Mr C de Lisle v ABM Technical Solutions Ltd: 2303274/2018
JUDGMENT
The claim of unfair dismissal is dismissed upon withdrawal.REASONS
[1]This matter is listed for determination of a number of case management issues, including the viability of the claims, whether the claims should be struck out or a direction made for the payment of a deposit. In relation to Case No: 2303274/2018 those claims permitted to proceed, consideration was to be given to whether or not they were in time.[2]The first issue before the Tribunal is the viability of the claims as identified by Employment Judge Lancaster on 4 March 2019. The Claimant confirmed that the details there set out represent an accurate summary of his claims and the grounds upon which she seeks to pursue them.[3]The Tribunal received detailed submissions from the parties and has taken into account the guidance of the senior Courts in connection with the striking out of discrimination claims. The Tribunal has also considered the judicial guidance in connection with the threshold for the direction of a deposit.[4]During the hearing, the Claimant confirmed he wished to withdraw one of his claims. The Tribunal also determined that several additional claims enjoyed little reasonable prospect of success and made an order for the payment of a deposit. The terms of the deposit order and the reasons for it are detailed within a separate order of the Tribunal. This judgment is confined to the Tribunal’s determination regarding strike out.[5]The first issue before the Tribunal is the viability of the claims as identified by Employment Judge Lancaster. The Tribunal received detailed submissions and has taken into account the guidance of the senior Courts in connection with the striking out of discrimination claims.[6]The jurisdiction to strike out a claim, or part of a claim, is to be found in rule 37 of the Employment Tribunal Rules. Before doing so, the Tribunal must be satisfied that the claim in question enjoys no reasonable prospect of success and/or is otherwise vexatious. The Respondent’s position may be simply stated: the claims lack any reasonable prospect of success and should be struck out. For this purpose, the Tribunal bears in mind that the notion of ‘reasonable prospects’ has been considered on a number of occasions following Swain v Hillman. Section 13 Equality Act 2010[7]The Claimant relies upon two allegations: the application to him of a stereotypical assumption concerning disability (and mental health in particular). This is said to have come in the form of a suggestion on the part of Mr Cape that be believed the Claimant would not wish the medical reason for his early departure from shift to be shared with others. The second allegation relied is the suggestion that this factor and/or mentality played a part in the deliberations of the dismissing officer (Mr Davies); such that the act of dismissal is said to be discriminatory on this ground. Whilst the Claimant may face evidential difficulties, the burden of proof he faces is low. Moreover, there is a public interest in the ventilation of claims of discrimination. In consequence, as noted by Elias LJ in Ezsias v North Glamorgan NHS Trust. Applying these considerations and in the absence of exceptional circumstances, it cannot be said that the Claimant Case No: 2303274/2018 enjoys no reasonable prospect of success. The assessment of this claim for the purposes of a deposit order is addressed within the course of a separate Order. Section 15 Equality Act 2010[8]This claim is formulated upon the basis that the Claimant was late on one occasion; an event which was, he says, related to his disability. In consequence, he suggests that he was subject to detriment. However, on closer analysis, the comment of Mr Cape (as the Claimant accepts) had nothing to do with his late arrival for work, but rather his early departure from shift. Furthermore, he now accepts that he was late on 3 occasions following the performance review in May 2018. On the facts conceded by the Claimant, there is no scope for a section 15 claim concerning the comments made by Mr Cape. However, it is said that the events of 10 July 2018 played a part in the decision to dismiss. The documentation produced by the Respondent suggests that this may be the case. Whether they did, is a different matter. Upon this basis, the section 15 claim concerning the comment or attitude of Mr Cape is struck out as having no reasonable prospect of success. The allegation directed to the act of dismissal by Mr Davies is the subject of further assessment for the purposes of a deposit is addressed as detailed within the separate order of the Tribunal. Section 27 of the Equality Act 2010[9]The victimization claim is dismissed upon withdrawal by the Claimant. Section 20 of the Equality Act 2010[10]There are three limbs to this claim. The Tribunal is satisfied that they enjoy no reasonable prospect of success and are to be struck out on that ground. In reaching this conclusion, the Tribunal has taken into consideration all of the circumstances of the case, including the agreed evidential position between the parties, the absence of any discernible or identified policy, criterion or practice, and the fact that when properly evaluated, the adjustments represent concessions which the Respondent was under no duty to make, but, on the agreed evidence, in fact made. Section 10 Claim[11]Section 10 of the Employment Relations Act 1999 (The Act) provides for the right to be accompanied in respect of two eventualities: a) when attending a disciplinary or grievance hearing; and b) a reasonable request has been made of the employer. Failure to accommodate this entitlement generates a right to lodge a claim before the Employment Tribunal.[12]Section 13 (4) of the Act provides the interpretation of the phrase ‘disciplinary hearing’ by reference to the potential outcome of the hearing in question. Three outcomes are identified: a) the imposition of a formal Case No: 2303274/2018 warning; b) the taking of some other action by the employer; and c) the confirmation of a warning.[13]The Claimant has referred to the decision of the Manchester Employment Tribunal in Collins v ILC Manchester (2013) in support of the proposition that a performance review falls within the scope of 13(4). Mr O Neill submits that this would artificially extend the scope of the statutory right and its protection; adding that the ACAS Code has clearly legislated for disciplinary hearings as a discrete category of workplace encounter requiring a heightened level of vigilance and protection.[14]The meeting attended by the Claimant was a performance review. One particular outcome of that meeting was the provision of notice of termination of the contract of employment. However, in the view of the Tribunal, this is some considerable distance away from the area of inquiry to which section 10 is directed. Disciplinary hearings are, by their nature, concerned with matters of culpability and suspected wrongdoing. Parliament has chosen to single out such processes as deserving of particular attention. No doubt in doing so, it came to the conclusion that dismissal by reason of misconduct has potential adverse consequences, not merely in connection with the viability of the employment in question, but also the potential for alternative employment in the future. When properly construed section 13(4) is directed to the imposition of disciplinary sanctions. The reference to ‘the taking of other action’ on the part of the employer must be construed in the same way (i.e. as pointing the imposition of a disciplinary measure). It may be said that the termination of the employment relationship would be considered such a measure. However, if this were the case, the descriptor ‘disciplinary’ would not be necessary. More fundamentally, it would be difficult to see why both the Act and the ACAS Code exclude from the scope of protection occasions in which decisions on the ground of redundancy are made and communicated. This distinction finds support in the decisions of the Employment Appeal Tribunal in Harding v London Underground [2003] IRLR (in which the EAT concluded that there was a distinction to be drawn between informal and formal disciplinary encounters) and Heathmill v Jones [2003] IRLR. In Heathmill, HHJ Reid concluded for reasons not dissimilar to those adopted in the course of this judgment, that the right to be accompanied did not extend to redundancy related processes. A redundancy process is, of course, intended to accommodate the termination of the employment relationship.[15]Accordingly, in the view of the Tribunal, the claim for breach of section 10 has no reasonable prospect of success and is struck out.[16]In the light of the above determinations, the claims which remain comprise three allegations of discrimination. The case management of those claims is addressed within a separate order of the Tribunal. Case No: 2303274/2018