Mr A Patterson v Essex County Council: 3201226/2019
EMPLOYMENT TRIBUNALS
Case No 3201226/2019
Between
Mr A PattersonClaimantEssex County CouncilRespondent
Before
Employment Judge McLarenIn person for claimantMr N Roberts (instructed by Counsel) for respondentDate 5 May 2020
JUDGMENT
[1]The unanimous judgment of the tribunal is that the claim for disability discrimination does not succeed. JUDGMENT[2]The claimant’s application dated 26th February 2020 for reconsideration of the judgment sent to the parties on 2nd March 2020 is refused. There is no reasonable prospect of the original decision being varied or revoked.
REASONS
Background
[1]The claimant raises four matters, which I summarise below:a. The Tribunal’s finding that the claimant did not suffer disadvantage from the PCP should be overturned because the witness evidence should be disregarded as the respondent called willfully incapacitated decision-makers.b. The Management of Health and Safety at Work Regulations 1999 require that the pre-employment health assessment form should have been accompanied by a health and safety risk assessment and this requirement should have been part of the respondent’s process. The claimant was disadvantaged as, had he received a risk assessment, he would have been able to request adaptations.c. The claimant was beguiled into an unwarranted trust of the respondent as he was deceived into believing that having submitted the pre-employment health assessment the respondent would offer necessary reasonable adjustments.d. The respondent has acted in bad faith throughout with no intention of implementing the disability confident scheme.[2]I have considered the points of the claimant’s request for reconsideration against the issues that were agreed at the time and the tribunals reasons attached. Consideration of the Claimant’s points The Claimant’s first ground[3]The claimant challenges the witnesses as wilfully incapacitated and asked for reconsideration because their evidence should be disregarded. This is a contention the claimant advanced at the hearing and the Tribunal did not accept this.[4]Further, we also found that the claimant’s evidence was that he had successfully completed the application form and he considered that he had answered the questions well. We made a finding that based on his own evidence the claimant was not disadvantaged during the process.[5]There are therefore no reasonable prospects that the judgement will be reconsidered to reverse a finding which would contradict evidence the claimant gave during the hearing. The Claimant’s second ground[6]The claimant considers that the respondent has failed to comply with regulations which means that it should have included a risk assessment as part of the recruitment process so that he could request adjustments.[7]The claimant is seeking to advance a new matter that could reasonably have been advanced at the hearing for the tribunal to consider. It is not in accordance with the overriding objective or interests of justice to seek to revisit these matters.[8]There is therefore no reasonable prospect of the application for reconsideration succeeding on this ground. The Claimant’s third ground[9]This ground relates to the pre-employment health assessment. The failure to provide this and so any failure to make adjustments based on the information the claimant may have provided on this form was not an issue in the case. The tribunal had been asked to determine if the respondent had a PCP which was not to provide full information about its decision-making process.[10]The claimant is seeking to advance a matter that he determined after much discussion was not one he wanted to advance at the hearing for the tribunal to consider. It is not in accordance with the overriding objective or interests of justice to seek to revisit these matters.[11]There is therefore no reasonable prospect of the application for reconsideration succeeding on this ground. The Claimant’s fourth ground[12]The claimant refers to what he considers to be the respondent’s bad faith. These are matters that could have been put to the respondent’s witnesses at the time. Again, he is seeking to advance new matters that could reasonably have been advanced at the hearing for the tribunal to consider. It is not in accordance with the overriding objective or interests of justice to seek to revisit these matters.[13]There is therefore no reasonable prospect of the application for reconsideration succeeding on this ground.[14]In these circumstances the claimant’s application is refused.[1]The claimant applied for a role as a peak relief library assistant with Essex County Council, a “Disability Confident” employer. He was rejected after submission of his application form and was not given an interview.[2]The claimant filed an ET1 specifying procedural unfairness and disability discrimination. He states that he should have been shortlisted. The final part of his claim form states that he has opted to make a “whistleblowing” report. The claimant clarified that this did not form part of his claim but was the place he elected to make his report.[3]We heard evidence today from the claimant on his own account and from Ms Gill and Ms Charles on behalf of the respondent. We were provided with a bundle of 289 pages from the respondent and a separate bundle with 5 tabs of documents by the claimant.[4]In reaching our decision we have considered all the evidence we heard and those parts of the documents in the bundle to which we were directed. We were assisted by helpful submissions from both parties. Issues[5]At the start of the morning as a preliminary point and after extensive discussion over some 4 hours, the issues of fact and law that the claimant wished to bring were agreed. He brought a claim under s 20(3). “Duty to make adjustments (1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement 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)The second requirement is a requirement, where a physical feature 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. (5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid.”[6]The claimant brings a claim of a failure to make reasonable adjustments based on a PCP on the following basisa. Did the respondent have the following PCP: a failure to communicate decision-making process in advance and prior to completion of the application formsb. Did such PCP put the claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled at any relevant time, in that because of his Asperger’s syndrome lack of knowledge of the process meant that he was unable to engage properly.c. If so, did the respondent know or could it reasonably have been expected to know the claimant was likely to be placed at any such disadvantage? Disability[7]Disability was conceded by the respondent and it is accepted that the claimant was a disabled person in accordance with the Equality Act 2010 (“EQA”) at all relevant times because he is an autistic person with the autistic spectrum condition Asperger’s syndrome. Arrangements for the hearing[8]I asked the claimant if there were any appropriate adjustments that should be made to the court environment or the way in which these proceedings were conducted. He confirmed that he was comfortable with the process of asking questions. During the proceedings regular breaks were given on each occasion that the claimant requested a break.[9]I explained the procedure to the claimant and in particular how he was to give his evidence because he had asked how he was going to give evidence in chief when he had no representative. I explained that we have his witness statements which are his evidence in chief. He would be asked several questions by Mr Roberts on behalf of the respondent. After that, the panel would take a short break to consider what questions it felt needed to be asked. The claimant would then be given the opportunity to say anything else he felt he needed to say.[10]I explained that he would have an opportunity to cross-examine the respondent’s witnesses. The claimant said he did not wish to do so. I explained to him that I was concerned about this. If he did not ask questions then he was accepting their accounts as true. I asked him to think about this during an adjournment. When we came back, he explained that he was very clear that he had no questions for the witnesses. He confirmed he had thought about it again. In the event he did in fact put a question to each of the witnesses.[11]After we had heard all the evidence from the claimant and the respondent’s witnesses, I then explained submissions as an opportunity for each party to summarise their case and to tell us why their version is to be preferred. The claimant indicated he wished to make a submission and I offered him a break to prepare. I also explained the respondent would go first. He declined the break and said that he would be ready once the respondent had made its submission.[12]Once we had heard submissions from both parties I then explained that closed the case and the next step was for the panel to deliberate its decision on liability (it had previously been agreed with the parties that would take liability first and separately and then move to remedy if appropriate).[13]The claimant became distraught and said that he had not understood how the process works. He thought he had been treated unfairly and had not been given any opportunity to put his case. He said he had made it clear by asking how to give evidence in chief that he had not understood that his submissions were limited to answering respondent’s case. He was strongly of the view he had not been given an opportunity to make his case as he thought he would be able to give more evidence in his submissions.[14]Having considered this we agreed that we would adjourn for the day and in the morning the claimant could make further submissions. If these went beyond the agreed issues in the case or he was raising points he should have put to the witnesses, I would stop him. If he was raising new evidence that he should have given himself, I would allow Mr Robertson the opportunity to crossexamine again.[15]At the start of the final day the claimant was asked if he wished to say anything else and he made further detailed submissions. Once he had done so he confirmed that he had had the opportunity to say everything that he felt was necessary in support of his claim before this tribunal. Finding of facts[16]We heard evidence from Ms Charles who has been employed in libraries some 37 years and has 20 years’ experience of recruitment. We also heard from Ms Gill who has 18 years’ experience of recruitment. We accepted that the process they adopted on this occasion was the same as the process that they usually adopt. We also find that the practice they adopted is likely to be reflective of the respondent’s general practice.[17]These 2 individuals were tasked with the recruitment of three or four peak relief staff who would be willing and able to cover all libraries in both Colchester and adjacent areas. Ms Charles took the lead, arranged the advertisement and processed the applications. The two individuals shortlisted applicants together. The claimant did not challenge any of the respondent’s witness evidence which included those documents which are referred to below. The process and communication with the claimant[18]The respondent placed an advertisement for the role of peak time library assistant. It was at page 159 of the bundle. This set out some details of the skills that were required such as attention to detail and ability to work quickly and accurately under pressure. It specified that the ability to work on your own and as part of the team was essential. It also stated that effective communication skills and good listening skills were required. The advert provided Ms Charles’ details if an individual wanted more information or an application pack.[19]The claimant responded to the advertisement on 11 February and got in contact with Ms Charles saying that the role would suit him down to the ground and asking if she could send further details. She did so (page 161 of the bundle) on the same day, almost by return. It explained this was a zero hours contract role and was to cover staff who were on annual leave or who were off sick. It detailed the libraries that would be included in the role and stated that an individual would need to be able to get to at least a few of the libraries. The email attached additional paperwork. The claimant confirmed in evidence before us that he had no complaints about the response from Ms Charles or the correspondence up to this point.[20]The documents that were attached to the email were a job description which ran to some five pages, a fitness to work declaration, a declaration relating to close personal relationships and an application form which ran to 16 pages.[21]The job description summarised the key accountabilities. The claimant confirmed that he read the accountabilities, but he did not think that they were clear. There were given names but that is not the same as them being clear. He gave as an example “awareness of service” is a meaningless term.[22]The job description set out the required skills under the headings “knowledge skills and experience, and values and behaviours”. That latter was divided into three further sections, “customer focused and proactive”, “enabling and empowering” and “effective and efficient”. Details were given under each of those three headings that expanded upon what was required.[23]This was accompanied with the application form. The claimant confirmed he has no complaints about this form.[24]Part of this document pack was the document at page 167, a fitness to work declaration. This asked whether an applicant had any medical issues that he considered would impact his ability to undertake the position offered or if he required any additional support. There was a box to tick and if yes, words next that said please request a confidential Essex County Council pre-employment health assessment form. We find that an individual completing this form would have a reasonable expectation that the pre-employment health assessment form would be sent to them if they ticked yes.[25]The claimant responded to these emails on 13 February and asked if he could have a copy of this pre employment assessment form. He explained that he had a tribunal hearing on 22 February for work capability assessment in universal credit. He said that he would be able to confirm his work-related disabilities and any additional support/reasonable adjustments after that (p188).[26]Ms Charles replied saying that the relevant form would only be sent out if he was a successful candidate. This was in direct contradiction to the words on the application form, but we find that the ambiguity that the tick box created was dealt with by Ms Charles’ response which was clear. From this early point in the process and before any application form was submitted it was clear that the pre employment questionnaire would not be part of the process. The claimant did not raise any further points at the time to challenge this. We find that the process did allow for disability information to be provided using the fitness to work form.[27]The claimant accepted that he could have asked Ms Charles for more information. He accepted that she had answered all the questions he had asked at the time. He commented that it was quite right, given his case, to ask why he did not go back and ask for more information. His explanation was that he had a myopic view at the time. Fitness to work form/pre employment questionnaire[28]The claimant submitted his application on 20 February 2019. He sent back the completed application form, an amended fitness to work form and a statement in support of his application.[29]The amended fitness to work form had been completed as follows. “1. There is a clear implication that this form serves as a consent authority to disclosure of my confidential health and medical records for the “Essex County Council Pre-employment Health Assessment”. This is confirmed on the form itself which is to be “returned to HR or brought to the interview sealed in the CONFIDENTIAL envelope provided”. 2. on requesting the form to complete my application Ms Carole Charles Face to Face Supervisor advised by e-mail of 13th February 2019 “we will only send out the relevant form if you are a successful candidate after the interview.” 3. Essex County Council are unlawfully evading consent to use fabricated conclusions of health and compliance from health surveillance and eHealth records whose existence is kept hidden from the public. It is how religious, gender and racial discrimination conceals organisational incompetence, inefficiency and fraud. It deserves from clause 20 prohibiting the promotion of homosexuality as family life as the “hostile environments” of Windrush.”[30]The claimant continued by saying he included his notice of disability with his form and that was all the information the respondent needed and that he would consent to a clinical assessment by a suitably qualified medical practitioner if and when necessary. We find that at the time of the application the claimant did not express the view that he needed the respondent to have seen and considered all the adjustments he might need for the role. He was content to provide further details “if and when necessary”.[31]Before us the claimant gave a different explanation. He explained that by asking for the pre employment questionnaire to be sent out he was effectively volunteering that the respondent could ask for more information. He was saying that he would consent to disclosing this information or relevant health information as and when he knew how it could be processed.[32]It was the claimant’s view that his request for the pre employment questionnaire placed an obligation on the respondent to make additional enquiries. I asked the claimant why he thought that the respondent was able to send out a pre-health assessment questionnaire when this was not permitted under section 60 of the Equality Act. He had some familiarity with that section and had quoted it to the tribunal earlier that day. He considered that a public body had a greater duty.[33]We find that this is not the case. The respondent was acting in accordance with the Equality Act in not asking for completion of the pre employment questionnaire prior to the job offer being made. To have done so would have been unlawful discrimination. We also find that the claimant’s response did not indicate consent to further enquiries being made. We find that it suggests quite the opposite and that consent is not given. We find that this form is saying that he would only give consent if and when necessary. Information about disability[34]While the claimant did not complete the pre employment questionnaire, he did provide very detailed information at page 67 to 70. He stated that he needed a reasonable adjustment which was “the supply of all necessary information of fact knowledge and due process for informed decision-making.”[35]We find that the respondent had actual knowledge of the claimant’s medical condition and a request for an adjustment. The application form[36]The application form asked for details of education and qualifications, previous employment history and then contained a box to be completed. Candidates were asked with reference to the role to explain how they met the requirements of the role. They were told to focus on skills, knowledge, experience and behaviours needed the job.[37]The evidence of the respondent’s two witnesses is that when they reviewed the application forms, they were marking against six criteria, this does not include the behaviours needed, despite that being called out on the form. This was not made clear to candidates.[38]Ms Charles and Ms Gill gave details of how they scored and the minimum standards they applied. We find that details of the scoring system, the exact criteria which are being marked and what the minimum standards was were not provided in advance to any of the candidates. We find the respondent did not provide full details of the recruitment process adopted. As we have concluded this recruitment followed a standard pattern, we find that this reflects the respondent’s policy.[39]The claimant’s statement in support of his application is a long and detailed document. The claimant confirmed that it referenced the skills and experience that were set out as requirements in the job description.[40]The claimant agreed that in this document he tried to answer all the questions as they were asked in the job description and application form. In answers to questions the claimant told us that he considered his application to be a good one. We find that, based on his own evidence, the claimant was not disadvantaged by lack of information about the precise criteria, how they would be marked or what the minimum standard was. He was able and did on his own estimation prepare a good application. The marking process[41]Both Ms Charles and Ms Gill confirmed that they were aware that the claimant was applying under the job interview guarantee scheme and they gave his application extra consideration when marking. They both confirmed that they would interview all candidates with an impairment or long-term health condition or who were disabled if they applied through the job interview guarantee scheme, provided they met the minimum requirements of the job which they put at eight points in total.[42]The claimant’s application form was scored against six criteria set out in the job role. This review took place on 25 February and the application form together with his statement were considered for examples of how he demonstrated that he met the relevant measures. Under “qualification and training” he was given the maximum four because he had put in his statement he had received education to postgraduate level .[43]The application did not provide any evidence of “customer service”, “work experience or skills and knowledge gained in any employment”. He was therefore given one mark. This mark was given because he was on the JIS scheme.[44]The markers’ evidence was that he was generously marked under the heading “enabling and empowering” and was given two marks. Under the heading “effective and efficient” both were concerned by his statement that he did not regard collective goals as his concern because team players were not essential for the role as set out in the job description. He was therefore given no marks under this heading. The claimant did not challenge their evidence and we accept that both individuals erred on the side of caution and generously marked the claimant’s application form against their criteria. We find they did so because he had identified as being a disabled candidate.We find no fault with their marking of the claimant’s application.[45]The bundle contained the matrix scoring system at page 256A. It shows that the claimant scored a total of seven points. As he had scored less than 33% he was not offered an interview. This applied to 5 applicants in total.[46]The claimant was emailed on 28 February to inform him he had not been successful. The claimant replied by email the same day saying that it was his understanding he should be interviewed.[47]He recieved a response on 1 March stating that while they were committed to interviewing disabled applicants, such candidates still needed to meet the minimum requirements for the job and the claimant had not done so[48]As a result of further correspondence the dispute was then handed over to the respondent’s HR Department.
Relevant Law
[49]In general, the duty to make reasonable adjustments requires the taking of “such steps as it is reasonable to have to take” to avoid a disabled person being put at a “substantial disadvantage” which includes a “provision, criterion or practice”.[50]The tribunal must consider the PCP applied by or on behalf of the employer, the identity of non-disabled comparators (where appropriate), and the nature and extent of the substantial disadvantage suffered by the claimant.[51]The duty is ‘reactive’, it requires there to be an identified applicant or employee, and for the employer to know, or be reasonably expected to know, that that person is disabled, and that they are likely to be at the substantial disadvantage without the adjustment. Burden of proof[52]In Igen v Wong ltd [2005] EWCA Civ 142, [2005] ICR 931, CA. remains the leading case in this area. There, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place. Only if such facts have been made out to the tribunal’s satisfaction (i.e. on the balance of probabilities) is the second stage engaged, whereby the burden then ‘shifts’ to the respondent to prove — again on the balance of probabilities — that the treatment in question was ‘in no sense whatsoever’ on the protected ground.[53]The Court of Appeal explicitly endorsed guidelines previously set down by the EAT in Barton v Investec Henderson Crosthwaite Securities Ltd 2003 ICR 1205, EAT, albeit with some adjustments, and confirmed that they apply across all strands of discrimination. Submissions[54]The claimant addressed the panel in detail in two sets of submissions. He submitted that in this case there was a missing standard of proof. We should not be applying the statutory or common law standard but should be looking instead to view the mistreatment he suffered at the same standard as the obligation the respondent’s employees had to act professionally. He particularly referred to their obligation to understand quality standards. He considered that this is the standard that should have applied to the process that he went through to apply for this role.[55]He also gave some further details as to his disability and its impact. He is unable to function if he is not provided with sufficient information to allow him to plan. He needed to be made aware of the full process and to have identified the adjustments that he could put in place which would have enabled him to do the role safely. This is what was missing from the repondent’s failure to provide the questionnaire.[56]As far as the issue about the request for medical information and s 60 of the Equality Act was concerned, he had understood the point that had been made to him that there was no obligation on the respondent to request information. He submitted that on this occasion the respondent had expressly requested that prior information and had therefore created that obligation.[57]It was a discrepancy in practice not to supply the pre asesssment questionnaire and this put him at a disadvantage against a nondisabled candidate. Without that questionnaire he could not demonstrate how, with adjustments, he could perform the role safely, whereas a candidate without a disability was able to do so immediately.This was part of the repondent’s failure to provide him with full details of the decision making process.[58]He confirmed that the health information he had voluntarily sent did ask for an adjustment and referred to his need to be given complete candour and disclosure. He submitted that the two witnesses had failed to understand the process that they were working to or understand the process they should have met.
Conclusion
[59]We carefully considered the claimant’s second set of submissions and concluded that it is not open to this tribunal to apply the standard of proof the claimant proposed and to take no account of statutory and common law. We have no jurisdiction to do so.We have therefore applied the relevant statute and common law to our findings of fact and we conclude as follows.[60]We have found that the respondent had actual or constructive knowledge of the claimant’s disability before it marked him. Both the respondent’s witnesses were fully aware of his status as a disabled person.[61]The respondent did operate a PCP. We have found that it customarily did not send out information about the precise criteria against which candidates would be evaluated, the marking scheme for these requirements or the minimum standard that would need to be met to be for the eligible job interview guarantee scheme.[62]We find that the claimant has shown that there was a PCP in this case. We accept that the claimant’s disability could put him at a disadvantage compared to a non disabled candidate who did not need to understand the end to end process in advance.However, we have also found that, despite this lack of information, the claimant was not put to any actual disadvantage, let alone a substantial one, because of this. His evidence was that he was able to do a good job in providing the necessary information and he did so in a very detailed way sending a number of considered documents to the respondent.He was satsified that his application was as good as he could make it. We therefore conclude the claimant has not shown that the PCP put him at a substantial disadvantage.[63]The claim does not succeed because the claimant has not shown substantial disadvantage.