Z Khan v Crown Prosecution Service and Care Quality Commission: 1308505/2022 and Others
EMPLOYMENT TRIBUNALS
Case No 1308505/2022, 1302695/2023, 1302157/2023, 1303023/2023
Between
Z KhanClaimantCrown Prosecution Service and Care Quality CommissionRespondent
Before
Employment Judge StewardIn person for claimantMs Hodgetts (instructed by Counsel) for respondentDate 24 September 2024
REASONS
[2]The claims identified as the “Group 4 claims” (18,19,20 and 21) were listed for a Public Preliminary Hearing on 2nd 3rd and 4th September 2024 in accordance with the order of Employment Judge Childe on the 8th March 2024.[3]Claim 18 (1308505/2022) was an application for a job as a paralegal with the Crown Prosecution Service. Claim 19 (1302695/2023) was an application for a job as a paralegal with the Crown Prosecution Service. Claim 20 (1302157/2023) was an application for a job as a paralegal with the Quality Care Commission. Claim 21(1303023/2023) for entry into the legal trainee scheme at the Crown Prosecution Service though no application was made.[4]The Issues to be considered at this hearing are as follows:(a) Should the claimant have permission to amend claim 1308505/2022 (the 18th claim) as follows: (i) To amend the name of the respondent to the Crown Prosecution Service. (ii) To rely on the details of claim lodged with the tribunal on 30 October 2022?(b) If the claimant is not given permission to amend his claim 1308505/2022 (the 18th claim): Should this claim be struck out: (i) Under rule 37 (1) (a) because it is scandalous or vexatious as it duplicates claim no. 1302664/2021; which was struck out by EJ Mensah on 1 November 2023? (ii) Under rule 37 (1) (a) because the claimant has no reasonable prospect of showing that the claim was within time or that it is just and equitable to extend time to allow the claim to be heard?(c) Whether any part of the Group 4 Claims have no reasonable prospects of success and if so, should it be struck out pursuant to rule 37 of the Rules of Procedure?(d) Whether any part of the Group 4 Claims have little reasonable prospects of success and if so, should one or more deposit orders be made in accordance with rule 39 (and if so how much for; up to £1,000 per order)? The claimant’s financial means and ability to pay are relevant to this issue.[5]By way of background the present hearing was concerned with four out of several claims against multiple respondents the claimant has made, in each of which he is complaining that he was unsuccessful in a job application because of something to do with his disabilities.[6]In each claim the claimant relies on generalised anxiety disorder, depression, ADHD and OCPD as his disabilities. The respondent accepts that the claimant is disabled by reason of the first three of these conditions; and for the purpose of these applications, the Tribunal will take claimants case at its highest and therefore assume disability by reason of the fourth condition too. Documents[7]For the purpose of this public preliminary hearing, I have been provided with a preliminary hearing bundle of 408 pages, the skeleton argument of the respondent’s counsel Ms Hodgetts of 32 pages and the supporting authorities 372 pages.[8]As set out in the case management order of Employment Judge Childe of the 8tth March 2024 the respondent was directed to serve a draft bundle by 26th July 2024and the claimant was directed, if C wished the Tribunal to consider any additional documents, to provide them in an indexed chronological single PDF bundle, by 16th August 2024.[9]On the 25th July 2024 the respondents solicitor provided the draft bundle, reminding the claimant of the direction relating to any additional documents.[10]On the same day the claimant replied, stating that he did not have the capacity to send a bundle of additional documents as required, “at least within the timeframe” he would collate a bundle but unless the respondent’s solicitor organised them, they may be unorganised.[11]On the 26th July 2024 the respondents solicitor referred back to the case management order and suggested that the claimant write to the Employment Tribunal if the claimant wished to vary the direction. The claimant did not respond until 19th August 2024, when the claimant wrote to the respondent’s solicitor again and said that he had not been able to comply; he wished to provide documents for the respondent’s solicitor to put into chronological order, index them, and put them into the bundle.[12]On the same day the respondents solicitor said that if the claimant sent his documents by 5pm on 20th August 2024 she would put them into chronological order and include them (at the back of the bundle, the draft bundle already having been paginated), but she would not index them, and if the claimant wanted the Tribunal to have an index, he should index them.[13]On the 20th August 2024 the claimant said that he would not be able to comply with that deadline and the respondents solicitor responded to reiterate that any documents received after 5pm on 20th August 2024 and before 5pm on 23rd August 2024 would be compiled into a PDF bundle and submitted as a supplementary bundle.[14]By Friday 23rd August 2024 the claimant had not provided any documents. In the meantime, the respondents solicitors had updated the bundle with correspondence relating to provision of the Case Management, list of issues and the claim that had been previously struck out by Employment Judge Mensah that the claimant had duplicated in the 18th claim.[15]On the 23rd August 2024 the claimant wrote to the respondents’ solicitors as follows - Dear Ms Hayward, Please include in the bundle all of the psychiatric records you have from Group 1-4 that you have which have been submitted. So from the first till latest you have which will require you to look into previous emails. Please also include, for now, all the primary care (GP) records you have till latest. This will also require you to look through all previous emails. So from now submitted in Group 1 cases till 4. You have acted in those cases so you should be aware of them. I will be adding further documents. For now please accept the requested ones. Your deadlines are not practicable, something I will say. I will continue to labour to get all material done. I cant say how long this will be but I will make much effort to get them done swiftly (in the circumstances).[16]Ms Hodgetts informs me that the respondent’s solicitor responded to the claimant stating they were not going to trawl through previous emails to find the documents he is referring to, and reminds him that the direction was for the claimant to provide those documents he wanted included[17]Over the weekend of the 24th and the 25th August 2024, 5 emails were sent from the claimant to the respondents solicitors and the Employment Tribunal please see paragraph 19 to 23 below[18]“appeal for strike-out of defences”[19]“brief account of situation before hearing 2-4 Sept” – the claimant says he will be attending the hearing 2-4 Sept, and says has had little time to prepare[20]“evidence” - I am quite taken by the fact that some items have been omitted by your Rs’. These are central to the cases before the ET and your failiure to have some material that a child would be able to tell would be relevant to the hearing is missing. You are, it seems, obliged by the Overrding Objective to include these. I will be raising this with the Judge. I write here asking you to add into the bundle: • All of the cases that had a written application, the applications that form • The dates of each application that was written/completed/submitted. • All emails that were had back and forth between myself and your clients agents be they before any application, during the completion of it, or after it. Also include this email into the bundle as well. If others come material comes to mind, if it is with me then I will inform you or share it with you. If its in your possession, I may ask for it to be put into the bundle. Also I ask you to send over a new index and paginated set of documents that are those that I have directed you to above.[21]“Sept 2-4 bundle of documents submission” - I am unable to download my bundle as the file is too big. The ET’s DUC feature doesnt work unfortunately. Please arrange an alternative method to enable me to send the bundle off. The bundle is disjointed although I should not be expected to produce one to the standard that the R’s legal team are able to produce. For obvious reasons. It is paginated, something that I had to pay for unfortunately (notwithstanding my economically challenged state), so that it will give us some grounding. I’m sure we can work through it.[22]“vary order”: Please see the requested Order variation request. The cases the document refers to is: [group 3 claim numbers]. I am writing to inform you that I object to the Order[1] [Footnote clarifies that means EJ Childe’s order] about bundle provision. The reasons for this are as follows: - 1. The R has the means and the manpower to be able to put a bundle together and are therefore compelled by the Overriding Objective to ensure that cases are dealt with justly and efficiently. - 2. If you entrust this to someone: - Who is a LiP, severely - unwell cognitively visibly - suffers from mental impairments that make him behave unusually when experiencing pressures of an extreme kind (like those during an ET dispute) - who still goes out to work as he needs to earn a living (time constraints) - who doesn’t have the proper software’s needed to comply as they cost - Unable time-wise due to work generally and then recovery thereafter - Has little finance Is actually, now that the CMO document aforementioned, is read, is completely gobsmacking. If this is not overridden, I will have to adjourn our proceedings because I intend to appeal to the EAT regarding the legality of such an Order. It beyond perverse. Whilst the R is [lists several factors in R’s favour] But then again, we had the ET ‘illegally ’I would say, sitting with the R and spending quality time, when I was unwell, which was not itself believed of me (even though records attest to “High Disability” among the psychiatric records, to my detriment. I know I will be dismissed on grounds that I raised this late, for which I have the above reasons in paragraph 2 working against me, so I will give the ET till Tuesday the 27th of August 2024, till the end of that day i.e. 5pm to respond. Should it not respond by that time, I will assume the R has the responsibility of putting together the bundle (on adding to it, concerning anything I as the claimant, by instruction to it.) Request: To set aside the Order paragraph 7[1] and require the R, acting in the interest of the Overriding Objective, to be the ones to do, as is customary, form the bundle. I don’t mean that they choose the documents alone, rather I mean that they add to the bundle documents instructed by myself.[23]The respondents wrote to the Employment Tribunal on the 27th August 2024 as follows; We continue to act for the Respondents, namely the Crown Prosecution Service and Care Quality Commission, in the Group 4 claims which are the subject of a preliminary hearing listed to take place on 2 – 4 September 2024 (the Preliminary Hearing). We write further to the Claimant’s correspondence sent to the Tribunal on Friday 23 August 2024 at 17:31, Saturday 24 August 2024 at 21:29, Sunday 25 August 2024 at 17:45, Monday 26 August 2024 at 13:36, 20:46 and 21:17 (attached). We do not propose to respond to each correspondence sent by the Claimant however, the Respondents confirm that they have complied with the case management orders in respect of the upcoming Preliminary Hearing. Further, for the avoidance of doubt, the Respondents object to the Claimant’s application to strike out the Respondents ’responses for the Group 4 claims on the basis that there are no grounds for his application. We therefore consider it is without merit and misconceived. We do not propose to respond in full to the Claimant’s application unless the Tribunal would benefit from our comments, in which case, we would be happy to do so. We confirm that the Claimant is copied into this correspondence.[24]On the 27th August 2024 the Employment Tribunal wrote to the claimant Dear Mr Khan, The DUC has been shared to the Respondent only, considering that they are responsible for the bundle. If there are any amendments with the bundle, or if you believe that the bundle is not complete / agreed, you should address this with the other party first. The DUC is built for the legal representatives to upload documents. If you require to send an additional bundle, please do it via email.[26]The claimant responded later the same day; Dear ET, The grounds for strike out of the R's claims if the R's fail to have my cases struck out on grounds they are strong are listed in the document sent and attached for the benefit of the parties. If the ET does not wish to allow for this to be the corollary of failure, I would like the Judge to explain reasons. I will evaluate and then see if i need to refer the matter to the EAT. Evidence: I would like to submit a bundle of documents to the ET and R. I cannot attach it to email as its too big. Can you kindly advise.[27]Then at 19.41 hours on the same day the claimant again sends an email to the Employment Tribunal; Dear Mr/Ms Anvin, I cannot upload on email because it exceeds (the bundle does) 33MB. I would like this to be sorted because the hearing is approaching. I will be submitting 2 bundles on my end. So please kindly ensure you accommodate my request to submit material. Really and truly, the R had the chance to include this, but being childish and petty, they completely omitted things as elementary as this (the bundle contains, among matters, my medical record which even a child would be able to point out is relevant and required. By way of the Overriding Objective at the very least). So please advise as quickly as is possible please.[28]As of the 30th August 2024 the claimant had not provided any documents.[29]On the 30th August 2024 at 17.55 the claimant sent to the respondents solicitors and copied in the Employment Tribunal Email headed Re:1308505/2022 [ie the 18th Claim]1: C attaches copy of POC in 19th Claim (1302695/2023)2; and says: Please see the amended ET1 – It appears I accidentally sent you the ET1 for another case to do with HM Prisons and Probations Service. This was an error. Regarding the Prisons and Probation Service, I do not withdraw that claim until I have had good time to assess whether it should remain a case when I look back to cases. The Court should, it is my submission, overlook the error. I have attached the correct ET1 this time I believe. It will detail the claim which should have been seen together with the ACAS certificate (which reads correctly, namely, the CPS)[30]A final email was sent by the claimant to the respondents’ solicitors and the Employment Tribunal on the 1st September 2024 the day before the commencement of the preliminary hearing. The claimant emailed “bundle 2 - ADHD records” - 57 pages; and “bundle 3” - 6 pages - again, health records; and refers to having uploaded bundle 1 to DUC3[31]On the first day of the preliminary hearing the Claimant requested that bundle 1should be admitted into the proceedings along with bundles 2 and 3. It is clear from the chronology that the claimant has disregarded the Case Management Order of Employment Judge Childe. The respondents’ solicitors were actively trying to help the claimant with the additional documents he wanted to use as late as the 23rd August 2024. There was a request from the claimant to the respondents’ solicitors to include psychiatric records and GP records from claims 1 to 4 on the 23rd August and thereafter the claimant tried to upload the bundle to the DUC on the 27th August 2024. This feature was for the use by the respondents’ solicitors, but the claimant indicates the bundle was too large (exceeded 33MB). It was clear that this bundle was a substantial bundle of various medical documents which will not help to determine the respondents’ applications before the tribunal for strike out. The tribunal takes the claimants case at it highest point for this hearing and the respondents have conceded the issue of disability. The claimant has failed to comply with the Case Management Order of Employment Judge Childe and the claimant is used to dealing with claims of this nature and what is entailed. The inclusion of this bundle (which has not been viewed by the respondents or the tribunal) would necessitate a pause in the proceedings for these documents to be considered. This would place the entire hearing at risk of being adjourned. Given the documents are medical records they are not necessary for the tribunal to consider them to determine the respondent’s application for strike out. This bundle was not admitted. Bundles 2 and 3 were substantially smaller (63 pages) and had been received by the respondents’ solicitors over the weekend before the preliminary hearing. The respondents did not object to these bundles being admitted and therefore I allowed them to be admitted.[32]At the commencement of the second day of the hearing the claimant indicated that he had further statements to say. This was a reference to making further submissions on Claim 18. Counsel for the respondents rightly pointed out that so far she had addressed me for 1 hour 45 minutes and the claimant had addressed me for 1 hour 30 minutes. I took the view that on reflection and as a litigant in person there maybe things overnight that the claimant had thought of and wanted to say. Therefore, I allowed him a further 15 minutes to address me. This would provide parity with the respondent and seemed proportionate to ensure that we continued to make progress with the hearing.[33]During these further submissions the claimant said that it would be a good idea to get the opinion of an expert psychologist given his medical complexities. This would allow him to participate better and would give better context to the issues he suffers from. He also wished for the opportunity to give oral evidence during this hearing. It seemed that these requests were being made to navigate the fact that he had been unsuccessful in having bundle 1 admitted into the hearing. I took the first limb of his position (expert assessment of himself by a psychologist) as effectively an application to pause the proceedings and adjourn for the purpose of the assessment.[34]The respondents opposed this and referred me to the Case Management Order of EJ Jones on the 21st September 2022. At the section entitled Ground Rules Hearing Reasonable Adjustments at paragraphs 4 and 5 the following is recorded 4. The claimant has several mental impairments including generalised anxiety disorder, depression, OCPD (obsessive compulsive personality disorder) and ADHD. His conditions impact, amongst other things, on his ability to concentrate and process information. The Tribunal spent time in discussion with him at the preliminary hearing to establish what adjustments could be made to the Tribunal process to minimise the impact of his conditions and ensure, as far as possible, a fair hearing. 5. As a result of those discussions, the Tribunal identified the following which will be implemented in relation to all future hearings, subject to future amendment by an Employment Judge, as required: 1.5.1 the claimant requires issues relating to the claims and the Tribunal procedure to be explained to him clearly; he will tell the Tribunal if he does not understand anything; 2.5.2 the claimant gets mentally fatigued easily – the Tribunal will take regular breaks and will, whenever possible, adjourn the hearing if the claimant ceases to be able to concentrate; the claimant will tell the Tribunal if this is the case; 3.5.3 the claimant sometimes struggles to articulate his thoughts and find the right words – the Tribunal will give him time to formulate what he wants to say; the claimant will tell the Tribunal if he is struggling with this; 4.5.4 the claimant sometimes has difficulty with short-term memory – he may need extra time on occasions to make a full note so as to be able to remember what others have said; 5.5.5 the Tribunal will make directions for advanced disclosure of case law and other complex documents to the claimant so that he has adequate time to consider them before a hearing; 6.5.6 when possible, the Tribunal will consider procedural issues arising in the case one at a time and will bear in mind that the claimant may struggle to retain a large amount of information in order to be able to respond fully to each of several points; 7.5.7 the Tribunal will keep these adjustments under review with the claimant, who will raise any further needs or requests with the Tribunal, verbally or in writing, at the first available opportunity.[35]I considered the ailments that the Claimant suffers from in preparation for this hearing and read the entire bundle. I was assisted by these paragraphs in Employment Judge Jones order. I have been at pains to ensure that I have used language that the Claimant would understand, have provided him with breaks during the hearing, allowed him plenty of time to formulate and consider his arguments and have acquiesced to his request to deal with his submissions one claim at a time after Counsel for the respondents has finished in accordance with para 5.6 above. A psychological assessment would not assist with the claimant’s participation in the hearing or assist the facts that must be determined. This is the respondent’s application for strike out and as such I take the claimants claim at its highest point and an example of this is page 389 para 7. A further report or assessment from a psychologist will not add to this. The claimant has said in his submissions that he is much better now and that is why he is here. He has already delivered 105 minutes of submissions. It would not be in the interests of justice to pause the proceedings and factor in excessive delay for the purpose of a psychological assessment that would not serve any purpose to determine the respondents’ applications before the tribunal.[36]The claimants request to give oral evidence at this hearing was also refused as the Case Management Order had made it clear how this hearing was to proceed and hearing oral evidence was neither necessary or proportionate. The Law 36. Rule 2 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) provides: “2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a)ensuring that the parties are on an equal footing; (c)avoiding unnecessary formality and seeking flexibility in the proceedings; (e)saving expense.
The Law
[37]Strike out Rule 37 of the Rules provides that: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success...”[38]There are number of authorities, following the House of Lords in Anyanwu v South Bank Students Union and South Bank University [2001] IRLR 305 that strike out is not normally appropriate where there are substantial disputes of fact, most notably in fact-sensitive discrimination claims. In only the clearest cases should a discrimination claim be struck out: Mechkaroy v Citibank NA [2016] ICR 1211.[39]A strike out is not appropriate where there is a crucial core of disputed facts that are not susceptible to determination otherwise than by hearing and evaluating the evidence as indicated in the case of Ezsias v North Glamorgan NHS Trust [2007] ICR 1126.[40]In Ahir v British Airways plc [2017] EWCA Civ 1392 Underhill LJ stated that: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospects of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context....Nevertheless it remains the case that the hurdle is high, and specifically that it is higher than the (b)dealing with cases in ways which are proportionate to the complexity and importance of the issues; (d)avoiding delay, so far as compatible with proper consideration of the issues; and A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[41]Deposit orders Rule 39 of the Rules contains the power to make a deposit order. This provides: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”[42]The purpose of a deposit order is to identify at an early stage, claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails: Hemdan v Ishmail and Another [2017] ICR 486 27. It was noted by Underhill LJ in the case of Ahir v British Airways Plc [2017] EWCA Civ 1392 that: “16. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success’. ... [However,] Where there is on the face of it a straightforward and well documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that the explanation is not the true explanation for what happened without the claimant being able to advance some cogent basis for that being so.”[43]Failure to make reasonable adjustments S.20(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes,a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. S.21 (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. S. 39 (1) An employer (A) must not discriminate against a person (B) – (a) in the arrangements A makes for deciding to whom to offer employment; (b) as to the terms on which A offers B employment; (c) by not offering B employment.[44]EHRC Code of Practice (“Code”) The Code is not legally binding but the Tribunal must take into account any part of the Code that is relevant to any questions arising in the proceedings. Paragraph 6.16 of the Code states: “The purpose of the comparison with people who are not disabled is to establish whether it is because of disability that a particular provision, criterion, practice or physical feature or the absence of an auxiliary aid disadvantages the disabled person in question. Accordingly – and unlike direct or indirect discrimination – under the duty to make adjustments there is no requirement to identify a comparator or comparator group whose circumstances are the same or nearly the same as the disabled person’s”. Paragraph 6.28 of the Code sets out the factors that might be taken into account in determining whether a step is reasonable:• whether taking any particular steps would be effective in preventing the substantial disadvantage;• the practicability of the step;• the financial and other costs of making the adjustment and the extent of any disruption caused;• the extent of the employer’s financial or other resources;• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); Ms Hodgetts in her submissions pointed out that the Code of Practice at Paragraph 6.33 provided 18 examples of what may be a reasonable adjustments – none of which include replacing a written application with assessed work experience.[45]It is for the claimant to establish that the PCP caused a substantial disadvantage: Bethnal Green & Shoreditch Educational Trust -v- Dippenaar UKEAT/0064/17. The burden is also on the claimant to show not only that the duty to make reasonable adjustments has arisen, but also to identify a reasonable adjustment that could have been made as per Elias P in Project Management Institute -v- Latif [2007] IRLR 579. The question of whether the proposed steps were reasonable has to be determined objectively by the Tribunal as per Smooth -v- Churchills Stairlifts plc [2006] ICR 524.• The Tribunal must be satisfied that the disadvantage would not equally arise in the case of someone without the claimant’s disability Newcastle upon Tyne Hospitals NHS Trust v Bagley UKEAT/0417/11 although the claimant does not need to show that disadvantage arises because of his disability: Sheikholeslami v University of Edinburgh UKEAT/0014/17.• The question of whether and to what extent the step would be effective to avoid the disadvantage is an important one to weigh in the balance: Secretary of State for Work & Pensions (Job Centre Plus) v Higgins [2014] ICR, EAT.• There is no unlawful discrimination if any adjustment would be futile: Conway v Community Options Ltd UK EAT/0034/12.• In assessment/job application cases it would not be reasonable to require an employer to remove a PCP that, if removed, would deprive the assessment of its value. Ms Hodgetts referred me to a number of authorities in this regard including: Burke v College of Law & SRA UKEAT/0301/10 and on appeal Burke v College of Law & SRA [2012] EWCA Civ 37; Lowe v Cabinet Office ET 2202187/10, Wade v Sheffield Hallam University UKEAT/0194/12: it was not reasonable to deploy a disabled person into a post for which she failed to meet the essential requirements; per HHJ McMullen QC [19-20]; and Government Legal Service v Brookes UKEAT/0302/16 [36-40], per Kerr J; ruling that the ET had been entitled to find that decision-making skills could be assessed by short narrative answers rather than multichoice answers; that the Tribunal had correctly distinguished Lowe; and that the Tribunal had been entitled to find that balancing the disadvantage against the steps required to implement a different written (i.e. narrative answer) test, it would be a reasonable adjustment.[46]A failure to consult does not of itself constitute a failure to make reasonable adjustments: Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 [71-[47]Amendment applications The principles were articulated in Selkent Bus Co Ltd v Moore [1996] ICR 836, EAT,per Mummery J (as he was then) said: (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly relevant.(a) The nature of the amendment. Applications to amend are of many different kinds, ranging, on the one hand, from the correction of clerical and typing errors, the addition of factual details to existing allegations and the addition or substitution ofother labels for facts already pleaded to, on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.(b) The applicability of time limits. If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions, e.g., in the case of unfair dismissal, section 67 of the Employment Protection (Consolidation) Act 1978 . c) The timing and manner of the application. An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time — before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made: for example, the discovery of new facts or new information appearing from documents disclosed on discovery. Whenever taking any factors into account, the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. Questions of delay, as a result of adjournments, and additional costs, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision. In Abercrombie v Aga Rangemaster plc [2013] EWCA 1148, CA, the multi-factorial approach espoused in Selkent was approved, subject to its not evolving into a tick-box exercise; the relevance of new factual enquiry was expressed, at §48; and Underhill LJ then summarised all the relevant factors in that case, at §52: 1247. …It is perhaps worth emphasising that head (5) of Mummery J's guidance in Selkent was not intended as prescribing some kind of a tickbox exercise. As he makes clear, it is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4).) Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: 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. …[49]It is hard to conceive a purer example of “mere re-labelling” than the present case. Not only the facts but the legal basis of the claim are identical as between the original pleading and the amendment: the only difference is, as I have already said, the use of the section 34 gateway rather than that under section 23 . In my view this factor should have weighed very heavily in favour of permission to amend being granted. As the present case only too clearly illustrates, some areas of employment law can, however regrettably, involve real complication, both procedural and substantial; and even the most wary can on occasion stumble into a legal bear-trap.Where an amendment would enable a party to get out of the trap and enable the real issues between the parties to be determined, I would expect permission only to be refused for weighty reasons …[52]In summary, I cannot, with respect, agree with Silber J that the refusal of the Claimants' application for permission to amend was within the scope of the Employment Judge's discretion. The Respondent had been granted permission to amend, very late, to take a thoroughly technical point on the provisions of the 2002 Act. In my view justice required that the Claimants be permitted to amend to plead The best available answer to that point. No new issues of fact were involved and the grant of the application involved no prejudice to the Respondent – beyond the obvious but immaterial prejudice that amendment would deprive it of what might otherwise been answer to the claim.48. . These principles were replicated in the ETs (E & W) Presidential Guidance – General Case Management (2018), Guidance Note 1. R invites the ET to have full regard to the entirety of Guidance Note 1, and highlights the following passages in particular: - §3: leave to amend can be made conditional upon payment of costs - §5: relevant factors would include: - §5.1: The amendment to be made. Applications can vary from the correction of clerical and typing errors to the addition of facts, the addition or substitution of labels for facts already described, and the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal must decide whether the amendment applied for is a minor matter or a substantial alteration, describing a new complaint. - §5.2: Time limits. If a new complaint or cause of action is intended by way of amendment, the Tribunal must consider whether that complaint is out of time and, if so, whether the time limit should be extended … - §5.3: The timing and manner of the application. An application can be made at any time … Allowing an application is an exercise of a judicial discretion. A party will need to show why the application was not made earlier and why it is being made at that time. An example which may justify a late application is the discovery of new facts or information … - §9: If the claim form includes facts from which such a claim can be identified, the Tribunal as a rule adopts a flexible approach and grants amendments that only change the nature of the remedy claimed … - §10: While there may be a flexibility of approach to applications to re-label facts already set out, there are limits. Claimants must set out the specific acts complained of … - §11.2: It will not always be just to allow an amendment even where no new fact are pleaded. The Tribunal must balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Where for instance a claimant fails to provide a clear statement of a proposed amendment when given the opportunity through case management orders to do so, an application at the hearing may be refused because of the hardship that would accrue to the respondent.49. 18th Claim: 1308505/2022: CPS: Paralegal Officer (West Midlands, WMID1357) job application September 2022. Whether the claimant should have permission to amend the claim, the claim and submissions. The claim form is found at page 136 of the bundle and the details of this claim are at page 148. The claim form makes reference to a claim against the Crown Prosecution Service This claim is a duplicate of claim number 1302664/2021 at pages 368-387 in the bundle which was struck out by Employment Judge Mensah on the 1st November 2023. Therefore, the claim currently represents an abuse of process and should be struck out. In turn the claimant needs permission to amend this claim. 50. The amendment sought would be for the claimant to amend the name to the Crown Prosecution Service and to rely on different details of claim lodged on the 30th October 2022 at pages 388-393 of the bundle respectively. The original claim form is dated the 23rd October 2022 and is against the Crown Prosecution Service with the address at 102 Petty France London and includes the ACAS number R232839/22/28. Attached to it are the details for another claim against HM Prisons and Probation Service and the attached particulars are dated 19th May 2021. The respondents ET3 and Grounds of Resistance quote claim 1308505/2022 and correctly state that the particulars of claim are incorrect. They are plainly the wrong respondents and should be removed pursuant to R.34.This is dated the 10th February 2023. However, its noted that on the 30th October 2022 the claimant sent an email to the tribunal quoting the correct case number and including the ‘correct ET1’ which in fact was the particulars of claim that were relevant to claim 1308505/2022 and the Crown Prosecution Service. The claimant makes reference to a deadline of the 1st November to present the correct one. 51. The particulars of claim in matter 1308505/2022 are relatively short and the main disadvantage complained off is the requirement to sit a situational judgment test. The claimant made another claim against the Crown Prosecution Service dated the 1st March 2023 and the particulars of claim again complain about a disadvantage as the claimant had to sit a situational judgment test. The respondents ET1 and Grounds of Residence dated the 3rd April 2023. In this they list all the claims (at that point in time) against various government departments (18 in total) and refer to claim 18 as follows “the claim brought in the Midlands West Employment Tribunal against the Crown Prosecution Service on 23 October 2022 and later re-sent with the correct particulars of claim on 30 October 2022 under case reference 1308505/2022 (the Eighteenth Claim)” 52. It is clear that the claimant sent to the tribunal the correct pleading 7 days after he sent the ET1 and the incorrect pleading. These were sent on the 23rd October 2022 and the claimant tried to rectify the issue on the 30th October 2022. There is a similarity in all the claims and pleadings the claimant sends to the tribunal and the respondents. They are disability discrimination claims that suggest a failure to apply reasonable adjustments, placed him at a disadvantage during the application process. The respondents are familiar with his claims as outlined in the Grounds of Resistance dated the 3rd April 2023 and will not have been taken by surprise by the details of the correct pleading. I do not think the new particulars involve a substantially different area of enquiry than the old particulars. There is not a great disparity between the factual and legal issues in the original pleadings and the new version. I do not believe this will have put the respondents at any additional cost. After considering the facts and the relevant case law I will allow the amendment to amend the name of the respondents to Crown Prosecution Service (Claim 18) and to allow the Claimant to rely on the details of the claim lodged on the 30th October 2022.[53]Turning to the claim in question the claimants substitute Details of Claim are at pp389-393 and the respondent’s case is at pp166-167. In essence, the application process required the submission of a written application and completion of an untimed Situational Judgment Test (SJT) The fact that the SJT was untimed was made clear in the application process (p172); and this was repeated in correspondence: p178. These SJTs are checked by external experts including those with disabilities to ensure that they are as widely accessible as possible (p166 §12);and the Civil Service website offers practice tests: p167 §15. R applies the Disability Confident Scheme: p172.[54]The claimant submitted a written application in September 2022 (pp172- 177); which required him to evidence the demonstration of two essential Behaviours (Communicating and Influencing and Making Effective Decisions): pp176-177. 55. . It is understood that in fact, the SJT for this selection exercise had taken place in June 2022 (p179), but, in an administrative error, the claimant was offered the opportunity to take the SJT 3 months late: p167 §14. Be that as it may, the claimant took the test and passed it. (He later wrote complaining that he had failed it and proposing that he be offered work experience instead: p167 §15. The claimant subsequently acknowledged that this was wrong (p189): "I may have sent some wrong email concerning another application to the service -concerning the failing of the SJT when in fact I managed to pass it. Those were wrongly sent when they were targeted for another application for a different role”; and then later wrote further (p191): "I will be bringing action against the SJT because even though I passed it, it was not fairly arranged and was substantially to my disadvantage. Just because I passed, it doesn't mean I didn't face a disadvantage to a substantial degree. I will not accept the view that some psychologists came together and concluded that the process is fair to all applicants. Thats completely bogus as people vary substantially from one another to have a one size fits all approach. I will be investigating this thoroughly too”.[56]The claimant was later informed that on an assessment of the written application, his application would not proceed: he had scored only 2/7 for each of the two assessed Behaviours (p185, p194); 4/7 on each Behaviour was the minimum threshold (and therefore the threshold at which DCS candidates would proceed to interview): p194.The claimants application was one of 107 applications made for 5 available posts: p197.[57]The claimant sets out the following PCPs PCP 1: requiring candidates to sit a Situational Judgement Test; comparative substantial disadvantage: C has greater difficulties completing such tests than someone without his disabilities. The reasonable adjustment contended for was to remove the requirement to sit the SJT and to provide assessed work experience instead of the SJT. PCP 2: requiring candidates to submit a written application; comparative substantial disadvantage: C has greater difficulties completing such applications than someone without his disabilities. The reasonable adjustments contended for were not deduct marks for grammatical errors, look at the whole application and not just the first example; provide assessed work experience instead of the written application stage; Provide feedback in a timely manner. PCP 3: requiring candidates to demonstrate competencies by reference to life experiences; comparative substantial disadvantage: C has fewer and/or lower quality life experiences than someone without his disabilities. The reasonable adjustments contended for were not deduct marks for simple examples; Provide assessed work experience instead of the written application stage.[58]Ms Hodgetts submitted the claimants claim had no reasonable prospects of success and considered each PCP in turn. PCP 1[59]Ms Hodgetts submits that the claimant cannot show the necessary (comparative) substantial disadvantage as the claimant passed the SJT. It is noted that as part of the claimants’ earlier claims, in relation to applications being made at a similar time to this one, it was the claimants positive case that he should be allowed to undertake tests instead of advancing experiences to demonstrate competencies (As demonstrated in the Judgment of Employment Judge Camp dated 10.9.19 at paragraph 74 page 15 in the bundle and Employment Judge Choudry dated 29.8.23 at paragraphs 47,60,73,81 and 91) In the Judgment of Employment Choudry dated 29.8.23 at paragraph 47 the following is recorded PCP 1 : a requirement, when applying for a role, to demonstrate competencies for that role by reference to already acquired experience. The substantial disadvantage this is said to have cause is that the claimant was unable to do this as he did not have relevant experience because of his ill health which has prevented him from working. The reasonable adjustments contended for are:(i) Giving the claimant the opportunity to do work experience in order to demonstrate that he had the relevant skills for each competency. The claimant asserts the work experience should have lasted 2 weeks.(ii) Allowing the claimant to sit a written test which asked questions about hypothetical examples to allow the claimant to demonstrate that he had the necessary skills for each competency.[60]Ms Hodgetts submits that the respondent did not have the relevant knowledge of the asserted disadvantage as there is nothing on the application form to alert the respondents to it. If one reconsiders the application at page 172 in the bundle there is nothing on it to suggest that he cannot sit the SJT.[61]Ms Hodgetts submits that it would be unreasonable to remove the requirement to sit the SJT. This is due to the nature of the role and the simple fact the claimant passed the SJT. It would also not be reasonable to provide assessed work experience given the nature of the role and the fact the claimant passed the SJT. The post required a reasonably competitive selection exercise, and the respondents are entitled to ensure the candidates meet the essential criteria. To provide assessed work experience would impose excessive burden on the respondents about resources, time, supervision and confidentiality requirements. It would be fraught with issues over subjectivity and potentially would be unfair on other candidates. It had the potential to be efficacious as a relevant competency may never arise and the claimant or candidate may never get the opportunity to be tested against it.[62]The issue of work experience has been addressed in other judgments. ‘I also accept the respondent’s position that offering assessed work experience is not a step that would be reasonable for it to take for the reasons articulated by Ms Hodgetts as detailed above’ (Employment Judge Choudry Judgment 29.8.23 paragraph 99.) And ‘The Claimant seeks assessed work experience. The way he has brought his case regarding this role is that he says in his claim form, “Not giving me, who could not (but for disabilities), struggling to demonstrate the competencies in the written application process, a chance to do so via another mode of assessment like a work experience opportunity.” I take this to mean he has acquired the experience but is saying he cannot demonstrate this by way of application form. The alternative would be he was asking for a temporary job to give him the experience he was lacking, and this is an even worse position than the one I assume he has taken, and which puts his case at its highest. Effectively, the Claimant appears to want the Respondent to take him on for an unspecified period which might be between two weeks and three months depending on what is being assessed, undertaking a role with similar tasks, for which he is seeking employment, so he undertakes the task and demonstrates he meets the behaviour. I agree with Ms Hodgett, this is completely out with how the law defined a reasonable adjustment. There is no reasonable prospect of the Claimant demonstrating to a Tribunal that it would be a reasonable adjustment. This isn’t just a different way of making an application as set out in the case of Government Legal Service v Brookes UKEAT/0302/16 [36-40], it would involve the Claimant and the Respondent dedicating significant time and resources and I accept there is no reasonable prospect of this aspect succeeding” (Employment Judge Mensah Judgment 8.11.23 paragraphs 62-65) The arguments raised by Ms Hodgetts for the respondents in these two matters concerning work experience are the same as the submissions she makes in this matter concerning work experience. PCP 2 62. Ms Hodgetts submits that the claimant cannot show that this is a disadvantage that people without his disabilities do not have. The claimant has the opportunity on his application form to say what he wants and what could be done instead. The claimant does not say that the written application puts him at a disadvantage. It is submitted that the claimant has substantial experience of making written applications and has other experience of producing written work for his LLB and LLM.[63]However, to the extent that the claimant has not taken the time in job applications to draw upon, distil and articulate aspects of his experiences succinctly and compellingly to satisfy the particular criteria / competencies / Behaviours sufficiently, however, he cannot show that this is a disadvantage that he has that people without his disabilities do not have; as opposed, for example, to its being a consequence of:(i) Making several job applications in a short space of time;(ii) Prioritising pursuing ET claims instead of diligently managing his application. (iii)Having no intention of addressing the job application properly. Further, the claimant will not show that he suffered a relevant substantial disadvantage because it is overwhelmingly likely that the Tribunal will find that he was not a genuine applicant for the advertised role. The claimant complained about having to sit the SJT despite passing it; and despite requesting this form of assessment in other applications; and the claimant continues with his campaign of ET litigation premised on the basis that any application process should be replaced with his being allowed to undertake work experience with respondents, notwithstanding several Judgments in other Claims repeatedly expressing that this is a wholly unreasonable request.[64]Its submitted from September 2022 there were a number of claims made by the claimant which necessitated compliance with various case management orders. By September 2022 Group 1-4 claims had been case managed. Its submitted that if this was a genuine application for a paralegal role then the application would have included information about his litigation experience with regard to communicating.[65]Ms Hodgetts submits that the claimant has no prospect of showing that the marks were deducted for grammatical errors in the assessment of the two behaviours (pages 176-177) not least as there does not appear to be any grammatical errors.[66]This was a previous issue raised by the claimant in the matters before Employment Judge Mensah who at page 94 paragraph 68 of her judgment dated the 8.11.23 stated ‘At this stage it is probably helpful to address the issue of grammar. At various points in the applications for roles with this Respondent the Claimant has mentioned grammar. I cannot identify any evidence to indicate the Claimant’s score was in fact impacted by grammar. Ms Hodgetts could not identify any grammatical errors and the Claimant has not identified any. I am therefore satisfied the Claimant has no reasonable prospect of showing grammatical errors placed him at a material disadvantage. I note he has been able to complete his law degree and an LLM and I consider it highly likely he is computer literate. On the evidence there is no reasonable prospect of this adjustments being a substantial disadvantage and no basis to say it is even linked to his impairments’[67]It is submitted that its self-evident that the respondents looked at both behaviours, not just the first one, as evidenced by the claimants scores at pages 185 and 194. With regard to the assertion that assessed work experience should have been provided the respondents rely on previous submissions on this point. Finally providing feedback is a form of consultation and does not constitute an adjustment and would make no difference in reducing or removing the disadvantage contended for. PCP 3[68]Ms Hodgetts submits this cannot be comparative substantial disadvantage as he has engaged in the voluntary sector and the labour market for several years as per the Judgment of Employment Judge Choudry at paragraphs 49,66 and 99 and Employment Judge Mensah paragraph 77. The respondents assert that the claimant has an advantage due to the lengthy litigation campaign he has undertaken but refuses to draw on this experience in his job applications. The claimant is sighting socio and economic reasons which fall short as indicated in the medical records provided, he spends his spare time in 2015-2016 going to the gym, films and surfing the internet.[69]Markers must be able to score the evidence in relation to Behaviours appropriately. The respondent is entitled to assess whether candidates can evidence that they meet the essential Behaviours at an appropriate level. The respondent applies the DCS. The claimant has sophisticated experiences, including doing a dissertation during his Master’s course and the ET litigation; but he has failed to take the time to marshal them properly; With regard to work experience previous submissions on the point were advanced.[70]The claimant made submissions in response. He stated that the respondent was relying on cases and decisions made in his absence. This was a reference to the fact that he had not attended the similar hearings previously listed for strike out before Employment Judge Camp, Employment Judge Choudry and Employment Judge Mensah. He did not think the SJT was the best way to test him. He conceded that he passed the test but stated that he was still at a disadvantage and suggested the score he got was a ‘fluke’. He didn’t agree with the past judgments. He conceded that he had not appealed any of them but was going to do so. He suggested that the respondents should have inferred knowledge from the number of ailments he had. He said he made an honest error with respect to the wrong claim particulars being submitted. He suggested that the CPS were selective with regard to the documents that went into the bundle. The claimant suggested that I should ‘beware of these judgments’ which was another reference to the fact he did not accept the decisions that previous Employment Judges had made. He submitted it was ‘not too much to ask for work experience’. The claimant submitted it would have not been difficult for the respondents to arrange this. The claimant said that his litigation experience was not that relevant as he had never succeeded in any of the claims he has.[71]The respondents responded to this primarily suggesting that it is impossible to show that the score on the SJT was a fluke. The respondents cannot show that. Its for the claimant to show a substantial disadvantage. 19th Claim: 1302695/2023: CPS: Paralegal Officer (243061) job application October 2022[72]The claimant’s case is at page 210 and the response at page 224. The candidates were required to sit a SJT. The claimant completed the ‘help at one test stage’ of the form at page 233 stating “I have not been able to acquire much experience over the course of time as it has been around 10 or so years of ill effects I have experienced due to the ailments. I therefore request an alternative method of testing, like a work experience opportunity. Or an alternative fair method of testing”.[73]In response, as set out at page 228, and evidenced at page 232, the respondents provided the claimant with further information about the test; provided him with a link to reasonable adjustments for online tests which set out information on the research, adjustments and case studies that had been undertaken in regard to the accessibility of the online tests; informed the claimant that the tests are periodically audited to make sure they meet web accessibility standards; reminded the claimant that the test was not timed and could be completed anywhere with internet access; offered him the opportunity to read transcripts alongside each video as part of the test; and asked the claimant to get in touch if he needed anything further to complete the test.[74]The claimant did not respond to the respondent’s correspondence and did not complete the test. In the application form the claimant’s evidence of behaviours were scored as 1/7/and 2/7 which didn’t meet the minimum threshold.[75]The claimant sets out the following PCP requiring candidates to sit SJT; comparative substantial disadvantage: greater difficulties completing SJT than someone without his disabilities. The reasonable adjustment contended for were to remove the SJT, to provide assessed work experience in its place and to seek medical advice regarding the claimants’ disabilities.[76]The respondent’s case is that the claimant cannot show the necessary comparative disadvantage. The respondents assert that the claimant passed the SJT in the selection exercise for the 18th Claim. The claimant in his pleaded case at page 210 is aware what is required and what also is subject to testing (paras 3 and 4 page 210) The respondents contend that they should be able to test that skill at paragraph 4 page 210. The claimant will not show that not having acquired sophisticated experiences would disadvantage him in the SJT in any event, even if it were true that he does not have sophisticated experiences. Disabled candidates did better in the exercise than non-disabled, he passed the SJT in claim 18, he didn’t sit the SJT so how can he know he was at a disadvantage, and he had said he did not have the acquired experience. The respondents make the point that the claimant was taking on this application in October 2022. There was a preliminary hearing in other matters concerning the claimant on the 21st September 2022.The claimant was to provide documents to add to that bundle by the 9th November 2022. He was able to maintain a campaign of litigation and the obligations that this presents. The respondents contend therefore how sitting one SJT would put him at a disadvantage.[77]The respondents contend that the claimant has a wealth of experiences. As found in previous Judgments in addition to his unusually extensive ET litigation experiences.[78]As part of the claimants earlier Claims, it was his positive case that he should have been allowed to undertake tests (in various forms) instead of advancing experiences to demonstrate competencies: (see Judgment of EJ Camp dated 10/9/19, at §74;Judgment of EJ Choudry dated 29/8/23, at §47, §60, §73, §81, §91).[79]The respondents assert that it is overwhelmingly likely that the claimant is not a genuine candidate. Given repeated Tribunal Judgments expressing a consistent view on the claimant’s broad case that all respondents should replace any elements of their job application processes with work experience (eg Mensah Judgment §65), The claimants persisting with this case strongly suggests that he is embarked on a campaign and is not genuinely interested in securing new employment.[80]Moreover, the claimant cannot show that the respondents had relevant knowledge of the disadvantage contended for. The claimant told the respondent (p233) that he had not acquired as many experiences as someone without his disabilities. That does not convey that he was disadvantaged doing the SJT; it merely conveys that he has not adequately considered the nature of the SJT.[81]The steps contended for would not be reasonable steps for the respondents to take. The claimant did not meet the minimum threshold in any event on the assessed behaviours. The claimant had already passed an SJT in claim 18 and the respondents are entitled to test to see if the claimant can meet the essential criteria.[82]Assessed work experience is obviously not reasonable either given the fact the claimant had passed an SJT in the 18th Claim, posts entail highly competitive selection exercises, the respondent is entitled to require that candidates meet the essential criteria. The respondents contend it is plainly unreasonable to require them to give the claimant assessed work experience instead of applying the SJT, given the burden it would impose in terms of resources, time, supervision, and confidentiality requirements; the timescale for recruitment; the risk of subjectivity and consequent unfairness to other candidates; and whether assessment on work experience would be efficacious: if, for example, a particular competencies scenario did not happen to arise, the candidate could not be assessed on it.[83]Consultation in relation to the claimants requested reasonable adjustments is not a step that would be reasonable for the respondents to have to take given the volume of applications and the need for efficiency, the claimants view that he should be given work experience and the fact that consultation is not of itself a reasonable adjustment.[84]In submissions the claimant stated that he had failed far more than he had passed referring to SJTs. He referred to the SJT he passed in claim 18 and stated he had an issue with this. Which figures were right and which were wrong? It may have been a fluke. He stated that work experience was a more efficient way of testing the criteria and this would have given him a ‘level of energy’ a ‘hands on energy’ that is better for assessment. The claimant stated that he had made them aware of his disabilities and it should have been obvious to them what the issues were. They should have requested an impact statement. The claimant went on to say that the figures regarding the application were dubious. The individuals saying they were disabled may not have been. In his opinion. The claimant went on to say that previous judgments had not given his point of view. They had omitted previous relevant documents, and they were not fully informed judgments. The claimant stated that the respondents must have the resources to offer work experience. They didn’t do it as they ‘couldn’t be bothered to do the paperwork’ The claimant also submitted that work experience could have been in different departments and would have allowed him to show the skills required. The respondents should also have consulted an occupational therapist. The claimant accepted that the previous judgments would stand but the claimant said he struggled to understand their decisions when he was not present. The claimant said that this ‘really bothered him’ and that ‘there must have been a meeting between yourselves (Judges) ….i know this is what you do you judges’ 20th Claim: 1302157/2023: CQC: Paralegal - Inquiries and Investigations (1260) September 2022[85]The claimant’s case is set out at page 262 and the response at page 278. The claimant submitted a written application at page 286-307. The claimant was informed on the 17th October 2022 that his application would not proceed at page 311. The pleaded case has several interesting points raised by the claimant at page 263. At paragraph 3 he pleads that at the time he made the application he was in a ‘deeply low state’. At paragraph 4 he mentions being ‘jolted into the application by my compulsive and impulsive behaviour’ . At paragraph 6 he states he ‘was not able to do it with care’. In paragraph 9 he just ‘copied and pasted his CV…’and at para 12 the following. ‘…at the time only mentioning minor grammar errors in writing caused by the above impairments….’[86]The respondents informed the claimant as follows; “The shortlisting panel have reviewed all the applications received, and we can confirm that regrettably your application did not meet the benchmark requirements at the shortlisting stage of our recruitment process and is therefore unsuccessful on this occasion” and there was follow-up on 20/10/22 (p310): “We also operate the Guaranteed Interview Scheme (GIS). Whereby we guarantee to interview anyone with a disability whose application meets the minimum criteria for the post. … However, unfortunately your application did not meet the benchmark requirements” Substantive feedback was provided on 3/11/22 at page 308. “The applicant did not have previous experience of case management, case progression and working with lawyers in legal proceedings. This is essential for this role. The applicant’s description of their existing role implied that they had organisational skills and the ability to be delivery focused. The application would have been strengthened by providing examples of when they had experience of working to ensure that deadlines were met and tasks were dealt with effectively and efficiently … We would encourage all candidates to focus their personal statements by providing specific examples to demonstrate the essential skills required for this role’[87]The claimant sets out the following PCPs PCP 1: requiring candidates to submit written application; comparative substantial disadvantage: greater difficulties completing written application. The reasonable adjustments contended for to provide assessed work experience instead of the written application stage, to investigate the claimants case when he brought the matter to their attention, request an impact statement and seek medical professional advice. PCP 2: requiring candidates to undergo a video interview; comparative substantial disadvantage: greater difficulties sitting interviews. The reasonable adjustments contended for were to give the claimant assessed work experience rather than an interview. PCP 3: requiring candidates to demonstrate competencies by reference to life experiences; comparative substantial disadvantage: The claimant asserts that he has fewer or lower quality life experiences. The reasonable adjustment contended for was to provide assessed work experience instead of the written application stage. PCP 1[88]Ms Hodgetts submits that the claimant cannot show that this is a disadvantage that people without his disabilities do not have. The claimant has experience of completing written applications and has produced other written work to obtain a law degree and an LLM. However, to the extent that the claimant has not taken the time in job applications to draw upon, distil and articulate aspects of his experiences succinctly and compellingly to satisfy the competencies sufficiently, however, he cannot show that this is a disadvantage that he has that people without his disabilities do not have; as opposed, for example, to its being a consequence of:(1) Making several job applications in a short space of time.(2) Prioritising pursuing ET claims instead of diligently managing his application.(3) Having no intention of addressing the job application properly. The claimant fails to mention the relevant experience that he has and it’s a deliberate choice not to disclose it.[89]The claimant appears to object to any form of application process adopted by the respondents, save for assessed work experience, illustrated by his objecting to a format which he had in other applications requested; and the claimant continues with his campaign of ET litigation essentially premised on the basis that any application process should be replaced with his being allowed to undertake work experience with the respondents, notwithstanding several Judgments in other claims repeatedly expressing that this is a wholly unreasonable request.[90]The claimant will not show that the respondents had knowledge of the asserted disadvantage. He does not mention it in his application (p286); and as the respondents observed at p310, neither had the claimant indicated that he wished the GIS to be applied to him.[91]The respondents repeat their submissions regarding assessed work experience. Further it would not be reasonable not to have a written application process. A consultation in relation to the claimant’s request for reasonable adjustments is not a step the respondents could reasonably take due to the need for efficiency, his view he should have work experience in any event and the fact that a consultation is not a reasonable adjustment. PCP 2[92]Ms Hodgetts submits that its not possible to show that the claimant was put at a disadvantage as his application did not proceed beyond the first stage. The claimant cannot show that the respondents knew he was at a disadvantage. To replace the interview with assessed work experience was futile as the claimant did not pass the first stage. The respondent relies on all the previous points submitted regarding providing assessed work experience instead of an interview in particular the burden that would impose on resources, time, supervision, confidentiality, timescale for recruitment, subjectivity and efficacious. PCP 3[93]The previous submissions on the claimant’s life experiences and the request for assessed work experience are repeated.[94]In submissions the claimant asserted that the respondents would have had knowledge of the impact his ailments had on him as they had knowledge of his ADHD diagnosis. Though he has completed the LLB and LLM he only scored a 2:2 degree which shows he was a mediocre candidate. He commented on the respondent’s assertion that putting in detail about his ongoing ET litigation would have been a good way to show his capability for the post. The claimant said that ET litigation had been ‘a source of torment for me…. struggling to do it……failed in litigation but have this need to change the way it is’. He went on to say that it is practicable to do work experience and that the respondents decide to do that they ‘shoot themselves in the foot……they build up the application form so that they cannot offer work experience…. personal view and an argument”. They could move the work experience around to different departments. The claimant disagreed that he has a wealth of experience and said it was ‘very basic stuff’. They should have anticipated a video interview, and an impact statement would allow them to understand the severity of the conditions. The claimant again said if he had work experience it would have given him an ‘energy’ to show his qualities. The claimant Accepts he has never been successful with any of his ET Claims. 21st claim: 1303023/2023: CPS: entry onto National Legal Trainee Scheme 2023/2024[95]The claimant’s case is pleaded at page 327 and the response is at page 345 et seq. It’s the same premise as the as one of the claims considered by Employment Judge Camp in August 2019. At paragraph 21 page 11 in the bundle Employment Judge Camp states the following, ‘As already explained, the claim relates to the CPS’s requirement, which reflects Law Society regulations, that those who start training contracts with the CPS should have the LPC. The claimant, realistically, accepts that requiring applicants to have successfully completed the LPC was reasonable and legitimate, and he is not suggesting that that requirement should not have been in place, nor that it should have been varied or set aside for him’ This is the same position adopted by the claimant in these proceedings. The flaws highlighted by Employment Judge Camp are equally relevant to these proceedings namely entry onto the scheme required completion of the LPC which is an SRA requirement, the claimant has not done the LPC and the complaint is in reality about the failure to have a sponsorship scheme to enable the claimant to undertake the LPC. As Employment Judge Camp set out at para 28 at page 8 of his judgment ‘Turning to the reasonable adjustments claim, at this hearing the claimant at first said the PCP (“provision, criterion or practice”) he relied on was: “Not having a scheme for disadvantaged persons with the aim of equipping a successful candidate with the LPC so that they could then apply for these training contract schemes”. Even though he subsequently abandoned that PCP, that is, in fact, his true case. The reality is that this particular claim is not really an employment claim at all. Instead, it is a claim about the CPS’s failure to have a scholarship / sponsorship scheme relating to the LPC. If it belongs anywhere, it is in the County Court’.[96]At page 329 paragraph 2 the claimant states that he doesn’t have the LPC due to ill health over the course of many years however the respondents point out that he has the benefit of the LLB and the LLM and the LPC can be completed over 2 years. The assertions made by the claimant in paragraph 2 page 329 are not supported by the references in bundle 2 page 47 suggesting he was being supported by his parents while doing the masters with no issues. The claimant states that he was not expecting but trying to get the LPC covered for by the respondents (for me to repay them eventually) and this is a clear reference to the claimant seeking to get the respondents to pay for the LPC. This is similar to the issue that Employment Judge Camp was dealing with at paragraph 33 of his judgment as follows, ‘The step the claimant alleges it would be reasonable for the CPS to have to take to avoid the disadvantage is, essentially, acceding to a suggestion he made in correspondence in March 2018: “that I be allowed to apply as normal and if successful the CPS fund my LPC for me to repay it back. In the meantime, and subsequently while doing the LPC, I work as a paralegal at the organisation and be paid at the minimum wage (lower than the average rate). From the salary earned, I could also start to repay the sum owed to the organisation and support myself throughout. When the qualification is gained, I then switch to the position of a trainee; and by this time, I imagine I would have learned immensely from the paralegal role and have become so accustomed to the expectations of the CPS, that the transition in duties would be swift and effective.” And then at paragraph 34 ‘This claim is hopeless and plainly has no reasonable prospects of success’[97]The claimant wrote to the respondents on 5/1/23 stating that he considered it was unfair that prospective candidates for the Scheme were required to have completed the LPC,and requesting that respondents should pay for him to complete the LPC: p362 et seq. In response, Ms Balmer of the respondents informed the claimant about the internal Prosecutor Graduate Pathway Scheme and recommended he apply for an alternative role so that he could apply for that scheme and thus have an opportunity to receive LPC funding: p361. The claimant failed to do so, and did not apply at all.[98]As highlighted by Employment Judge Camp at paragraph 36 of his judgment ‘given that the only way of applying the aim to him would have been to do as the CPS did: to tell him he could not apply because, come November 2018, he was not going to have the LPC? Whatever else, then, the claimant’s claim is defeated by the calendar. There was no practicable way for the CPS to have facilitated the claimant getting the LPC by the 22 October 2018 deadline’.[99]You have to have the LPC at the start of the scheme. Given the application was January 2023 and the scheme starts autumn 2023 then the claimant could not have attained the LPC at the start of the scheme. He finds himself in the same position as he was before EJ Camp.[100]The claimant sets out the following PCP namely that requirement to have completed the LPC [for an application] to join its trainee scheme[to be considered] ; comparative substantial disadvantage: the claimant asserts that he would have greater difficulties completing the LPC than someone without his disabilities. The reasonable adjustments contended for were to waive the requirement to have completed the LPC; fund the claimant to do the LPC,seek an impact statement and to replace the requirement for the LPC with assessed work experience. PCP[101]Ms Hodgetts submits that the claimant cannot show a comparative substantial disadvantage as the claimant has never attempted to take the LPC. He cannot therefore demonstrate the disadvantage that he would have greater difficulties completing it. The claimant is unlikely to show anything other than his difficulty in completing the LPC is due to the fact that he has never attempted to start it.[102]Moreover, it appears that C’s real case is that he would have greater difficulties commencing, or securing the funding to commence, the LPC; he sets out in correspondence that his failure to undertake the LPC is largely because of issues of money, family, and social sphere: p327. He also asserts that his religion prevents him from taking out a loan (p363); something he also asserted in August 2019, which EJCamp correctly regarded with some caution, given the existence of Sharia-compliant loans: pp15-16 §§50-51. If relied upon, the claimant cannot show that the substantial disadvantage as defined here, would not arise in the case of someone without his disabilities: it clearly relates to socio-economic factors.[103]Ms Hodgetts submits that it is wholly unreasonable to waive the requirement to have sat the LPC. It is a requirement of the SRA that it is undertaken. To fund the claimant to do the LPC is unreasonable. It would not be fair and open to other candidates who would struggle to cover the costs of the course and there was an alternative route to undertake the LPC once employed by the respondent’s page 361.It would also be a wholly improper use of taxpayer’s money. The respondent repeated the submissions regarding consultation and work experience.[104]Ms Hodgetts submits the complaint in reality being about the failure to have a sponsorship scheme to enable the claimant to undertake the LPC and the ET has no jurisdiction to hear the claim. It’s submitted that this claim is totally without merit.[105]The claimant submitted that the claim should not be in the county court. He mentioned that there were accelerated LPC courses with one being at the University of Birmingham. The claimant then went onto say that there should have been a medical or psychological report and the seemed to be an implied criticism of the respondents.[106]It was established that there was an accelerated LPC course of 6 months but only if this was part of a sponsorship scheme by a law firm. The claimant was too unwell to attend CVP hearings in April 2023 so it calls into question how viable, even if it was possible, to start an accelerated LPC course in the January lasting for 6 months.[107]With respect to the deposit order the claimant gave evidence on oath. Ms Hodgetts established that his net salary would be £1612.50 and his PEP (Personal Independent Payment) £405 per month giving him a total of £2017.50. His monthly outgoings were roughly £920 per month.
Conclusions
[108]I have considered the bundles, and the oral submissions made to me by both the claimant and Counsel for the respondent. In considering the respondents application for strike out I note that I need to take the claimant’s claim at its highest. I also remind myself that it is only in the clearest of cases that a discrimination claim can be struck out. My conclusions are as follows. 18th Claim: 1308505/2022: CPS: Paralegal Officer (West Midlands, WMID1357) job application September 2022.[109]PCP1: I am satisfied on the information before me that the claimant comparative substantial disadvantage. The claimant passed the SJT. The claimant therefore cannot show that he has greater difficulties completing such tests than someone without his disabilities. I accept the respondent’s submission that the claimant had in other applications sought for written tests rather than advancing experiences as a way of testing. The respondents did not have the relevant knowledge as there was nothing on the application form that alerted them to any issue. There was nothing on the application that would indicate the claimant could not sit the SJT.[110]I accept that it would be unreasonable to remove the requirement of the SJT. I stress again the claimant passed the SJT. For all the reasons articulated at length by the respondents it would not be reasonable to provide assessed work experience. The issue of providing assessed work experience has been addressed at length in this hearing and in other judgments for similar positions and on each and every time it has been found that assessed work experience would not be reasonable. The claimant’s submission that though he passed the test he was still at a disadvantage as it could have been a fluke was completely illogical and non sensical.[111]PCP2: I am satisfied on the information before me that the claimant comparative substantial disadvantage. He cannot show that this is a disadvantage that people without his disabilities do not have. At no point does the claimant state on his form that a written application would put him at a disadvantage. It was submitted at length that the claimant has substantial experience of producing written work and such as the work required for his LLB and LLM. He also produces written work in support of his numerous ET Litigation. All these submissions have been highlighted in previous judgments and I accept them. I accept that the claimant cannot show that marks were deducted for grammatical errors not least there were no grammatical errors. I accept that the respondents considered both behaviours and accept the submissions of the respondent regarding the alternative provision of assessed work experience. I also accept that providing feedback is a form of consultation and does not constitute an adjustment. It makes no difference in reducing or removing the disadvantage contended for.[112]The claimant submitted that it was ‘not too much to ask for work experience.’ I totally reject this submission and accept all the points raised by the respondents on this issue. I note this has been a recurring theme in previous judgments and on each occasion the point has been raised by the claimant it has been rejected. It would appear to be an issue that has been thoroughly exhausted by the claimant, without any success and yet it is raised again during this hearing without any success.[113]PCP3: I am satisfied on the information before me that the claimant comparative substantial disadvantage. It is clear that the claimant has been involved in the labour market and voluntary sector for years. Again this has been highlighted in previous judgments (EJ Choudry paras 49,66 and 99 and EJ Mensah para 77.) and there are numerous examples in the bundle where the claimant highlights his experience eg his CV at 173-177. The claimant chooses not to draw upon his lengthy litigation campaign in the ET as another example to include within his application. The respondents are entitled to assess whether candidates can evidence that they meet the essential behaviours at an appropriate level. I accept the previous submissions made by the respondents regarding offering assessed work experience as an alternative.[114]The claimant spent most of his submission stating that it was unfair to rely on the decisions of other judges as he was absent from those hearings. Those judgments remain unchallenged, and they stand. The claimant did say that his litigation experience was not relevant as he had never succeeded in any of his claims. I accept that the claimant has never succeeded in any of his litigation claims in the ET on his own admission. I do not accept that the experience of preparing such claims, marshalling the evidence, responding to emails from the ET and the respondents, dealing with case management hearings and the direction for disclosure is not relevant. These are directly relevant qualities that the claimant chose not to refer too.[115]In light of the above I am satisfied that the claimants claim 18 has no 19th Claim: 1302695/2023: CPS: Paralegal Officer (243061) job application October 2022[116]PCP1: I am satisfied on the information before me that the claimant comparative substantial disadvantage. The claimant passed the SJT in relation to the selection exercise in claim 18. It is therefore impossible to show that he would have had greater difficulty in completing the SJT than someone without his disability as he had already passed an SJT in another selection exercise. The claimant also failed to take the test so its impossible to say that he was at a disadvantage. I accept the respondents submission that the claimant was not a genuine candidate for the position he was applying for. The claimant repeatedly raises the request that respondents should replace elements of the job application process with work experience. This proposition is not accepted time and time again in other judgments and raises the question why the claimant still continually seeks to advance it. The respondents submit the claimant is embarking on a campaign and is not interested in seeking the employment he applies for. It was worthy of note that the claimant submitted the following in oral submissions; ‘proceedings that are current and in future anticipating and in the past a source of torment but I have the desire to continue and change things so people like me can have a fair opportunity’ This comment would seem to suggest that the claimant finds the proceedings a source or torment but will continue with future proceedings in order to change things. It is not indicative of somebody who is making genuine applications in order to actually get the jobs he is applying for.[117]I accept the steps the claimant contended for were not reasonable. The claimant did not meet the minimum threshold in any event on the assessed behaviours and had already passed an SJT in claim 18. I accept the respondents submissions regarding providing the claimant with assessed work experience. Consultation in itself is not a reasonable adjustment.[118]The claimant said in submissions that he had an issue with the SJT in claim 18 stating which figures were right and which were wrong and that it may have been a fluke. I do not accept this submission. The only reasonable conclusion to take is that the claimant is capable of passing an SJT. The claimant stated that work experience would give him a ‘level of energy’ and ‘hands on energy’ that would be better for assessment. I do not accept this submission and accept all the points made by the respondents regarding the suggestion of assessed work experience. The claimant went on to say that the figures regarding disabled people passing the tests etc were dubious as they may not have been. There was absolutely no evidential basis for this assertion whatsoever and its rejected. The claimant went onto say that he accepted that the previous judgments stand but this bothered him. He could not understand these decisions when he was not present. He went onto say ‘there must have been a meeting between yourselves (judges) I know this is what you do you judges’. This would seem to be a suggestion that the judges dealing with his claims have in someway colluded against him. Any such suggestion is wholly without merit. Likewise there was a theme of implied criticism of the respondents in the sense they had kept out of the bundle important documents that would have assisted him. I completely reject this submission. It is apparent that the respondents on the run up to this hearing went over and above what would be expected to help a litigant in person as the claimant is.[119]In light of the above I am satisfied that the claimants claim 19 has no 20th Claim: 1302157/2023: CQC: Paralegal - Inquiries and Investigations (1260) September 2022[120]PCP1: I am satisfied on the information before me that the claimant comparative substantial disadvantage. The claimant cannot show that this is a disadvantage that people without his disabilities do not have. I rely on all the previous points submitted by the respondents with regard to the claimant’s ability to complete written work ie LLB and LLM success, litigation experience in the ET and other written applications for other posts. I accepted all the previous submissions made by the respondents regarding the requirement to provide assessed work experience as an alternative means of assessment. I also accept that the respondents had no knowledge of any disadvantage as it is not mentioned in the application. I accept the respondents submission that a consultation in relation to the claimants request for reasonable adjustments is not a step the respondents could reasonably take due to the need for efficiency, his view he should have work experience in any event and the fact that a consultation is not a reasonable adjustment.[121]PCP2: I am satisfied on the information before me that the claimant comparative substantial disadvantage. I accept the respondent’s submission that it is not possible for the for the claimant to show a disadvantage as his application did not proceed beyond the first stage. I accept the previous submissions made by the respondents referring to assessed work experience as an alternative to the interview.[122]PCP3: I am satisfied on the information before me that the claimant comparative substantial disadvantage. The respondents’ previous submissions regarding the detail and relevance of the claimant’s life experiences and work experience as a replacement are accepted in their totality.[123]In submission the claimant said that though he passed the LLB he only got a 2:2 grade and so was a mediocre candidate. Whether this was true or not it misses the point. The claimant would have had to submit numerous written pieces of work for the LLB and the LLM which he was clearly happy to attempt and pass. The claimant said his experience was ‘very basic stuff’. I do not accept this submission. It is clear that is his various roles he has held positions of responsibility in a variety of positions.[124]In light of the above I am satisfied that the claimants claim 20 has no 21st claim: 1303023/2023: CPS: entry onto National Legal Trainee Scheme 2023/2024[125]PCP1: I am satisfied on the information before me that the claimant comparative substantial disadvantage as the claimant has never attempted to take the LPC. As in the claim before EJ Camp in August 2019 the claimant accepts that requiring applicants to have successfully completed the LPC was reasonable and legitimate, and he was not suggesting that the requirement should not have been in place nor that it should have been varied or set aside for him.[126]I accept that the flaws highlighted by EJ Camp in August 2019 are equally applicable to this element of the claim. In order to get on the scheme, you have to complete the LPC. This is an SRA requirement. The claimant has not done the LPC. The complaint in reality is about the lack of a sponsorship scheme to allow the claimant to undertake the LPC. It is not for the remit of the Employment Tribunal.[127]I accept the submission that to fund the claimant to do the LPC is unreasonable and would not be fair on other candidates. An alternate route was suggested to the claimant by the respondents at page 361. I also accept the respondents’ submissions that in reality the claimant was defeated by time. Given the scheme was applied for in January 2023 and started in autumn 2023 it was impossible for the claimant to have obtained the LPC over this period of time and by the deadline.[128]I accept the respondent’s submission regarding assessed work experience and consultation for all the reasons previously advanced by them.[129]The claimant stated that the University of Birmingham did an accelerated LPC over 6 months. The only possible accelerated scheme is a scheme as part of a sponsorship via a law firm which is something the claimant did not have.[130]Considering the above I am satisfied that the claimants claim 21 has no reasonable prospects of success and it should be struck out. I also accept the respondent’s submission that this claim was totally without merit.