Employment Judge R ClarkIn person for claimantDate 22 March 2019
JUDGMENT
The claimant’s claim is struck out as it has no reasonable prospects of success.
REASONS
[1]This is a claim of disability discrimination. The disability in question is dyspraxia. The claim arises in the context of an unsuccessful job application made through the respondent. The respondent is a recruitment consultancy. The status of the parties is not strictly an issue before me although I note the respondent has previously made representations that it was never the claimant’s employer. Mrs Morgan-Booth now understands that the respondent is a correct respondent and is being sued as the agent of its client and principal, the potential employer, in respect of it acting as its agent when carrying out its instructions to recruit senior staff.[2]Today’s hearing was listed for the purpose of determining whether the merits of the allegation or arguments being advanced within the claim fall within one of the following categories:-a. “Little reasonable prospect of success” in accordance with rule 39 of schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 in which case I may make an order requiring the claimant to pay a deposit of up to £1,000 as a condition of continuing to advance that allegation or argument.b. “No reasonable prospect of success” in accordance with rule 37 of the 2013 rules in which case I may strike out the claim or that part of it. Or,c. Neither of those provisions, in which case it will proceed as normal to a final hearing. The Substantive Claim[3]In any consideration of the merits it is of course essential to have regard to the substantive issues that will arise in the claim at any final hearing. The claimant’s claim is loosely set out in his ET1 and was further particularised in a subsequent email which EJ Hutchinson set out in his record of the previous preliminary hearing. It is accepted that the claimant brings a single claim of a failure to make a reasonable adjustment. The respondent was involved in the decision “to whom to offer employment”, which is a “relevant matter” for the purpose of engaging the duty to make reasonable adjustments. The claimant was an applicant for that employment. In essence, Dr Mallon says that the respondent should have adjusted its recruitment process to provide for something he describes as an “oral application”. By that, he means a ‘phone call in order to make his application. The reason he says that is necessary is because he has the condition of dyspraxia as a result of which he says he speaks better than he writes. Having explored the nature of the allegation it is common ground that this is an allegation of a breach of the first requirement set out in section 20(3) of the Equality Act 2010. That is:- …a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage[4]Neither the ET1 nor the supplementary information explicitly particularises the discrete legal elements contained within that requirement but, following further discussion with the claimant, the first two elements are as follows:-a. The provision criterion or practice of the respondent is that applications are made by way of a written CV.b. The alleged disadvantage is that the claimant is less likely to be shortlisted for posts because his alleged disability means he cannot adequately convey his suitability for selection in writing. Establishing that disadvantage at a final hearing may require a comparison to other applicants who did not have Dyspraxia but had a similar level of past experience.[5]In order to engage the respondent’s duty to make a reasonable adjustment, the claimant must establish those first two elements. Even then, the duty is not engaged unless the necessary state of knowledge is also established as set out in paragraph 20 of schedule 8 of the 2010 Act. So far as is relevant that provides that:- 20(1) “A is not subject to a duty to make reasonable adjustments if A does not know, and could not reasonably be expected to know— (a).. (b) …that an interested disabled person has a disability is likely to be placed at the disadvantage referred to in the first, second or third requirement.[6]The reference to first, second or third requirements is to the different routes by which a duty to make an adjustment may arise under section 20. As I have already said, in this case that is the first requirement under section 20(3). The reference to the disadvantage is the actual disadvantage the claimant is allegedly put to as a result of the coming together of the PCP and his alleged disability.[7]The adjustment contended for is to permit an “oral application”. This Hearing[8]In this hearing, I consider only the arguments and contemporary evidence that will be advanced at a final hearing against those elements of the substantive claim. I do so against the two relevant tests of “no” and “little” reasonable prospect success. I do not make findings of fact or resolve disputes, although in this case almost all of the factual background is agreed. I do, however, set out the background so as to put the claim in context. I say that notwithstanding that the parties were ordered to provide witness statements. Both have done so and this remains helpful as it provides an indication of their respective contentions on the issues. Neither wished to question the other. I also have a relatively full bundle containing most, if not all, of the relevant contemporaneous documents and correspondence between the parties.[9]I have also had regard to whether the claimant’s alleged disability created any issues for me in managing the conduct of this hearing. No adjustments were requested. I noted that the claimant maintained he could speak better than he could write. I ensured any extracts being referred to in the documentation were read out. I delivered my decision orally on the day. The Claimant’s Disability.[10]It is an essential part of the claimant’s claim that he establishes that he was a disabled person within the meaning of section 6 of the 2010 Act at the material time. That issue has not been conceded and today’s hearing is not convened to determine it. However, the force of the respective contentions on that matter remain a relevant consideration against the two merits tests I have to apply.[11]For present purposes, I can see in the bundle that the claimant has disclosed some form of occupational health report by a Dr Jane McLennan, Consultant Psychiatrist, dated July 2016. I understand this report was prepared for an earlier employment tribunal claim, a claim the respondent now believes to have been one of many such claims. So far as disability status is a matter in contention today, I am satisfied the claimant is able to advance a case with enough merit to take it out of the scope of the two tests I am considering. I repeat that that conclusion is not the same as a final determination that he was disabled at the material time.[12]I return to that report later as it contains evidence likely to be of further relevance to this claim. The Relevant Background and Contentions[13]The respondent is a recruitment consultancy working for various employers. The claimant has made a number of applications through the respondent for a variety of roles. That is accepted although there are no records of other applications before me today save for one. That was an application made on or around 1 June 2018 for a “Field Sales Representative”. The claimant was not deemed a suitable candidate for that post. He applied by submitting his CV through the online application process. He was not shortlisted due to his unsuitability but in the email informing him of this, the respondent also stated:- “…with your permission I would like to keep a copy of your CV and if any of my clients have a need for someone with your skill set in the future, I can contact you and arrange an interview? Curiously, he did not refer to this encouraging request in his response and did not give the permission sought. Instead he merely stated how he was looking for a salary “close to £70,000”.[14]The current claim arises from an advert posted on or around 6 August 2018 for the role(s) of “Precast Concrete Professionals”. The advert summarised the job requirements as follows: “The employer specialises in precast concrete structures for the rail industry. We are seeking a number of senior managers to join the Company over the coming months. We are keen to speak with anyone who has a background in precast concrete structure manufacture, especially those who have worked in roles such as operational manager, production manager and quality manager.”[15]The respondent will maintain, persuasively in my view, that this reflects the instructions from its client and sets a minimum essential requirement that candidates have a background in the manufacture of precast concrete structures and a desirable background of having worked in certain senior roles directly related to production.[16]The claimant applied through the same route of the online CV portal as he had done previously. The CV that he uploaded is before me. It is a detailed document and very well set out. It shows him to be well qualified academically, having studied to PhD level, obtaining a doctorate in chemical engineering. It begins with a section listing achievements which is followed by a section setting out his employment history. Within each period of employment he lists his roles and responsibilities in detail. At the beginning of the employment history section is a separate section which states: “Please note that because of my disability, I request reasonable adjustments to be made in my application by doing an oral application. This would be a 5 – 10 minute ‘phone call to talk about my experience and can this be arranged by email please …. and I will supply a telephone number. (More technical info about my medical condition is at the end of this CV)”.[17]I am told this appears on the claimant’s CV as a matter of course and was not included specifically for this post.[18]The employment history section shows what appears to be a complete employment history without any gaps and, to that extent, I see the force in the respondent’s contention that the CV did not hint at the possibility that there may have been other jobs, or other periods of employment, in the claimant’s background which might have shown relevant experience. There is considerable force in the respondent’s contention that the roles and experience that the CV does show are not in the necessary industry required by the employer. As I say, the CV is lengthy and detailed. The claimant contends that the CV is formatted to show only his achievements and not the actual work he undertook. I am not convinced that contention could be sustained as there is clearly a separate section for achievements and under each of the various posts he has held is a list describing the tasks, functions and nature of that job. Also, the CV is sufficiently clear to give an indication of both the nature of the role being performed and the industry in which it was being performed. The claimant has worked at apparently senior levels, most recently described as “Associate Tax Director” and “R&D Tax expert”.[19]I note also that a number of the tasks said to have been performed in these roles relate to the preparation of written reports in what appear to be complex or technical areas such as “submitting robust tax claims”. For example, I asked what was meant by “submitting technical paperwork for sign off by clients” whilst the claimant was working at Hydrocarbon Consultants Ltd. The claimant today suggested those references to the written work he had been responsible for were not as grand as they sound on paper and that work he was listing within his duties had been done either by, or with the support of, other junior staff or that they were tasks that were performed simply by editing existing documents.[20]The obvious first question in terms of the shortlisting process is whether this CV establishes on its face that the claimant met the fundamental requirement of having a background in the manufacture of precast concrete structures. For my part, I cannot see that it does but, in that respect, I am a lay person. More importantly, the respondent did not believe it did, hence why it did not shortlist the claimant for interview. More importantly still, the claimant fairly accepts that one would not gain that impression from the content of the written CV.[21]That then leads me to the contentions which will be advanced to deal with the question why the CV does not contain information that would have resulted in the claimant being shortlisted. In particular, why the claimant did not update his CV if in fact he did have the necessary past working background in the manufacture of precast concrete structures. The starting point is to acknowledge that this document is not entirely his own work. It had been prepared by a professional consultant, albeit on his instructions. Nevertheless, I was not at all convinced that the claimant’s explanation for any alleged gaps between what it says and his past work experience was at all likely to prove persuasive at a final hearing. Firstly, the CV is full and I understand was prepared following a full review of his past work history by the professional CV writer. In other words, there will not be a contention advanced that some past working experience of manufacture of precast concrete structures has been omitted. The claimant then contended that his disability meant it was simply beyond him to edit his CV for each job he might wish to apply for. That sits very uncomfortably against his own contention that in his previous roles he had been able to prepare technical paperwork because he was merely “editing existing documents”. I considered it an equally unattractive argument that the claimant did not feel it was appropriate for anyone else to proof read any editing he might attempt to do. All this arose as a result of his contention that his dyspraxia meant he sometimes wrote in a child-like manner, sometimes in a conversational style. I did not find those contentions likely to be persuasive at a final hearing to explain why he had not added a few words on his CV to highlight those areas of his experience which demonstrated a background in the manufacture of precast concrete structures.[22]However, despite my significant reservations, the claimant maintains that he was unable to do this and it is this inability that he says arises from the convergence of the disability with the PCP and which, in turn, makes the adjustment a reasonable one to make. So, in the course of his submissions, I have invited him to expand on the essential points that would have been said had his request for an “oral application” been granted. The focus of this enquiry was to understand what information would have been conveyed to the recruiter that was otherwise missing from the written CV, and which would have filled the apparent gaps in the claimant’s suitability to be shortlisted. In considering the points raised, I reminded myself to allow a margin for the fact that he has done that today in the context of litigation. However, I have to say, it became abundantly clear to me that after saying what it was the claimant would have said during the oral application, the prospects of convincing the respondent that he did in fact have the essential background in the manufacture of precast concrete structures was entirely fanciful. The best that can be said is that the claimant is very well qualified academically, that his academic background in ceramics entitles him to hold out his scientific experience in the qualities and properties of various materials. That much, however, was already clear from the CV. He also sought to rely on the fact that the business activities of some of the employers he has worked for in the past has sometimes meant that some of their products or services may well have used precast concrete structures within their own activities. For example, they have used a concrete base as a foundation for the construction of their own particular product. I have no reason to doubt that is the case. It is surely the case that most people can draw some sort of link from the jobs they have done for one employer or in one industry to show some sort of connection to another employer or industry. Such links as might be drawn are not the same thing as having a background in that industry. In this case, the claimant’s links to the manufacture of precast concrete products, as would have been advanced in an “oral application”, still patently fail to establish the necessary essential background in the manufacture of those products. In reality, the desire for this adjustment was not about filing the gaps in his written CV to present an otherwise suitable background, it was about seeking to persuade the recruiter to change their essential criteria.[23]I then consider what contentions arise going to the respondent’s state of knowledge of the claimant’s disability and the disadvantage relied on. The CV explicitly identifies the disability as dyspraxia and sets out a lengthy list of about 50 or so bullet points summarising examples of how Dyspraxia might manifest itself. I note that list is expressed in the abstract and, indeed, the claimant himself referred to how he encountered “many of those”. It follows that what I have before me goes beyond the effects of the condition that the claimant actually experiences.[24]I am satisfied so far as is necessary for today’s purposes that the information in the CV clearly puts any recipient on notice of a potential disability and that the first limb of the knowledge condition, that the applicant has a disability, is a contention that carries sufficient merit to take it out of the realms of the two tests I am considering today. In other words, this respondent is likely to be found to have sufficient before it at the material time so that it knew or could reasonably be expected to know the applicant was disabled. However, that is only half of the question.[25]The second half of the question is whether it knew or could reasonably be expected to know that the applicant was likely to be placed at the disadvantage. The respondent says it did not and could not be expected to know. The claimant was silent on this point but it is a matter in contention that has to be established in his favour for the duty to engage in the first place. I am not convinced that necessary second element has realistic prospects of being established for the following reasons.[26]Firstly, there is a basis for knowledge of the manifestations of dyspraxia as the CV identifies the manifestations of dyspraxia albeit in the abstract. Any recipient of the CV would not know that the applicant did not in fact encounter all of them and it is therefore likely to be the case that a recipient could reasonably be expected to have knowledge of any of them so far as they give rise to the particular disadvantage in any particular case. But it is in respect of the link to the particular disadvantage that the difficulties arise in this claim. Of the 50 or so points that are raised, those that manifest in communication are focused on speech and language and include repetition, unclear speech, uncontrolled pitch volume and rate, difficulty planning thought, poor memory, difficulty in listening, difficulty picking up on non-verbal communications and the like. So far as those manifestations might give rise to a disadvantage where a PCP required oral communications, that information is very likely to be sufficient to satisfy the necessary “could reasonably be expected to know” test in respect of that PCP. But the issue here is an alleged disadvantage arising from written communication.[27]That is not to say that writing and written work is not mentioned at all but I have only been able to find it referred to in two of the 50 or so bullet points. One is described as encountering “problems with maths, reading and spelling and writing reports at work”. The other is difficulty with “copying sounds, writing, movements and proof reading”. Whilst it is right to say those clearly do engage with the ability to write documents, the “reasonably” part of the test of whether a respondent “could reasonably be expected to know” has to be seen objectively and in context. Of course, the context in this case is that the very source from which the respondent learns that written communication could be a manifestation of dyspraxia, is itself a very well set out and detailed written CV. Whilst I accept the claimant says he had the CV prepared professionally, it does not say as much and it is entirely reasonable for anyone reading this to assume that this detailed and comprehensive piece of written work is the claimant’s own work, particularly having regard to his academic background, the seniority of the roles that he has held in the past, the written tasks and functions he has performed in the past and the level of the roles he is now applying for.[28]So it is against that background that when the claimant’s CV was submitted it was considered by the respondent. In fact, it was Mrs Morgan-Booth who appears before me this morning who undertook the shortlisting and she decided to reject the application. The reason for rejection was stated in an email of 6 August 2018 which in part stated:- “I cannot see that you have any experience of working with the manufacture of precast concrete structures and we cannot process your application any further as this is a requirement for this particular role and employer”.[29]Her email led to a number of further emails from the claimant, the content of which were bordering on aggressive and perhaps in hindsight he might accept were not too helpful, but that does not alter the fundamental picture of what is before me today.[30]I now return to the question of disability and the report of Dr McLennan. As to the elements of the claim which I am considering, there are relevant points in the report that will be advanced in evidence at any final hearing. Firstly, so far as disability itself is concerned, it identifies Dyspraxia. It is fair to say that it is considered secondary to what at that time was a focus on the claimant’s Crohn’s Disease, which of course does not concern this claim. At page 33, the report deals explicitly with Dyspraxia. The author records Dr Mallon’s contention that:- “he did not feel [dyspraxia] had any significant effect on his ability to carry out ordinary day to day activities”. Nevertheless, the doctor’s overall assessment seems to put that in context and she concludes that dyspraxia:- “does seem to cause significant impairment in terms of written communication and his ability to complete application forms or structured answers.” The reference to application forms or structured answers is likely to be relevant to this case because the Doctor records an exchange with Dr Mallon in which he explained how he experienced difficulty using application forms. The significance is how that difficulty contrasts with the use of CV’s. Not only is this difficulty not said to arise with a CV, but the use of CV is identified as the way in which he can overcome that difficulty with application forms. The Doctor records Dr Mallon saying how he opts to apply for jobs using his CV. There therefore appears to be independent contemporary evidence that he positively choses to apply for potential posts for which application is by CV, which of course is the method of application in this case.
Discussion
[31]That background sets out the central contentions on the issues and the points in evidence likely to be put before a final hearing. The essence of a claim of failure to make a reasonable adjustment is that a substantial disadvantage arises by the convergence of the PCP and the disability. The adjustment contended for must remove or mitigate that disadvantage.[32]I have already indicated that the question of disability, so far as it is a necessary element of the claimant’s claim succeeding, is not a contention that falls within either of the tests I have to consider today.[33]I next consider the merits of the claimant establishing whether the duty to make an adjustment is engaged. There is no difficulty with whether the respondent did apply a PCP of requiring applications by CV. However, I am far from convinced of the prospects of the other elements necessary for the duty to engage. The duty only arises where the PCP puts the claimant at a substantial disadvantage compared to those without his disability and the respondent knew, or could reasonably be expected to know, that the claimant was an applicant with a disability who is likely to be put to that disadvantage. In my judgment, those two conditions present two fundamental obstacles to the way the claimant’s claim succeeding before a final hearing.[34]The first is that there is no obvious disadvantage because the claimant did complete a CV which was in itself detailed and comprehensive and set out his career background. Moreover, from what I have heard today, there is no convincing evidence likely to be adduced to explain why, if the claimant did in fact have any past background working in the manufacture of precast concrete structures, that could not have been included in the CV for this application, even by some simplified reference. The claimant’s own medical report refers to how application by CV was his preferred vehicle for job applications. The CV itself cites his past experience in a number of senior posts in which he was required to produce various technical paperwork. Even if those tasks were indeed done only by editing other people’s work, that is exactly what was open to the claimant to do in respect of the professionally prepared CV in this case. The opportunity for that to be done at his leisure would also provide opportunity for it to be proof read by a third party if that was necessary. For those reasons, I am left with a significant concern about the merits of the contentions available to the claimant to establish that he was in fact put to a disadvantage by the PCP. That difficulty becomes even more profound when I move on to consider the effect of paragraph 20 of schedule 8 to the Equality Act 2010. Whilst I have said already that there is little difficulty in establishing that the respondent had sufficient before it to know of the claimant’s disability, I am satisfied that the opposite applies when it comes to establishing knowledge of the disadvantage. This can only be assessed on what was before the respondent at the time of the alleged discriminatory act and what it could reasonably be expected to know. All it had was the CV and its recent past contacts with the claimant, none of which had raised this matter when he had been rejected previously for a variety of roles based on the written CV alone. The CV is comprehensive, detailed and in all respects, has the look and feel of a very well prepared CV. There is nothing about it that might hint at the possibility that relevant information may have been omitted. Indeed, the respondent will argue that it observed at the time that the employment history appeared to be full and without apparent gaps. Even when one considers the list of how the disability can manifest in the context of communication, it appears to focus on the spoken word over the written word. To the extent that it does identify the potential for difficulties with written communication, the reasonableness of that giving rise to knowledge of disadvantage has to be considered in the context that that very information comes from a very comprehensive written CV.[35]The analysis so far deals with whether the duty is engaged at all. I have all but concluded that the prospect of the claimant succeeding in showing the duty was engaged is so poor that this alone would be sufficient reason to strike out the claim. However, if this was the only challenge to his prospects I might have been persuaded to step back from that. Whatever my view of the likely findings not supporting the claimant’s case, I am bound to recognise that there remain some necessary findings of fact to be made albeit on the periphery. Nevertheless, if matters ended there and I was so persuaded, I would have had no hesitation in concluding the merits were well within the test of “little reasonable prospect” and would have imposed a deposit as a condition of the claim being permitted to continue.[36]However, matters do not end there. There remains the question of the reasonableness of the adjustment that is contended for. Whether it is reasonable for any employer, or agent of an employer, to make an adjustment is a question of balance. On one side, consideration needs to be given to the cost or disruption to the employer by the imposition of that adjustment. On the other side, there is the extent to which making it would remove or mitigate the substantial disadvantage that the disabled person faces. It is the answer to that balancing exercise which determines whether an adjustment is one which was reasonable to make or not.[37]There is a glaring and obvious issue in this part of the claim. That is the extent to which the claimant can put before a final hearing any evidence to show that, if that adjustment had been made, he would have been any less likely to have suffered the disadvantage of not being shortlisted because he was still unable to demonstrate his suitability to be shortlisted for the post. In that regard, there is an overlap between the claimant’s ability to prove he suffered a disadvantage and the tribunal’s assessment of the reasonableness of the adjustment. The explanations as to why his CV could not have been edited or could not have been proof read by a third party were not convincing. Conversely, the reality is clear. The reason why he did not edit his CV to include evidence of his suitability for the post is that nowhere in the claimant’s work history can he demonstrate the essential background, still less a background at the desirable senior production level in that industry. There is no other evidence to adduce on that point before a final hearing. So it follows that whatever form the application process took the claimant would not be shortlisted because he does not have a past working background in the manufacture of precast concrete structures. The matters he would have added in his “oral application” are effectively an attempt to show he is able to transfer academic knowledge so as to try to persuade the respondent to change the employer’s essential requirement of a background in the industry. It would not demonstrate that he met that requirement. It therefore follows that the adjustment contended for does not serve to remove or mitigate the disadvantage that the PCP is said to create. If the adjustment does not mitigate the effects of the disadvantage at all, it cannot be reasonable to expect the respondent to adjust its PCP, however minimal the cost or disruption of doing so might be. In those circumstances, any failure to make the adjustment is not a failure to make a reasonable adjustment.[38]This is a fundamental point in my analysis because it not only goes to whether the adjustment is reasonable, but it affects the evidential landscape relevant to whether the duty to make an adjustment is itself engaged in the first place. In particular, that the claimant’s own evidence will show that it is not the PCP which creates his substantial disadvantage, it is his lack of background work experience in that specific industry and the fact that he does not, therefore, meet the essential requirements of the post.[39]It is those further matters which lead me to conclude this claim properly falls within the test of no reasonable prospect of success entitling me to strike it out. I have been cautious about reaching this conclusion in an allegation of discrimination. The classic statements on the tribunal’s power to strike out discrimination cases on the ground they have no reasonable prospect of success come firstly from Lord Bingham of Cornhill in Anyanwu v South Bank Students Union [2001] UKHL 14, at paragraph 24:- 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 fact-sensitive, and their proper determination is always vital in our pluralistic society. And secondly, Maurice Kay LJ in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, at paragraph 29:- It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation.[40]For the reasons I have given I am satisfied this is a case that falls within the category of being obvious and plain. This is not a particularly fact sensitive case and considering the claimant’s contentions at their highest, it cannot succeed on the contentions that have been outlined today. Strike out is the appropriate and proportionate order to make.[41]Finally, and for completeness, I did consider the order I would have made if I had decided to impose a deposit. I had made provisional enquiries of the claimant’s financial means for that purpose. I established that he is employed in a permanent post, albeit he is relatively new in his current role. He is earning £50,000 per year. He has disclosed some limited details of his outgoings. He tells me he has a credit card debt of a little over £6,000 and a mortgage of over £200,000. His wife works part time. What little information as to means the claimant has been prepared to disclose still shows that he has substantial income and were I of the view that this claim fell within the category of “little reasonable prospect of success”, I would have imposed a deposit of £1,000 as a condition of this claim being allowed to continue. That would be an achievable figure within his means and would not act as a strike out by the back door but would encourage reflection on the prospects of success.