Mr B Mistry v Ofsted: 2402758/2020 and 2408596/2020
EMPLOYMENT TRIBUNALS
Case No 2402758/2020, 2408596/2020
Between
Mr B MistryClaimantOfstedRespondent
Before
Employment Judge McDonaldMr J Tinston (instructed by Solicitor) for claimantMs L Amartey (instructed by Counsel) for respondentDate 17 June 2022
JUDGMENT
[1]The following claims identified in the List of Issues at Annex B to this judgment are dismissed on withdrawal: 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 7.1, 7.3, 7.4, 15.8, 15.9, 15.10, 15.11, 15.12, 15.13, 15.14., 22.1 and 22.2.[2]The respondent’s application to strike out the claimant’s other claims is refused.[3]The respondent’s application to dismiss the claimant’s other claims as being out of time are refused.[4]The claims set out in Annex C to the case management order of today’s date will proceed to final hearing.
REASONS
RESERVED JUDGMENT Case Nos. 2402758/2020 2408596/2020 2
Introduction
[1]By a claim form (in case number 2402758/2020) filed by the claimant on 17 March 2020, he brought claims of disability discrimination against the respondent. By a second claim form (in case number 2408596/2020) filed on 28 June 2020 the claimant brought further claims of disability discrimination against the respondent. At the preliminary hearing on 5 October 2020 the claimant was given permission by consent to add a claim of unfair dismissal and disability discrimination claims relating to that dismissal. The particulars of those claims were sent to the Tribunal on the 15 January 2021. In this document I have referred to those as the “the Dismissal Particulars”.[2]At two case management preliminary hearings on 16 September 2020 and 5 October 2020, Employment Judge Porter sought to clarify the claimant's claims. At those hearings the claimant acted in person. He has been represented by Mr Tinston’s firm since 15 January 2021.[3]At the preliminary hearing on 5 October 2020 Employment Judge Porter directed that there should be a public preliminary hearing which “shall determine”:(1) Whether the parts of the claims were presented out of time and, if so, whether it is just and equitable to extend time to allow the claimant to pursue those parts of the claims;(2) Whether the claimant should be granted leave to amend the claims to include each of the complaints set out in the Case Management Orders made on 16 September 2020 and 5 October 2020;(3) The respondent’s application for a strike out and/or deposit order; and(4) Any further Case Management Orders for the final hearing.[4]The Case Management Order of 5 October 2020 (“the October CMO”) set out an amended “preliminary List of Issues” setting out the claimant's complaints as identified at the two preliminary hearings. I have included that List of Issues as Annex B to this judgment. It included a number of incidents relied on as being acts of harassment related to disability, of direct discrimination because of disability, discrimination arising from disability, a failure to make reasonable adjustments and victimisation (in breach of sections 26, 13, 15, 21 and 27 of the Equality Act 2010 respectively).[5]On 27 April 2021 Mr Tinston wrote to the Tribunal to withdraw a number of claims. He did so by reference to the October CMO List of Issues. This judgment dismissed those claims on withdrawal.[6]I reviewed the claims withdrawn and compared them with the claims in the Schedule which Mr Tinston confirmed were (along with the Dismissal Particulars claims) the only claims now being pursued I identified claims 3.7 and 3.8 in the October CMO List of Issues as also not being included in the Schedule and have therefore also dismissed those on withdrawal. The result of that (with my decisions on the amendments) is that the claimant is no longer[7]On 29 March 2021, Mr Tinston wrote to the respondent and the Tribunal sending the claimant’s skeleton argument for the preliminary hearing and a Schedule of Incidents (“the Schedule”) detailing the acts of discrimination that the claimant was proceeding with. For convenience I have attached that Schedule as Annex A to this judgment[8]The respondent’s position was that permission to amend was required for allegations 1, 4, 5, 7, 8 and 10. I granted permission for amendments 4, 5 (as a reasonable adjustment claim) and 7 (as a reasonable adjustment claim only). In relation to Allegation 1, I allowed that to proceed as set out in paras 15.5 and 15.6 of the October CMO but refused the amendment to expand its scope and re-draft the PCPs relied on as set out in the Schedule.[9]The claimant also sought permission to amend to add a claim of wrongful dismissal. That was not objected to by the respondent and I granted that application.[10]I have set out the reasons for my decisions on the amendment applications in my case management order of today’s date. Annexed to that case management order (As Annex C) is a revised list of issues. That is based on the October CMO List of Issues but amended to reflect the claims withdrawn and my decisions on the amendments and strike out applications. Annex C represents the claims which will go forward to the final hearing based on my decisions today. Summary of the Case[11]Before turning to the strike out applications I will briefly summarise the case as set out in the pleadings to date. I make no findings of fact but provide this outline by way of context for the decisions on the specific amendment allegations.[12]The claimant was employed by the respondent from 1 October 2009. He was summarily dismissed on 16 September 2020 for gross misconduct. At the time of his dismissal he was employed as an Advisor in the respondent’s Applications, Regulatory and Contact (“ARC”) Contact and Administration Team (“the ARC A & C Team”).[13]The respondent accepts that the claimant was a disabled person for the purposes of the 2010 Act at the time the incidents complained of happened by[14]During his employment the claimant attended a number of Occupational Health (“OH”) appointments linked to absences from work for reasons relating to anxiety and depression. The respondent says it put in place reasonable adjustments in line with recommendations made in the resulting OH reports.[15]Prior to 2018 the ARC A & C Team had consisted of three distinct teams. The claimant was employed as an Advisor in the Application Team which processed new applications to register on the Early Years and Social Care registers and maintained existing registrations. In 2018 that team, the Contact Centre team and the Administration Team were unified, creating the ARC A & C Team. That change meant that those carrying out the Advisor role which the claimant did were from 2018 expected to deal with tasks previously carried out by those in other teams, e.g. dealing with direct contacts from the public, applicants or stakeholders which would previously have been dealt with by the Contact Centre team.[16]The claimant had in July 2018 requested that feedback he had been receiving be provided in a more supportive manner. The respondent says that after a meeting, measures were put in place to ensure that feedback was provided in a way that the claimant was comfortable with. From on or around March 2019, Matthew Ritson was the claimant's line manager. The respondent says that Mr Ritson worked closely with the claimant to ensure any feedback was given in the manner that had been agreed with the claimant, but recognising it was necessary for a manager to provide feedback connected with work and work performance to employees they are managing.[17]On 4 October 2019 Mr Ritson met with the claimant to discuss putting together a Workplace Adjustment Passport ("WPA"). This is a voluntary, employee-led process whereby a document is created which records workplace adjustments agreed with the employee's line manager. The intention is that the WPA is portable so that when the employee moves to a new role they can share the adjustments with their new management team to ensure the support put in place continues. On 11 October 2019 the claimant and Mr Ritson met to finalise the WPA. The final version of the WPA in November 2019 confirmed that all feedback would be delivered by and via Mr Ritson.[18]On 12 December 2019 Mr Ritson held a Skype call with the claimant to discuss anomalies had had found between the flexi-time records submitted by the claimant and the time he was recorded as working on the respondent’s computer systems. On 16 December 2019 the claimant started a period of sickness absence due to depression. He says that the trigger for this was the call on 12 December 2019.[19]The claimant was off sick until 14 April 2020. During that time Mr Ritson held absence review meetings with him. The claimant also raised a formal grievance during his absence alleging failures to make reasonable adjustments going back 4 years despite recommendations for adjustments made in OH Reports[20]On 14 April 2020 during a meeting about the claimant’s return to work, Mr Ritson informed the claimant that he needed to progress discussions with him in relation to concerns about his time recording and asked how the claimant wanted to do this. The claimant asked for all the information to be sent to him in writing. He started a further period of sickness absence after that meeting.[21]The claimant raised a further grievance on 22 April 2020 (the respondent says 25 April 2020) complaining of failures to make reasonable adjustments over the course of his absence, that Mr Ritson had harassed him including contacting him every week during his absence and on his return to work on 14 April 2020 and about the way Mr Ritson had raised performance issues with him. Lauren Hill, ARC Senior Team Manager was appointed to investigate the second grievance. The claimant said he wanted a new manager, managers to have mental health training, an OH referral, a phased return and a new WPA. That second grievance was not upheld but it was confirmed that the claimant would be allocated a new line manager.[22]On 12 June 2020 the claimant was invited to a disciplinary investigation meeting relating to allegations that he had recorded time as working time when there was no work accounted for or undertaken. The 7 and 8 December were weekend days so in relation to those days the allegation was that the claimant had claimed overtime in excess of time actually worked. The claimant was warned that the allegations may amount to gross misconduct and may result in the claimant's dismissal. The investigation led to a disciplinary hearing on 4 September 2020 which concluded that the claimant's behaviour amounted to fraud and that the appropriate sanction was summary dismissal. The decision to dismiss was confirmed by letter dated 16 September 2020. The claimant’s appeal against the dismissal was considered at an appeal hearing on 22 October 2020 but not upheld. Relevant Law Striking out16.Rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013 ("the ET Rules") gives the Tribunal the power to strike out all or part of a claim on the grounds it has no reasonable prospect of success.17. Rule 37(2) says that a claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.18. Caselaw provides guidance on the exercise of this power: a. It will only be in an exceptional case that a complaint will be struck out as having no reasonable prospect of success when the central facts are in
Relevant Law
[23]The time limit for bringing a claim appears in section 123 as follows:- "(1) subject to Sections 140A and 140B proceedings on a complaint within Section 120 may not be brought after the end of -(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the Employment Tribunal thinks just and equitable. (2) … (3) for the purposes of this section - (a) conduct extending over a period is to be treated as done at the end of the period; (b) failure to do something is to be treated as occurring when the person in question decided on it.[24]In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 the Court of Appeal confirmed that in deciding this question: 'The focus should be on the substance of the complaints … was there an ongoing situation or a continuing state of affairs in which officers … were treated less favourably? The question is whether that is 'an act extending over a period' as distinct from a succession of unconnected or isolated specific acts'.[25]In considering whether separate incidents form part of an act extending over a period, 'one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents' (Aziz v FDA 2010 EWCA Civ 304, CA).[26]Acts which the Tribunal finds are not established on the facts or are found not to be discriminatory cannot form part of the continuing act: South Western Ambulance Service NHS Foundation Trust v King EAT 0056/19. The respondent’s strike out/dismissal applications[27]I considered the respondent’s application to strike out allegations 1, 4, 5, 7, 8, and 10 as part of deciding whether to allow the amendments relating to those allegations. For those claims where I granted leave to amend, I have already decided that a strike out is not appropriate. I have set out my reasons in the case management order of today’s date and do not repeat them here.[28]This judgment sets out my decisions on the respondent’s applications to strike out Allegations 2, 3, 9 and the claims in the Dismissal Particulars.[29]The respondent does not seek a strike out order or deposit order in relation to allegation 6.[30]Employment Judge Porter’s order was not specific as to the approach to be taken at the preliminary hearing to those incidents which the claimant said were in time because they formed part of a continuing act under s.123(3)(a) of the 2010 Act. As I explain in the CMO of today’s date, my approach to the time limit issue was:a. To decide whether a claim is out of time, in the sense that it was made outside the time limit even if the conduct complained of formed part of a continuing act. If the claim is out of time in that sense, I must dismiss it given that the claimant is not now advancing any “just and equitable extension” arguments.b. Where the claimant says an otherwise out of time claim is in time because it is about conduct forming part of a continuing act the definitive decision on that argument will be one for the final hearing.c. However, I can strike out an otherwise out of time claim even if the claimant says it is about conduct forming part of a continuing act where[31]As I also explain in the CMO of today’s date, where I decided that an amendment related to a claim which was out of time (i.e. para a. above) and/or there was no reasonable prospect of the claimant establishing it was in time because it was part of a continuing act (para c above), I refused the amendment, rather than allowing it and then immediately dismissing or striking out that allegation. Allegation 2 – refusing to change his line manager from Mr Ritson (Failure to make reasonable adjustments - s.21 of the 2010 Act)[32]On 11 January 2020 the claimant lodged his first grievance. While the first grievance investigation was underway, the claimant formally requested a change of line manager from Mr Ritson to Charlotte Wolfencroft because he felt she had a better understanding of his mental health issues. On 4 February 2020 this request was refused by the respondent. The respondent says the refusal was by Mr Jones (who carried out the grievance investigation). The claimant says it was by Ms Exon. In any event, it is clear that it was on 4 February 2020.[33]The claimant says that having Mr Ritson as his line manager was a PCP which placed the claimant at a substantial disadvantage and that it would have been a reasonable adjustment under s.21 of the 2010 Act to change his line manager to Ms Wolfencroft.[34]Although the respondent did not object to the addition of this allegation it is not clear to me which PCP in the October CMO List of Issues applies to it. The PCP is not simply of having a male line manager (15.17 on that list) but of having Mr Ritson as manager. I have therefore added a PCP to that effect at 15.12 of the revised List of Issues at Annex C to the case management order.[35]Miss Amartey submitted that this claim was out of time and there was no reasonable prospect of the claimant showing that it was part of a continuing act. She submitted that on the claimant’s own case, the refusal to change Mr Ritson as the claimant’s line manager took place on 4 February 2020 so the time limit would expire on 3 May 2020. She submitted that early conciliation relating to the relevant claim form (the claimant’s second) was not begun until 27 May 2020, more than three months later and there was no extension of time deriving from that process. The claim form was not filed until 28 June 2020 and was out of time. She further submitted that the time limit may well have been earlier than 3 May 2020. Mr Ritson had been the claimant’s manager since around March 2019. The time limit for a reasonable adjustment claim ran from the point where the respondent did an act inconsistent with making a reasonable adjustment which was arguably far earlier than 4 February 2020.[36]I accept Miss Amarety’s submission that as a stand-alone act and in the absence of any just and equitable extension application, the claimant’s claim is out of time. However, I do not find that there is no reasonable prospect of the claimant showing that it was part of a continuing act so as to bring it in time. It seems to me that is a decision that can only be made by a Tribunal hearing the evidence and putting the specific failure to change Mr Ritson as Line Manager in February 2020 in context. In reaching that decision I take into account the accepted fact that there were ongoing grievance procedures which included consideration of who the claimant’s line manager should be after that date which eventually resulted in a change of line manager to Mr Davis in June 2020.[37]I do not find there are grounds on which I can say that there is no reasonable prospect of the claimant being to establish a continuing act, justifying striking out this claim.[38]Because the question of whether the making of a deposit order is one which seems to me to turn on the facts of the case, I find that on the limited evidence before me I cannot say there is little reasonable prospect of that argument succeeding. I therefore also refuse the application for a deposit order in relation to this claim. Allegation 3 – failure to make reasonable adjustment to a PCP of line managers contacting employees every week during their sickness absence (s.21 of the 2010 Act[39]The claimant alleges that during his sickness absence from 12 December 2020 Mr Ritson contacted him on a weekly basis. He alleges that the respondent applied a PCP of requiring line managers to contact employees on long term sick leave every week and that this put him at a substantial disadvantage compared to hose not sharing his disability. He suggests that a reasonable adjustment would have been for him to be contacted every two weeks.[40]The claimant in the Schedule of Incidents says this failure lasted until “Early April 2020”. Taking the date of 14 April 2020 as the latest date, a claim about this unlawful act would (unless it formed part of a continuing act with alter incidents) have to be initiated by 13 July 2020. The second claim from The second claim form was filed on the 28 June 2020 so the claim was in time. Miss Amartey, however, suggested that as a claim for a failure to make a reasonable adjustment, time would run from the date when the respondent did an act inconsistent with making the relevant adjustment. She submitted that would be from around 16 December 2019, i.e. the first time when Mr Ritson contacted the claimant on sick leave. That meant, she said that the claim should have been filed by 15 March 2020 and was some 3-4 months out of time.[41]I can see some force in that argument. The claimant, however, says that the failure continued until his return to work on 14 April 2020. As with Allegation 2, it seems to me that that is something that can only be decided by the Tribunal at the final hearing based on evidence which places the failure in context. I do not find on the evidence before me I can say the claimant has no (or little) reasonable prospect of satisfying the Tribunal either that the reasonable adjustment claim “crystallised” in April 2020 or that it was part of a continuing[42]The claimant says that the PCP of working within the ARC department placed him at a substantial disadvantage because working in that department triggered his mental health issues. The claimant says a reasonable adjustemnt would have been to move him to another department, a suggestion refused by Lauren Hill in the grievance outcome dated 26 June 2020.[43]Miss Amartey’s submission was that the merits of this claim were not strong. she referred to the relevant extract of Ms Hill’s grievance outcome letter (p.188). She submitted that it supported the respondent’s case that the claimant was not subjected to a requirement to work in the ARC department. In her letter, Ms Hill records the fact that the claimant was able to apply for roles outside of ARC but had not done so. It does not seem to me that that one sentence is enough for me to say that there is no (or even little) reasonable prospect of the claimant establishing that a PCP was applied to him. That is particularly given that the second submission made by Miss Amartey appears to suggest that a PCP of staying in the ARC department was applied. That submission was that p.188 also supported the respondent’s case that the impact of COVID meant that a number of teams were operating with a skeleton staff so it was “Not feasible for you to complete another team’s work”.[44]Miss Amartey submitted that explained why it was not a reasonable adjustment for the respondent to move the claimant-the impact of COVID meant it was simply not feasible. It does not seem to me that that one sentence is enough for me to say that there is no (or even little) reasonable prospect of the claimant showing that a move to another department would have been a reasonable adjustment.[45]I therefore refuse the strike out and deposit order applications in relation to this allegation The Dismissal Particulars[46]In the Dismissal Particulars the claimant made claims of unfair dismissal and wrongful dismissal. I do not understand there to be any application for a strike out or deposit order in relation to those claims. They were filed in time. However, there were challenges to the disability discrimination (s.15 and reasonable adjustment claims) and victimisation claims which the claimant made arising from his dismissal, the refusal of his appeal against dismissal and the disciplinary proceedings which led up to his dismissal. Time limits[47]Miss Amartey made submissions that the victimisation and reasonable adjustment claims were out of time. The claimant accepts in his Dismissal Particulars that the failure to make the reasonable adjustment of providing questions in advance of the disciplinary hearing occurred on 2 July 2020.[48]Miss Amartey also made submissions on the merits of each of the 2010 Act claims in the Dismissal Particulars.[49]I deal first with the victimisation claim. The claimant’s claim is that he made a series of protected acts (as defined by s.27(2) of the 2010 Act) by making allegations of disability discrimination in his first and second grievances and his two claim forms (which were lodged pre dismissal). He also says that his letter of appeal against dismissal was a s.27(2) protected act because it included an allegation of “systemic racism” within the respondent. The alleged unfavourable treatment is the allegations against him being “elevated” to misconduct then gross misconduct, his dismissal and the failure to uphold his appeal.[50]It is not clear from the respondent’s response to the particulars (para 25 at p.126) whether it accepts the acts were protected acts. It does not expressly deny so and Miss Amartey did not put that forward as the basis for the strike out/deposit order submission. I proceed on the basis there is a reasonable prospect of the claimant showing that he did protected acts.[51]What Miss Amartey did submit was that there was no (or little) reasonable prospect of the claimant’s claim that the “charges” against him were only “elevated” to misconduct then gross misconduct after he had made (at least some) of his protected acts succeeding. The claimant’s case is that when Mr Ritson in December 2019 initially raised the events which led to the disciplinary action against him, he did not mention “Misconduct” and certainly not “gross misconduct”. The claimant’s case is that “gross misconduct” was raised for the first time on 12 June 2020. That was his case at the appeal against dismissal (p.193).[52]Miss Amartey submitted that it was obvious from the start (and before the claimant raised his grievances) that the matter was a serious one which could amount to misconduct. The documents before me, however, tended to support the claimant’s case that Mr Ritson had not initially referred to misconduct or the possibility of disciplinary action (e.g. the description of events in the claimant’s first grievance – p.156 and the email from Mr Ritson to the claimant on 15 April 2020 quoted at p.184). I accept that there may be other evidence not before me[53]Miss Amartey also submitted there was no reasonable prospect of the claimant showing that there was a link between any protected acts and the decisions constituting the alleged unfavourable treatment resulting from them. The difficulty I find with that submission is that central to it is the “reason why” question. That is a question which can only usually be answered by the Tribunal having heard evidence from the relevant decision makers and deciding what inferences it ought to draw based on its findings of fact. I do not find I can say that the evidence before me means there is no (or little) reasonable prospect of the claimant successfully establishing such a link.[54]I therefore refuse the strike out and deposit order applications in relation to the victimisation claim. Merits – reasonable adjustments[55]The claimant’s case is that the respondent should have made two reasonable adjustments. The first was to adjust its PCP of not providing questions in advance of disciplinary hearings by providing questions to the claimant no less than 3 days in advance of the disciplinary hearing. The second was to adjust its PCP of considering “authorised tasks” to only consist of working time and not to count the time the claimant spent engaging in coping mechanisms during his working time as “authorised tasks”.[56]In relation to the first adjustment, Miss Amartey’s submissions was that it could not be a reasonable adjustment to provide questions in advance in cases of fraud because in such cases the plausibility of the employee’s responses was central to deciding their guilt. However, the claimant’s argument, as I understand it, is that it is just because the way an employee responds to questions is central in fraud cases that adjustments may need to be made. Otherwise a reaction which is due to a mental impairment may be wrongly perceived as a sign of guilt. That seems to me to be an argument the Tribunal at a final hearing should decide having heard evidence and submissions and not sufficient to justify a strike out or a deposit order.[57]In relation to the second adjustment, Miss Amartey submitted it was a “non-starter” to claim that it was a disadvantage not to allow the claimant to count time spent engaging in coping strategies as “authorised time”. There was no disadvantage in undertaking such activities but not recording it as “authorised time”. The extent of any disadvantage is a matter for evidence. The limited evidence before me supports the importance of the claimant having short time away from his desk to perform mental health exercises (the OH report at p.137).[58]I do not find grounds for striking out either of the reasonable adjustments claims or making a deposit order in relation to either of the claims.[59]The claimant says that his dismissal was unfavourable treatment because of something arising from him disability. There were as I understand the Dismissal Particulars 3 such “somethings”:a. The claimant’s judgment being impaired in the period to which the allegations relatedb. The claimant’s memory being poor and so his being unable to account for his apparent errors in recording time.c. The claimant’s coping strategies which he engaged in during working time being themselves something arising from his disability.[60]Miss Amartey’s submission was that it was clear the claimant was dismissed for fraud so there was no (or at least little) prospect of this claim succeeding. I accept that “fraud” was the headline reason for dismissal in this case. It seems to me, however that decidig the “reason why” question for this claim (and the extent, if any, to which the alleged “somethings arising” put forward by the claimant influenced the decision maker) is something that is only susceptible of assessment after hearing evidence.[61]I do not find grounds for striking out the s.15 claim or making a deposit order in relation to it.