Mr M Thomas v Cardiff Council: 1604382/2024
JUDGMENT
[1]The following complaints in the draft List of Issues require permission to amend, permission to amend is refused and therefore the complaints cannot proceed:1.1 Paragraph6.1.1 (harassment related to disability complaint from 2013 about defective vehicle);1.2 Paragraph3.1.1 (direct disability discrimination complaint about not being upgraded to Grade 4 after 4 years of driving in 2015);1.3 Paragraph6.1.2 and6.1.3 (harassment related to disability complaint from 2017 to 2019 alleging being followed by supervisors);1.4 Paragraph5.3.4.1 and 5.5.4 (failure to make reasonable adjustments complaint about manner of feedback and instructions by supervisors);1.5 Paragraph 5.3.4.3 and 5.5.4 (failure to make reasonable adjustments in 2020 in not giving written feedback about HGV class 2 driving application);1.6 Paragraph 6.1.5 (harassment related to disability complaint from 2020 about signing a written warning for tipping load early);1.7 Paragraph3.1.2 (associative direct disability discrimination complaint from 2020);1.8 Paragraph 4.1.1, 4.1.2, 4.2.1, and4.3.1 (discrimination arising from disability complaints from 2019, 2020 and 2021 about pay increments);1.9 Paragraph5.3.4.2 and 5.5.4 (failure to make reasonable adjustment complaint about not speaking to the Claimant in simpler terms);1.10 Paragraph 4.1.3, 4.2.2 and4.3.2 (failure to make reasonable adjustment complaint about trailer training);1.11 Paragraph3.1.3 (direct disability discrimination complaint about roll on role off driver role in 2021);1.12 Paragraph3.1.4 (direct disability discrimination complaint about job opportunity offered to agency worker in 2021);1.13 Paragraph 5.3.2 and 5.5.2 (failure to make reasonable adjustments complaint about refusal of Class 1 HGV training/Tesco comment in 2021);1.14 Paragraph 6.1.6 (harassment related to disability complaint from 2022/2023 about a defective vehicle);1.15 A further application to amend by the Claimant about alleged bullying 2020 about colleagues tipping early, alleged bullying by a work colleague for 8 to 10 years and a grievance relating to that; allegedly being accused of working for a different company, allegedly being given a written warning for using the toilet at Lamby way;[2]The following complaints in the List of Issues are granted by way of amendment and can continue (subject to the question of time limits being determined at the final hearing):2.1 Paragraph 3.1.6 (direct disability discrimination complaint about alleged comments by HR in the dismissal meeting on 8 August 2024;2.2 The sentence in Paragraph 4.3.5 that alleges MW did and said what he did because of what the Claimant said at the sickness absence meetings and MW thought the Claimant was too much trouble (discrimination arising from disability complaint);2.3 Paragraph 5.5.3 and 5.4.3 (reasonable adjustment complaint that instead of dismissal the Claimant should be redeployed to another department);[3]The following complaints are struck out as having no reasonable prospect of success of being within time or the granting of a just and equitable extension of time:3.1 Paragraph 6.1.4 (harassment related to disability for period 2019 to 2021 about the allocation of right hand drive vehicles);3.2 Paragraph 6.1.7 (harassment related to disability complaint about written warning for tyre tread);3.3 Paragraph 6.1.8 (harassment related to disability complaint about the Claimant’s pay when driving the Arctic vehicle);[4]I do not strike out the following complaints and the Respondent’s application to strike out is refused. Nor do I order payment of a deposit. This means these complaints will be determined on their merits at the final hearing and the time limit questions determined at the final hearing:4.1 Paragraph 5.5.1 (the reasonable adjustment complaint about DP and class 2 HGV training in 2019);4.2 Paragraph 4.1.4 and 6.1.9 (Discrimination arising from disability and harassment related to disability complaints about the handling of the Claimant’s sick leave and alleged pressures placed on the Claimant);[5]Full oral reasons were given for the above decisions at the hearing. The complaints that are proceedings are set out in an updated List of Issues in a separate case management order.[6]In my oral Judgment I said that for paragraph 3.1.5 in the List of Issues I was minded to allow the amendment subject to the question of time limits that I would return to. Following delivering the oral Judgment I have appreciated that through error on my part I failed to return to this point and did not give the parties a decision on it. I had already heard the arguments about it and I am therefore now giving my decision, with reasons, in writing instead.[7]This is a complaint that in June 2023 the Claimant was told he was no longer required to continue in the Arctic role, which he says was less favourable treatment of him due to his hip condition, compared to his comparator NC. The Claimant alleges that the decision maker, ML, prioritised NC’s mental health disability over the Claimant’s physical disability.[8]In a strike out application I have to take the Claimant’s case at its highest. I asked the Claimant what he said the link was through to the decision to dismiss, which is relevant to assessing the prospect of successfully establishing a continuing course of discriminatory conduct. The Claimant said that this was the event which caused him to go on to sick leave which was then the lead up to dismissal. The Claimant also said it was about a lack of progression and a lost career opportunity relating to his disabilities. He said that when he was dismissed he was also refused the opportunity of a phased return or reasonable adjustments to return instead of dismissal.[9]I acknowledge that that this complaint about the Arctic role relates to the Claimant’s hip condition, whereas the complaint about the dismissal is about his mental health condition. There are also different decision makers involved. However, on balance and taking the Claimant’s case at its highest I cannot say that the Claimant has no reasonable prospect of success in establishing a link from the decision made by ML to end his Arctic role said to be direct disability discrimination and the alleged failure to explore redeployment for the Claimant as a reasonable adjustment instead of dismissing him and how it is said, related to disability, this was the thwarting of his career progression with the Respondent and thwarting of his attempts to secure a role that was appropriate for his disabilities. These are complaints that are far more closely linked in time than many of the Claimant’s other complaints that I have not permitted to proceed. This then links in with the question of whether the Claimant has in any event a prospect of securing a just and equitable extension of time. In that regard again there is far less likely prejudice to the Respondent bearing in mind this complaint is not as old as many others, and it was investigated in an internal grievance investigation. I therefore allow the complaint to proceed by way of amendment. I decline the application to strike it out on time limit grounds. I also, for the reasons given, cannot say that the complaint has little reasonable prospects of success, and I do not make a deposit order. Paragraph 3.1.5 can therefore proceed to a final hearing. The merits of the complaint and whether it is in fact within time or not, or whether there should be a just and equitable extension of time must of course be determined afresh at the final hearing. To be clear all time considerations for all complaints that I have permitted to proceed are to be determined afresh at the final hearing. Approved by: