Miss C Ball v Secretary of State for Justice: 2407366/2024
EMPLOYMENT TRIBUNALS
Case No 2407366/2024
Between
Miss C BallClaimantSecretary of State for JusticeRespondent
Before
Employment Judge DunlopIn person for claimantMiss K Loraine (instructed by Counsel) for respondentDate 4 December 2025
JUDGMENT
[1]The claimant’s complaint of disability discrimination (failure to make reasonable adjustments) has no reasonable prospect of success and is struck out.[2]The claimant’s complaint of unfair dismissal will proceed to a final hearing. Approved by
REASONS
[1]This is the respondent’s application to strike out the claimant’s case of disability discrimination on the basis that it has no reasonable prospects of success, or, alternatively, for a deposit order on the basis that the case has little reasonable prospect of success. The application is made under Rule 38 Employment Tribunal Rules of Procedure 2024.
Factual background
[2]This was a summary hearing at which not evidence was taken. The facts set out below are intended to be either(a) uncontroversial or(b) explanatory of the claimant’s case taken at its highest. They are not findings of fact and are do not bind the parties or any future Tribunal.[3]The claimant worked as a probabtion officer. She started employment in 2018 and, in early 2024 had approached her employer saying that she was seeking medical support because she believed she had ADHD. This diagnosis was subsequently confirmed, albeit after Miss Ball’s employment Case No: 2407366/2024 2 ended. R now accepts that she is disabled by reason of ADHD and I have taken that concession fully into account.[4]In March 2024 the claimant submitted a conflict of interest form in which she disclosed a connection with a person who had been arrested and charged with the offence of causing actual bodily harm. I will refer to that person as “A”. She said that the connection was that they were “close friends” and that she was also friends with his family.[5]In May 2024 the respondent received information that Miss Ball was actually in a personal relationship with A. This was investigated.[6]Miss Ball says that she met A on a night out in early March 2024, before his arrest, and that she had been drinking with him and had then had sex with him. She then continued to be in contact with him over the next ten days or so, prior to his arrest. She says that she completed the COI form promptly accurately as she would not have described them as being “in a relationship” given the short period of time they had known each other. She says that there was a discussion about whether she could visit A in prison in a personal capacity, but she was never given clarity on this. She did visit him in prison.[7]She told me today (although this is not in the claim form) that A quickly began to harass her and that she had to take steps to protect herself and her child, for example by changing her mobile number and obtaining a non-molestation order.[8]The respondent’s investigation concluded that the claimant was in an inappropriate relationship with A as defined by the respondent’s conduct and discipline policy, and she was therefore dismissed for gross misconduct. The fact that she had visited him was one of the relevant factors in the respondent reaching this conclusion. Procedural background[9]The claimant submitted a claim form on 5 December 2024, raising complaints of unfair dismissal and discrimination on the grounds of disability. The claim set out a factual narrative, and also gave details of the claimant’s disability, but did not specify the type of discrimination, within the Equality Act 2010, that the claimant was alleging had taken place.[10]There was a case management hearing before Employment Judge Buzzard on 25 May 2025. It is recorded that the claimant told Judge Buzzard that she felt she had been unable to fill in the conflict of interest form correctly due to her ADHD, in that she was “not aware I needed to include that I had intimacy with him on one occasion.”[11]The case management record also records that the claimant’s position as to the ‘type’ of disability discrimination claim she was bringing was that it was a reasonable adjustments claim. The Judge recorded: A claim of discrimination by failure to make reasonable adjustments would require the claimant to establish the following: Case No: 2407366/2024 3 i) That the respondent had a provision, criterion or practice ("PCP") that was applied to her; ii) That the PCP applied had caused the claimant a substantial disadvantage that a person without ADHD would not encounter. iii) That the respondent was either aware that the PCP caused the claimant that disadvantage or should reasonably have been aware; iv) that there was one or more reasonable adjustments that the respondent could have made that would have reduced or eliminated that disadvantage which it failed to make; and v) either that the claimant started ACAS conciliation within 3 months of any alleged failure to adjust the PCP or if not that it would be just and equitable to extend that three months to allow the claim to proceed.[12]There was “significant discussion” between the claimant and the Employment Judge to try to identify the relevant PCP and disadvantage caused to the claimant in the context of the events leading up to her dismissal.[13]EJ Buzzard recorded that there was a difficulty in identifying a “legally viable” PCP. His solution was to give the claimant time to go away and try to identify a PCP, perhaps by taking legal advice.[14]Miss Ball tried to do this and there have been several documents sent to the Tribunal. The respondent complained that the information provided still did not properly articulate a coherent claim, and duly applied to have the disability discrimination complaint struck out.[15]Miss Ball then went to get legal advice. In an email dated 2 December she sent two important documents to the Tribunal and the respondent’s solicitor. She told me today that she had help drafting those documents from a trainee solicitor, and they do have the air of documents which have had some professional input.[16]The first document was essentially a submission responding to the strike out application. That raises some general issues about the high threshold for strike out in discrimination cases. However, it seems to respond to the strike out application as if it is an application about disability status. The respondent has conceded that the claimant is disabled by reason of her ADHD, and so disability status is not an issue in the case. The issue is whether any viable claim for failure to make reasonable adjustments can be identified.[17]The second document is much more relevant and, potentially, useful. It sets out the various stages of the legal test in failure to make reasonable adjustment claims, and explains the claimant’s case.[18]According to the document, the PCP the claimant seeks to rely on is: “The Respondent’s requirement that I understand, retain and follow verbal or inconsistent instructions without written clarification, structured guidance, or regular managerial support, and that I comply with all workplace expectations without adjustments for the effects of ADHD.” Case No: 2407366/2024 4[19]This is not, in my view, something that can properly be described as a provision, criterion or practice applied by the respondent. It moves straight to the end point and focuses on the adjustments that are said to be absent. The PCP is instead intended to represent the base position before any adjustments are applied (Finnigan v Chief Constable of Northumbria Police 2014 WLR 445).[20]Stripping back what the claimant has said, then, the PCP actually appears to be a requirement to understand, retain and follow verbal or inconsistent instructions. A requirement to understand, retain and follow verbal instructions, at least to some degree, would seem to be capable of being a a PCP, and is probably one applied by virtually every employer in the land. The respondent may dispute that there was any requirement to follow inconsistent instructions, but that would not be a matter that could properly be determined on a strike-out application.[21]In relation to disadvantage, the document says this: “Due to my ADHD, I experience difficulties with attention regulation, working memory, and processing complex or unclear verbal information. Without clear, consistent and structured communication, I am more likely than someone without ADHD to misunderstand instructions, become confused about expectations, and be exposed to criticism or disciplinary consequences. This disadvantage materialised when: I submitted a conflict-of-interest form and was led to believe I could visit Person A in custody in a personal capacity. The information and guidance I received were inconsistent and not confirmed in writing, causing misunderstanding and detriment that would have been less likely for someone without ADHD.[22]I can see how the problems caused by ADHD might well affect the claimant in her everyday work, and why she might, for example, require clear instructions in order to perform her job effectively. However, Miss Loraine must be right when she says that the disadvantage complained about in this case is the dismissal. That is consistent with what Miss Ball says in the extract above, as to when the disadvantage “materialised”. Miss Ball’s case must therefore explain how the PCP disadvantaged her in a way which is connected to her dismissal.[23]There seem to be two strands of unfairness which Miss Ball puts forward. The first, as recorded by EJ Buzzard, is that Miss Ball did not record on the COI that she was in a personal relationship with A because she did not consider that one instance of intimacy amounted to a personal relationship. She does not say that she reached that view because of her ADHD. Indeed, she says in her claim form “I do not believe that any reasonable person, after knowing someone for a period of 10 days, would define themselves as being in a relationship.”[24]The second specific issue which Miss Ball has pointed to, again, as reflected in the extract above, is her manager allegedly not getting back to her to confirm whether or not she could visit A in prison, and a resulting lack of clarity as to whether she could do so or not. Case No: 2407366/2024 5[25]At its highest, it seems Miss Ball relies on a tacit confirmation that she could visit A, provided she did so in a personal capacity. If that is correct – and I assume it is because I have to take Miss Ball’s case at its highest – then that is equally unclear for an employee who has ADHD or does not. I can see the argument that the lack of clarity caused Miss Ball to think it was okay for her to visit A. I cannot see the argument that her ADHD caused the lack of clarity, or caused her to think it was okay for her to visit A. Miss Ball was unable to help me to understand that connection in the discussions we had.[26]Ultimately, Miss Ball was dismissed because the respondent formed the judgment that she was in an inappropriate relationship. Whether it was entitled to do that or not is a matter which will be examined in the context of her unfair dismissal claim.[27]The law around discrimination, particularly reasonable adjustments, is complicated. Where there is difficulty in identifying the various elements and expressing them in a straightforward way that might be because the claimant is not experienced in the law, in which case it is the duty of the Tribunal to assist. Equally, however, it might be that the difficulty arises from the fact that the facts of the case do not give rise to a claim that “works” in law. In this case, EJ Buzzard has tried to identify a claim that works, the claimant has tried, with the assistance of a trainee solicitor and the benefit of time away from the pressured environment of the Tribunal, and finally I have tried. I am confident that this is a case that falls into the second category rather than the first. The claim has no reasonable prospects of success not because the claimant won’t be believed at a final hearing, but simply because her ‘real’ claim is an unfair dismissal claim and not a claim of failure to make reasonable adjustments. As a viable claim of failure to make reasonable adjustments cannot be articulated I find that this part of the claim has no prospects of success and I strike it out.[28]I am conscious in making this decision of the weight of authority which cautions against striking out discrimination and whistle-blowing cases on the basis that they are fact-sensitive and will generally require determination on the evidence (see, amongst others, Anyanwu v South Bank Student Union [2001] ICR 391 and Ezsias v North Glamorgan NHS Trust 2007 ICR 1126). However, there is an important caveat that that principle applies where there is a central dispute of fact. That dispute may be as to the overt facts of the case or, perhaps more commonly, as to the motivation of the employer giving rise to certain acts or omissions. The principle does not prevent the Tribunal from striking out claims which are unmeritorious because, even taking the claimant’s case at its highest, there is simply no sustainable claim which can be articulated within the applicable legal framework. Reconsideration[29]Alongside the claimant’s application for written reasons she made an application for reconsideration of the strike out Judgment. That will be dealt with in a separate Judgment. Case No: 2407366/2024 6 Approved by: