome, discrimination would be made out. The crucial question in every case is, ‘why the complainant received less favourable treatment…Was it on the grounds of [the protected characteristic]? Or was it for some other reason..?’.[17]In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 Lord Nicholls said ‘… employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the Claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will usually be no difficulty in deciding whether the treatment, afforded to the Claimant on the proscribed ground, was less favourable than was or would have been afforded to others. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is Case number: 1306691/19, 1306804/19 8 of 26 convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment Tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the Claimant …’.[18]As was confirmed in Martin v Devonshire’s Solicitors [2011] ICR 352 since Shamoon, the recommended approach from the higher courts has generally been to address both stages of the statutory test by considering the single ‘reason why’ question: was the treatment on the proscribed ground, or was it for some other reason? Considering the hypothetical or actual treatment of comparators may be of evidential value in that exercise. Victimisation[19]Section 27 EqA states as follows:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act[20]In MOD v Jeremiah [1979] IRLR 436, [1980] ICR 13 the Court of Appeal found that a detriment exists “if a reasonable worker would take the view that the treatment was to his detriment”. A detriment must be capable of Case number: 1306691/19, 1306804/19 9 of 26 being objectively regarded as such; an unjustified sense of grievance cannot amount to 'detriment' (Shamoon). It is not necessary to demonstrate some physical or economic consequence for something to amount to a detriment. As Lord Nicholls said in Shamoon: “while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute 'detriment', a justified and reasonable sense of grievance about the decision may well do so”. In Deer v University of Oxford[2015] EWCA Civ 52 it was held that the conduct of internal procedures can amount to a 'detriment' even if proper conduct would not have altered the outcome.[21]In terms of causation the protected act must be more than simply causative of the treatment (in the "but for" sense). It must be a real reason: ”the real reason, the core reason, for the treatment must be identified” (Woods v Pasab Ltd (t/a Jones Pharmacy) [2012] EWCA Civ 1578). Where there is more than one motive in play, all that is needed is that the discriminatory reason should be of sufficient weight (O'Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615). Cases relied upon by the claimant[22]In addition to the above the claimant asked us to consider the following cases and we have done so: City of York Council v Grosset [2018] EWCA Civ 1105, Mrs B Baldeh v Churches Housing Association of Dudley & District Ltd UKEAT/0290/18/JOJ, Mr D Warburton v The Chief Constable of Northamptonshire Police: [2022] EAT 42, Chief Constable of West Yorkshire v Khan [2001] 1 WLR 1947 HL, Nagarajan v London Regional Transport [2000] 1 AC 502, Chief Constable of Greater Manchester v Bailey [2017] EWCA Civ 425 and Page v Lord Chancellor [2021] ICR 912 CA. Case number: 1306691/19, 1306804/19 10 of 26[23]The claimant also referred to Gutierrez v Newcastle United FC, a disability discrimination case brought by a former footballer. However we were unable to find a copy of the judgment in this case online. We asked the claimant to provide a copy but it transpired he had not actually seen the judgment either, he had just read articles about it. As we explained to the claimant the judgment in this case is from another employment tribunal and so it would not be binding upon us anyway.
Findings of fact
[24]The respondent provides warehousing and distribution services to a number of clients. One of the respondent’s clients is Selfridges.[25]The claimant was an agency worker. His agency was 24/7 recruitment. The claimant was not an employee of the respondent; he was engaged by them as an agency worker in the role of warehouse operative. The claimant worked on the respondent’s contract with Selfridges and he was responsible for picking and packing parcels to send to that client’s customers. The claimant began working in this role on 9 June 2018.[26]The claimant wished to obtain an employed position with the respondent. He applied in 2018 but was not successful. We understand the claimant was late for his interview and this led to his application not being progressed further.[27]In the initial phase of the claimant’s engagement with the respondent his manager was Anna Polomska. She was the first line manager who the claimant worked under between June 2018 and early 2019. Ms Polomska reported to the shift manager who was Chris Askew. Case number: 1306691/19, 1306804/19 11 of 26[28]Ms Polomska had a number of performance concerns about the claimant, which she reported to Mr Askew. There were several occasions where the claimant either did not turn up for a shift or would turn up late for a shift. Ms Polomska’s view was that the claimant was not particularly productive and he would often distract other employees. Ms Polomska raised concerns of this nature about the claimant to Mr Askew.[29]As Ms Polomska accepted in her evidence she had a number of conversations with Mr Askew about the claimant and her concerns about him. She also raised her concerns in writing. There was an example of this at page 356 of the bundle where we can see that on 4 January 2019 Ms Polomska sent Mr Askew an email in which she said that the claimant comes when he wants, does the jobs he wants and he always has some issues. Mr Askew replied to that email to say that he had spoken to the claimant and reported the issues to the agency and if there were any more problems then the claimant would have to go.[30]On 14 April 2019 there was an incident with the claimant’s picking. As a result of this incident the Selfridges customer did not receive their order on time and this was a breach of the respondent’s service level agreement with its client, Selfridges. Mr Askew took an extremely dim view of the claimant’s behaviour on this occasion. In an email sent to the claimant’s agency on 15 April 2019 he complained that the claimant had made a deliberate mistake and that he wanted it investigating with a strong outcome as he believed that the claimant had cheated the system.[31]It appears that the claimant had typed the incorrect barcode for the item he had been assigned and then attributed it to a trolley that did not exist and put the item on the incorrect shelf. This resulted in the item not being delivered on time and in fact Mr Askew reported that the Case number: 1306691/19, 1306804/19 12 of 26 correct item had only been found after midnight when the collection had already gone.[32]The claimant does not dispute that he made a picking mistake on 14 April but he denied that it was a deliberate mistake and he attributed the mistake to needing to adjust his contact lens. In the tribunal’s view it is extremely unlikely that the series of events we have just summarised could all be attributed to the claimant needing to adjust his contact lens.[33]As we have referred to Mr Askew viewed the incident seriously and he made it clear to the agency that he expected an investigation. He also said that if the respondent could not be confident that the claimant could be trusted then he didn’t want him to be on site.[34]The claimant’s agency did investigate the matter and they held a disciplinary hearing with the claimant on 13 May 2019. The outcome of that process was simply that a file note was created that recorded that the claimant had made an error and he must take more care in the future. It is fair to observe that it appears that the claimant’s agency did not take a similar view to Mr Askew about the seriousness of the incident.[35]At the same time as the incident on 14 April 2019 the claimant applied again for a permanent warehouse operative role with the respondent. The claimant submitted his CV by hand. Although he did not give it to Mr Askew directly the claimant believes it would have been passed on to him. Mr Askew could not remember but he accepted that may well have been the case. We therefore find it is more likely than not that the claimant’s CV was passed to Mr Askew, however we also accept Mr Askew’s evidence that he would not have done anything with it other than leave it to the managers who were dealing with the recruitment process to evaluate. Case number: 1306691/19, 1306804/19 13 of 26[36]The claimant’s application was unsuccessful and he was not invited to interview. There is no evidence of the claimant being provided with a written outcome in respect of this application however in an email which the claimant wrote to his union representative on 20 May 2019 the claimant said that he had been informed that the reason why he had not been successful was because of his attendance and performance. We therefore find that the claimant must have been provided with some oral feedback as to why his application was unsuccessful. We find that concerns over the claimant’s performance and attendance were the reason why the claimant’s application was unsuccessful. This is consistent with the views held by Ms Polomska and the further concerns of Mr Askew arising out of the claimant’s conduct on 14 April.[37]On 31 May 2019 the claimant raised a grievance. In his grievance the claimant complained about unfair and discriminatory treatment in relation to him not being selected for a permanent contract. The respondent’s usual practice was that the grievance procedure was only available to its employees and complaints raised by agency workers would instead be referred to the agency to deal with. However in view of the seriousness of the claimant’s complaint, and in particular the allegation of discrimination, the respondent decided to investigate. However the respondent elected to simply investigate rather than apply its grievance procedure.[38]An investigation hearing was held on 19 June 2019. The online operations manager, Assam Khan, chaired the hearing and he was supported by Ian Guest, HR business partner. The claimant attended the meeting and was accompanied by his trade union representative.[39]The respondent did not uphold the claimant’s complaint. Written confirmation of this was sent to the Case number: 1306691/19, 1306804/19 14 of 26 claimant by letter dated 12 July 2019. The claimant attempted to appeal that outcome but the respondent refused to consider the appeal on the basis that the claimant was an agency worker and not an employee, and therefore the grievance procedure, including the right of appeal, did not apply to him.[40]Following the incident on 14 April the claimant had been signed off sick with stress at work and anxiety. In the outcome letter dated 12 July the respondent made it clear that they were happy for the claimant to return to work, as long as his employer, i.e. the recruitment agency, were happy that he was fit to return.[41]The claimant’s agency commissioned an occupational health report concerning the claimant and in their report dated 19 July occupational health recommended that the claimant should be assigned to another placement rather than Selfridges. We understand the claimant did not therefore return to work on the Selfridges contract.[42]We should note however that the claimant had been offered another placement working for the respondent on another contract, Clare’s Accessories. However the claimant had not taken that opportunity up. That offer was made on or around 31 May 2019.[43]On 15 July 2019 the claimant again applied for a permanent position as a warehouse operative with the respondent on the Selfridges contract. On this occasion the claimant was one of 10 candidates selected to attend for interview. In addition to the interview the application process also required candidates to undertake a written ability test. The claimant scored 32% on the ability test. The lowest scoring successful applicant scored 77%. The claimant was therefore informed that he had been unsuccessful in the application process. Case number: 1306691/19, 1306804/19 15 of 26[44]On 29 August 2019 the claimant contacted the respondent to say that he had not been able to read the ability test that he had sat on 6 August and that as a result he had failed the test. The respondent decided to offer the claimant an opportunity to retake the test and asked the claimant to confirm what adjustments he considered were necessary. The claimant requested large bold writing and additional time.[45]On 8 October 2019 the claimant re-sat the written test with the requested adjustments in place. On this occasion the claimant’s score increased to 71%. This was still not high enough to secure one of the three vacancies as the lowest scoring successful applicant had scored 77%. The claimant’s application was therefore again unsuccessful and he was informed of this via email on 14 October 2019.[46]The claimant has subsequently complained that there were interruptions on the occasion when he re-sat the test and these may have affected his performance on the test. The respondent has not offered the claimant the opportunity to retake the task for a third time because it considered that the interruptions were not so serious as to have adversely affected the claimant’s performance and in any event it would not be fair or a realistic test for the claimant to re-sit for a third time. Analysis and conclusion Direct disability discrimination[47]The less favourable treatment which the claimant complains of is not being offered a permanent contract in April 2019. There is no doubt that this happened and that it was a detriment. However, the allegation includes that the people responsible were Chris Askew and Anna Polomska. We do not accept that. Case number: 1306691/19, 1306804/19 16 of 26[48]The tribunal heard evidence from Joanne Moore who was one of the two first line managers who were involved in the recruitment process in April 2019. She explained the process was that she and the other first line manager were given the CVs of those who had applied for the roles and asked to make a shortlist of applicants to invite to interview. If there were considerably more applicants than roles then an initial sifting exercise would also be done by the talent acquisition team. Ms Moore explained that the respondent had over a hundred applicants for only 10 positions in April 2019. This number of CVs meant that there must have been an initial sifting exercise carried out by the talent acquisition team before the sift that was carried out by Ms Moore and the other first line manager.[49]The claimant evidently did not get past the sifts as he was not invited to interview. The people responsible for that decision were either the two first line managers or the talent acquisition team. The claimant has not alleged discrimination against any of those people.[50]The tribunal saw no reason to doubt Ms Moore’s evidence. We found that neither Mr Askew nor Ms Polomska had any involvement in the recruitment process. There was no cogent evidence that they had influenced Ms Moore or any other part of the recruitment process, and we found that they did not. Mr Askew accepted that he may well have been handed the claimant’s CV but if he had he would simply have passed it on to the first line managers who were running the recruitment exercise. We accepted that evidence. The tribunal considered that there was no other involvement by Mr Askew or Ms Polomska in the recruitment exercise. Therefore it was incorrect for the claimant to allege that the people responsible for him not being offered a permanent contract in April 2019 were Mr Askew and Ms Polomska. Case number: 1306691/19, 1306804/19 17 of 26[51]As can be seen from our findings of fact the evidence showed that Ms Polomska and Mr Askew held quite negative views about the claimant. Ms Polomska’s view stemmed from her experience of managing the claimant for a substantial period and Mr Askew’s view stemmed from what he had been told by Ms Polomska, and the picking incident of 14 April. The tribunal finds that these were genuinely held views which had nothing to do with disability. There was no evidence that Ms Polomska or Mr Askew based their views on disability. We find they were based on the claimant’s attendance and performance and the specific mistake he made on 14 April. We find these issues were not caused by the claimant’s disability. In any event there was no evidence that the recruitment decision was influenced by the views of Ms Polomska or Mr Askew. We find that the recruitment team reached their own view of the claimant, just as they did with every other applicant, and they were not influenced by the views of Ms Polomska or Mr Askew.[52]The tribunal considered that there had not been any less favourable treatment in relation to this allegation. At least 90% of the applicants in this particular recruitment exercise were unsuccessful. This was as a result of there being in excess of a hundred applications for only 10 roles. There is no basis for any suggestion that the claimant was treated worse than somebody who was in materially the same circumstances as him i.e. somebody with materially the same experience and work history. We find that the claimant was not treated less favourably than somebody with no material difference in their circumstances.[53]The claimant had identified Umar Mohammed as a comparator however there were plainly materially different circumstances because Mr Mohammed applied as part of a different recruitment exercise in 2017. This is a clear material difference. The claimant in fact accepted in correspondence to the tribunal which could be seen on Case number: 1306691/19, 1306804/19 18 of 26 page 81 of the hearing bundle that Umar Mohammed’s application was materially different. We therefore found thar Mr Mohammed was not an appropriate comparator.[54]The claimant appears to have identified Umar Mohammed as a comparator because he considered that Ms Polomska was guilty of nepotism and favouritism because the claimant suggests that she was in a personal relationship with Umar Mohammed. As was pointed out to the claimant during the hearing however if that is true it does not assist the claimant in establishing his case of disability discrimination because it would suggest a reason for the difference in treatment that was not disability. We do not make any decision on what relationship Ms Polomska had or may not have had with Mr Mohammed because he is not an appropriate comparator and he has no relevance to this case for the reasons we have explained.[55]We find that neither Ms Polomska or Mr Askew knew about the claimant’s disability by April 2019. The claimant’s case was that he had attempted to tell Ms Polomska but she had told him to raise it with his agency before he could tell her. The tribunal accepts that but it means that she did not know about his disability. There was no other evidence suggesting that Ms Polomska or Mr Askew might have known about the claimant’s disability. This further undermines the claimant’s case of direct disability discrimination.[56]The tribunal finds that not offering the claimant a permanent contract in April 2019 was not because of disability. We find it was done because the claimant’s application did not get past the initial sift stage carried out by the two first line managers and the talent acquisition team. The people responsible for that were not Chris Askew and Anna Polomska. As he confirmed to his union representative the reason why the claimant’s application did Case number: 1306691/19, 1306804/19 19 of 26 not get past the sift was because of his performance and attendance. It was not because of disability.[57]For these reasons the tribunal concludes that the claimant’s direct disability discrimination claim must fail. Victimisation[58]The claimant relied on two alleged protected acts. The first alleged protected act was that on or around 23 April 2019 the claimant informed Mr Askew that he had made the picking mistake on 14 April due to his eye condition and he made the respondent aware of the nature of his disabling conditions. The claimant’s case is that this amounted to a complaint of discrimination or alternatively it caused the respondent to believe that the claimant might make a complaint of discrimination.[59]The claimant did have a conversation with Mr Askew on or around 23 April 2019. Our findings as to the nature of that conversation are as follows. Mr Askew was approached by the claimant and a manager from the claimant’s agency, Majiec. The claimant wished to talk about the picking error. Consistent with his email Mr Askew conveyed his view that it was a very serious matter. He explained to the claimant that there were possible consequences for the contract as a whole as the respondent had breached its service level agreement. Mr Askew was suggesting that the possible consequence of the claimant’s actions could be the loss of the contract with the respondent’s client Selfridges. This was another indicator of just how seriously Mr Askew viewed the matter.[60]In the same conversation, the claimant asked Mr Askew about the chances of him getting a permanent contract with the respondent. As we have mentioned the claimant had at around this time submitted another application for permanent employment. Mr Askew’s Case number: 1306691/19, 1306804/19 20 of 26 response was that it was extremely competitive and he pointed out that the claimant had recently made a picking mistake which was serious and had caused the respondent to breach their service level agreement with an important client. It’s very likely in the tribunal’s view that the message conveyed by Mr Askew was that in view of this recent mistake made by the claimant and his history of poor performance and attendance (as reported to Mr Askew by Ms Polomska) it would be extremely difficult for the claimant to obtain a permanent position at that particular time.[61]The tribunal accepts Mr Askew’s evidence that the claimant did not suggest in this conversation that the picking mistake was due to his eye condition and that he did not explain the nature of his disabling conditions. In those circumstances we find that the claimant did not make a complaint of discrimination and the conversation did not cause the respondent to believe that the claimant might make a complaint of discrimination. We find that the respondent did not believe that the claimant might make a complaint of discrimination, or do any protected act.[62]We should note that our findings as to what was said, and not said, on 23 April are consistent with some significant evidence that was submitted by the claimant himself. This evidence could be seen at page 160 of the trial bundle. It is a transcript of a phone call between the claimant and Majiec the day after the meeting with Mr Askew. It appears that the claimant covertly recorded that telephone call and he did so in order to obtain evidence that he thought might be favourable to him. In the call the claimant attempted to get Majiec to agree with him about what had been said in the meeting. His account of what took place (which Majiec did in the end agree with) contains no suggestion of the claimant having attributed the picking mistake to his eye condition or of the claimant informing Mr Askew of his disabilities. We would agree with Ms Brown’s submission that the claimant’s failure to acknowledge that Case number: 1306691/19, 1306804/19 21 of 26 his own evidence did not support the making of a protected act is a matter which reflects badly on his credibility. We took these matters into account when making our decision as to the nature of the conversation on 23 April.[63]For these reasons the tribunal concluded that the claimant did not do a protected act on or around 23 April 2019 in a meeting with Chris Askew.[64]The second alleged protected act was the claimant’s grievance which he raised on or around 31 May 2019. As we have already mentioned this grievance contained a clear complaint of discrimination. The respondent rightly agreed that this was a protected act.[65]The only detriment which postdates the protected act is the last one of the four alleged which is that the claimant was not offered any right of appeal in the grievance process.[66]As we have already found, it is correct that the claimant was not offered an appeal. We consider that this was a detriment. This is because a decision was reached which was essentially unfavourable to the claimant following an investigation but the claimant did not have the chance to appeal against the outcome.[67]However we concluded that this was not done because the claimant did a protected act. It was done because the claimant was an agency worker and not an employee and therefore the grievance procedure and in particular the right of appeal contained in that procedure did not apply to him. We consider there was no cogent evidence that the decision not to offer the claimant an appeal was because he did a protected act. In particular there was no rational or proper evidential basis for any suggestion that it was done because the claimant had complained about discrimination in his grievance. Case number: 1306691/19, 1306804/19 22 of 26[68]We do not consider that the claimant was not offered a right of appeal “in the grievance process”. The process adopted by the respondent was not to offer the claimant the use of the grievance procedure but instead to meet with the claimant and investigate. The respondent did that because the claimant had complained about discrimination. Therefore, the protected act actually prompted the respondent to treat the claimant more favourably (by investigating instead of simply referring the matter to the agency) rather than subject him to detriment.[69]The claimant pointed out that the paperwork used in the investigation referred to a grievance and a grievance appeal. We accept the respondent’s evidence that this paperwork was only used because it was convenient and there was no paperwork for the specific process that was adopted because it was not the respondent’s usual practice to investigate grievances brought by agency workers. We found the respondent did not in fact depart from its usual practice that the grievance procedure was only open to employees. This was clear in our judgement both from the evidence we heard and the contemporaneous documents explaining the respondent’s decision and the reasons for it. The agreement was simply to investigate the claimant’s complaint.[70]For these reasons the victimisation claim must also fail.[71]For completeness we will set out our findings on the other detriments relied upon by the claimant (even though they in fact pre date the only protected act we have found).[72]The first alleged detriment was that at the meeting on 23 April Mr Askew said he didn’t care about the issues the claimant was raising with his disabilities and he also said Case number: 1306691/19, 1306804/19 23 of 26 the claimant had no chance of being offered a permanent contract.[73]This allegation partially fails on the facts. As we have explained we do not accept that the claimant raised any issues in this meeting about his disabilities so Mr Askew cannot possibly have said that he didn’t care about those issues.[74]In relation to the claimant being told he had no chance of being offered a permanent contract we find that the substance of this part of the allegation succeeds on the facts. Although we don’t think Mr Askew would have used the words “no chance” and he was not referring to a permanent state of affairs we are satisfied that he was conveying the message that it would be extremely unlikely that the claimant would be offered a permanent contract at that point in time.[75]We are satisfied that that was a detriment because the claimant was being told that he would not at that time be likely to obtain a permanent contract as he wished to achieve and as he had attempted to achieve on more than one occasion.[76]We find that was not done because of any alleged protected act. In our judgement it is entirely plain that Mr Askew conveyed that message because of the very recent picking mistake which the claimant had made and how seriously Mr Askew viewed that issue. It also came against the background of Mr Askew being aware of the performance/attendance concerns held by Ms Polomska and again the correspondence from January 2019 shows that Mr Askew viewed those matters seriously aswell. The tribunal considers this was a further factor which is likely to have led Mr Askew to advise the claimant that it would be very difficult for him to obtain a permanent position, at that time. Case number: 1306691/19, 1306804/19 24 of 26[77]The next alleged detriment is that shortly after the meeting on 23 April 2019 Mr Askew accused the claimant of making false allegations. We find that this allegation fails on the facts. Mr Askew never accused the claimant of making false allegations. We consider that the claimant has misinterpreted some of the documents which refer not to the claimant making false allegations but simply to the allegations the claimant had made. It is clear that Mr Askew did not make this accusation because it did not form part of the disciplinary case which the claimant faced with his agency and it did not form part of Mr Askew’s written complaint to the agency about the claimant.[78]The third alleged detriment is that the claimant’s agency informed him on or around 17 May that the respondent did not want him back on site. It does appear that the claimant’s agency did inform him about this however it is unclear where that message came from. The claimant suspects it may have been Mr Askew.[79]We find that is more likely than not that in view of the very strong response from Mr Askew to the picking incident on 14 April the claimant’s agency conveyed that message to the claimant. To that extent the substance of this allegation is made out on the facts. However we should make clear that this was not a permanent decision as the respondent made it clear on 12 July that the claimant could return to work on the Selfridges contract and they also offered him work on an alternative contract, Clare’s Accessories, on 31 May.[80]We nevertheless consider this was a detriment as the claimant was told not to return to his place of work, albeit it was temporary.[81]However, we find that it is again clear it was not because of any alleged protected act - rather it was done Case number: 1306691/19, 1306804/19 25 of 26 because of the picking incident on 14 April and how seriously Mr Askew viewed that. The claimant’s arguments as to the burden of proof[82]In his submissions the claimant, who has built up some relevant legal knowledge, focused on his argument that the burden of proof should switch to the respondent. The factors relied upon by the claimant to shift the burden of proof related mainly to what the claimant considered were inconsistencies in the respondent’s evidence. The tribunal has considered all the matters relied upon by the claimant. We do not consider there were any significant inconsistencies in the respondent’s evidence. As an example the claimant identified that Mr Askew had said he was responsible for printing out some test papers in 2019 but Ms Moore then said she had printed them out. The witnesses here were recalling an inconsequential matter of who printed test papers 4 years ago. This is not the type of inconsistency which can assist the claimant with building a prima facie case. It is not a fact from which the tribunal could infer discrimination or victimisation.[83]The tribunal considers that the claimant has not established a prima facie case of discrimination or victimisation. We considered all the arguments raised by the claimant and looked at the whole picture. The tribunal considers that the claimant did not prove facts from which we could conclude that direct discrimination or victimisation has taken place. The tribunal fully considered the points the claimant made about inconsistencies but we do not consider these are sufficient to discharge the initial burden of proof which is on the claimant.[84]In any event we were able to make positive findings as to what occurred and why as set out above and even if the burden had shifted to the respondent we would have Case number: 1306691/19, 1306804/19 26 of 26 considered the respondent had shown that no discrimination or victimisation had taken place.
Conclusion
[85]Our overall conclusion is that the claims of direct disability discrimination and victimisation must fail and be dismissed. Employment Judge Meichen 20 September 2023 Case numbers 1306691/19, 1306804/19 1 EMPLOYMENT TRIBUNALS Claimant: Mr A Rehman Respondent: DHL Services Ltd
Conclusion
Conclusion
[1]On 6 October 2023 the claimant made his first application for reconsideration of the tribunal’s liability judgment. By a judgment dated 2 November 2023 I refused the claimant’s application on the basis that there was no reasonable prospect of the original decision being varied or revoked. The relevant law to be applied to reconsideration applications is set out in the first reconsideration judgment. On 17 November 2023 the claimant made a further application for reconsideration.[2]The claimant has again referred to the case of P J Drakard and Sons Ltd v Wilton [1977 ] ICR 642 EAT. I have already explained that this appears to state that before refusing an application for what is now called reconsideration the tribunal must give an opportunity to the applying party to elaborate in writing on the grounds. The claimant has given full details of the basis of the applications in his written Case numbers 1306691/19, 1306804/19 2 documents and he has therefore had the opportunity to explain his grounds.[3]The claimant has repeated his request for an in person reconsideration hearing. The claimant has been able to fully articulate his grounds in his written applications. I have already decided that a hearing is not necessary or proportionate and observed that the relevant rules of procedure (Rule 72(1) and (2)) state that I should refuse the application if I consider there is no reasonable prospect of the original decision being varied or revoked and a hearing could then take place if the application has not been refused on that basis. I see no reason at all to change the decision I have already made on this point.[4]The claimant has clarified that he wishes to rely on the first instance decision in Crossland v Chamberlains Security 1600344/2015. I believe this is the first time the claimant has made this clear. As this was a first instance decision it would not be binding upon us. In any event I have read the judgment and considered it. It does not seem to me to add anything to the relevant legal principles applied in this claim.[5]The claimant also referred again to A v Z Ltd UKEAT/0273/18/BA, Mrs. B Baldeh v Churches Housing Association of Dudley & District Ltd UKEAT/0290/18/JOJ and Warburton v The Chief Constable of Northamptonshire Police: [2022] EAT 42. I have already considered those decisions. The claimant is just seeking to make further submissions on matters that he could have raised at the final hearing. The claimant has also referred to other case law under the headings “Direct disability case law” and “Victimisation case law”. The principles that are identified by the claimant are well known and were firmly in the mind of the tribunal when we made our decision. Reciting these principles or identifying cases Case numbers 1306691/19, 1306804/19 3 without further analysis does not amount to a ground for reconsideration.[6]The claimant has repeated his suggestion that the tribunal should identify all the alleged inconsistences on the part of the respondent which he relied upon. I have already decided that it is not necessary in the interests of justice or proportionate for the tribunal to provide a record of all the inconsistences relied upon by the claimant. I have already explained that we considered all the inconsistencies relied upon by the claimant and found that there were no significant inconsistencies in the respondent’s evidence from which the tribunal could infer discrimination or victimisation. We gave an illustrative example in our reasoning. I see no reason to change my decision on this point and the claimant is just repeating an argument he has already made.[7]The claimant has repeated his point about the respondent’s alleged knowledge of disability. The tribunal’s approach and our decision has been set out in the liability judgment and and confirmed in the first reconsideration judgment. There is nothing to add.[8]The claimant refers to his mental health in the context of asking for the list of issues to be revisited. This was not suggested during the hearing. It cannot possibly be in the interests of justice to revisit the list of issues at this stage. It is unclear what the relevance is of the claimant’s mental health to this request. This claim was extensively case managed and the issues agreed at an early stage. The claimant has not come close to establishing that there is any reasonable prospect of the list of issues being varied.[9]The claimant says this he did not withdraw his discrimination arising from disability claim. This is the first time this has been suggested. It is untrue. It was quite clear Case numbers 1306691/19, 1306804/19 4 that following EJ Dimblylow’s decision on disability the claimant’s claim for discrimination arising from disability as particularised in the list of issues constructed by REJ Findlay was untenable. In that context the claimant withdrew his discrimination arising from disability claim at the start of the final hearing.[10]The claimant now produces new evidence in the form of medical records and reports. I acknowledge that reconsideration of a judgment may be necessary in the interests of justice if there is new evidence that was not available to the tribunal at the time it made its judgment. Equally, it is incumbent on the party applying for reconsideration to explain why the new evidence was not produced beforehand and why it is now in the interests of justice to consider that evidence.[11]The principles to be applied in this scenario come from the case of Ladd v Marshall 1954 3 All ER 745, CA. In summary, it is necessary to show:(i) that the evidence could not have been obtained with reasonable diligence for use at the original hearing,(ii) that the evidence is relevant and would probably have had an important influence on the hearing; and(iii) that the evidence is apparently credible. 12. The EAT has confirmed that the tribunal should refuse an application for reconsideration unless the new evidence is likely to have an important bearing on the result of the case (Wileman v Minilec Engineering Ltd 1988 ICR 318, EAT). 13. The EAT in Outasight VB Ltd v Brown 2015 ICR D11, EAT also held that the interests of justice may allow fresh evidence to be adduced where some additional factor or mitigating circumstance has the effect that the evidence in Case numbers 1306691/19, 1306804/19 5 question could not have been obtained with reasonable diligence at an earlier stage. This might apply where, for example, a party was ‘ambushed’ by the introduction of evidence at the hearing or was incorrectly refused an adjournment. However, it is not generally in the interests of justice that parties in litigation should be given a second bite of the cherry simply because they have failed as a result of oversight to provide all the evidence available in support of their cases at the original hearing. 14. The claimant’s second application for reconsideration suggests that the final hearing bundle was not agreed and the respondent’s representative refused to add the medical records. I believe this is the first time this has been suggested. The claimant does not explain why he did not raise this at the hearing. The respondent has therefore not had the opportunity to respond to this very serious allegation but, even if it is true, it does not amount to a reasonable explanation as to why the claimant did not put this evidence before the tribunal at the final hearing. If the respondent would not agree to documents being added to the bundle the claimant should obviously have raised this with the tribunal and we could have considered the evidence then.[15]The claimant has not identified any additional factor or mitigating circumstance that means that the new evidence could not have been provided at an earlier stage. The claimant was not ambushed at the hearing. In fact the claimant is now seeking to provide additional evidence to support his own case rather than respond to something that came out at the hearing. The claimant was not refused an adjournment. In fact the claimant did not apply for an adjournment or even attempt to provide this evidence at the hearing and he has not explained why not. The interests of justice do not allow fresh evidence to be adduced in these circumstances. Case numbers 1306691/19, 1306804/19 6[16]In any event the claimant has not shown that the new evidence would probably have had an important influence on the hearing or the result. There is no reasonable prospect that the tribunal would find that it was necessary in the interests of justice to consider the new evidence and there is no reasonable prospect of the original decision being varied or revoked as a result of this new evidence.[17]In light of the above I conclude that there is nothing in this second reconsideration application which gives rise to any reasonable prospect of the original decision being varied or revoked. Further, it is my view that substantially the same application has already been made and refused and there are no special reasons to come to a different decision on the application. The claimant continues to wish to reopen the discussion about the facts of the case and the legal principles to be applied which were considered during the hearing, and for the tribunal to come to different conclusions. It is, therefore, just, fair and proportionate to refuse the application. ____________ ______________ Employment Judge Meichen 19.1.24 Case numbers 1306691/19, 1306804/19 1 EMPLOYMENT TRIBUNALS Claimant: Mr A Rehman Respondent: DHL Services Ltd
Conclusion
[1]This is the third reconsideration application brought by the claimant. The claimant has also appealed to the EAT and his appeal has been refused on the paper sift because there were no reasonable grounds for bringing the appeal. Yet, the claimant still seeks to reargue his case. There is nothing in this third reconsideration application which gives rise to any reasonable prospect of the original decision being varied or revoked. Further, it is my view that substantially the same application has already been made and refused and there are no special reasons to come to a different decision on the application. The claimant continues to wish to reopen the discussion about the facts of the case and the legal principles to be applied which were considered during the hearing, and for the tribunal to come to different conclusions. It is, therefore, just, fair and proportionate to refuse the application. Case numbers 1306691/19, 1306804/19 2[2]I consider it is disproportionate to say much more than the above. However I note that in his third application the claimant asked me to read the judgment of the Court of Appeal in Mervyn v BW Controls Ltd. I have done so. The claimant said in conjunction with that request that his ET1 shouted discrimination and victimisation. However, when we decided his claim the Tribunal adjudicated upon the claims of victimisation and discrimination that the claimant had brought. ____________ ______________ Employment Judge Meichen 4.3.24 Case numbers: 1306691/2019 1306804/2019 1 EMPLOYMENT TRIBUNALS Claimant: Mr A Rehman Respondent: DHL Services Ltd[1]This is the fourth reconsideration application brought by the claimant. The claimant has also appealed to the EAT and his appeal has been refused on the paper sift because there were no reasonable grounds for bringing the appeal. Yet, the claimant still seeks to reargue his case.[2]There is nothing in this fourth reconsideration application which gives rise to any reasonable prospect of the original decision being varied or revoked. Further, it is my view that substantially the same application has already been made and refused and there are no special reasons to come to a different decision on the application.[3]The claimant continues to wish to reopen the discussion about the facts of the case and the legal principles to be applied which were considered during the hearing, and for the tribunal to come to different conclusions. It is, therefore, just, fair and proportionate to refuse the application.[4]I consider it is disproportionate to say much more than the above. However I shall briefly respond to the matters raised in this fourth application:4.1 The claimant was not denied the opportunity to cross examine Chris Askew. The tribunal dealt with the issue of who printed test papers at paragraph 82 of our liability judgment. We found it to be an inconsequential matter.4.2 Counsel for the respondent did not shout at any stage during the hearing. If she had I would have immediately addressed it. Counsel may have referred to whether the claimant was raising remedy points, which we were not considering. There was no behaviour by counsel that could possibly have impacted on the fairness of the proceedings and the claimant did not suggest that there was at any stage during the hearing.4.3 It is incorrect to suggest that the Tribunal did not explore case law or the claimant’s case that the respondent held negative views about him which were related to a protected characteristic. We have in fact extensively Case numbers: 1306691/2019 1306804/2019 2 considered case law, including that referred to by the claimant and all the matters the claimant relied upon to establish a prima facie case. This has all been explained to the claimant before.4.4 The liability decision is not inconsistent or illogical. The claimant simply disagrees with it. ____________