Mr S Hards v Masters of Beckenham Ltd: 2302072/2022
JUDGMENT
[1]The claimant’s claim for breach of contract (notice pay) is dismissed on withdrawal.[2]For reasons given orally, the claimant had a disability under the Equality Act 2013 at the relevant time (January 2022 to 29 April 2024) by reason of the effects of heart attack. This decision is made on the basis of both physical and mental impairments as referred to by the claimant in sections 1 to 9 of his Disability Impact Statement which were all accepted as accurate. Signed electronically 22 November 2023REASONS
[1]The tribunal accepts that the reference to the claimant’s representative was incorrect and should be altered. There is otherwise no reasonable prospect of the original decision being varied or revoked, for the reasons set out below. 2302072/2022 2[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 only those set out in Rule 70, namely that it is necessary in the interests of justice to do so[4]The grounds relied on for reconsideration as are followsa. in relation to his claim for direct disability discrimination, the claimant was entitled not to make details of his disability known when he applied for his job at the respondent and therefore contends that he did not contravene the provisions of section 136 of the Equality Act 2010. (Ground 1)b. in addition, in relation to that claim, the claimant says he made his line manager aware when he started the role that he had a heart condition and all three directors of the respondent became aware of his condition in 2019. He argues that at a preliminary hearing on disability, the respondent did not deny such awareness and the Employment Judge accepted the claimant’s response that the respondent was aware of his condition. He contends that the tribunal should have been aware for the reasons the Employment Judge gave for deciding the claimant had a disability. (Ground 2)c. In relation to the claim of failure to make reasonable adjustments for disability, the respondent was aware at the time of the appeal hearing of the claimant’s disability and so acted in a deliberate and discriminatory way in not allowing the claimant to be accompanied by a friend at the appeal hearing. (Ground 3)[5]The matters raised by the claimant were considered in the light of all of the evidence presented to the tribunal before it reached its unanimous decision.[6]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 2302072/2022 3 has gone radically wrong with the procedure involving a denial of natural justice or something of that order”.[7]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.[8]The tribunal reviewed each of the three grounds put forward in turn. Ground 1[9]The first argument relates to whether the claimant “contravened” section 136 of the Equality Act 2010. This section relates to the burden of proof and was referred to in the oral judgment given by the tribunal, as follows: “The provisions relating to the burden of proof are to be found in section 136 of the Act, which provides 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 this does not apply if A shows that A did not contravene the provision.”[10]Section 136 therefore gives the burden of proof initially to the claimant to show that there are facts from which the tribunal could decide the dismissal of the claimant was by reason of disability discrimination. If he shows such facts, the burden of proof moves to the respondent, who has to show that discrimination on the grounds of disability was not the reason for the dismissal. There is not therefore a question as to whether either party contravened section 136.[11]In this case, Mr Cotton on behalf of the respondent was adamant that he did not know about the claimant’s condition until shortly before the appeal hearing. The tribunal accepted that this was the first time the directors of the respondent were aware of the claimant’s condition. As the decision to make the claimant redundant was made before the decision makers were aware of the claimant’s condition, that condition cannot have been the reason for the dismissal. The respondent has therefore provided a satisfactory explanation that disability was not the reason for the dismissal.[12]The tribunal therefore finds that there is no reasonable prospect of its decision being varied or revoked on the basis of Ground 1. 2302072/2022 4 Ground 2[13]The second ground is based on a purported awareness of the directors in 2019 and a suggestion that Employment Judge Kelly had accepted this in the preliminary hearing on disability and the tribunal should have taken this into account in considering that awareness.[14]The tribunal has made a determination on awareness and this referred to above. That determination was based on the evidence presented to the tribunal for the hearing and the evidence given and submissions made at that hearing. No new evidence has been provided to suggest that the tribunal’s conclusion was incorrect, except the reference to EJ Kelly’s reasons in the disability hearing.[15]The decision made by EJ Kelly was set out in a judgment dated 22 November 2023. This comprised a dismissal on withdrawal of a separate complaint and the following on disability (the disability found has been redacted from this extract): For reasons given orally, the claimant had a disability under the Equality Act 2013 at the relevant time (January 2022 to 29 April 2024) by reason of …. This decision is made on the basis of both physical and mental impairments as referred to by the claimant in sections 1 to 9 of his Disability Impact Statement which were all accepted as accurate.[16]The judgment does not refer to the awareness of the directors of the respondent in relation to his condition. The reasons were given orally and there is no written version provided to the tribunal. Crucially, EJ Kelly was only required to make a decision on whether the claimant had a disability, not on awareness. The tribunal has also noted that the respondent has been consistent on the issue of awareness throughout the process, including in its response to the disability impact statement and at the final hearing, when under oath.[17]The tribunal finds that there is no evidence that it overlooked a relevant disclosure on this issue or any reason to vary its determination as to the timing of the awareness by the directors of the claimant’s condition.[18]The tribunal therefore finds that there is no reasonable prospect of its decision being varied or revoked on the basis of Ground 2. Ground 3[19]The final ground relates to the purported failure of the respondent to make reasonable adjustments at his appeal hearing, by refusing his application to be accompanied by a friend with an HR background. He argues that, as the respondent was by then aware of his condition, the actions in refusing his application were carried out in a deliberate and discriminatory way. 2302072/2022 5[20]This is a repeat of an argument made at the hearing and essentially the claimant is asking the tribunal to reverse its decision on this point, on the basis that it reached the wrong conclusion.[21]This argument was considered carefully by the tribunal in its deliberations, based on the evidence provided to it for the hearing and on the evidence and submissions given at the hearing. Its reasons for accepting that the respondent had acted reasonably in refusing the claimant to be accompanied by a friend to the appeal meeting was explained in its oral judgment as follows: The respondent allowed the claimant to be accompanied by a trade union official or a work colleague. It had legitimate reasons for not allowing friends to accompany employees, given the past history of violence and abuse. Allowing the claimant to be accompanied by a work colleague is a balanced and reasonable response.[22]The tribunal sees no reason to alter its decision and considers it would not be in the interests of justice to do so. It therefore finds that there is no reasonable prospect of its decision being varied or revoked on the basis of Ground 3.[23]Accordingly, the tribunal refuses the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the judgment being varied or revoked.