Mr C Clement-Alalibo v London Borough of Sutton: 2307470/2023

EMPLOYMENT TRIBUNALS

Case No 2307470/2023

Between

Mr C Clement-AlaliboClaimant

London Borough of SuttonRespondent

Before

Employment Judge Martin

Date 15 April 2025

JUDGMENT

[1]The Claimant’s claim for discrimination arising from disability is struck out as it has no reasonable prospect of success

[2]The Claimant’s claim for reasonable adjustments is struck out as it has no reasonable prospect of success.

REASONS

[1]Full reasons were given at the conclusion of the hearing. These reasons are provided at the request of the Claimant.

[2]The Claimant brought a claim against the Respondent on 16 December 2023, claiming disability discrimination (discrimination arising from disability and reasonable adjustments). The Respondent defended the claims in its response presented on 9 February 2024.

[3]There was a case management hearing before Employment Judge Rice Burchell on 31 January 2025 and an order was made. This order set out the issues that the Tribunal were to consider and adjudicate on. Apart from some correspondence between the parties and a letter from Judge Rice-Burchell clarifying one point, the Claimant did not raise any complaint about the issues as set out in the order. I therefore consider that these issues are the issues for me to determine. I note that the issues were discussed in great detail during the case management hearing.

[4]The Claimant was employed by the Respondent as a Rent Arrears and Recovery Officer in the Respondent’s housing department from 24 April 2023 to 20 September 2023. Part of his role was to discuss rent arrears with service users over the telephone.

[5]This preliminary hearing was listed to consider whether the Claimant was disabled and any other application that may be made. The Respondent conceded that the Claimant was a disabled person as defined by the Equality Act 2010. The Respondent made an application on 27 March 2025, to strike out the claims as having no reasonable prospect of success or in the alternative to order deposits to be paid on the basis that the claims have little reasonable prospect of success. The Claimant wrote on 7 April 2025, objecting to those applications.

[6]I considered the Respondent’s submissions, the Claimant’s submissions and the documents before me. Discrimination arising from disability

[7]The Respondent referred to the case management orders which state that the ‘something’ arising from disability is performance. This is the Claimant’s case as pleaded and identified in the order. The predominant reason for dismissal was the Claimant’s conduct in phone calls with service users, which resulted in numerous complaints against him. This was not a performance issue but a conduct issue. The Claimant accepts his conduct was not acceptable and accepts that there were numerous complaints, although he says he was not told about all of them until the final probation meeting. He does however accept that he was told about some of them.

[8]The Claimant points to defects in the Respondent’s procedures, e.g. not fully investigating the complaints and not telling him about all of them before the final probation meeting. This goes to reasonableness, not to the ‘something’ arising from disability.

[9]I have no hesitation in finding that the reason for the Claimant’s dismissal was conduct. The Claimant admitted the conduct he was accused of both at the time and again during this hearing. I find that although the Claimant’s performance was inevitably discussed at the final probation meeting, this was not the effective cause of dismissal. The nature and number of complaints against the Claimant were unprecedented and put the Respondent at reputational risk. In these circumstances it is inevitable that the Respondent would terminate his employment.

[10]I find that there is no reasonable prospect of this part of the Claimant’s claim succeeding and this part of his claim is dismissed. Reasonable adjustments

[11]The second part of the Claimant’s claim is a claim for reasonable adjustments. This is a particularly complex area of discrimination law. The Claimant has dyslexia and as such finds it more difficult to process information and he has a shortened memory span. The Claimant does not dispute that the Respondent provided training to him and also provided him with retraining when performance issues arose. It is a Claimant’s case that this training was not sufficient. The case management order was made after extensive discussion with the Claimant and sets out what the Claimant says were the provision criterion and practices he relies on and the reasonable adjustments sought.

[12]To succeed in a claim for reasonable adjustments the Claimant has to identify the provision criterion or practice (PCP) which he says puts him at a substantial disadvantage compared to people who do not share his disability. It is for him to identify the PCP and the substantial disadvantage. The Respondent says the Claimant’s claim is vague. The Claimant says the Respondent has not asked for clarification. There was an extensive discussion at the previous case management hearing about these matters resulting in the issues as set out in the order. It is not for the Respondent or the Tribunal to make a case for the Claimant.

[13]The Respondent draws a distinction between the effects of dyslexia and substantial disadvantage. It is submitted that much of what is in the issues is about the effects of the disability rather than the substantial disadvantage caused by the PCP.

[14]Paragraph 4.2 of the case management order set out the PCP’s relied on. There are 4. 1) The practice of providing guidance and complicated language and small font size; 2) The practice or policy following recommendations made by occupational health; 3) The practice or policy of refusing or delaying his workplace needs assessment and 4) The practice of providing inadequate training. To be a valid PCP the provision criterion or practice must be something that applies equally to everybody but causes a substantial disadvantage to a person with a particular disability.

[15]It seems highly unlikely that guidance is not provided in an electronic format which would enable the user to enlarge the font to facilitate reading. The Claimant has not identified what guidance he is referring to or in what way the language is complicated such that he is disadvantaged. The other three alleged PCP’S are not PCP's that relate to everybody in the workforce but are things that happened which relate to the Claimant as an individual. The Claimant says his Occupational Health report guidance was not followed, not that generally the Respondent does not follow Occupational Health advice. The Claimant says his workplace needs assessment was delayed or refused. Not that this is generally done. The Claimant says his training was inadequate, not that training for all was inadequate. An example of an appropriate PCP could have been that the Claimant was not meeting stated performance standards applicable to all, because of the effects of his dyslexia. This is however not his case.

[16]I agree with the Respondent that the substantial disadvantages identified at paragraph 4.3 of the list of issues, are those that result from symptoms of the Claimant’s dyslexia i.e. longer to absorb and process information, and general support with reading and writing rather than a disadvantage caused by the implementation of a specific PCP.

[17]These are the building blocks of a reasonable adjustment claim. If these blocks are not present, then it is not possible to identify the steps that could have been taken to avoid the disadvantage. The issues at 4.5 set out what steps the Claimant says should have been taken.

[18]As I said during this hearing, this is a complex and technical area of law and it is not surprising that the Claimant who is a litigant in person, has not understood the way this area of law works and is applied. The Claimant has put his case forward clearly and I thank both parties for their input into this hearing.

[19]I have concluded that the Claimant’s claim for reasonable adjustments has no reasonable prospect of success and is dismissed. The Claimant’s application for a privacy order

[20]The Claimant made an application for a privacy order and submitted that his health and disability reports mention matters, which if made public would affect his mental health and anxiety. He says there is no prejudice to the Respondent or any obstruction of proceedings, but that it was in his interests to protect his identity, and publication would hinder his employment prospects.

[21]The Respondent submitted that there should be open justice. The basis of the Claimant’s application is the possible protection against risk regarding future employment prospects. It was submitted that an application of this type needs to be supported by cogent evidence that there is a risk to future employment prospects and damage to mental health to displace ordinary assumptions regarding open justice and that there was no basis for this application.

[22]Privacy orders are considered under rule 49 Employment Tribunal Rules of Procedure 2024. 49.—(1) The Tribunal may, on its own initiative or on the application of a party, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person. (2) In considering whether to make an order under this rule, the Tribunal must give full weight to the principle of open justice and to the Convention right to freedom of expression. (3) Any order made under this rule may require— a) that a hearing that would otherwise be held in public be conducted, in whole or in part, in private; (b )that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; (c) that measures are to be taken to prevent witnesses at a public hearing being identifiable by members of the public; (d) that a restricted reporting order is in place within the terms of section 11 (restriction of publicity in cases involving sexual misconduct) or 12 (restriction of publicity in disability cases) of the Employment Tribunals Act; (e) that the name, address or other information of, or relating to, any person be redacted from a claim form, response form, witness statement or any other document in the proceedings.

[23]I find that open justice is a vital principle of our legal system; its purpose is to enable the public to scrutinise the justice system and in doing so to ensure justice is done. It applies in the Employment Tribunal as much as it does in the civil and criminal courts.

[24]The principle of open justice requires that, generally, the courts conduct themselves in public unless there are exceptional circumstances justifying a departure from this. It is only if it is strictly necessary in the interests of justice that a departure of this general rule will be permitted.

[25]Given that I have struck out the Claimant’s claims, details of his medical conditions will not be put in any judgment and placed on the public register. I explained to the Claimant in some detail that if he were to make a request for written reasons then those reasons would be placed on the public register and that I had no discretion over this. He was given the opportunity to consider whether he wanted these written reasons knowing that they would be published on the public register. Presumably the Claimant has considered this and has still decided that he wants these reasons.

[26]In summary, the Claimant has not provided any evidence or argument over the normal consequences of bringing a Tribunal claim and the outcome of that claim being put on the public register. There is nothing exceptional put forward by the Claimant to persuade me to grant his application for anonymity. This application is dismissed.