C Mallon v Electus Recruitment Solutions Ltd: 1403362/2020
EMPLOYMENT TRIBUNALS
Case No 1403362/2020
Between
C MallonClaimantElectus Recruitment Solutions LtdRespondent
Before
Employment Judge Mr. M. SalterIn person for claimantDate 19 September 2022
JUDGMENT
It is the judgment of the tribunal that the Claimant’s claim of:(a) direct disability discrimination is struck out and has no reasonable prospect of success;(b) failure to make reasonable adjustments is: (i) not struck out as having no reasonable prospects of success; (ii) not vexatious as defined; and (iii) not to be made subject of a deposit order.
REASONS
References in square brackets below are unless the context suggests otherwise to the page of the bundle. Those followed by a § refer to a paragraph on that page and references that follow a case reference, or a witness’ name, refer to the paragraph number of that authority or witness statement. References in round brackets are to the paragraph of these reasons or to provide definitions.
INTRODUCTION
[1]These are my reasons for the above judgment. Having heard evidence and submissions on Tuesday, 3rd August 2021 I was unable to consider my decision and give judgment within the remainder of the day, and so I reserved my decision.[2]As stated to the parties at the hearing, the Employment Tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of the Tribunal’s Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness. BACKGROUND The Claimant’s case as formulated in his ET1
BACKGROUND
[3]The Claimant’s complaint, as formulated in his Form ET1, presented to the tribunal on 4th July 2020, is, in short, he was discriminated against on grounds of his disability; that discrimination taking the form of direct discrimination and a failure to make reasonable adjustments. He complains that his application to the Respondent for a role they were conducting a recruitment process for was unsuccessful. The Respondent was a recruitment agency acting on behalf of a separate company looking to fill a vacancy. The Respondent’s Response[4]In its Form ET3, received by the tribunal 21st August 2020, the Respondent denied the claimant had been discriminated against as alleged or at all. Their contention is that the Claimant did not have the essential skills necessary for the role he was applying for and that is why his application did not progress pas an initial sift. Relevant Procedural History[5]The matter was listed for a Preliminary Hearing for Case Management before E.J Rayner on 14th April 2021 [33]. The day before the hearing the Respondent applied to strike out the Claimant’s claim [29].[6]At the Preliminary Hearing E.J. Rayner ordered:(a) the matter be set down for a one-day Preliminary Hearing to determine the Respondent’s application;(b) there be sequential exchange of witness statements, with the Respondent disclosing their statements first;(c) the Claimant was permitted to serve a skeleton argument 4 weeks after the Respondent’s skeleton argument was served;[7]In that hearing E.J. Rayner helpfully summarised the case’s facts [40 §57- 64] and identifies the issues to be determined at any Final Hearing. So far as is relevant to the task I am asked to undertake, the list of issues states: Direct disability discrimination (Equality Act 2010 section 13)2.1 The Claimant describes himself as disabled as having dyspraxia.2.2 Did the Respondent do the following things: 2.2.1 failed to put the claimant forward for a position he had applied for;2.3 Was that less favourable treatment? The Tribunal will have to decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and those of the Claimant. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether he was treated worse than someone else would have been treated. The Claimant has not named anyone in particular who he says was treated better than he was and therefore relies upon a hypothetical comparator.2.4 If so, was it because of disability? 3. Reasonable Adjustments (Equality Act 2010 ss. 20 & 21)3.1 Did the Respondent know or could it reasonably have been expected to know that the Claimant had the disability? From what date?3.2 A “PCP" is a provision, criterion or practice. Did the Respondent have the following PCPs: 3.2.1 policy of asking for written job applications; …3.3 Did the PCPs put the Claimant at a substantial disadvantage compared to someone without the Claimant’s disability, in that the claimant finds it harder to complete a written job application form?3.4 Did the Respondent know or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage?3.5 What steps (the ’adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests: 3.5.1 he should have been given the opportunity to make an oral application for the post;3.6 Was it reasonable for the Respondent to have to take those steps and when?3.7 Did the Respondent fail to take those steps? Subsequent Developments[8]After this hearing the Claimant provided details of 4 other claims he “could find” [43]. He accepts there are more [43]. The Respondent has identified 8 claims [43A][9]A further case management hearing was held on 5th July 2021 before Employment Judge O’Rourke. At this hearing the Claimant stated he could not comply with the Order of Employment Judge Rayner for a written witness statement. E.J. O’Rourke therefore ordered two emails of the claimant stand as his statement and he would answer any questions asked of him in cross-examination [43e §10] TODAY’S HEARING General[10]The matter came before me to consider the strike-out and deposit order application. The hearing had a one-day time estimate. The Claimant represented himself, and the Respondent was represented by Mr Mahmood, of counsel.[11]This was a remote hearing which was not objected to by the parties, being conducted entirely by CVP video platform. A face-to-face hearing was not held because it was not practicable and no-one requested the same it was conducted using the cloud video platform (CVP) under rule 46.[12]The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no significant difficulties.[13]The participants were told that it was an offence to record the proceedings.[14]Evidence was heard from the witnesses via video link. I was satisfied that none of the witnesses was being coached or assisted by any unseen third party while giving their evidence. Particular Points that were Discussed Litigant in person[15]As the Claimant was representing himself I took time to explain to him:(a) the purpose and approach to cross examination;(b) that whilst I would do my best to ensure he was on an equal footing with the Respondent who was represented, and whilst I am able to ask questions of the witnesses in the case, I am not able to conduct cross examination of those witnesses on behalf of him; I also explained that part of cross examination was to “put the case” to the witness, and what this entailed.(c) the requirement to put his case to every witness, or I will consider he accepts the point left unchallenged;(d) that he would get an opportunity at the end of the hearing to make submissions, if he wanted to, to tell me why he should win his claim;[16]Despite this explanation, at various times during the questioning of the witness it appeared me that matters had not been put by the Claimant to the Respondent’s witnesses, so I had to remind him of his obligations in this regard. DOCUMENTS AND EVIDENCE Witness Evidence[17]I heard evidence from the Claimant. The referred to by Employment Judge O’Rourke were at page 211 and 231 of my bundle. the Claimant had marked up his copy of the Respondent’s witness statements and wished to give evidence using those. The Respondent did not object to that approach[18]I also heard evidence from the following witnesses on behalf of the Respondent:(a) Andrew Little, the Respondent’s Client Relationship Director; and(b) Mark Day, a Director of the Respondent.[19]All witnesses gave evidence by way of written witness statements that were read by the me in advance of them giving oral evidence. All witnesses were cross-examined.[20]There is also a statement from the claimant’s partner [209]. The Respondent indicated they did not have any questions for her and so it was unnecessary for her to attend to give evidence. I have taken into account those aspects of her witness statement which concern matters she saw, heard or did personally. I have not attached weight to those parts of her statement in which she simply sets out what was told to her if there was direct evidence to this point. Bundle[21]To assist me in determining the matter I have before me today an agreed bundle consisting of some 231 numbered pages (albeit there were additional pages numbers XXa etc, so there were 236 pages in total) prepared by the Respondent. Pages 1-176 were agreed whilst pages 177- 231 were identified the Claimant’s documents.[22]My attention was taken to a number of these documents as part of me hearing submissions and, as discussed with the parties at the outset of the hearing and before commencing their submissions, I have not considered any document or part of a document to which my attention was not drawn. I refer to this bundle by reference to the relevant page number. SUBMISSIONS Claimant[23]Despite the opportunity, the Claimant did not provide written submissions. The Claimant made oral submissions which I have considered with care but do not rehearse here in full. His submissions took around 20 minutes and addressed a wide range of matters, many of which were not relevant to the questions I am asked to answer, and so on two occasions I had to request the Claimant focus on the issues I was to determine today. The Claimant’s submissions understandably focussed on his explanation as set out in his statements. Respondent[24]I had a helpful written skeleton argument which Mr. Mahmood supplemented with brief oral submission. Since the skeleton is in writing it is unnecessary to repeat it here. In his submissions Mr Mahmood highlighted the Claimant’s evidence today to me and the Claimant’s acceptance of large parts of the Respondent’s case. MATERIAL FACTS General Points[25]Unusually for such an application I heard evidence from both parties. However, when I considered it appeared to me that the core of the evidence was largely uncontroversial and so I do not consider that I need to recite it in detail or make factual determinations on core issues. The Claimant and his claims[26]Since 2008 the Claimant has commenced over 100 claims in tribunals [136], with 40 since 2017. In cross examination the claimant confirmed that since 2018 there had been about 60 claims issues. He is the subject of 40 published tribunal judgments and since 2018 he has withdrawn at least 39 claims [71-72] including a previous claim against the Respondent.[27]The documents show he has at least 8 live claims before the tribunals at present, however in oral evidence he stated this could be up to 15 or 16 claims, he was not sure.[28]In previous litigation the Claimant accepted that Employment Judges have noted:(a) the Claimant early on would threaten litigation if his demands were not met;(b) a “strong suspicion” the claimant was using the application process in the hope of making money;(c) “the long sequence of claims brought and then withdrawn”(d) the claimant has been subject to numerous costs awards arising from his applications.[29]All claims concern failures by him to secure interviews or job roles.[30]He accepted his claims appear to follow the same process. The Claimant submits a generic cv is submitted for a role. He is frequently unsuccessful in his application, often failing on the core criteria for the role. He then issues claims for compensation and often he withdraws that claim at some point. This Application Giving Rise to This Claim[31]The following are agreed or unchallenged facts:(a) the Claimant applied for a role through the Respondent. He uploaded his CV [160]. This was a standard document that the Claimant has not updated;(b) the Claimant has used the Respondent before, completing over 100 job applications with them since 2009. Mr. Little, the Respondent’s Client Relationship Director, has experience with the Claimant previously;(c) the Claimant has had oral applications before with the Respondent [138-142, 145-148] during which, and without any probing of the job role or essential skills by the Claimant at all, he withdrew his interest in the role and his application. An “oral application” is not an interview, it is a discussion about, amongst other things, the core criteria of the role, it is a preliminary step before any interview;(d) on the occasion in question in these proceedings Mr Little determined the Claimant did not meet the essential requirements for the role [158] and so he was not put forward for it. He was written to and notified of this [163]. It was confirmed to him that he did not have the essential skills required;(e) of the 130 or more applications the Respondent received for the role in question in these proceedings, they only forwarded three to the company they were recruiting for, and all of these three were unsuccessful;(f) within 6 minutes of receiving notification of being unsuccessful, the Claimant had responded asking if the respondent “have a problem with disabled people working”(g) the Claimant contacted ACAS an notified the Respondent of this. He referred to legal action [168-171].(h) the Respondent offered him an oral application. He declined.(i) The Claimant directly approached the company the Respondent was recruiting for and had been permitted an oral application with them. This oral application was not successful, that is the application was not progressed after the initial discussion;(j) The Claimant continues to make applications to the Respondent for roles which he does not meet the essential criteria for (Day 8-14)[32]The Claimant’s history of job applications shows little consistency in sector, experience, level, salary, benefits or location [Day §4]. The Claimant contends this is because he has a varied portfolio of previous roles, with 19 jobs in the last 7 years of employment. THE LAW Statute
The Law
[33]So far as is relevant the Equality Act 2010 states: 4 The protected characteristics The following characteristics are protected characteristics— … disability 13 Direct discrimination.(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. … 20 Duty to make adjustments (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.[34]So far as is relevant Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 state[37]Striking Out (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;[39]Deposit Orders (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.35. The main authorities I considered are as follows: In respect of vexatious claims, in his skeleton argument Mr. Mahmood referred me to the case of Her Majesty’s Attorney General v Kuttapan UKEAT/0478/05/RN and set out paragraph 3-6 of that judgment. I do not repeat that extract here.36. I also bore in mind the Appeal Tribunal’s decision in Zeb v Xerox (UK) Ltd UKEAT 0091/15 Mrs Justice Simler held that the power of strike out has rightly been described as a draconian one, and case law cautions Employment Tribunals against striking out a claim in all but the clearest cases, particularly where that claim involves or might involve allegations of discrimination. Cases in which a strike out can properly succeed before the full facts have been found are rare.”37. In that decision SImler J. referred to the well-known comments of Lord Steyn and Lord in Anyanwu v South Bank Students' Union [2001] IRLR 305 at paragraphs 24 and 37 respectively.38. In Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 in the Court of Appeal, Maurice Kay LJ said: 29. It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the employment tribunal to decide otherwise. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level. 39. In the case of Ahir v British Airways Plc [2017] EWCA Civ 1392 Underhill LJ said: “As I already said, in a case of this kind, 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 that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced”[40]In the case of Van Rensberg v Royal Borough of Kingston Upon Thames UKEAT/0096/07, Elias J stated that a Tribunal has greater leeway when considering whether or not to order a deposit to make a provisional assessment of the credibility of a party’s case CONCLUSIONS ON THE ISSUES General
Conclusion
[41]Having regard to the findings of relevant fact, applying the appropriate law, and taking into account the submissions of the parties, I have reached the following conclusions on the issues the parties have asked me to determine.[42]I will first determine whether the claims should be struck out either on grounds of having no reasonable prospects or because they are vexatious. If I consider that the/a claim is not struck out for whatever reason I will consider whether it/they should be made subject of a deposit order.[43]I should say that cross examination of the Claimant took longer than had been initially timetabled, this is no criticism of Mr Mahmood, rather the Claimant repeatedly failed to answer the questions that was asked of him resulting in the question having to be re-asked often multiple times before a relevant answer was obtained. Even giving all due latitude to the Claimant in this regard I found him to be an unconvincing witness. Findings on the Issues Issue 1: No Reasonable Prospect: Direct Discrimination (Paragraph 2.2-2.4 Employment Judge Rayner’s List of Issues) Paragraph 2.2: did the Respondent fail to put the claimant forward for a position he had applied for?[44]It is agreed the Claimant’s application was not forwarded to the recruiting company by the Respondent. Paragraph 2.3: Was this Less Favourable Treatment?[45]On the agreed evidence before me the claimant did not meet the essential criteria for the role he applied for. Indeed, his direct oral application to the company failed for this very reason.[46]There were almost 130 other candidates who did not meet the criteria and were not forwarded to the recruiting company. The Claimant was treated the same as them.[47]I consider, therefore, on the basis of this evidence that the claimant has no reasonable prospect in showing that there was less favourable treatment between him and the other candidates who did not meet the criteria for the role. These appear to me to be the relevant comparators. Paragraph 2.4: was this because the Claimant had Dyspraxia?[48]There is no evidence of any less favourable treatment. Questions of the motive for that treatment do not, therefore, arise for me to assess. Conclusion[49]Having considered the guidance from the case law above, I consider this is a case where a discrimination claim should be struck out. The Respondent has satisfied me on the agreed evidence that the claimants claim of direct discrimination has no reasonable prospects of success. Issue 2: No Reasonable Prospects: Failure to Make Reasonable Adjustments[50]On the agreed facts:(a) the initial sift of applications was done on the papers that the candidates provided. The Respondent denies this is a PCP;(b) the Claimant’s application was not successful at this stage;(c) there is a period of time starting with when the Claimant’s application was assessed and rejected on the basis of his paperwork, before he was offered an oral application by the Respondent;[51]With this in mind, it appears to me that at the heart of issue 3.3 (substantial disadvantage), 3.4 (knowledge of that disadvantage) and 3.6 (reasonableness of the step) of Employment Judge Rayner’s list of issues are factual questions, requiring a careful factual analysis of the claimant’s particular circumstances; whether in the circumstances of this claimant’s application for this role he was placed at a substantial disadvantage, as well as an assessment of whether, in all the circumstances, the actions of the Respondent were reasonable.[52]In such circumstances, with such factual matters at the core of the claim, I do not consider that this is the sort of claim that falls within the narrow band of discrimination cases identified by the case law that should be struck out as showing no reasonable prospect of success. Issue 3: Vexatious[53]I must admit to being concerned over the claimant’s motives for this large number of claims and do not accept his evidence that the bulk of these claims came about owing to his lack of knowledge of the process or law at the time as he contended before me. These concerns appear to be shared by other employment judges.[54]The Claimant continues to issue claims and, when pressed on the number of claims he had outstanding at the tribunal, was entirely unconvincing that he did not know.[55]That said, despite my concerns, I do not consider this particular claim of a failure to make reasonable adjustments falls within the definition of vexatious as it applies in employment tribunals. I cannot say that, even though it may have a seemingly very modest financial value, it, in the words of Lord Bingham in A-G v Barker [2000] 2 FCR 1, has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the Claimant; and that it involves an abuse of the process of the court meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.[56]I do not consider that the history of this claimant issuing claims and the various comments I have been taken to by other judges as to his motives gives me material to consider that this particular claim is vexatious as defined.[57]There are matters of evidence that would need to be considered by a full tribunal hearing, so I do not strike the reasonable adjustments claim out on the basis it is vexatious. Issue 4: Deposit Order[58]I turn, finally, to consider whether the Reasonable adjustments claim, as brought, enjoys something more than “little reasonable prospect of success” as required by r39.[59]I feel it does for the reasons set out in the paragraphs above dealing with the strike out of this claim. I cannot say that there is little reasonable prospect of a tribunal considering that the Respondent’s actions were unreasonable, albeit the Claimant may not have cleared this modest threshold by much, and he should not consider that he has any sort of judicial endorsement in this judgment for the strength of his claim, beyond it surpassing the r39 hurdle.
Conclusion
[1]By a claim form presented on 4 July 2020 the claimant brought a claim for discrimination on grounds of disability. The clamant suffers from dyspraxia and claimed that reasonable adjustments were not made to enable him to apply for a role as Technical Manager via the respondent, an employment agency; specifically, that he was not telephoned by the respondent nor provided with a list of the essential criteria for the role before a call.[2]The respondent defends the claim on the basis that the claimant did not satisfy the essential criteria for the role; that they did send him details of the essential criteria for the role; that it was not a reasonable adjustment to arrange a call with the claimant and that there was no substantial disadvantage to the claimant as he was not in any event qualified for the role. The respondent also alleges that the job application was not made in good faith by the claimant but is part of a wider campaign to obtain favourable settlements.[3]Case Management Preliminary Hearings in this matter were heard before Employment Judge Raynor on 14 April 2021, before Employment Judge O’Rourke on 5 July 2021, and before Judge Gray on 23 November 2021 and 13 June 2022. There was also a Preliminary hearing before Employment Judge Salter on 3 August 2021 at which the claimant’s claim for direct discrimination was struck out.[4]The remaining issues that were to be determined at this hearing (as set out in Employment Judge Gray’s Case Management Order made on 23 November 2021) were discussed at the start of the hearing and agreed by the parties as follows: Time Limits 4.1. It is agreed by the parties that the claim was submitted in time. Disability 4.2. The respondent concedes that the claimant is a disabled person as defined in section 6 of the Equality Act 2010 by reason of his dyspraxia. Reasonable Adjustments (Equality Act 2010 ss. 20 & 21) 4.3. The respondent concedes that it knew the claimant was a disabled person at all material times (namely from 4 May 2020 when the claimant made the application for the position of Technical Manager with Energy Systems Catapult). 4.4. A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs: 4.4.1. a policy of asking for written job applications; The Case Management order of 23 November 2021 records that the respondent agreed that this PCP was applied, but counsel submitted that the concession was not fully recorded and reserved the respondent’s position in relation to raising additional arguments on this point. 4.4.2. Did the PCP put the claimant at a substantial disadvantage compared to someone without the claimant’s disability, in that the claimant finds it harder to complete a written job application form? 4.4.3. Did the respondent know, or could it reasonably have been expected to know that the claimant was likely to be placed at the disadvantage? 4.4.4. What steps (the ‘adjustments’) could have been taken to avoid the disadvantage? The Claimant suggests that he should have been given the opportunity to make an oral application for the post. The claimant does not pursue the argument that he was not provided with a list of the essential criteria for the role. 4.4.5. Was it reasonable for the respondent to have to take those steps and when? 4.4.6. Did the respondent fail to take those steps? The Proceedings[5]This has been a remote hearing which has been consented to by the parties. The form of remote hearing was by Cloud Video Platform. A face to face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. The tribunal were referred by both parties to documents in an indexed bundle of 181 pages. The bundle included judgements from previous employment tribunal claims bought by the claimant. Additional documents which we understand constituted the bundle from a previous case brought by the claimant, case number: 3202234/2018, Mallon v AECOM, were also made available to the Tribunal, but no additional documents in the bundle were referred to specifically by the parties in their evidence, so this bundle was not reviewed by the tribunal in this hearing.[6]At the start of the hearing, it was noted that by way of reasonable adjustments, the claimant might need regular breaks and that questions needed to be framed in a clear way dealing with one point at a time.[7]We heard evidence from the claimant, and Ms Newport and Ms Musique on behalf of the claimant who had each submitted witness statements (two in the case of Ms Newport) and from Mr Day and Mr Little on behalf of the respondent who had also each submitted a witness statement. The claimant had also prepared an impact statement which was included in the bundle.[8]Ms Newport, Ms Musique, Mr Little and Mr Day each gave clear and consistent answers to the questions put to them in cross-examination. In the case of Mr Day and Mr Little the evidence given was also consistent with the documents in the bundle. The evidence of Ms Newport and Ms Musique primarily related to the claimant’s dyspraxia and its impact so there were no relevant documents to consider. We found the evidence of all four of these witnesses to be credible and reliable.[9]The claimant’s responses to questions were on a number of occasions inconsistent and evasive. The claimant had asked for questions to be broken down so he could answer them and counsel for the respondent did his utmost to accommodate this request. However, the claimant frequently did not address the question asked, avoided giving “yes or no” answers and instead gave a discursive answer which did not address the question asked. The tribunal does however note and accept the evidence of Ms Newport that the claimant’s memory “is both terrible and excellent depending on the subject matter. He can remember great technical detail about something related to his work projects or one of his hobbies but if I were to ask him something more general like where we went on holiday last year, he would either not know or answer incorrectly”. We accept that this explains in part the unevenness of the claimant’s recollections and we have taken this into account in reviewing his evidence. We do however conclude that the claimant’s evidence is therefore not always reliable.[10]Having heard the evidence and listened to the parties’ submissions the tribunal reserved its decision, and this is the reserved judgment with reasons reached following that hearing.[11]Having heard the witnesses give their evidence, we found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties. Facts[12]The claimant is 47 years old, has four degrees, a doctorate in chemical engineering which he completed in 2006 and has studied for an MBA. He is motivated to work both on his account and to support his family financially. The claimant was diagnosed with dyspraxia approximately 7/8 years ago.[13]The claimant has had professional support to prepare a comprehensive CV which sets out his key achievements and his main (but not all of his) employment experience. This has evolved over time, and the version relevant to this claim gives details of his disability and the reasonable adjustments requested, namely that: “Due to my disability, I request a 'reasonable adjustment' to be made in the application process by completing an 'oral application'. This would be a fiveto-ten-minute phone call to talk about my relevant experience. I would welcome the essential criteria so I can prepare in advance.”[14]The claimant referred in his evidence to the fact that he has now been out of work for over three years and has applied for around 2,200 jobs. He has referred to previous support provided by the Job Centre to assist him in applying for particular roles, but currently his method of applying for roles is to search for roles in CV Library by using a key word and salary information, then to send his generic CV to the agency or company with a request for an oral application to be facilitated. He further stated that his experience is that he is rarely successful in these applications, so he needs to make a lot of applications in order to obtain enough interviews to have a realistic chance of being offered a role. He makes little or no effort to sift the roles himself to ensure that he meets the minimum requirements, searching only on key words and salary. The claimant confirmed that his work coach had suggested having differentiated CVs for different roles e.g., R & D, or chemical roles but he has elected not to follow this recommendation and made it clear that he is not prepared to change his approach, but rather that he has to “get other people to change their approach to accommodate [him]”. His stated understanding of the obligations that arise under the Equality Act 2010 is that it would be a reasonable adjustment in all cases for the recruitment agency or company to offer him an oral interview to establish if he meets the essential requirement for the role, which he asks are sent to him before that conversation takes place.[15]In the course of these proceedings, the claimant was asked to confirm the total number of employment tribunal claims he has issued; initially by Employment Judge Rayner at the hearing on 14 April 2021 (having confirmed he could think of three current claims) and was ultimately subject to an Unless order to provide details via the AECOM case bundle by Employment Judge Gray on 13 June 2022. The claimant was still giving inconsistent answers to this question in this hearing, stating under crossexamination that “he has issued so many he can’t remember”, but we accept that he has issued the 39 claims referred to in the bundle as withdrawn claims, including two previous claims against the respondent, and on the balance of probabilities that that he has issued over 100 claims in total. We agree with Employment Judge Gray’s comment, “that the mere fact that the claimant, who is disabled, has brought disability discrimination claims in respect of numerous failed job applications is not necessarily evidence that the claimant is vexatious” on this occasion and we note that his claim against AECOM was successful. However, we do conclude that whilst he does wish to work, the claimant has also developed a system of applying for roles by submitting his CV without spending any time assessing whether he meets the requirements of the role, and if he is not immediately sent what he refers to as the “essential requirements” of the role and/or offered what he refers to as an “oral application” he responds with the threat of litigation. He confirmed under cross-examination that he has never paid a deposit order and when faced with one, he does withdraw the claim, or if an Unless Order is made, the claim does not continue by default.[16]Whilst resisting the suggestion that he could tailor his CV to support his application for a specific or particular type of role, the claimant referred in his evidence on a number of occasions to the fact that he had amended his CV following findings in previous tribunal claims in order to highlight his disability and the adjustments required with the express purpose of supporting future tribunal claims for failure to make reasonable adjustments. We also note that the claimant confirmed that his previous work experience included writing technical reports to support claims for tax relief and he stressed the fact that these involved advanced technologies. Whilst we find that the claimant has consistently exaggerated his relevant experience, we therefore conclude that he is capable both of reviewing job adverts to identify those roles for which he may be suitable, and of amending his CV albeit that both these processes may take him longer than if he did not suffer from dyspraxia. History with the respondent[17]The respondent is small recruitment agency, currently employing 12 staff, which provides recruitment services and places professionals in job roles within the engineering and technical recruitment sector. The role of the respondent as an agency is to find the most skilled and suitable candidates to put forward to the respondent’s clients.[18]The claimant has been applying for roles via the respondent since 2008/2009 and has applied for over 100 roles via the respondent since that time. Mr Little and Mr Day are experienced recruitment consultants both having been employed by the respondent since 2009 and the claimant is well known to both of them.[19]In or around September 2018, the claimant made 6 applications for roles via the respondent. As requested by the claimant as a reasonable adjustment, Mr Day called the claimant on 27 September 2018 in order that the claimant could supplement his CV and apply orally for the roles. Mr Little was also in attendance. The telephone conversation was recorded with the consent of the claimant and a transcript of that call was in the bundle.[20]The claimant asked for the roles to be considered in “price” order. It was quickly established that the claimant did not meet the minimum requirements for a role in control systems or a systems integration engineer role. The third role discussed was a mechanical design role. There was some discussion about the type of experience required for the role, with the claimant seeking to persuade Mr Day that his experience in the gas and oil industry constituted relevant mechanical design experience. Mr Day found the claimant to be aggressive in that conversation and agreed to look at the specific job description. There was then some discussion about the difficulties the claimant faced in talking about 5 or 6 different roles and Mr Day agreed to send the claimant the essential requirements for each of these roles before they spoke again.[21]On 4 October 2018, Mr Day wrote to the claimant as agreed setting out the essential criteria for each of these roles. He also suggested holding a general interview, so the respondent understood the claimant’s requirements for future roles.[22]A further call was then held on 22 October 2018. The claimant sought to persuade Mr Day that tangentially relevant experience meant he satisfied the requirements for the additional roles, but it was established, after discussion, that the claimant did not meet even the minimum requirements for the remaining roles.[23]Immediately following the oral applications, there was then a further discussion about the type of role that might be suitable for an applicant with the claimant’s background, skills and experience. The claimant referred to his broad range of experience but confirmed he had worked in tax, in oil and gas, petro chem and technical and that he was both an engineer and a tax specialist. He confirmed he was prepared to travel and that he was looking for £55k plus within a half hour commute or on a daily rate as a contractor but would work further away if the salary was higher. Security clearance was also discussed.[24]On 15 March 2019, in the context of an earlier Tribunal claim against the respondent, Mr Day wrote to the claimant setting out the essential criteria for a further four roles. Mr Day also pointed out in this letter that “even if a candidate does meet all the essential criteria, should there be many applications for the role and other candidates also fit …… then progress would not be guaranteed. It is also a consideration of how recent the experience is which the candidate possesses as obviously a client would be more interested in current experience rather than experience several years ago.” We find that these comments were both factually accurate and reasonable.[25]We further find that Mr Day and Mr Little have spoken to the claimant on a number of other occasions, including in May 2019 following an application for a defence sector role, and note that the claimant has made two claims against the respondent previously. We accept Mr Little’s evidence that he understands the claimant’s background, skills, qualifications, and experience. The respondent indicated in both 2018 and 2019 that they would contact the claimant if a suitable role arose within tax or process engineering in oil and gas as this was where the claimant’s background, skills and experience lay, however we accept Mr Little’s evidence that these are not sectors which the respondent specialises in and that they have not therefore pro-actively contacted the claimant in relation to a suitable role, although the claimant continues to apply for other roles via the respondent. Application for position with Energy Systems Catapult[26]On 4 May 2020 the claimant applied for the role of Technical Manager at Energy Systems Catapult. The job description sets out (in summary, with relevant extracts set out in full): 26.1. Information about the client 26.2. the purpose of the role: “to take the lead in designing and structuring membership meetings to support an effective dialogue between members and in following up outputs and ensuring key points are communicated clearly and disseminated to a wide audience” 26.3. what experience the candidate should have: 26.3.1. “experience in the UK energy sector and ideally a good understanding of UK energy policy and energy policy innovation including how the energy sector interacts and interfaces with other sectors/aspects of the built environment, including transport, water, cities and digital. 26.3.2. “experience of working with senior-level key funders and stakeholders of energy research, development demonstration and deployment (RDD&D) across government, such as BEIS and the EIB industry and academia, plus other interested bodies. 26.4. Responsibilities 26.5. Key Skills: Project management, Marketing and Sales, and Report Writing.[27]A more detailed job description included in the bundle sets out the criteria in significantly more detail and indicates that: 40% of the role is project management; 25% member and speaking support; 25% dissemination; and 10% management. The longer job description also sets out a long list of credentials which the candidate would ideally have, covering, knowledge, experience and skills.[28]The Covid-19 pandemic had affected the respondent’s business significantly and on 4 May 2020 two thirds of the respondent’s workforce had been furloughed, leaving only the two directors and three other employees working in the respondent’s business. The respondent received 133 applications for the Technical Manager role. The majority of the candidates were unsuitable for the role which Mr Little identified as having “niche” requirements.[29]Mr Little reviewed the claimant’s application for the role taking into account his CV (which was generic) and the background information known to Mr Little from his previous significant dealings with the claimant. Mr Little concluded that the claimant did not meet the minimum requirements for the role. Mr Little specifically considered that the claimant had worked in tax roles between 2014 and 2019 and had had no involvement in UK energy policy and energy policy innovation, or experience of people management or recent working relationships with the cross-Government energy bodies.[30]Mr Little therefore wrote to the claimant on 4 May 2020 at 4:46 pm to confirm that his application would not be progressed.[31]The claimant responded 6 minutes later at 4:52 pm by email: “can I ask why you did not follow my reasonable adjustment listed on my cv? do you have a problem with disabled people working? as I cannot help my medical condition and find a doc attached why my request is a reasonable one to ask”. The tribunal note that this is in line with his response to a refusal to progress his application in other tribunal claims to which they have been referred.[32]On 6 May 2020 Mr Little responded by stating the respondent’s commitment to equal opportunities and setting out the respondent’s process for dealing with applications, which as confirmed by Mr Day in his witness statement is: 32.1. to undertake an initial review of a candidate’s application and their skills and experience to assess if they are relevant to the job role; 32.2. candidates demonstrating relevant skills and experience will then be shortlisted; 32.3. having passed the initial sift, the candidate is contacted and asked if they require any reasonable adjustments for an initial phone interview.[33]Mr Little also referred to previous discussions with the claimant and repeated his assurance that the respondent understood the claimant’s skills and experience and set out for the avoidance of doubt that the claimant on this occasion did not have: 33.1. “Recent experience in the UK energy sector and ideally a good understanding of UK energy policy and energy technology innovation including how the energy sector interacts and interfaces with other sectors/aspects of the built environment, including transport, water, cities, and digital. 33.2. Experience working with senior level key funders and stakeholders of energy research, development. demonstration, and deployment (RDD&D) across government, such as BEIS and the EIB industry and academia plus other interested bodies.”[34]The claimant wrote to Mr Little 10 minutes later at 12:22 pm on 6 May 2020 asking him to set out the essential criteria that Mr Little believed the claimant did not have and again at 14:44 pm the same day raising a formal complaint of discrimination. The claimant emailed again on 14 May 2020 at 7.17 am chasing for a response and indicating that if one was not received, he would get ACAS involved.[35]Mr Little responded on 14 May 2020 at 10.00 am to say that as a director of the company, he did not have a line manager, that the respondent understood the claimant’s skill set and setting out again the required skills and experience for this specific role. Mr Little re-iterated that the respondent would be in touch should a relevant role in tax, or process engineering roles within oil and gas become available and that otherwise it considered the matter closed.[36]The claimant responded at 10:26 am that he would keep this in writing and referred to a “court”; referred to his CV setting out great detail about his disability; and then set out areas of experience which he considered to be relevant to the role including: 36.1. working in transport and selling liquid technology; 36.2. six years’ experience in energy technology innovation and published papers; 36.3. research and development for 5 years in tax; 36.4. ten years in industries, oil and gas, plastic, paint injection systems and nanotechnology; 36.5. work in academia for over three years at two universities in energy innovation.[37]During the hearing, the claimant was cross-examined on these assertions at some length by counsel for the respondent, and we conclude that the claimant has very limited work experience and apart from report writing, does not satisfy the criteria at the level required for this role. We accept that he has held 25 roles and that these are varied, but other than a substantial period of time working in tax including submitting tax claims relating to innovation and research and development, his roles have in the main been short-term and the claimant exaggerates the experience he obtained during these roles. For example: he currently sells car treatment sachets and scratch cloths primarily via e-bay as confirmed by Ms Newport but sought to categorise this as experience in nano-technology and link this to the wider sectors where this technology may be of use; under cross-examination he continued to maintain that his work submitting tax returns demonstrates engagement with the sectors his clients worked in; and that attending networking events, demonstrated engagement with key government stakeholders. He also relies on his experience in the oil and gas sector prior to 2013 and his academic work when undertaking his PhD which he concluded in 2006. Mr Day stated in his evidence that the claimant was unrealistic in applying for roles for which he had no relevant experience and that it was evident that the claimant could not have the required experience for the wide range of roles he has applied for summarising the claimant’s approach as “because I have worked as an engineer, I can do any engineering role” and we accept that this is the case.[38]In relation to the Energy Systems Catapult role, we are therefore satisfied that even if he had been given a verbal interview immediately, he would not and could not have evidenced that he met the requirements of the role.[39]The claimant sent a further email on 24 May 2020 referring to the involvement of ACAS and setting out the basis on which he believed he could bring a legal claim.[40]Mr Little sent an email in response on 27 May 2020 explaining that the grievance procedure did not apply as the claimant was not an employee, reiterating the respondent’s belief that there had been no material change in the claimant’s skills and experience, setting out in more detail the requirements of the role, and confirming that the claimant was always free to supplement his applications verbally if he had additional information to disclose. Mr Little referred to his conversation with ACAS and confirmed that he was only able to put forward the most suitable and qualified candidates and asked the claimant to call him if he felt he had recent demonstrable experience in relation to the matters set out in his email and provided contact details. The claimant did not call Mr Little but replied on 4 July 2020 with details of his tribunal claim.[41]The claimant applied for the role direct with Energy Systems Catapult but was unsuccessful.[42]Having established the above facts, we now apply the law.
THE LAW
[43]This is a claim alleging discrimination because of the claimant's disability under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges failure by the respondent to comply with its duty to make adjustments to him as an applicant for a role.[44]The provisions relating to the duty to make reasonable adjustments are to be found in sections 20 and 21 of the EqA. The duty comprises of three requirements, of which the first is relevant in this case, namely that 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, there is a requirement to take such steps as it is reasonable to have to take to avoid that disadvantage. A failure to comply with this requirement is a failure to comply with a duty to make reasonable adjustments. A discriminates against a disabled person if A fails to comply with that duty in relation to that person.[45]Section 212(1) EqA states that ‘substantial’ means ‘more than minor or trivial’[46]Paragraph 20 of Schedule 8 to the Equality Act 2010 sets out that this duty is not engaged if the employer does not know and could not reasonably be expected to know […] that the employee firstly has a disability and secondly is likely to be placed at a disadvantage.[47]The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides in section 136(2) that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, by virtue of section 136(3) this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal.[48]In relation to reasonable adjustment claims, the burden of proof is on the Claimant to establish the existence of the provision, criterion or practice and to show that it placed them at a substantial disadvantage (Project Management Institute v Latif [2007] IRLR 579). Thereafter the onus remains on the Claimant to identify the potential reasonable adjustments with a sufficient degree of specificity to enable the Respondent to address them evidentially and the Tribunal to consider the reasonableness of providing them. At the point where the duty to make reasonable adjustments has been engaged, and the Claimant has identified one or more potential reasonable adjustments, the burden of proof is reversed. The Respondent must then show, on the balance of probabilities, that the adjustment could not reasonably have been achieved.
Conclusion
[49]Guidance on the approach to be taken in reasonable adjustment claims was given by the EAT in Environment Agency v Rowan 2008 ICR 218, EAT in which His Honour Judge Serota QC stated that a tribunal must consider: the PCP applied by or on behalf of the employer, the identity of non-disabled comparators (where appropriate), and the nature and extent of the substantial disadvantage suffered by the claimant.[50]Guidance as to the considerations that are relevant in assessing reasonableness is also provided in paragraph 6.28 of the Equality and Human Rights Commission’s statutory Code of Practice on Employment. The Tribunal is required to have regard to this Code when considering disability discrimination claims.[51]Counsel for the respondent has referred the tribunal to the case of Smith v Churchills Stairlifts plc (2006) ICR 524, CA in which the Court of Appeal confirmed that the test of reasonableness was an objective one and to the case of RBS v Ashton (2011) ICR 632 EAT in support of the contention that in addressing the reasonableness of any proposed adjustment, the focus has to be on the practical result of the measures and not on the thought processes of the [sic] employer.[52]We also note the principles set out in Griffiths v Secretary of State for Work and Pensions 2017 ICR 160, CA and the finding that unless the disadvantage is properly identified, it is not possible to determine what steps the employer might reasonably be expected to take to eliminate it.[53]We were also referred by the respondent to the case of Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 664, EAT in support of the contention that it is no part of the duty to make reasonable adjustments for the employer actively to consult the employee about what adjustments should or could be made and referred to the judgment of Mr Justice Elias (then President of the EAT) which states that while it will always be good practice for the employer to consult, and it will potentially jeopardise the employer’s legal position if it does not do so, there is no separate and distinct duty on an employer to consult with a disabled worker. The only question is, objectively, whether the employer has complied with its obligation to make reasonable adjustments. This decision has been followed in Spence v Intype Libra Ltd EAT 0617/06 and Salford NHS PCT v Smith EAT 0507/10.[54]Th claimant has referred us to the case of Mallon v AECOM case no: 3202234/2018 and the judgment of Employment Judge Gardiner dated 5 March 2022 in which he succeeded in his claim for failure to make reasonable adjustments under section 20 and 21 of the Equality Act 2010 and to two cases where a job applicant also succeeded in their claims, the Court of Appeal decision in the Northern Irish case of British Telecommunications Plc v Meier GIR11016 dated 29/07/2019 and the Employment Tribunal decision given by Employment Judge Snelson on 28 June 2017 in the case of Mr O’Sulllivan v London Borough of Islington Case no 2207632/2016.[55]In closing submissions, counsel also referred the tribunal to conclusions drawn by other first instance tribunals in the cases of: Mallon v Dept of Agriculture (2017), Mallon v MBA Notts Ltd (2019), Mallon v Ginger Recruitment (2019) and Mallon v Ela8 Ltd (201)9 in support of the respondent’s contentions that firstly, the claimant is not a credible or reliable witness and secondly that his claim is misconceived and has been issued not because the claimant has a genuine belief that he has been discriminated against but cynically as part of a wider campaign of similar complaints issued by the claimant against numerous organisations, which we note.[56]We take these cases as guidance, and not in substitution for the provisions of the relevant statutes and in relation to fist instance decisions without considering ourselves bound by the conclusions reached.[57]It is agreed that the claimant suffered from a disability, dyspraxia, which was known to the respondent on 4 May 2020 when the claimant made the application for the position of Technical Manager with Energy Systems Catapult.[58]The dispute between the parties is essentially this: the claimant says that as his CV shows that he has dyspraxia and, given that he requested an oral application for this role, the failure to offer him an oral interview immediately is a failure to make a reasonable adjustment. He further claims that if he applies for any role on the basis of his standard CV, the respondent, as a recruitment agency, should as matter of course, (in all cases, and whether or not he has any relevant experience or any realistic prospect of being short-listed for the role) give him the opportunity to make an oral application and not to do so is a failure to make reasonable adjustments. The respondents say that to offer an oral application when it is apparent from the claimant’s CV and the knowledge they have of the claimant’s work history, that he has no prospect of being short-listed is not a reasonable adjustment as the claimant suffers no disadvantage and they are entitled to shortlist without automatically offering an oral application on every occasion.[59]We first consider if a relevant PCP was applied to the claimant, namely, as identified in the agreed list of issues, if there was a policy of asking for written job applications. The respondent submits that although it did on this occasion and indeed still does require applicants to submit written applications (and to that extent the respondent accepts that a PCP existed in this case) the claimant was subsequently invited to contact the respondent with a view to discussing his application and further in any event the claimant had previously submitted oral applications following a written application and was therefore aware that he could make an oral application if he wished to do so, so the PCP was not applied to the claimant in this case. The claimant says that the requirement to submit a written application is the PCP relied on.[60]We conclude that the offer of an oral application is in effect a variation to the usual process adopted by the respondent which as stated by Mr Day is to require applications to be made in writing and to shortlist on the basis of the written application. We are therefore satisfied that the PCP relied on by the claimant that there is policy (or practice) of asking for written applications exists.[61]We next consider whether the PCP put the claimant at a substantial disadvantage compared to someone without the Claimant’s disability, including whether substantial disadvantage arises because the claimant finds it harder to complete a written job application form than someone without the same disability.[62]We have accepted the claimant’s evidence that he has made approximately 2,200 job applications in the last few years which he does by submitting a CV. We accept that it would be harder for the claimant to submit individual bespoke applications than for an applicant without the same disability, but we do not accept that the claimant finds it any harder to submit his CV than any other applicant who elected to submit his CV. We have further found that the claimant is capable of making changes to his CV as evidenced by the fact that he has done so in order to highlight his disability. He is a highly educated individual, with a PhD who on his own evidence can produce technical reports. He has previously obtained support from both professional CV writers in preparing a generic but very full CV and from the Job Centre in relation to applications for specific roles. We therefore do not find that the policy of requiring a written application places him at a substantial disadvantage for the following reasons. 62.1. Firstly, the claimant was able to and in fact did, apply for this role by providing a comprehensive CV setting out his work history, experience and achievements in order for the short-listing decision to be made. The finding of the tribunal is that there was no additional relevant experience that could have been given by him in an oral application that would have affected the respondent’s decision not to shortlist him for initial consideration for the role on this occasion. We unreservedly accept the evidence of Mr Day that in his professional judgment the claimant is unrealistic in applying for roles for which he has no relevant experience and that this was the case in relation to the role of Technical Manager at Energy Systems Catapult. This was corroborated by the claimant under cross-examination when he was seeking to persuade the tribunal that he could meet the minimum requirements of the role but demonstrated an unrealistic assessment of his relevant experience and his own abilities. We accept that far from being a strong candidate whom the respondent could recommend for this role, the claimant failed to meet the majority of the minimum requirements for the role. We therefore conclude that the claimant was not placed at a substantial disadvantage as he had in fact provided all the information the respondent required to assess his suitability to shortlist him by submitting his CV. 62.2. Secondly, we have also found that Mr Day and Mr Little had already taken the time to discuss the claimant’s CV with him, both generally in the recorded call of 22 October 2018 and subsequently on a number of occasions including in May 2019. Given the claimant has given evidence that he has not been employed for three years, we further conclude that even if we are incorrect on the first ground, the respondent had sufficient additional information to reach the conclusion that the claimant was not a suitable candidate to shortlist as there was no additional evidence he could have provided by way of a further oral application in addition to the information he had previously provided orally to the respondent and there was therefore no substantial disadvantage. 62.3. Thirdly, we further find that the claimant is capable of amending his CV, as he has already done in order to increase the focus on his reasonable adjustment requirements. We note that his evidence is that he has been recommended to produce bespoke CVs targeted at specific roles/sectors by a work coach but that he has elected not to follow this advice, although we conclude that he would be able to do so in the same way as he has been able to produce a full and professional CV setting out his substantive experience. We therefore further find that he has not been placed at a substantial disadvantage on the basis that he could, if he chose to do so, produce a small number of targeted CVs which would provide all relevant information for those roles where his application would be strong enough to merit a shortlisting interview rather than persist with applying for numerous roles based on his system of using keywords and salary which results in many applications for roles where he has no reasonable prospect of being shortlisted. This conclusion would apply to any future applications he makes. Whether or not he now chooses to remove relevant information from his CV (as he has suggested he will); there can be no substantial disadvantage on future occasions if he is able to provide the necessary information by way of a full CV as he has on this occasion or by way of a few targeted CVs as he has been recommended to do. 62.4. Fourthly, we accept that on 27 May 2020 the respondent offered the claimant the opportunity to make an oral application to discuss any recent demonstrable experience relevant to the role. The claimant chose not to do make an oral application. Adjustments were therefore made to the PCP on this occasion, although in light of our conclusions above, there was no obligation on the respondent to make such adjustments.[63]Further, having reached these conclusions we are therefore satisfied that the respondent was correct in concluding that the claimant was not likely to be placed at a substantial disadvantage by the PCP of short-listing on the basis of a written application and we therefore do not need to consider what steps (the ‘adjustments’) could have been taken to avoid the disadvantage, as there was none.[64]We further accept that the claimant’s claim is misconceived as counsel for the respondent submits. We have found that the claimant has developed a system of applying for roles by submitting his CV without spending any time assessing whether he meets the requirements of the role, with the expressed requirement that on every occasion, no matter how weak his application for a role taken at its highest could be, the employer or agency should offer him the opportunity to make an oral application after sending him what he terms to be the “essential requirements” of the role. If this is not done, he responds with the threat of litigation and issues a claim unless settlement is reached via ACAS. This is the process the claimant has adopted in this case. The claimant has confirmed under cross-examination that he has never paid a deposit order and when faced with one, he does withdraw the claim, or if an Unless Order is made, the claim does not continue by default. We have been referred to previous judgments in which the claimant’s claim has been struck out in circumstances where he has adopted a similar practice of applying for a role where he has no relevant experience and note in particular the judgment of Employment Judge R Clark in the case of Mallon v MBA Notts Ltd and the detailed discussion of the claimant’s lack of experience in the manufacture of pre-cast concrete which led to the decision that the claim had no reasonable prospect of success and the claim being struck out. In this case the claimant’s claim for failure to make reasonable adjustments was not struck out at a preliminary hearing (although the claim for direct discrimination was), a deposit order has not been made and the claim has proceeded to final hearing, but we conclude that the claimant as an experienced litigant must have known that this claim had no reasonable prospect of success and we conclude that it was not made in good faith but as part of a wider campaign as the respondent alleges.[65]The claimant’s claim therefore fails and is dismissed.[66]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraph 4; the findings of fact made in relation to those issues are at paragraphs 12 to 41; a concise identification of the relevant law is at paragraphs 43 to 53; and how that law has been applied to those findings in order to decide the issues is at paragraphs 57 to 65.
Conclusion
[1]The claimant has applied for a reconsideration of the reserved judgment dated 19 September 2022 which was sent to the parties on 29 September 2022 (“the Judgment”). The grounds are set out in his email dated and sent on the 29 September 2022.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit[3]The grounds for reconsideration are set out in Rule 70, namely that it is necessary in the interests of justice to do so.[4]The grounds relied upon by the claimant as set out in his email are that: he struggles with writing reports; he has a PhD and other qualifications; he was refused an oral application; he questions the veracity of the respondent’s evidence and specifically the evidence given in relation to the calls held between him and the respondent; he refers to his experience in energy in Aberdeen; he also refers to his previous and aspirational salary levels and to the large number of jobs he has applied for and the few interviews he has been offered. He asks for the emails he sent to be re-reviewed and states that he does not understand why despite providing additional information about his disability it is still not considered. He refers to his subsequent diagnosis of ADHD.[5]The claimant has also attached a statement of legal principles and three cases: Mr O’Sulllivan v London Borough of Islington Case no 2207632/2016, British Telecommunications Plc v Meier GIR11016 dated 29/07/2019 (both of which were before the tribunal at the hearing of this matter), and the decision in Mr T Sherbourne v N Power Ltd: 1811601/2018. The legal principles and the first two cases were considered in the hearing and the Sherbourne case, a first instance decision, raises no new legal issues.[6]The claimant sent a further email on 30 September with a link to a video of a talk titled: Great Minds think different, Neuro diversity in Brighton.[7]The matters raised by the claimant in his email of 29 September 2022 had already been considered by the tribunal before it reached its unanimous decision and additional information relating to neurodiversity would not affect the findings reached.[8]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[9]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.[10]Accordingly, I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked.[1]In this case the respondent seeks its costs of defending this action against the claimant.[2]By a claim form presented on 4 July 2020 the claimant brought a claim for discrimination on grounds of disability. The clamant suffers from dyspraxia and claimed that reasonable adjustments were not made to enable him to apply for a role as Technical Manager via the respondent, an employment agency; specifically, that he was not telephoned by the respondent nor provided with a list of the essential criteria for the role before a call. Proceedings to date[3]Case management preliminary hearings in this matter were heard before Employment Judge Raynor on 14 April 2021, before Employment Judge O’Rourke on 5 July 2021, and before Judge Gray on 23 November 2021 and 13 June 2022. The claimant consistently failed to comply with case management orders in relation to disclosure and the respondent made a number of strike out applications which were not successful. There was also a preliminary hearing before Employment Judge Salter on 3 August 2021 at which the claimant’s claim for direct discrimination was struck out. Employment Judge Slater allowed the claim for failure to make reasonable adjustments to proceed but noted that the claimant “may not have cleared the modest threshold by much, and he should not consider that he has any judicial endorsement in this judgement about the strength of his claim beyond it surpassing the r39 hurdle.”[4]The final hearing of this matter was heard on 22 and 23 August 2022 before this Tribunal panel. The claimant’s claim for failure to make reasonable adjustments under section 20 and 21 of the Equality Act 2010 failed and was dismissed in a Judgment dated 19 September 2022, which was sent to the parties on 29 September 2022.[5]The respondent made a costs application on 25 October 2022. This was originally listed for hearing on 16 March 2023 but was adjourned on 14th March 2023 by Employment Judge Dawson at the claimant’s request in order that a scheduled psychological assessment of the claimant due to his recent diagnosis of ADHD (which was due to take place on 17 March 2023) could be completed. The hearing was re-listed for 18 August 2023 and then relisted again at the claimant’s request and with the consent of the respondent to 9 August 2023. On 7 July 2023 the claimant made a further application for an adjournment of the costs hearing on the basis that a further follow-up medical report which was due to be received “may be of use” to the court, but this was refused, and the costs hearing was held on 9 August 2023. The Hearing[6]This has been a remote hearing which has been consented to by the parties. The form of remote hearing was by Cloud Video Platform. A face to face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing.[7]Prior to the start of the hearing, the Tribunal panel was forwarded an updated schedule of costs totalling £44,475.50, from the respondent under cover of an email from the respondent’s solicitor dated 8 August 2023 asking for a summary assessment of costs capped at £20,000. The Tribunal panel was also forwarded a number of emails from the claimant which contained some relevant information relating to the claimant’s personal financial position, some information relevant to his personal situation, a significant amount of duplicated information and a significant amount of general information on autism, dyspraxia and ADHD. These included an email of 29 July 2023 with eight attachments; an email of 31 July 2023 with information on the claimant’s credit card and Personal Independence Payment (PIP); an email of 5 August 2023 with information about a web-site which the claimant said was his; a further email dated 5 August 2023 with screen shots of mortgage and credit cards but no name details; an email dated 6 August 2023 with an undated screen-shot of the claimant’s CVLibrary page showing he had made 4643 job applications; an email of 7 August 2023 with further information on the claimant’s PIP payments; an email from the claimant dated 7 August 2023 showing job applications he had made; and two further emails dated 7 August 2023, one with eight attachments and one with twenty-one attachments, primarily attaching duplicate general medical information on autism, dyspraxia and ADHD but with some additional screen shots relevant to the claimant’s personal position. The panel members had reviewed the emails but not all of the attachments before the hearing commenced. It transpired that the respondent had in addition prepared and uploaded an indexed hearing bundle of 523 pages (which contained some, but not all, of the information sent separately by the claimant). At the start of the hearing the Tribunal had not however been provided with a copy of this bundle and the hearing was adjourned in order that this could be obtained and the hearing then reconvened.[8]Counsel for the respondent had also prepared a skeleton argument on the issue of costs. The claimant had not prepared a witness statement. The Tribunal was able to hear the respondent’s application and the claimant’s evidence and submissions as to why he did not believe a costs order should be made. The Tribunal was referred to relevant documents by both parties during the hearing and in Counsel’s skeleton argument. There was, however, not sufficient time for the Tribunal to deliberate on the day or review all the relevant documents due to the delay in obtaining the bundle, and the Tribunal reconvened on the 14 November 2023 to review, deliberate and reach a judgment.[9]The claimant’s responses to questions during the hearing were on a number of occasions inconsistent and evasive and his submissions were also in the main unclear and on occasion inconsistent. At the substantive hearing it was noted that the claimant avoided giving “yes or no” answers and instead gave discursive answers which did not address the question asked. Employment Judge Salter in the Preliminary strike out hearing also noted: “cross examination of the claimant took longer than had been initially timetabled, this is no criticism of Mr Mahmood, rather the claimant repeatedly failed to answer the questions that was asked of him resulting in the question having to be re-asked often multiple times before a relevant answer was obtained. Even giving all due latitude to the claimant in this regard I found him to be an unconvincing witness”. In this hearing too, the claimant was evasive, inconsistent and unclear. The Application for Costs[10]The respondent makes an application for its costs on the basis that: 10.1. the claimant has acted vexatiously, disruptively, and otherwise unreasonably in bringing the proceedings and/or in in the way the proceedings were conducted, and/or 10.2. The claim had no reasonable prospects of success.[11]In support of the application for cost on the grounds that the claim has no reasonable prospects of success, and that the claimant had acted unreasonably and vexatiously, the respondent asserts that the claimant is a serial litigant who has been evasive about the number of claims he has brought or how many have been withdrawn following a deposit order. The respondent refers to the findings made by the Tribunal in relation to the claimant’s practice of applying for multiple roles indiscriminately and responding with threats of litigation if his application is not progressed, and issuing a claim if a settlement is not reached. The respondent says that the claim had no reasonable prospects of success, (which the claimant knew as an experienced litigant), that the claim was not made in good faith and that the claimant was unreasonable in the way he conducted the litigation pointing out that the claimant is an experienced litigant. The respondent asserts that the claimant had received costs warnings and relies on the findings of fact reached by this Tribunal at the substantive hearing in this matter as identified in the skeleton argument. The respondent further summarised the claimant’s financial disclosure and asserts that it is incomplete.[12]The Tribunal understand that the claimant resists the application on the grounds that he has dyspraxia, autism and ADHD and that his means are limited. He has not challenged the level of costs incurred by the respondent. Findings of Fact Relevant to the Costs Application Liability Hearing[13]The Tribunal relies on the relevant findings of fact made and the conclusions reached at the substantive hearing in this matter and set out in the Judgement of this Tribunal dated 19 September 2022.[14]The key findings include that: 14.1. the claimant is unrealistic in applying for roles for which he has no relevant experience and that this was the case in relation to the role of Technical Manager at Energy Systems Catapult; 14.2. the claimant is capable of amending his CV, as he has already done in order to increase the focus on his reasonable adjustment requirements. The claimant’s evidence is that he has been recommended to produce bespoke CVs targeted at specific roles/sectors by a work coach but that he has elected not to follow this advice, although we conclude that he would be able to do so in the same way as he has been able to produce a full and professional CV setting out his substantive experience; 14.3. he could, if he chose to do so, produce a small number of targeted CVs which would provide all relevant information for those roles where his application would be strong enough to merit a shortlisting interview rather than persist with applying for numerous roles based on his system of using keywords and salary which results in many applications for roles where he has no reasonable prospect of being shortlisted; 14.4. the claimant’s claim is misconceived as counsel for the respondent submits. We have found that the claimant has developed a system of applying for roles by submitting his CV without spending any time assessing whether he meets the requirements of the role, with the expressed requirement that on every occasion, no matter how weak his application for a role taken at its highest could be, the employer or agency should offer him the opportunity to make an oral application after sending him what he terms to be the “essential requirements” of the role. If this is not done, he responds with the threat of litigation and issues a claim unless settlement is reached via ACAS. This is the process the claimant has adopted in this case. The claimant has confirmed under cross-examination that he has never paid a deposit order and when faced with one, he does withdraw the claim, or if an Unless Order is made, the claim does not continue by default. We have been referred to previous judgments in which the claimant’s claim has been struck out in circumstances where he has adopted a similar practice of applying for a role where he has no relevant experience and note in particular the judgment of Employment Judge R Clark in the case of Mallon v MBA Notts Ltd and the detailed discussion of the claimant’s lack of experience in the manufacture of pre-cast concrete which led to the decision that the claim had no reasonable prospect of success and the claim being struck out. In this case the claimant’s claim for failure to make reasonable adjustments was not struck out at a preliminary hearing (although the claim for direct discrimination was), a deposit order has not been made and the claim has proceeded to final hearing, but we conclude that the claimant as an experienced litigant must have known that this claim had no reasonable prospect of success and we conclude that it was not made in good faith but as part of a wider campaign as the respondent alleges.[15]In addition the following relevant findings of fact have been reached. Medical[16]In addition to dyspraxia, which was the disability relied on for the purposes of this claim, the claimant has been diagnosed with autism and ADHD. The claimant attended a psychological needs assessment on 17 March 2023 and the report of this assessment has been provided to the Tribunal. Having considered this thorough report, the Tribunal note that the specific issues relevant identified relating to work and employment relate to problems with efficiency and keeping a role; and the relevant issue related to life skills is noted as excessive or inappropriate use of the internet. The other factors relating to family and living circumstances, ability to keep up with household chores self-concept and social and communication skills are not relevant to the matters before the Tribunal. We that the claimant has been identified as having a significant impairment of spontaneous mind wandering and have taken that into account in assessing his evidence and considering the respondent’s application. Costs Warning[17]In their ET3 the respondent set out a robust and clear defence to the claim and stated their intention of asking for compensation for their costs if the claim was progressed.[18]In an email dated 12 April 2021 a more detailed costs letter was sent which referred to Rule 76 setting out the relevant provisions, and stating that “the claim had no reasonable prospects of success and that the claimant had acted vexatiously abusively disruptively and unreasonably in bringing his claim for the following reasons:• There is no evidence whatsoever to indicate that our client discriminated against you on the grounds of disability or at all, nor is there even an inference of discrimination;• You have failed to particularise the legal basis of your claim;• It is overtly obviously from the abusive and unreasonable tone and content of your emails to our client that your intentions were and continue to be financial gain.”[19]In the judgment in the claimant’s successful EAT appeal in his case against AECOM Limited UKEAT/0175/20/LA, HHJ Taylor stated: “The Claimant told me that his applications are for jobs that he genuinely wants. Were that not the case, and were it to be established that multiple applications were being made for jobs that he does not want, with the aim of bringing claims, possibly to achieve settlements, that is matter which could result in strikeouts and costs.”[20]We also note Employment Judge Salter’s comment to the claimant as set out in paragraph 3 above.[21]We find that the consequences of bringing unmeritorious claims in general without a good evidential basis had been brought to the claimant’s attention as had the consequences of proceeding with a claim which had no reasonable prospects of success and that the claimant had been expressly warned that he was at risk of costs if he proceeded with this claim without there being reasonable prospects of success based on cogent evidence. Financial means[22]The claimant runs a business, Renovareuk.co.uk Limited which is registered at Companies house. The claimant is the sole director of the company. Its accounts show its net assets have increased from £8,566 in 2018 to £45,113 in 2021. The information on this company was obtained by the respondent. The claimant did not voluntarily disclose his involvement in the company.[23]We find that this is the corporate vehicle for the claimant’s on-line business which he seeks to characterise as a “hobby”. The claimant has stated that he only sells four (or five) products. The respondent has provided screen shots of e-bay, instagram and facebook pages which show a substantial number of different products. The claimant does not deny that this is his business and asserts that the e-bay page in the bundle with 48 products showing is explained by these being essentially the same products. We do not find his explanation credible, and we are unable to reach any conclusions about the size of the undertaking or rely on the screenshots of the e-bay/paypal income provided by the claimant which, without further supporting evidence do not appear to be consistent with the verbal and other documentary evidence in the bundle about the level of income received. There has been no disclosure of the Renovareuk.co.uk bank account although the claimant has asserted that rental income (see below) is paid into this account, nor have we seen evidence such as personal bank account statements showing how much of the Renovare income is, or is not, paid to the claimant as earnings (by way of salary, dividend or otherwise) in his role as the sole director of the company.[24]The claimant owns two properties but has provided no current valuation. He lives in one with his partner and son and rents out the other. He has disclosed details of two mortgages with the TSB (£176,124) and Bank of Ireland £105,329 (by way of a screen shot of a credit check with no name) and limited information about the rental income and costs associated with the rented property by way of email and verbally in the Tribunal. There is no comprehensive or credible supporting evidence for his assertions which are inconsistent, and specifically the bank account details disclosed (individual pages only) do not evidence this income and the alleged outgoings. Given the incomplete nature and general unreliability of his evidence, we are unable to conclude what are the current capital values of the two properties net of any outstanding mortgages nor can we determine the net value of any rental income from the second property.[25]The claimant has provided updated information about his PIP payments which show he is in receipt of a mobility payment of just over £26.90 per week.[26]Throughout these proceedings the claimant has failed to provide details of the number of claims he has brought. In these proceedings he was first asked this question by Employment Judge Rayner at the hearing on 14 April 2021 (having confirmed he could think of three current claims) and was ultimately subject to an Unless order to provide details via the AECOM case bundle by Employment Judge Gray on 13 June 2022; an order he was found to have “partially” complied with by Employment Judge Raynor on 20 July 2022. The claimant was still giving inconsistent answers to this question in this hearing, stating “he has issued so many he can’t remember”. The CVLibrary page shows he had at the unknown date of the screenshot made a total of 4643 job applications; as compared to the “over 2,000” he had made at the time of the previous hearing in August 2022. No evidence has been led as to how many of these applications have resulted in a settlement payment being made and the claimant has failed to disclose his total income or assets. Given the evasive and incomplete nature of the claimant’s evidence the Tribunal are unable to determine the level of any awards already paid to the claimant, for example in settlement of claims that show on the record as having been withdrawn, or the value of any settlement monies received by him prior to him issuing proceedings.[27]In the light of the above findings, the Tribunal are therefore unable to assess the claimant’s overall financial situation. The Rules[28]The relevant rules are set out in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”).[29]Rule 76(1) provides: "a Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that –(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.[30]Under Rule 77 a party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.[31]Rule 78 empowers a Tribunal to make an order in respect of a specified amount not exceeding £20,000 or alternatively to order the paying party to pay the whole or a specified part of the costs with the amount to be determined following a detailed assessment.[32]Under Rule 84, in deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.
The Law
[33]The starting position is that an award of costs is the exception rather than the rule. As Sedley LJ stated in Gee v Shell Ltd [2003] [2003] IRLR 82 CA (paragraph 35) “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to people without the need of lawyers, and that in sharp distinction from ordinary litigation in the UK, losing does not ordinarily mean paying the other side’s costs …”.[34]However, the Employment Tribunal has a wide discretion under the Rules where an application for costs is made under Rule 76. As per Mummery LJ at para 41 in Barnsley BC v Yerrakalva [2012] IRLR 78 CA, “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it, and what effects it had.”[35]When considering an application for costs the Tribunal should have regard to the two-stage process outlined in Monaghan v Close Thornton [2002] EAT/0003/01 by Lindsay J at paragraph 22: "Is the cost threshold triggered, e.g. was the conduct of the party against whom costs is sought unreasonable? And if so, ought the Tribunal to exercise its discretion in favour of the receiving party, having regard to all the circumstances?”[36]The threshold to trigger costs is the same whether a litigant is or is not professionally represented, although in applying those tests, the EAT has held that the status of a litigant is a matter which the tribunal must take into account – see AQ Ltd v Holden [2012] IRLR 648 EAT in which Richardson J commented: “Justice requires the tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. Tribunals must bear this in mind when assessing the threshold tests in [rule 76(1)(a)]. Further, even if the threshold tests for an order of costs are met, the tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice.” However, Richardson J also acknowledged that it does not follow from this “that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity”. These statements were approved by Underhill P in Vaughan v LB of Newham [2013] IRLR 713.[37]Where a party has been lying. this will not of itself necessarily result in a costs award being made, although it is one factor that needs to be considered. As per Rimer LJ in Arrowsmith v Nottingham Trent University [2011] ICR 159 CA it will always be necessary for the tribunal to examine the context, and to look at the nature, gravity and effect of the lie in determining the unreasonableness of the alleged conduct. The fact that a claimant may not have deliberately lied does not preclude reaching the conclusion that a claim had no reasonable prospect of success or that the claim had not been reasonably brought and pursued.[38]Counsel for the respondent has referred the Tribunal to the case of Saka v Fitzroy Robinson UKEAT/0241/00] in support of his contention that a tribunal is entitled to take previous claims which have failed into account, depending on all the circumstances and the claimant’s understanding of the claim. However, a costs order should not be made to deter a claimant from bringing future proceedings [Smolarek v Tewin Bury Farm Hotel Ltd UKEAT/0031/17][39]With regard to the paying party's ability to pay, Rule 84 allows the tribunal to have regard to the paying party's ability to pay, but it does not have to, see Jilley v Birmingham and Solihull Mental Health NHS Trust [2008] UKEAT/0584/06 and Single Homeless Project v Abu [2013] UKEAT/0519/12. The fact that a party’s ability to pay is limited, does not, however, require the tribunal to assess a sum that is confined to an amount that he or she could pay see Arrowsmith v Nottingham Trent University which upheld a costs order against a claimant of very limited means and per Rimer LJ “her circumstances may well improve and no doubt she hopes that they will.” One reason for not taking means into account is the failure of the paying party to provide sufficient and/or credible evidence of his or her means. Counsel for the respondent has also drawn the Tribunal’s attention to the case of Vaughan v LB of Newham [2013] IRLR 713 in support of the contention that a tribunal is entitled to make a costs award that the paying party cannot afford to pay.[40]VAT should not be included in a claim for costs if the receiving party is able to recover the VAT, (Raggett v John Lewis plc [2012] IRLR 906 EAT). Conclusion Power to Award Costs[41]Applying the Rules, the first question for the Tribunal to determine is whether the power to award costs has arisen.[42]At the hearing in August 2022, the Tribunal reached the findings set out on paragraphs 14.1 to 14.4 above and decided that “the claimant as an experienced litigant must have known that this claim had no reasonable prospect of success” and concluded that the claim “was not made in good faith but as part of a wider campaign as the respondent alleges”.[43]The findings at the hearing in August 2022 were that the claimant was unrealistic in applying for roles for which he had no relevant experience on a general basis, and specifically that this was the case in relation to the role of Technical Manager at Energy Systems Catapult for which he applied via the respondent and for which he was manifestly unqualified.[44]The Tribunal concluded in the liability judgement that the claimant has developed a system for applying for multiple roles and now concludes that the claimant has likewise developed a system for dealing with the Tribunal claims he brings. In the same way that he does not apply his mind to the suitability of the roles for which he applies, he does not apply his mind to the merits of the claims he brings. If a claim is struck out, he moves on to the next one; if a deposit order is made he does not pay; but if the claim is not struck out, and no deposit order is made, he will proceed with the claim without considering if there is any merit in it. This is what he has done on this occasion. He has not sifted or evaluated the evidence in this claim, and has not shown any interest in whether the claim has any reasonable prospects of success or not. He has persisted in sending multiple emails, with multiple attachments both to the respondent and to the Tribunal but the evidence supplied purportedly in support of his claim is in the main generic and a significant amount of it does not relate to this one specific claim.[45]The Claimant is a well-educated intelligent man with substantial litigation experience. It is to be expected that he should know that he is required to prove his case and that he would be required to provide relevant evidence to do so.[46]The claimant has received clear costs warnings both of a general nature from HHJ Taylor in the EAT in his AECOM appeal and specifically in relation to this case on 12 April 2021 from the respondent’s solicitor.[47]We have found that this claim was not made in good faith and was made without any cogent evidence to support the claimant’s contention that he had been discriminated against, and we are therefore satisfied that it was one which had no reasonable prospects of success.[48]The Tribunal is also satisfied that the claimant acted vexatiously and unreasonably both in applying for the role in the first place when he had no relevant experience and in bringing a claim for disability discrimination as part of an overall campaign or process of litigating but with no intention of assessing the genuine merits of this particular claim. This conclusion is based on the claimant’s evidence as recorded in the original liability judgment. In the judgment of the Tribunal, the purpose of making 4643, job applications, of which this was one, was not because the claimant genuinely believed he was able to undertake each of those roles, including the role which is the subject matter of this claim, but to provide an opportunity to seek a settlement or to bring an employment tribunal claim whether or not there was any merit in such claim. This is effectively now the claimant’s chosen career. The liability judgment and the Tribunal’s judgment today is that the claim was “misconceived” and “not made in good faith”.[49]The power to award costs has therefore arisen under Rule 76 (1) (b) and/or in the alternative under Rule 76 (1) (a). Is a Costs Order Appropriate?[50]The Tribunal next considered whether a costs order was appropriate, being mindful of the fact that this is an exercise of discretion. In our judgement it is appropriate to make a costs order. The Tribunal is satisfied that by pursuing a claim which has no reasonable prospects of success and/or by acting vexatiously and unreasonably both in applying for a role for which he was not qualified, and/or bringing these proceedings, and/or continuing with the proceedings when the respondent’s position was clear and persuasive and/or by the manner in which the proceedings were conducted, the claimant caused the respondent to incur legal costs which it should not have had to incur. The respondent sent the clamant a costs warning letter which he chose to ignore. The job application should not have been made and this claim should not have been presented and the respondent should not have had to defend this claim.[51]In reaching the decision we have taken into account the medical information (both general and specific) which has been provided to us, including the report of the needs assessment undertaken on 17 March 2023. However, in our view the specific information which relates to the claimant does not make the decision to make a costs order inappropriate or unreasonable given the findings about the claimant’s intellectual capacity and his manifest ability to understand the judgments made against him to the extent that he is able to adjust his CV and and/or his application process to take into account previous adverse judicial findings. Amount of Costs Order[52]The respondent has submitted an updated costs schedule showing legal costs in the sum of £44,475.50 plus VAT. In the covering email dated 8 August 2023 attaching the updated schedule, the respondent’s solicitor asked for a summary assessment capped at £20,000 to be made. Counsel for the respondent asked in the skeleton argument and in the hearing for costs to be assessed.[53]The evidence provided by the claimant as to his means is such that the Tribunal were unable to assess the claimant’s overall financial situation and therefore do not take this into account in deciding on the amount of the award.[54]Notwithstanding the claimant’s lack of co-operation, particularly in relation to his failure to provide documents in an ordered and helpful way, and the need for multiple preliminary hearings, the Tribunal conclude that reasonable costs for a two day hearing would be £18,000. No award for VAT is made on the basis that this is recoverable by the respondent.[55]The claimant is therefore ordered to pay the respondent the sum of £18,000 in costs.
The Law
Introduction
[1]The claimant has applied for a reconsideration of the reserved costs judgment dated 10 December 2023 which was sent to the parties on 15 December 2023. The grounds are set out in a number of emails, summarised as follows: 1.1. First email dated 15 December 2023, which refers to Rule 70 allowing “reconsideration in very limited circumstances but unaffordability being a basis” and setting out and attaching some financial information; 1.2. Second email dated 15 December 2023 with further financial information and some information provided by an autism charity worker together with further medical information both generic and an assessment post-dating the costs hearing (date assessed 4 September 2023). 1.3. Third email dated 15 December 2023 with better copies of financial information previously provided to the Tribunal relating to mortgage balances; 1.4. Fourth email dated 15 December 2023 referring to the fact that in addition to dyspraxia (the disability relied on for this claim) the claimant also suffered from ADHD and autism and evidence relating to autism was ignored. The claimant refers to an autism expert and asks that this evidence is taken into account in the reconsideration request; 1.5. Fifth email dated 15 December 2023 attaching details of equipment provided by DWP in 2021; 1.6. Sixth email dated 15 December 2023 asking for a Rule 50 hearing; 1.7. Seventh email dated 15 December 2023 with an AI summary of the Tribunal’s cost judgment with comments; 1.8. Eighth email dated 15 December 2023 which referred to a number of discrimination cases; 1.9. First email dated 16 December 2023 referring to auxiliary aids and services; 1.10. Second email dated 16 December 2023 setting out a further summary of potential reasonable adjustments to policies, physical spaces, equipment, work arrangements etc. 1.11. Email dated 17 December 2023 summarising the challenges the claimant faces with processing and comprehending written text due to his dyspraxia, autism and ADHD; 1.12. First email dated 20 December 2023 setting out further financial information; 1.13. Second email dated 20 December 2023 providing information on autism and whistleblowing; 1.14. Third email dated 20n December 2023 asking for disclosure of an advert by a third party; 1.15. Email dated 22 December 2023 from third party’s lawyers objecting to the request for an order for disclosure; 1.16. Email dated 22 December 2023 from the claimant in response to third party’s lawyer’s email; 1.17. Email dated 27 December 2023 attaching additional financial information; 1.18. Email dated 28 December 2023 setting out AI generated guidance for HR personnel on dealing with neurodiverse applicants; 1.19. First email dated 29 December 2023 setting out a list of questions for the Tribunal; 1.20. Second email dated 29 December 2023 attaching financial information; 1.21. Third email dated 29 December 2023 attaching financial information: 1.22. Fourth email dated 29 December 2023 with 38 attachments including: 1.22.1. Letter from Sarah Heath (specialist consultant for autistic and neuro-diverse people); 1.22.2. Copies of correspondence with the Tribunal; 1.22.3. Copies of correspondence with the other side; 1.22.4. Duplicates of emails already sent (referred to above); 1.22.5. Documents relating to original claim; 1.22.6. Various acknowledgements of job adverts; 1.22.7. Information about suggested reasonable adjustments. 1.23. Fifth email dated 29 December 2023 with further financial information. 1.24. Email timed at 00:00 30 December 2023 relating primarily to auxiliary aids; 1.25. Second email of 30 December 2023 timed at 10:11 concerning neurodiversity in job applications: challenges and best practice; 1.26. Email dated 2 January 2024 with mortgage paperwork; 1.27. Second email dated 2 January 2024 relating to support services. 1.28. Further emails sent on 11 January and 20 January 2024 with additional information on the claimant’s suitability for the role and the impact his conditions had on him personally.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The matters raised in the emails referred to at paragraphs 1.1 to 1.23 were therefore received within the relevant time limit.[3]Under Rule 5 the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired. Given the Christmas break, the matters referred to in paragraphs 1.24 to 1.27 have also been considered.[4]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[5]The earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant was seeking a review in the interests of justice under the former Rules which is analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful, he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.
The Hearing
[6]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (which is now set out in Rule 2). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties.[7]The grounds relied upon by the claimant as set out at paragraphs 1.1 to 1.27 above are in summary, firstly that the cost order made against him is unaffordable, secondly that the oral evidence given on his behalf in relation to his autism by Sara Heath has not expressly been referred to in the judgment and therefore he concludes that it was not taken into account and that this should affect the decision to award costs against him; and thirdly by implication although not expressly stated, that the correct legal principles have not been applied.[8]The matters raised by the claimant in this application were considered in the light of all of the evidence presented to the tribunal before it reached its unanimous decision and as recorded in the judgment dated 10 December 2023 which relied on the findings of fact set out in the judgment of 19 September 2022.[9]In support of the contention that the cost order is unaffordable, the claimant has re-sent some financial information originally provided to the tribunal for the cost hearing in support of his application and has also provided some additional evidence of his financial situation. The claimant does not say why the evidence he has now provided could not have been provided at the cost hearing, though as set out below, this provides no basis for varying or revoking the decision.[10]At the cost hearing, the tribunal directed itself that Rule 84 allows the tribunal to have regard to the paying party’s ability to pay, but that it does not have to do so. In reaching the decision in this case, the tribunal did not have regard to the claimant’s ability to pay, on the basis that the financial information provided by the claimant was incomplete and his evidence as to his means was evasive and inconsistent. Although some additional financial information has been sent to the tribunal in support of this application, comprehensive disclosure has not been provided and there is nothing in the additional information provided that would lead to there being a reasonable prospect of the original decision not to take his financial means into account to be varied or revoked.[11]In relation to the level of the costs order, the original costs claimed by the respondent were £44,475.50 (and these subsequently increased). Prior to the cost hearing, the respondent asked for costs to be capped at £20,000 and the tribunal concluded that given the way litigation had been conducted by the claimant that a costs order of £18,000 for a two day hearing was appropriate. The claimant did not challenge the amount of costs claimed by the respondent in the hearing and has neither raised any grounds nor provided any evidence to support a finding that the level of the costs order should be varied or revoked.[12]In relation to the fact that the claimant asserts that the decision should be varied or revoked because the evidence of Sara Heath in relation to autism was not expressly referred to in the judgment, the following points are noted: 12.1. The disability relied on by the claimant for this claim was dyspraxia; 12.2. Ms Heath gave evidence at the hearing relating to autism in support of the claimant which aligned with previous evidence presented by witnesses at the hearing on 22 and 23 August 2022 about the difficulties the claimant faced in engaging both with job applications and the tribunal process. 12.3. Ms Heath did not give evidence as an expert witness. 12.4. The claimant also presented a psychological needs assessment (held on 17 March 2023) at the cost hearing having asked for the original listing of the hearing to be delayed so this could be obtained. This was considered by the tribunal as set out in paragraph 16 of the Judgement. 12.5. A letter from Ms Heath was attached to the claimant’s fourth email of 29 December 2023 in support of this application.[13]Having considered the above factors and noting that Ms Heath’s oral evidence was heard and considered by the tribunal along with all the other medical evidence submitted by the claimant (both general and specific), I find that the fact that there is no express reference to her evidence in the judgment does not provide any grounds to conclude that there is a reasonable prospect, of the original decision being varied or revoked.[14]The claimant has further referred the tribunal to relevant legal principles by way both of summaries of those principles (in some cases assisted by AI) and by references to case law. Having reviewed these summaries and cases, I am satisfied that none of these raise any error of law that would lead to there being a reasonable prospect of the original decision being varied or revoked.[15]Accordingly, the application for reconsideration pursuant to Rule 72(1) is refused because there is no reasonable prospect of the judgment being varied or revoked.