Mr A Shafqat v BGC Technology International Ltd and HW Technology Solutions Ltd: 2304139/2019

EMPLOYMENT TRIBUNALS

Case No 2304139/2019

Between

Mr A ShafqatClaimant

(1) BGC Technology International Ltd (2) HW Technology Solutions Ltd PRELIMINARY HEARING (OPEN)Respondent

Before

Employment Judge Braganza

In person for claimant

Date 13 June 2022

JUDGMENT

It is the judgment of the Tribunal that:-(1) The First Respondent’s application to strike out the Claimant’s claim against it is dismissed. The Tribunal is not satisfied that the claim against the First Respondent has no reasonable prospect of success.

(2) The claim of direct discrimination against the First Respondent has little reasonable prospect of success. The claim is that the Claimant was subjected to direct discrimination because of his disability by the First Respondent failing to arrange a technical test at home and conduct an interview with him at a café or its office in Canary Wharf with step free access. The Claimant is ORDERED to 1 of 10 pay a deposit of £750 no later than 21 days from the date this Order is sent as a condition of being permitted to continue to advance this claim. The Tribunal has had regard to the information available as to the Claimant’s ability to comply with the Order in determining the amount of the deposit.

REASONS

[1]This was a remote hearing by CVP which was not objected to by the parties. A face to face hearing was not held because it was not currently practicable. The relevant matters could be determined in a remote hearing.

[2]The purpose of the hearing was to deal with the First Respondent’s application to strike out the Claimant’s claim against it, alternatively, for a deposit order against the Claimant. I gave my decision and reasons at the end of the hearing. The Respondent requested written reasons which are set out below. Documents in respect of the strike out application

[3]I was provided with a bundle of 128 pages, a skeleton argument and the cases of Ahir v British Airways

[2017] EWCA 1392

, Ezias v North Glamorgan

[2007] ICR 1126

and Van Rensburg v The Royal Borough of Kingston-Upon-Thames & Others

UKEAT/0096/07

by the First Respondent. The Claimant provided a bundle of 27 pages and also a skeleton argument. There was nothing from the Second Respondent. I confirmed that everyone had all the above documents.

The Claim

[4]In summary, by a claim form presented on 25 September 2019 the Claimant brought a claim against the First Respondent for disability discrimination. The Claimant, who is disabled with mobility difficulties, claimed that when he attended the First Respondent’s premises in Woking for an interview on 29 July 2019, there was no step free access. Two of the First Respondent’s employees explained to the Claimant that this was an old building without step free access, for which they apologised. They said they would be able to accommodate the Claimant at another office at Canary Wharf, a café or other location with accessibility. The Claimant recorded this conversation.

[5]The Claimant claimed that the next day in a telephone call with a recruitment consultant of the Second Respondent, he was asked about his disability and whether it was long-term or temporary. He said it was long-term and claims that he was told by the Second Respondent that the First Respondent would not be able to consider him for the role at the Woking office and if there were a role available at any other location, he may contact him. The Claimant claims he asked this to be confirmed in an email and received no further response.

[6]The First Respondent disputed the claim. It asserted that it offered to rearrange the interview to a location with step-free access. It emailed the Second Respondent, who said that the Woking office would not work for the Claimant, 2 of 10 which the First Respondent took to mean that the Claimant was no longer interested in the role.

[7]On 15 August 2019 the First Respondent received a letter from the Claimant that he had been discriminated against and was seeking compensation of £100,000. The First Respondent replied agreeing to interview the Claimant at its offices in Canary Wharf and assured the Claimant he suffered no disadvantage with respect to his application. On 27 August 2019 the Claimant replied that he had secured another job. The Second Respondent also disputes the claim. Clarification of the issues

[8]At the outset of the hearing the Claimant confirmed that he no longer brought a claim of direct discrimination or a breach of the duty to make reasonable adjustment against the Respondents in respect of the interview on 29 July 2019. He accepted that his disability was not known to the Respondents at that time. The Respondents did not object to the Claimant amending his claims in this way.

[9]The Claimant confirmed that the remaining claims were as set out in his skeleton argument of 25 November 2021. These were:9.1 That he had been subjected to direct discrimination because of his disability by the Second Respondent in the telephone call on 30 July 2019 when he was asked about his disability and informed that the First Respondent would not consider him for the role.

9.2 That he had been subjected to direct discrimination because of his disability by the First Respondent by it failing to arrange a technical test at home and failing to conduct an interview with him at a café or its office in Canary Wharf with step free accessibility. Procedural history

[10]On 19 March 2020 the First Respondent applied for a deposit order against the Claimant. On 23 March 2020 at a telephone case management discussion Employment Judge Truscott QC directed that there should be a further open Preliminary Hearing to consider matters, including the application to strike out.

[11]On 17 June 2020 the First Respondent made an application for an unless order based on the Claimant’s failure to provide details of his claim and medical records. On 27 and 28 June 2020 the Claimant replied. On 15 July 2020 the application for the unless order was therefore refused.

[12]On 24 August 2020 at a Preliminary Hearing before Employment Judge Khalil, the First Respondent accepted that the Claimant was a qualifying disabled person within the meaning of the Equality Act 2010. The Tribunal identified the need to add a third party, now the Second Respondent, because of the conversation between the Second Respondent recruitment agency and the Claimant and/or between the agency and the First Respondent. The Tribunal therefore considered it could not determine the application to strike out or the deposit order. An open 3 of 10 preliminary hearing was listed to take place on the 13 November 2020. That hearing was cancelled and a further hearing listed, which was postponed 11 November 2021. Due to insufficient time remaining after the issues had been clarified at the hearing on 11 November 2021, the hearing was adjourned for the First Respondent’s applications to be decided at a further Preliminary Hearing on 26 November 2021. The First Respondent’s application

The law

[13]On behalf of the First Respondent, Mr Purnell relied on his skeleton argument and specifically paragraphs 13-16 in the case of Ahir which warn against employment tribunals being deterred from striking out claims, including discrimination claims, which involve a dispute of fact if there are no reasonable prospects of success. He also referred to paragraph 19 of Ahir which set out when there is an ostensibly innocent sequence of events leading to the act complained of, there must be some burden on the claimant to say what reason he has to suppose that things are not what they seem, albeit that they are not yet in a position to prove it.

[14]He relied on the case of Van Rensburg (paragraph 25) where the court was acting on the assumption that the power to order a deposit could in principle be exercised where the tribunal had doubts about the inherent likelihood of the claim succeeding. He referred to Ezias demonstrating that disputes over matters of fact, including a provisional assessment of credibility, can in an exceptional case be taken into consideration even when a strike out is considered.

[15]There were three key emails at page 28 of the bundle that the First Respondent relied on:15.1 The first was on 29 July 2019 from the First Respondent to the Second Respondent explaining that the building did not have step free access and that if the Claimant wanted to rearrange, the interview and technical test could be held in one of the London offices which had a lift.

15.2 The second, about half an hour later on the same day, was from Mr Augustine of the Second Respondent to the First Respondent saying that he was “not sure the Woking office would work for him” (the Claimant).

15.3 The Third email on 15 August 2019 was an internal email of the First Respondent referring to the Claimant’s letter alleging discrimination, that it appeared that Mr Augustine did not “handle the situation well” and that the First Respondent offered to rearrange the interview and it appeared the Claimant tried to take this up but that Mr Augustine did not pass it on. The First Respondent suggested arranging the interview previously offered.

[16]The First Respondent argued that the emails demonstrated that it was trying to rearrange the interview. There was no evidence of the First Respondent instructing the Second Respondent that it would not consider the Claimant for the role. Mr Purnell also relied on the Claimant covertly recording his first interaction with the First Respondent on 29 July 2019 and demanding £100,000 in 4 of 10 compensation. The dispute was between the Claimant and the Second Respondent. He invited the Tribunal to strike out the claim against the First Respondent and, alternatively, to make a deposit order in the maximum amount. The Claimant’s reply

[17]The Claimant resisted the applications. He said that the conversation about his disability had taken place with Mr Braxton of the Second Respondent on 30 July 2019 and that he would not lie about it. Mr Braxton specifically asked him whether his disability was long or short term and told him he would not work in the Woking office. The Claimant had repeatedly followed this up on LinkedIn and referred to the emails in the bundle. As to the recording, he had been subject to disability discrimination on many past occasions and so he had made a recording. He referred to a link of a case reported in the news of a discrimination case. He explained that he had the phone in his hand for the recording and wanted to check as many companies say something discriminatory. He rejected the point that this was premeditation on his part in bringing his claim.

[18]The Claimant referred to the email at page 27 of his bundle when he asked Mr Braxton to confirm by email what he said on the phone to the Claimant and at page 26 where Mr Braxton says he is waiting to hear back from the First Respondent with regards to the confirmation.

[19]In answer to the question from the Tribunal as to what he relied on to claim that he had been discriminated against he explained that the First Respondent did not follow up any further interview with him after his conversation with the Second Respondent and also on the interpretation by Mr Jones of the First Respondent that the Claimant had had a change of heart. This was a reference to Mr Augustine sending an email to Mr Jones at 10:29am on 30 July 2019 (page 28 of the Respondent’s bundle) that he was not sure the Woking office would work for the Claimant and Mr Jones interpreting this as meaning the Claimant had had a change of heart in wanting the job.

[20]The Claimant then also gave evidence as to his means. He explained he was employed as a senior software engineer and gave details of his income, outgoings and savings.

[21]In reply, the Second Respondent highlighted that at its highest the Claimant relied on speculation and his application not being followed up. This was a matter for the Second Respondent as the recruitment agents.

The law

[22]Rule 37(1)(a) of Schedule 1 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 provides that a claim may be struck out if it has no reasonable prospect of success.

[23]The central question is whether the claims have a realistic as opposed to a fanciful prospect of success Eszias v North Glamorgan NHS Trust [2007]. Even discrimination claims can and should be struck out where the allegations are 5 of 10 implausible and there are no facts indicative of unlawful discrimination. A case that otherwise has no reasonable prospect of success cannot be saved from being struck out on the basis that “something may turn up” Patel v Lloyds Pharmacy Ltd [2013]

UKEAT/0418/12

[24]In Anyanwu v South Bank Student Union

[2001] UKHL 14

, [2001] ICR cited in Ahir Lord Steyn at paragraph 24 set out ‘For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally factsensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.’

[25]Rule 39 deals with 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.

(2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit

(3) The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.

(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.

(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.

(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.

[26]In considering whether to make a deposit order, the Tribunal is entitled to have regard to the likelihood of a party being able to establish facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. In Van Rensburg v The Royal Borough of Kingston Upon Thames [2007]

UKEAT/0096/07

, Elias P held: “…the test of little prospect of success…is plainly not as rigorous as the test that the claim has no reasonable prospect of success… It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response”; 6 of 10

[27]In Hemdan v Ishmail

[2017] IRLR 228

, Mrs Justice Simler, as she then was, described the purpose of a deposit order as being: “…to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails.”

Conclusions

[28]I am only concerned with the Claimant’s allegation against the First Respondent. That is that the First Respondent directly discriminated against the Claimant because of his disability. It treated the Claimant less favourably because of his disability in failing to arrange a technical test for him at home and in failing to arrange an interview at a step free location.

[29]I have considered carefully the guidance in Anyanwu and Ahir and the guidance in the other cases set out above. There is no dispute on the facts as to what happened at the interview on 29 July 2019.

[30]The remaining claim is concerned with what happened afterwards. I have considered whether there are no reasonable prospects of success and cannot say that there are no reasonable prospects. I have had regard to the emails taken to me by the First Respondent and by the Claimant. Whilst I have serious reservations as to the prospects of success on the allegation against the First Respondent, I remind myself that discrimination cases are fact sensitive and that in this case there will be oral evidence addressing the emails that followed after the interview on 29 July 2019, surrounding the telephone call between the Claimant and the Second Respondent and as between the First and Second Respondent that the Claimant at this stage will not be able to question.

[31]I have also had regard to the timing and the words of the email from Mr Augustine on 29 July 2019 to the First Respondent and the conversation that the Claimant says he had with Mr Braxton on 30 July 2019. The threshold to strike out a claim is a high one and in my view without hearing oral evidence of the surrounding events on and after 30 July 2019 that threshold is not met.

[32]I have decided, however, that this is a claim where a deposit order should be made. That is in light of the emails as referred to me by the First Respondent and because I conclude that there is little reasonable prospect of success.

[33]I have taken into account the details provided to me by the Claimant, his income and outgoings and savings and assessed that in all the circumstances, the sum of £750 would be appropriate for the deposit order. The Claimant must pay £750 to proceed with the claim from the date this Order is sent. I ordered at the hearing that this was to be paid within 14 days. As the time for the payment runs from the date the Order is sent, together with the guidance and instructions, I have varied the time for payment of the deposit to 21 days from when this Order is sent. 7 of 10 Employment Judge Braganza Date: 7 December 2021 NOTE ACCOMPANYING DEPOSIT ORDER Employment Tribunals Rules of Procedure 2013

[1]The Tribunal has made an order (a “deposit order”) requiring a party to pay a deposit as a condition of being permitted to continue to advance the allegations or arguments specified in the order.

[2]If that party persists in advancing that/those allegation(s) or argument(s), a Tribunal may make an award of costs or preparation time against that party. That party could then lose their deposit. What happens if you do not pay the deposit?

[3]If the deposit is not paid the allegation(s) or argument(s) to which the order relates will be struck out on the date specified in the order. When to pay the deposit?

[4]The party against whom the deposit order has been made must pay the deposit by the date specified in the order. 8 of 10

[5]If the deposit is not paid within that time, the allegation(s) or argument(s) to which the order relates will be struck out. What happens to the deposit?

[6]If the Tribunal later decides the specific allegation(s) or argument(s) against the party which paid the deposit for substantially the reasons given in the deposit order, that party shall be treated as having acted unreasonably, unless the contrary is shown, and the deposit shall be paid to the other party (or, if there is more than one, to such party or parties as the Tribunal orders). If a costs or preparation time order is made against the party which paid the deposit, the deposit will go towards the payment of that order. Otherwise, the deposit will be refunded. How to pay the deposit?

[7]Payment of the deposit must be made by cheque or postal order only, made payable to HMCTS. Payments CANNOT be made in cash.

[8]Payment should be accompanied by the tear-off slip below or should identify the Case Number and the name of the party paying the deposit.

[9]Payment must be made to the address on the tear-off slip below.

[10]An acknowledgment of payment will not be issued, unless requested. Enquiries

[11]Enquiries relating to the case should be made to the Tribunal office dealing with the case.

[12]Enquiries relating to the deposit should be referred to the address on the tear-off slip below or by telephone on 0117 916 5015. The PHR Administration Team will only discuss the deposit with the party that has been ordered to pay the deposit. If you are not the party that has been ordered to pay the deposit you will need to contact the Tribunal office dealing with the case. ---------------------------------------------------------------------------------------------------- DEPOSIT ORDER To: HMCTS Finance Centre The Law Library Law Courts Small Street Bristol BS1 1DA Case Number _____________________________________ 9 of 10 Name of party _____________________________________ I enclose a cheque/postal order (delete as appropriate) for £__________ Please write the Case Number on the back of the cheque or postal order 10 of 10

[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. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act.

(2) 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.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5) This section does not apply to proceedings for an offence under this Act.

(6) A reference to the court includes a reference to— (a) an employment tribunal; (b) – (f) . . . . 8. In considering the claim of direct discrimination, the first task of the Tribunal is to decide whether on the primary facts as proved by the Claimant, and any appropriate inferences which can be drawn, there is sufficient evidence from which the Tribunal could (but not necessarily would) reasonably conclude that there had been unlawful discrimination. If the Claimant can prove such facts, then the burden of proof passes to the Respondent to show that what occurred to the Claimant was not to any extent because of the relevant protected characteristic as set out in the Equality Act 2010. In each case, the matter is to be determined on a balance of probabilities. The fact that a claimant has a protected characteristic and that there has been a difference in treatment by comparison with another person who does not have that characteristic will not necessarily be sufficient to establish unlawful discrimination. In all cases the task of the Tribunal is to ascertain the reasons for the treatment in question and whether it was because of the protected characteristic. The provisions of section 136 of course apply to any proceedings under the Act, and not only to claims of direct discrimination. The Tribunal’s findings of fact 9. The following findings of fact are made on the balance of probabilities having heard the evidence, read the documents referred to and considered the parties submissions. Not all evidence is recorded as these findings are confined to those that are relevant to the issues and necessary to explain the decision reached. All evidence was considered. 10. The first Respondent has offices in Woking, this is where the vacancy which the Claimant was applying for was. The offices are on the first floor. There is not a lift to that floor. The Respondent has premises in Canary Wharf which does have lifts. The Claimant’s disability means he has mobility problems. He uses crutches and cannot climb stairs. 11. There was no record of the Claimant having any disability within the second Respondent organisation. It was accepted by the Claimant that neither the first nor second Respondent knew he had a disability when he arrived for an interview in Woking on 29th July 2019. The Claimant had not mentioned his disability or that he had any difficulties in climbing stairs before he went to the Woking offices of the first Respondent. He did not call to check access to the offices before the interview despite him saying he had had this issue before. 12. When the Claimant arrived, he saw that he would not be able to go upstairs as there was no lift. He therefore contacted the second Respondent who sent an email to the first Respondent. Mr Jones and another colleague immediately went down to speak to the Claimant. The Claimant had his mobile phone in his hand and recorded this conversation. When he was asked why he did this during the hearing, he said that he had previously had difficulties with other employers and therefore wanted a record of the conversation. He alleged that it was not a covert recording as he had his phone in his hand, but at the same time agreed that he did not tell Mr Jones or his colleague that they were being recorded. 13. The transcript of the conversation shows that Mr. Jones and his colleagues were very concerned about the situation. Mr Jones explained it was an old building that is rented and that they were not able to accommodate the Claimant if he could not get upstairs. There was further discussion, and it was suggested he could do the first part of the interview, which comprised a technical test, at home and do the interview in a coffee shop or elsewhere. The interview was due to start at 09.30.

[14]Mr Jones emailed Mr Augustine on 29 July 2019 at 10.01 saying “Joao and I spoke to Ahsan who was waiting at the bottom of the stairs. Unfortunately we were unable to resolve the situation today, as the building doesn’t have step-free access. If he would like to rearrange, we could conduct the interview and technical test in one of our London offices which does have a lift. Please reiterate my apologies to Ahsan.” At 10.29 the same day Mr Augustine wrote to Mr Jones saying: “It seems Ahsan will need to work in an office that has step-free access. As such I’m now not sure the Woking office would work for him”. Mr Jones took this to mean that the Claimant was no longer pursuing employment with the first Respondent and assumed that there had been a conversation between the Claimant and Mr Augustine.

[15]On 30 July 2019, Mr Braxton had a brief telephone conversation with the Claimant, only lasting a few minutes. There are no contemporaneous notes of this conversation. The only document is an email sent shortly after. It is therefore one person’s word against the other about what was said. The Claimant says that Mr Braxton asked him if his disability was long term or short term, and that the first Respondent did not want to employ him because of his disability. Mr Braxton denied saying this. He said the conversation was very short only lasting a couple of minutes and was about what other arrangements could be made for the interview. The Claimant emailed after asking Mr Braxton to confirm what was discussed on the telephone to which Mr Braxton immediately responded: “Just waiting to hear back from them with regards to the conﬁrmation.” That was the last conversation the Claimant had with Mr Braxton. The Claimant did not attempt to contact the first Respondent directly.

[16]On 31 July 2019, the Claimant contacted ACAS. He says he was told to raise a grievance. The Claimant sent a letter and posted it to the Respondent on 9 August 2019. In this letter he said he was lodging a grievance about discrimination in him not being able to access the offices for the interview. He referred to the conversation he said he had with Mr Braxton on the telephone, and that he had not heard about the interview. He said: “To make things right, I would like you to compensate me and pay £100,000”. Mr Jones was surprised to receive this letter as he had thought the Claimant was not pursuing his application further. He immediately passed the letter to Ms O’Dea from the HR department to deal with. The Claimant was offered an interview in the London offices, as the interview process had not yet concluded. There was another candidate who the first Respondent was going to offer employment to, but this was put on hold so the Claimant could be interviewed. There is a shortage of suitably qualified people for the role being recruited into.

[17]The Claimant did not respond to the offer of an interview and when chased on 27 August 2019 replied that he had secured a job and was not interested in an interview with the first Respondent. He reiterated what he alleges Mr Braxton said during the telephone conversation. He referred to the first Respondent talking about discussions with Mr Augustine whereas he only dealt with Mr Braxton. Mr Braxton explained that he dealt with the candidates and Mr Augustine his line manager, dealt with the corporate clients.

[18]There is an internal email in the bundle in which Mr Jones says that he did not think Mr Augustine had dealt with matters well. The Claimant relies on this as meaning that Mr Augustine discriminated against him. The Tribunal does not agree with the Claimant’s interpretation and finds on balance that it means what it says namely that Mr Augustine did not communicate clearly with the first Respondent. The first Respondent had wanted to interview the Claimant.

[19]Both parties provided written submissions which are not repeated here. The Tribunal’s

Conclusions

[20]Having found the factual matrix above, the Tribunal has come to the following conclusions on the balance of probabilities. The only issues considered were those issues agreed and set out above.

[21]Did the second Respondent directly discriminate against the Claimant because of disability by Harrison Braxton asking him in a telephone call on 30th July 2019 about his disability and informing him that the first Respondent would not consider him for the role he had applied for.a. The Tribunal has set out above the two differing accounts of what was said during the telephone conversation on 30 July 2019. There is no contemporaneous documentation. The Tribunal looked at the emails sent immediately after the conversation took place. It notes that the Claimant did not say in his email what he alleges Mr Braxton said during the conversation. Mr Braxton’s response accords with his version of the conversation, namely that he was waiting to hear from the first Respondent about interview arrangements. It was not until his grievance letter that the Claimant first made mention of what he says happened during this conversation.

b. It is for the Claimant to provide facts from which the Tribunal could conclude that discrimination occurred. Here we have one person’s word against another and whilst the Claimant did refer to his version of the conversation later, the Tribunal does not find that to be sufficient to shift the burden of proof. On balance, given the content of Mr Braxton’s email to the Claimant immediately after the conversation took place, the Tribunal find that he did not say that the first Respondent did not want to interview the Claimant because of his disability.

c. Mr Braxton says he did not ask the Claimant about his disability. The Tribunal accept this. However, even if he had said this, it would not without more amount to disability discrimination. If he had asked the Claimant if his disability was long or short term, this was simply a request for information and a reasonable question to ask in the circumstances.

[22]Did the first Respondent directly discriminate against the Claimant because of disability by failing to arrange a technical test at home and failing to conduct an interview at a cafe or its office in Canary Wharf in the period 30th July 2019 to 23rd August 2019. a. The Tribunal finds that the first Respondent believed that the Claimant did not want to continue with his application given the email it received from Mr Augustine. Quite clearly it was intending to interview the Claimant, the emails it sent to Mr Augustine clearly record this. Once it realised that the Claimant had wanted to continue with the application, it suspended its recruitment process so it could happen and planned an interview at an alternative location. It was the Claimant who brought the process to an end saying he did not want to be interviewed as he had another job. There was therefore no less favourable treatment because of disability. At most there was a misunderstanding.

[23]Much was made about the credibility of the Claimant’s evidence during the first Respondent’s submissions. Whilst the Tribunal has some concerns about why the Claimant recorded the initial conversation with Mr Jones when he spoke to him on the morning of the interview (the Tribunal finds this was a covert recording) and has reservations about the tone of the grievance letter and the request for money, it has not found it necessary to make specific findings on this. The Tribunal found that the conversation with Mr Jones was not as the Claimant said, and that the facts show that the Respondent did want to interview the Claimant.

[24]The Claimant complained that Mr Braxton did not write his own witness statement. Mr Jones said it was his words. The background to Mr Braxton’s witness statement being created is that the second Respondent said it would not be participating in the hearing and the first Respondent therefore asked Mr Braxton if he would be a witness on its behalf. Mr Braxton agreed. The first Respondent was represented by Mr Bacon, the inhouse lawyer. Mr Bacon telephoned Mr Braxton and took his statement over the phone which he then had typed up. This is not an unusual way for witness statements to be taken. Lawyers regularly speak to witnesses and take their statement. Mr Braxton took an oath that his statement was true and his own words. There is nothing suspicious about this.

[25]The claim against the first Respondent is dismissed. Even though the second Respondent was not represented in this hearing, having heard from Mr Braxton, and having made the findings set out above, the Tribunal finds that the claim against the second respondent is not made out and is dismissed.