Mr D Beech v Avon Fire and Rescue Authority: 1406256/2019

EMPLOYMENT TRIBUNALS

Case No 1406256/2019

Between

Mr D BeechClaimant

Avon Fire and Rescue AuthorityRespondent

Before

Employment Judge Rayner

Mr A Roberts (instructed by Counsel) for respondent

Date 8 September 2020

JUDGMENT

The complaint of direct sex discrimination is struck out.

REASONS

[1]The respondent applied for the claims of direct sex discrimination to be struck out on the grounds that it has no reasonable prospect of success, within the meaning of section 37 (1)a ET (Constitution and Rules of Procedure) regs 2013.

[2]Following representations from both parties, the claim of direct discrimination is struck out, because it has no reasonable prospects of success.

[3]The claimant made a claim to the tribunal alleging sex discrimination in a claim form dated 16 December 2019.

[4]In this claim, he alleged that he had been discriminated against on grounds of his sex in a recruitment exercise carried out by the respondents for apprentice firefighters, which he failed at the second stage of the process, following attendance at an assessment centre day. In brief, he alleges that the responded operated a system which favoured women in the process over men, because the respondent wanted to recruit more women firefighters to the service.

[5]The respondents deny discrimination, and assert that whilst Mr Beech was not successful, this was nothing to do with his sex, but was wholly attributable to the fact that he failed an essential part of the assessment centre, which was the ladder climb.

[6]The claimant refers to and relies upon various data provided by the respondent to him, following a freedom of information request, which he states shows that a higher proportion of women than men were successful at the stage 2, which he failed.

[7]He also refers to a letter dated 12 September 2019, sent in response to a request for information made by the claimant’s mother, which says this in respect of an allegation of bias: In response to your concern that the outcome for female candidates was significantly better than male candidates who performed better, we have reviewed the process that was followed and set out our findings below. Our review has revealed that there were some shortcomings in the process that was followed as part of the recruitment exercise. These relate specifically to the decision by the led assessors to apply a selection criteria, which was in accordance with the information you have been provided with, but which also had regard to the under representation of female firefighters within the workforce. Following our review, it has come to our attention that the selection process was fundamentally flawed and it has been halted. We have subsequently concluded that we are not able to proceed with the firefighter apprenticeship programme during 2019.

[8]The paragraph goes on to say that they will not be taking on any apprentices following the recruitment exercise.

[9]In his ET1 the claimant refers to the number of people who applied for the apprenticeship scheme broken down by sex: 125 people applied, of which 14 were women, 3 failed the first hurdle; 3 failed the assessment centre and 8 got some form of offer. Of the 111 men who applied, 7 men got some sort of offer.

[10]The claimant relies upon the asserted fact that a higher proportion of the women who applied were made offers than the proportion of men who applied.

[11]The claimant refers to section 19 and direct discrimination in his ET1.

[12]Following a telephone case management hearing to discuss the issues in the case, at which Mr Beech was represented by Miss Anwar from Bristol law centre the claimants claim of indirect discrimination was identified and further particulars were sought. No claim of direct discrimination was asserted, following discussion of the nature of the claim being made.

[13]Following that hearing, the claimant provided further particulars of the indirect discrimination claim, identifying the PCP and confirming the disadvantage suffered by men compared to women, and by the claimant as follows: The PCP relied upon is the passing of the second stage in a 3 stage recruitment process as a perquisite to progress to the final pool for selection. This was conducted for everyone but put men at a disadvantage compared to women and by the Claimant.

[14]In respect of the disadvantage, the claimants stated that it was difficult to advise what the disadvantage suffered was as it was not clear why the proportion of men failing at the second stage was higher than the proportion of women failing at the second stage.

[15]The claimant also clarified that he was making a claim for direct discrimination, because the scores showed detrimental treatment compared to women applicants. This is a reference to the fact that some women scored more than the claimant at the second stage. No further details of any direct discrimination claim are made.

[16]From the information before me, there is no obvious basis for asserting less favorable treatment on grounds of sex.

[17]The claimant must be able to point to something more than a difference is sex and a different in score. Mr Beech has no obvious evidence that I have seen of any less favourable treatment, but nor does he even have evidence of different treatment.

[18]It is highly likely that, as the respondent asserts, he was subjected to the same treatment as every other person who went through the second stage.

[19]The respondent asserts, and the documentary evidence I have been shown supports, that Mr Beech did not progress because he could not climb a ladder in a satisfactory way. If this is right, it is nothing to do with sex, and Mr Beech does not suggest that it is.

[20]Here, on the basis of the materials before me, it is highly likely that the claimants scores and failure to progress, will be because of his failing to climb a ladder at the required standard, which is highly likely to be found to be a reason that is nothing to do with sex. A difference in his score and that of a woman is not evidence of sex discrimination.

[21]The claimant’s remaining claims remains listed for hearing on 4 and 5 January 2021. JUDGMENT on Reconsideration 1. The Claimant’s application to amend his claim by adding a claim of direct discrimination is granted. 2. The case is listed for a two-day final hearing, before a Judge sitting with members at the Bristol Tribunal, on 16 and 17 October 2023. Case management orders are set out in an attached order.

[22]The question remitted to me therefore is whether I would have made a different decision and, crucially, whether I would have allowed the application to amend, had I been aware of the correct date that this information was received and known to the Claimant.

[23]I have received helpful and detailed written skeleton arguments from both counsel in advance of the hearing and I also heard detailed and forceful submissions from both Counsel. I am grateful to both of them for the care and thought they have put into their written and oral submissions.

[24]Both parties have identified the key legal principles to be taken into account when considering an application to amend and I have considered them.

[25]I have reminded myself of those principles and in particular take into account the recent guidance from the Employment Appeal Tribunal set out in the case of Vaughn v Modality

2021 ICR 535

. I remind myself that there are a range of factors which I may take into account when considering whether or not to grant application to amend and remind myself that I must consider the balance of prejudice in each case, and should consider submissions in respect of the real practical consequences of allowing or refusing the amendment.

[26]I have also taken into account the decision made in the case of Ali v Office for National Statistics,

[2005] IRLR 201

, Court of Appeal.

[27]Whilst the factual background in that case was different, a key point made was in respect of the stage in the proceedings that an individual becomes aware of information that might form the basis of a claim for discrimination.

[28]As a matter of logic, a Claimant cannot bring a claim for direct discrimination unless they have some information which points to a difference of treatment between themselves and another individual. Claimants are often at a disadvantage in discrimination claims in the context of appointments and promotions because they do not necessarily know how others have been treated. They do not necessarily know whether they have been treated differently than others have been treated.

[29]The Respondents in contrast ought to have a clear understanding of why they appoint some individuals and do not appoint others.

[30]In Ali the point was made that strict time limits may be extended, so that a claim that would be out of time, could be brought within time, where it was just and equitable to do so. Circumstances where it may be just and equitable to exercise the discretion, is where a claimant does not discover the information which suggests discrimination until well after the time limit has expired.

[31]In the context of an application to amend a claim by adding a claim of discrimination, after the expiry of the primary time limit, one of the matters which a tribunal must consider is the timing of the application, and the reason for the timing of the application.

[32]If, as in this case, an application to amend is made outside of the primary three-month time limit, the delay and the reason for it, will be one of the factors that the ET must take into account in determining the application.

[33]In Vaughan v Modality Partnership UKEAT /0147/20/BA His Honour Judge Tayler reviewed the factors set out in the case of Selkent Bus Co Ltd v Moore

[1996] ICR 836

. These are, the nature of the amendment; the timing and manner of the application; the applicability of time limits. However, he also reminds us that they are not the only factors that may be relevant and that it is of key importance that the factors set out in the second case are considered in the context of the balance of justice.

[34]This requires an assessment of the prejudice that might be caused to the respective parties. A minor amendment might cause a claimant great prejudice if it were refused because a vital component of the claim would be missing. For the respondent an amendment may result in the respondents suffering prejudice because they have to face the cause of action that would have been dismissed as out of time had it been brought as a new claim. Alternatively light amendment may cause prejudice to a respondent because it is more difficult to respond to and results in unnecessary wasted costs. No one factor is likely to be decisive and I remind myself that what I must focus on is the balance of justice.

[35]This requires me to consider expressly any prejudice to the claimant and any prejudice to the respondent.

[36]It is my judgement that when originally making the decision, the error over the date on which the information became available to the Claimant, meant that whilst the time factors were assessed, they were given undue weight. It is therefore appropriate for me to carry out the exercise of considering whether or not to grant the amendment, taking into account the correct date, and looking at it in the context of the balance of prejudice to the parties, as well as all other factors. The parties representations

[37]I accept the Claimant's assertion that once he became aware of the information which he now relies upon as direct discrimination, he made an application to amend in a timely manner.

[38]The Claimant had made a Freedom of Information request on 2 August 2019, but did not receive all the information in response to his request.

[39]He was provided with the information on and made his application to amend his claim very shortly afterwards.

[40]The Respondent was aware from the point of the Claimant’s initial claim to the tribunal that the Claimant was raising a claim of discrimination in respect of his failure to be selected. The Claimant had asked in his Freedom of Information request why he had not been selected.

[41]The Respondents knew the reason why the Claimant was not selected but they also knew the reason why other individuals were not selected.

[42]The information provided to the Claimant and the fact that the Claimant sought to rely upon it in order to make a claim of direct discrimination, was a fact known to the Respondent since 2019

[43]I conclude from the chronology, that the Respondent would not be prejudiced simply because the application to amend was made at a later stage in the process.

[44]The Claimant on the other hand, is significantly disadvantaged if he is not able to pursue the claim of direct sex discrimination before the employment tribunal. He will not be able to challenge a fundamental part of his argument.

[45]Mr. Roberts has argued very forcefully that I should not allow an amendment of claim because of the observations I had made in respect of the merits of the claim in my previous judgment. He argues that if I considered that the merits were poor when I refused the application then I must also consider them poor today, and therefore that should lead to a refusal of an application to amend.

[46]I accept that where an application to amend out of time is made, the merits of the claim can be one of the factors to be taken into account and I agree that it would not be appropriate for me to revisit my view of the merits at this point.

[47]However, I do not agree that that is the beginning and end of my reconsideration today. the merits of the claim are only one factor to be taken into account, and my view of the merits is not that there was no reasonable prospects of succeeding. In such a case there would be no prejudice to the claimant. here, the case is at east arguable, and must have some prospects of success. My view of the merits is a factor, but it is only one factor.

[48]Here, if the amendment is allowed, the Respondent may of course apply to strike out, or a deposit order, but that is a separate step.

[49]I have therefore considered the practical consequences of allowing the amendment. First, the claim will need to be listed for a hearing and the claim case managed.

[50]The majority of the documentation which the tribunal will need to consider in order to determine the direct discrimination claim has been disclosed. The respondents are clear about what their response to the claim will be and do not suggest that they will be prejudiced by not being able to call witnesses to explain that defence.

[51]The point is a discreet one and can be dealt with in a relatively short hearing which can be listed relatively quickly.

[52]If the respondent considers that the merits of the claim are poor, then it may make an application in that respect.

[53]There is I conclude no prejudice to the respondent other than having to deal with a claim that they had expected not to have to deal with.

[54]In contrast, the prejudice to the claimant is that a refusal of the amendment will bring his claim to an end.

[55]The application I am asked to reconsider on remission is one in which the significant difference is the time frame within which information was known to the claimant.

[56]On the basis of the correct information, this is an application to amend made within a very short time of the Claimant becoming aware of crucial information. move

[57]It is my judgement that had I been fully aware of that information when I considered the application on the first occasion, that it would have been a far more persuasive factor, which would have outweighed my views on the merits of the claim.

[58]Taking into account the balance of prejudice to the parties, the prejudice to the Respondent of having to deal with a further allegation of direct discrimination is, in my judgment outweighed by the prejudice to the Claimant of not being able to pursue his claim at all.

[59]I remind myself that he had taken all steps in order to find out why he had been unsuccessful and that it was information disclosed to him at a late stage, that had been in the control of the Respondent all along, which necessitated an application to amend out of time.

[60]On that basis I determine that, had the correct dates of disclosure been clear at the first hearing, that I would have allowed the Claimant’s application to amend, in spite of my observations about the merits of the claim. Next Steps and Case Management Orders

[61]The claim will now be listed for a 2-day hearing in person before an Employment Judge sitting with members at the Bristol Employment Tribunal, Bristol Civil and Family Justice Centre, 2 Redcliff Street, Bristol BS1 6GR.