Employment Judge BurgherIn person for claimantMs T Barsam (instructed by Counsel) for respondentDate 5 March 2022
JUDGMENT
The Claimant’s claim is struck out and is therefore dismissed.
REASONS
Introduction
[1]The matter was listed before me for a preliminary hearing to consider:1.1 Whether to strike out all or any part of the Claimant's claim on the grounds that it had no reasonable prospect of success pursuant to rule 37 the Employment Tribunal rules;1.2 Whether to order the Claimant to pay a deposit in respect of any allegation as a condition of continuing the claim pursuant to rule 39 of the ET rules; and[2]I was provided with a 137 page bundle of documents and was referred to relevant pages during submissions.[3]The issues in the case were summarised by Employment Judge Russell in the Preliminary Hearing on 8 February 2019 as follows: The issues between the parties which fall to be determined by the Tribunal are as follows:3.1 Did the Respondent apply a provision, criterion or practice (PCP) in that it required an on-line application form as a pre-condition to being considered for employment?3.2 Did any 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 due to his dyspraxia he struggles with on-line systems? The Respondent will say that the Claimant was not required to complete the on-line test personally and that somebody could do it on his behalf.3.3 lf so, were there steps that were not taken that could have been taken by the Respondent to avoid any such disadvantage? The Claimant will say that the Respondent should have permitted him to make an oral application. The Respondent will say that this was not reasonable and that other help was offered.
Findings of fact
[4]Ms Barsam submitted that the Claimant’s claim should be struck out on the basis that it is vexatious and/ or that it had no reasonable prospects of success.[5]The basis of the submission that the Claimant’s claim was vexatious was the fact that there were 29 previous Employment Tribunal decisions that the Claimant had submitted from 2018 to date that had been made and either dismissed or withdrawn by the Claimant. It was submitted that the Claimant made a number of applications against recruitment agencies, which it was alleged involved similar facts to the current claim.[6]Ms Barsam referred me to the judgments of 3 separate Employment Tribunal claims that were referred to in support of her application.[7]In the Claimant’s claim against DEFRA, case number 4/17FET/1408/16 the Fair Employment Tribunal dismissed the Claimant’s claim for failure to make reasonable adjustments in not shortlisting him for the role. In that case, the Claimant stated that he would like to apply for role however he had a learning difficulty so he could not complete forms. He requested his CV to be accepted for the role. The Respondent in that case offered three alternatives to the Claimant to advance his application including posting a hard copy of the form for him to complete with the assistance of someone else or for someone else to complete it on his behalf; for someone else to complete the online form for him and send it back; and if neither of those were possible for the Claimant to reply to them to see if anything else could be put in place. In that case a proposal was agreed for a Respondent’s representative to speak to the Claimant about the form and discuss it on the telephone. Findings were made that the Claimant had asked his partner for help in activating the online account [paragraph 41] and that the Respondent’s officer went further than he was expected to go and that the Claimant’s attitude was that it was the Respondent’s responsibility to elicit a completed application form from him [paragraph 31].[8]The Fair Employment Tribunal found that the Claimant could have got help from someone else to complete the form, including a job centre, and it expressly rejected the Claimant’s evidence that it was a problem for him to speak to his partner to do this [Paragraph 55 and 56]. The Fair Employment Tribunal accepted the Respondent’s position in this case that no responsibility was taken by the Claimant to seek assistance from any source other than the Respondent. In these circumstances it was found that there was no PCP that placed the Claimant at a substantial disadvantage as he could have obtained help to fill it in and his disability did not impede him from getting such help.[9]The second case referred to was the Claimant’s claim against MBA Notts Limited. The Claimant sought an ‘oral application’ namely a phone call in order to make his application. The allegation in this claim relate to make the application by way of a written CV. The Claimant alleged that he could not adequately convey his suitability in writing. The Employment Tribunal found in this case was not convinced that there was a PCP (of completing a CV) that placed the Claimant at a substantial disadvantage as he did complete a detailed and comprehensive CV and there was no explanation why, if the Claimant had the relevant experience, it was not mentioned in the CV. The Tribunal went onto find that even if an adjustment was made the Claimant would not have demonstrated he would have been appointed. This claim was struck out and it was opined that had this not been the case a deposit order would have been made.[10]The third claim referred to was the Claimant’s claim against John Lee Recruitment Limited (1302097/2018). The Claimant was ordered to pay £3995 as a proportion of the Respondent’s costs in this claim. No details of the judgment on merits was made available.[11]Ms Barsam was submitted that the catalogue of claims that the Claimant has brought, particularly against recruitment agencies, indicates that the Claimant’s claims are vexatious. She further submitted that the Claimant, who lives in Stafford had no real intention of wishing to be employed in the role which was based in London.[12]The online application form screenshots were referred to. They request the Claimant’s email address, to create a password, answer a security question. If this part is completed the Claimant would have been required to put his name, address, personal details, education, work experience, skills, upload a CV and complete an equality and diversity tickbox. It was submitted that the online form was not more involved than the numerous Employment Tribunal complaints that the Claimant was able to submit online.[13]The Claimant responded to this submission by stating that 17 of his claims withdrawn prior to September 2018 were presented as a result of his lack of knowledge of the requirements to advance a claim. I find it difficult to accept this explanation as plausible given the detailed findings of the Defra judgment that was heard in March 2017.[14]In addition the Claimant stated that he withdrew the remaining 12 claims from 2018 to 2019 as a result of the costs judgment in John Lee Recruitment Limited case. The Claimant stated that he maintained his claim in this matter because it concerns an online application form which is different he says to all the claims he has withdrawn which he says concerned CV applications as a PCP when he require an oral applications.[15]The Claimant stated that he requested an oral application instead of the online with the Respondent in this matter but this was not provided. He stated that he was genuine in his desire to work in London as he has had very long commutes to work for significant periods in previous roles.[16]The contemporaneous emails that were sent between the parties from 7 August 2018 to 29 August 2018 were referred to. The Respondent sent several emails to the Claimant asking the Claimant to provide details of the assistance he required in submitting the form so that his disability could be accommodated. The Claimant did not respond with any details. However, he consistently requested an ‘oral application’. The Claimant’s position was that the only way in which he was prepared to progress the application would be by way of oral application.[17]He stated before me that he cannot engage with online forms, password characters and dropdown menus. This was not conveyed to the Respondent at the time who were, on the face of it reasonably requesting from the Claimant what parts of the online process were said to be problematic. Further, the Respondent in this matter was also aware that the Claimant had in fact completed online forms for them when he worked with them previously.[18]The Claimant asserted that he could not ask his wife for help in completing the online form as she was not his carer; he was embarrassed to asked friends for help as they did not know that he suffers from dyspraxia; and it would have taken too much time to go to an advice centre for assistance. In respect of the online form that he had previously submitted to the Respondent, he stated he asked his wife for assistance with that because it was a job offer as opposed to an application. I was unable to accept this distinction as likely to be credible.[19]It is evident that it was the Claimant’s choice about who to ask and who to seek assistance from. It is reasonable to infer that if the Claimant was genuinely interested in the role he would have sought assistance in progressing the online application form. In view of the fact that the Claimant was aware of previous Tribunal findings against him on this specific matter it is like to be implausible for the Claimant to continue to maintain that he could not have availed of assistance.[20]When addressing the submission that the online form was not more involved than the numerous online Employment Tribunal claims he has made, the Claimant stated that he was now experienced at submitted Employment Tribunal claims and was familiar with the process. This did not apply to online processes that he had not encountered before and he would need time to handle them.[21]The Claimant stated that he has approximately £46,000 in equity shared in his home shared between him and his partner, his has credit card debts of £8500 and savings of £550. He stated that he has resigned from his £50,000 role and his last day of work was last Friday. The relevant legislation is a follows:[23]Strike Out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) 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. (3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.[24]Deposit 39(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order. The main authorities I considered are as follows:
Legal principles
[26]In respect of vexatious claims Ms Barsam referred me to the case of Her Majesty’s Attorney General V Kuttapan UKEAT/0478/05/RN where Mr Justice Rimer held: [3] As guidance to the relevant principles, we were referred to the Divisional Court's decision in A-G v Barker [2000] 2 FCR 1, [2000] 1 FLR 759, relating to an application for a civil proceedings order under s42 of the Supreme Court Act 1981, whose terms are similar to those of s 33. Lord Bingham of Cornhill, Lord Chief Justice, gave the leading judgment, with which Klevan J agreed, and pointed out that before the court can make an order under s 42 it must first be satisfied that the statutory precondition of an order is satisfied, its equivalent in the present case being that prescribed by s 33(1). If it is so satisfied, the court then has a discretion as to whether to make the order sought. Lord Bingham said, at p.764: ". .. Vexatious' is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the Claimant; and that it involves an abuse of the process of the court meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. Those conditions are in my view met in this case. Many of the proceedings show no justiciable complaint and, as has been pointed out, several writs have been issued against individual officers in the same department when one writ would have served against them all.... [5] Cases of allegedly vexatious litigants in ordinary civil litigation usually concern repeated claims or applications against the same defendant or defendants in respect of a particular matter by which the litigant has become obsessed. in the employment law field, what is more commonly seen is the making of repeated tribunal applications of a like type against different Respondents, the claims often following an unsuccessful job application. Section 33(1)(a) shows, however, that this difference is no bar to a case being made out under s 33. [6] We were also referred to this tribunal's decision in A-G v Wheen [2000] IRLR 461. Mr Wheen had issued 13 separate applications, the Attorney General sought a restriction of proceedings order against him and this tribunal made the order. The following passages in Lindsay J's judgment are pertinent "8.. Unlike the position in the Barker case, we have had no indication from him [Mr Wheen, who did not attend the hearing] that he will not launch proceedings in the future, nor any suggested mechanism (for example, that he would not launch proceedings unless he had previously received favourable advice from solicitors or counsel or something along those lines) that he might be willing to impose upon himself. We do not suggest that it would be reasonable to demand that from him or that it would have sufficed to avoid an order under s 33, but we do make the point that he offers nothing of any such kind at all as to his future conduct. 9 We have mentioned that many of his claims involve discrimination. Discrimination is generated or can often be generated merely by the personal characteristics of the individual concerned. It may fairly be said that for that reason facts justifying the launching of a claim for discrimination are more likely to recur to an individual than are, for example, the facts of an ordinary civil cause of action. Such a thought leads us to be particularly cautious in relation to section 33 and its application to discrimination cases. But 13 failed sets of proceedings as explained in Mr Lettrodt’s affidavit do represent a substantial argument that there have been vexatious proceedings launched not upon reasonable grounds…”[27]In Zeb v Xerox (UK) Ltd UKEAT 0091/15 Mrs Justice Simler held The Employment Tribunal's power to strike out a claim at a preliminary stage is derived from Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. That Rule enables a Tribunal to strike out a claim that has "no reasonable prospect of success". This power has rightly been described as a draconian one, and case law cautions Employment Tribunals against striking out a claim in all but the clearest cases, particularly where that claim involves or might involve allegations of discrimination. Cases in which a strike out can properly succeed before the full facts have been found are rare. As Lord Steyn explained in Anyanwu v South Bank Students' Union [2001] IRLR 305: "24. … For my part 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. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. …" In the same case at paragraph 37 Lord Hope made the following observations: "37. I should like first to say that, if I had reached the view that nothing that the university is alleged to have done could as a matter of ordinary language be said to have aided the students' union to dismiss the appellants, I would not have been in favour of allowing the appeal. I would have been reluctant to strike out these claims, on the view that discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence. …"[28]In Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 in the Court of Appeal, Maurice Kay LJ said: "29. It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the employment tribunal to decide otherwise. … 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 claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level."[29]In the case of Ahir v British Airways Plc [2017] EWCA Civ 1392 Underhill LJ said: “As I already said, in a case of this kind, where there is on the face of it a straightforward and well documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation is not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so. The employment judge cannot be criticised for deciding the application to strike out on the basis of the actual case being advanced”[30]In the case of Van Rensberg v Royal Borough of Kingston Upon Thames UKEAT/0096/07, Elias J stated that a Tribunal has greater leeway when considering whether or not to order a deposit to make a provisional assessment of the credibility of a party’s case. Vexatious
CONCLUSIONS
[31]I carefully considered the guidance of not striking out discrimination claims as an abuse of the process except in the most obvious and plainest cases.[32]When considering the application to strike out, the fact that the Claimant has presented 29 claims involving the same allegations against different recruitment agencies seemed a compelling starting point to strike out. However, whilst there were no details of the claims provided, the Claimant maintains that this claim was different from the others that he had decided to withdraw as this one is focused on the online application process as opposed to criticising a CV submission process. The Claimant also maintained that he has commuted long distances for work. Whilst I consider that the claim is misguided, given that these are matters of evidence that would need to be considered in full Tribunal, I do not strike out the claim on the basis that it is vexatious. No reasonable prospects[33]When considering whether to strike out the claim on the basis that it has no reasonable prospect of success, I take a different view.[34]The Claimant was aware from the clear pronouncements in previous judgments issued to him in the claims that he has brought regarding the necessary requirements to establish complaints, in particular:34.1 There needs to be a PCP; and34.2 That PCP needs to place the Claimant at a substantial disadvantage when compared to non disabled persons.[35]I consider that it is plain and obvious that the Claimant will be unable to maintain that there was a PCP, of an online form, applied by the Respondent placed him at a substantial disadvantage. In particular:35.1 There was no strict time frame or bar on seeking assistance in completing the online application form.35.2 The contemporaneous correspondence shows that the Respondent was reasonably requesting from the Claimant what adjustments he needed to complete the online application. The Claimant did not respond to this but simply demanded an ‘oral application’ and provided his telephone number. In effect, the Claimant seeks to establish that it is a reasonable adjustment for the Respondent to transcribe what he says and put it into the form themselves.35.3 The Respondent will be able to establish that the Claimant had been able to complete online forms previously, as the Claimant accepts this.35.4 The Claimant is not likely to establish that he would not have been able to ask his partner, a job centre, or advice centre for help in completing the form or that his disability prevented him from doing so. This position was explicitly rejected in his Defra case. It is incredible for the Claimant to maintain the same position. On the submissions before me the Claimant could have asked for assistance but chose not to.35.5 The Claimant failed to provide any specifics to the Respondent of the actual difficulties of the online form had for him to the Respondent despite numerous invitations to do so; and35.6 The Claimant’s position is that he would have only sought to progress the application by way of oral application and this demonstrates a lack of reasonable cooperation in seeking the ameliorate the effects of any alleged PCP. The Claimant’s single-minded demand for an oral application evidently disregarded the need for him to show that what he was being asked to do actually placed him at a substantial disadvantage.[36]Having considered Anyanwu, Ezsias and Ahir I consider that this is one of the rare cases where the exception against striking out discrimination cases applies. The number of claims that the Claimant has previously advanced relating to similar matters against different respondents, that have been dismissed or withdrawn on his own volition, is indicative of a lack of substance to those claims. There is a similar lack of substance in this claim and there is no credible basis to maintain this claim.[1]In August 2018, the Claimant attempted to apply for a role with the Respondent. He was unable to proceed with his application because he had to complete an online application form. He complains in these proceedings that this was disability discrimination, on the basis that the Respondent failed to make reasonable adjustments given the difficulties he experienced with an online application form.[2]This Final Hearing took place over the course of a single day, on 4 November 2021. The complaint had previously been struck out by Employment Judge Burgher at a Preliminary Hearing. The basis for the strike out was his conclusion that the Claimant’s case was one that had no realistic prospect of success. The Claimant’s appeal against that decision was successful. HHJ Tayler remitted the case to a different Judge.[3]At this Final Hearing, the Claimant has represented himself. The Respondent was represented by Ms Talia Barsam of Counsel. Ms Barsam had represented the Respondent at the previous hearing before Employment Judge Burgher, and on appeal in front of HHJ Tayler. Live witness evidence was given by the Claimant and by Mrs Sarah Parker on behalf of the Respondent. In addition, the Claimant relied on witness statements from his partner, Ms Jane Newport, and his careers coach, Sarah Musique. The Respondent indicated that it did not want to question either of these two witnesses. As a result, their statements were admitted as unchallenged evidence.[4]The documents for use at the hearing were in five separate bundles. In additional a further supplementary bundle was prepared numbered from pages 1-34. Despite the volume of documents being in the region of 2000 pages, the Tribunal was referred only to a small percentage of these total documents. In addition, Ms Barsam had prepared a nine-page Skeleton Argument to which the Tribunal was directed. The Claimant had prepared several emails which were sent to the Tribunal either on 3 November or on 4 November containing points he wanted the Tribunal to take into account when considering the case.[5]At the conclusion of the evidence both sides made oral closing submissions. The case finished at around 5.20pm. There was insufficient time for the Tribunal to deliberate and give its decision. The parties were told that Judgment would be reserved and would be sent to the parties with written reasons.
Findings of fact
[6]The Claimant had been diagnosed with dyspraxia in around 2015. This is the disability on which he relies as the foundation for this disability discrimination claim. Although he was subsequently diagnosed with autism, that diagnosis was only made in January 2021. As a result, it was not a current diagnosis at the time of the events giving rise to this claim.[7]The nature of the Claimant’s symptoms as a result of his dyspraxia are detailed in the Claimant’s statement dated 17 April 2020 and his disability impact statement dated 17 May 2021. It was also covered in detail during oral evidence in answer to questions raised in cross examination. The contents of the statement of Ms Musique, dated 16 October 2021, are also relevant when considering the nature and extent of his symptoms. Ms Musique was a work coach helping the Claimant to access employment opportunities. She was not involved in helping the Claimant at the time of his application to the Respondent which is the subject of these proceedings. We note that we have not been provided with any medical evidence from a doctor or expert in dyspraxia identifying the particular difficulties.[8]So far as is relevant to the issues in these proceedings, these symptoms at the relevant time can be summarised as follows:(1) The Claimant finds it difficult to organise his thoughts clearly in written communications. He much prefers to communicate orally either in a face to face meeting or by telephone.(2) This difficulty in organising his thoughts in writing extends to difficulty in creating and repeating the same password if the password is expected to include both letters and special characters such as punctuation signs. This is a particular problem where the password is not visible when typed because each element of the password is replaced by a star symbol to preserve confidentiality.(3) The difficulties presented by the need to create an account by choosing a particular password were so stark for the Claimant that he tended not to even attempt this process, because he found it too stressful.[9]Between 10 April 2017 and 18 December 2017, the Claimant had been employed by the Respondent at its Birmingham office. He was recruited to this role with the help of recruitment consultants. This meant that he did not need to complete an online application form. This role was within commuting distance of the Claimant’s home in Cannock. At the outset of this employment, the Claimant had submitted an online form, titled Candidate Information Form [210]. Unbeknown to the Respondent, the Claimant had had assistance from his partner in completing the form. In this role, he needed to input a username and password to access his computer on a daily basis. He had help in this task from secretaries working in the same office.[10]The Claimant’s evidence, which we accept, is that he enjoyed this role. It was subject to a six-month probationary period. Towards the end of the original probationary period, there were concerns about the standard of the Claimant’s performance. As a result, it was decided that his probationary period should be extended by three months. The Respondent’s concerns had not been addressed to the Respondent’s satisfaction during this further period. As a result, the Claimant was dismissed. His last date in the role was on 18 December 2017.[11]There was a subsequent dispute between the Claimant and the Respondent as to the basis on which the Claimant’s employment had been terminated. The Claimant issued employment tribunal proceedings alleging he had suffered disability discrimination. Those proceedings were settled without any admission of liability on the Respondent’s part, with a settlement sum being paid to the Claimant. The Claimant sought a specific assurance that he was not precluded from applying for future roles with the Respondent. He was told that there was no restriction on his ability to apply for other roles.[12]In early August 2018, the Claimant noted that the Respondent was recruiting for a consultant to join the Research & Development Team in London. The candidate would be involved in delivering R&D claims and help develop the Respondent’s Fiscal Incentives R&D service capacity. This was a similar role to the role he had previously performed with the Respondent, albeit based in the London office rather than the Birmingham office.[13]The standard process for applying for this role was by completing an online application form. In order to access the form, candidates had to create a personal profile. This required them to input their email address as a username and provide a password. The password needed to be at least eight digits long, including a special character (such as a punctuation mark). In order to ensure the accuracy of the password, it needed to be typed twice. It was possible, by clicking on an eye symbol, to see the characters in the password as it was entered.[14]Once the profile had been created, it was then possible to access the application form. The application form contained a series of questions to which answers were required to be entered on screen. The answers could be entered manually in response to each question. Alternatively, the answers could be populated by clicking on a button headed “Social Media”. This would import the relevant fields from a candidate’s LinkedIn profile. The total number of questions which were required to be answered ran to around six or seven pages. The screen stated that it would take around 8-11 minutes to complete the form, which we take to be the time required if the information needed to be inputted manually.[15]When the Claimant noted the job vacancy, he clicked on the relevant part of the screen to start his job application. He was asked to “create a new account”, which required him to input his email address and create a password. The Tribunal finds that the Claimant chose not to undertake this particular step. He saw the reference to the need for a “special character” and considered it would be too complex for him to be able to create an account. This is because in the past he tended to include random letters in his proposed password and then would not be able to remember the same sequence of random letters to replicate the password when prompted to do so. For him, this was a stressful and onerous requirement.[16]On 7 August 2018, the Claimant emailed the Respondent’s HR Department in the following terms: “Hello HR, I have seen this role in London that I would like to apply for and please find my CV attached for your role, please let me know the next phase. Thanks Christian”[17]He cut and pasted part of the job advertisement into the email to identify the job for which he was applying. On the first page of his CV, he included the following text in bold and in capitals under the heading “Employment History”: “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 TO 10 MIN PHONECALL TO TALK ABOUT MY EXPERIENCE AND CAN THIS BE ARRANGED BY EMAIL PLEASE DRCMALLON@GMAIL.COM AND I WILL SUPPLY A TELEPHONE NUMBER (More technical information about my medical condition is at the end of this CV).”[18]It was not clear from the wording or the context whether the reference to “talk about my experience” was a reference to his experience of dyspraxia or a reference to his experience relevant to the job for which he wanted to apply. Someone reading this CV would only appreciate that the Claimant identified his disability as dyspraxia from the last section of the CV which specifically named this condition.[19]This section started with the Claimant’s heading, in bold: “MORE technical info about my medical condition”. This was then followed by numerous bullet points over two pages of the sorts of general problems experienced by people with dyspraxia. The first bullet point was worded as follows: “People who have dyspraxia often find the routine tasks of daily life, such as driving, household chores, cooking and grooming difficult. They can also find coping at work is hard. People with dyspraxia usually have a combination of problems including ….”[20]It is clear from that opening point that the list was a non-exhaustive general list which was not specific to his particular condition. This section of the CV then contained 53 different bullet points listing different features of dyspraxia. The final bullet point made it clear that the bullets were general rather than specific to his particular situation: “Many of these characteristics are not unique to people with dyspraxia and not even the most severe case will have all the above characteristics. But adults with dyspraxia will tend to have more than their fair share of co-ordination and perceptual difficulties”.[21]There was no means of the Respondent knowing, from the Claimant’s CV alone, which of the bullet points applied to the Claimant and to what extent.[22]In evidence, the Claimant identified the following bullet points as being particularly pertinent to his own condition, as applicable to the issues in this case:• Tracking. Tendency to lose the place while reading.• Poor visual perception.• Inadequate sense of direction.• Learning, thought and memory• Difficulty in planning and organising thought• Poor memory, especially short-term memory. May forget and lose things• Slow to finish a task.• Tendency to take things literally.• Tendency to be erratic ie have ‘good days and bad days’• Prone to low self-esteem[23]We accept the Claimant’s evidence as to the particular manifestations of his dyspraxia in these respects.[24]On 13 August 2018, Mrs Sarah Parker, Senior HR Manager, responded to the Claimant’s email as follows: “We are in receipt of your request to apply for a position at AECOM via oral applications as a reasonable accommodation. At this time, the application process requires that you submit your CV along with submitting an online form for entry into our database. As you have sent your CV to AECOM via this email, all that remains is to fill out the online application form associated with the position of interest. If you have concerns about filling out an online application form, please let us know. Please note that you may receive assistance in submitting the form if necessary.”[25]On the same day, within minutes, the Claimant responded: “Happy to do your form over the phone”. He then added his phone number.[26]Just over an hour later, there was the following response from Mrs Parker: “Please follow our usual processes and complete the form through our recruitment system. If there are particular parts of the form that you find it difficult to complete, please let us know which parts and we will provide assistance.”[27]A further swift response from the Claimant stated: “I would prefer to make an oral application as stated in my CV. When can this be arranged?”. Taken together, the two responses from the Claimant indicated that he did have concerns about filling out on online application form, although these responses were not specific about the nature of the concerns.[28]Mrs Parker responded at 7:18pm on 13 August 2018. Her email was worded as follows “As stated in my email below, please follow our usual recruitment process by completing your application through our website. Once you have applied online the Talent Acquisition team will review your CV and application and will advise you of next steps”.[29]On the same day, she emailed Juliette Tew in the Talent Acquisition Team as follows “Just a heads up, Christian Mallon (a former employee) is interested in applying for the Research and Development role in London. I have advised him to apply online as per our usual process. We may need to provide assistance if he struggles with any aspect of the form or process”. This was a recognition that the Claimant may struggle with aspects of completing the online form and, if so, that it would be necessary for the Respondent to provide assistance.[30]Each of the emails from Mrs Parker contained Mrs Parker’s mobile number in the footer. There was also a link to the UK&I HR Team Contact Page providing more information on who to contact in HR. The Claimant accepted that he did not phone Mrs Parker to explain his difficulties. He explained in evidence that this was a consequence of phoning a previous potential employer about an online job application form, where he was laughed at for not being able to complete the online form. Mrs Parker accepted that she did not telephone the Claimant to find out the Claimant’s difficulties. She stated that, with hindsight, that would have been a sensible step. She was influenced in her decision not to telephone the Claimant by the Claimant’s previous unsuccessful employment with the Respondent, and by the fact that it was not her direct responsibility to be involved in the recruitment process – this was the responsibility of the Talent Acquisition Team.[31]The email exchanges continued in a remarkably similar vein. At 7:51 on 13 August 2018, the Claimant replied: “please read my CV and my request for reasonable adjustments that is stated on my CV, when can I have my oral application?”.[32]Mrs Parker responded at 5:15pm on 14 August 2018: “This is the last time I will state the same thing. You need to complete the online process through our website. You have already completed your CV, therefore all that remains is to fill out the online form associated with the position of interest. Please note that you may receive assistance in submitting the form if necessary, therefore if there are elements of the form you find it difficult to complete please let us know what parts and we will provide assistance. We are aware that you have successfully completed forms in the past so do not see why you cannot do it to apply for this role.”[33]The Claimant responded at 5:22pm on 14 August 2018: “What forms have I already completed? As every form is different, I wish to make an oral application for your form so when can this be arranged? I wish a fair recruitment process under the equality act and I have asked for reasonable adjustments please read my CV and my request, when can we do this oral application?”.[34]By 8:35pm the following day, 15 August 2018, there had been no further response. As a result, the Claimant sent the following further email: “When will this oral application happen? I cannot help my disability and this is listed clearly on my cv and I do not want to miss out on this role that is advertised. And I was told that I could apply for any role and I wish to have this oral application asap.”[35]He then quoted from an earlier email he had received from the Respondent, sent after the end of his previous employment with the Respondent: “Of course you are free to apply for any roles within AECOM in the future and we would treat any application you make no differently from any other application we receive”.[36]The following week, on 23 August 2018, he followed up with a further email: “Hello Can I ask when my oral application will happen? I cannot help my disability and I believe I am entitled to reasonable adjustments in the application process. Please reply when this oral application will happen?”[37]On 28 August 2018, he emailed again: “What is happening with my oral application?” and followed this up with a further email on the same day: “Why is my application being delayed? I do not want to be discriminated against and have asked for reasonable adjustments, so when will this oral application happen?”[38]On 29 August at 11.30am, the Claimant received a response to his recent emails from Julie Butcher, who was an Employee Relations Advisor in Human Resources. She wrote: “Dear Christian I understand that Sarah has already advised that you need to have the online application process completed through our website. You have already completed your CV, therefore all that remains is to fill out the online form associated with the position of interest. This form can be completed by you, or by someone acting on your behalf with your approval. If you require assistance in submitting the form, we can accommodate this. Please advise which elements of the form you are finding difficult to complete to enable us to assist you. In answer to your query, examples of forms you have completed in the past are the Candidate Information Form and a reimbursement form for your relocation expense.”[39]The Claimant’s response, sent within a couple of hours, was “As I have not filled in this form before, I request reasonable adjustments as I am home alone and I wish to progress my application. So when can my oral application for your form happen? I can speak today or on Friday this week. So when can someone call me to help complete your form?”. He then followed this up with a further email worded as follows “as you already have my CV you know about my medical condition so there is no excuse for this reasonable adjustment being refused as I cannot help my medical condition, so when will this adjustment be made? As surely all my info will be the same as I already worked for AECOM”. He then cut and pasted information on the symptoms of dyspraxia.[40]On 11 September 2018, the Claimant emailed again: “Can someone contact me to help me make this oral application for your form? I do not understand the delay and why my application is not wanted? Is this because I am disabled? By law I am entitled to a fair application process how can this be fair if the application form is not complete? Please help or I will be forced to take this further and down the legal route”.[41]On 17 September 2018, the Claimant received a further email from Julie Butcher. The email stated: “Dear Christian, As you have previously been advised and again in my last email of 29 August 2018 in order to submit your application for a post, the online process needs to be completed through our website. You have also been advised that someone could act on your behalf with your approval. To reiterate for a final time: if you require assistance in submitting the form we can accommodate this – please advise which elements of the form you are finding it difficult to complete to enable us to assist you. We have made our position clear and will not continue to respond to these messages”[42]The Claimant was being asked to advise on the specific elements of the form that he was finding it difficult to complete. The Claimant chose not to answer that particular question specifically. Instead, he responded, “As you know I have problems filling in your forms and have asked for an oral application as a reasonable adjustment. Can this be done this week? I can do last think on weds or thurs in the day. I have a medical condition which means I find forms difficult to fill in, I cannot help my disability. Will someone be calling me this week?”. This the closest that the Claimant came to identifying the particular problem he was experiencing with the online application form. He did not explain how the Respondent would have known that the Claimant had problems filling in its forms.[43]On Monday 17 September 2019, the Claimant started a role with Baldwins on an annual salary of £50,000 at their offices in the West Midlands. The Claimant continued in this role until 3 May 2019, when he chose to resign. The Claimant has chosen not to disclose any documents in these proceedings confirming when he first applied for this role or when he was accepted for the role. He explains this as a step taken because his gmail email inbox was full. The Respondent argues that the timing of the Claimant’s start in this role shows he was not serious in his intention to secure a role with the Respondent. The Claimant argues that there were several reasons why he would have much preferred to work with the Respondent than with Baldwins – he believes that the salary would have been higher, and the work would have been more interesting and for better clients.[44]On 20 September 2018, Mrs Parker told the Claimant that the role that he wished to apply for was no longer available and was in the process of being removed from the website. The Claimant alleged that he had suffered disability discrimination, to which Mrs Parker further responded: “I can confirm that because you did not submit an application for the role, despite our repeated offers to assist in the application process to accommodate your needs, you were not considered for the position. We cannot comment on whether or not the successful candidate has a disability as this is confidential information. I can confirm, however, that we do not take into account whether or not a candidate has a disability when recruiting or when making hiring decisions. As this vacancy is now closed we will not correspond any further on this matter or respond to any future emails regarding the position”[45]The Claimant sent two further emails on 25 September 2018 maintaining his position that he had suffered disability discrimination. On the same day, he contacted ACAS to initiate Early Conciliation. In his ET1, the Claimant did not identify the specific disadvantage that he faced as a result of the online application form process. His complaint was that he had asked for reasonable adjustments as a result of his disability. He had asked for an oral application, but the company had never called him or arranged anything.[46]The successful candidate for the role was based in the Birmingham area, despite the position advertised as London based. As a result, the position which was filled following this recruitment exercise was based in the Birmingham office. The potential for the successful candidate to be based in Birmingham was not apparent at the time of the Claimant’s application.[47]In evidence, Mrs Parker accepted that the Respondent would have been able to provide whatever assistance the Claimant required in completing the online application form. If the Claimant was struggling with generating a password, the Respondent could have created a password for him and emailed it to him or sent him the password in the post. If the Claimant was struggling with populating the fields required on the online application form, then the Claimant could have given his answers to those questions over the telephone. The Respondent would then have been able to input the answers and submit the application on the Claimant’s behalf. The Respondent’s stance was essentially that it did not know the nature and extent of the Claimant’s difficulties at the time, because the Claimant was not being clear about the extent of those difficulties. He had had multiple opportunities to be specific about the nature of the difficulties but had refused to provide that information.[48]The Claimant’s position was that it was unnecessary for him to provide specific details by email. Had the Respondent phoned him he would have provided the specific details on the phone. He had previously identified his difficulties when applying for a role in 2015. On 3 November 2015, he had emailed Annette Holland in the following terms “I have a learning disability and cannot use your website, I have asked for reasonable adjustments to be made in my application”.[49]The Claimant had made a further application to the Respondent for a job role in 2019, after the events with which this claim is concerned. When applying at that stage, he had also asked to be permitted to make an oral application. On that occasion, his request was granted. As Mrs Parker was on maternity leave at the time, she was unable to explain in her evidence to the Tribunal why the standard process was adjusted to allow the Claimant to provide his information orally on that occasion.[50]At the present time, the Claimant’s main source of income is revenue generate from selling items over eBay. The Claimant’s evidence was that he sold only five different items, although the same items were often described in multiple different ways. After expenses, this business generates income of around £185 per week. The Claimant’s evidence was that he was able to interact with the eBay website in order to run this business with assistance from the eBay support team where necessary. He had been provided with two days training. He runs his business through a limited company for which he needs to file records on an annual basis. He is able to complete the necessary paperwork and upload it to the Company’s House website, using an access code. In previous roles, he has been able to prepare multiple claims for submission to HMRC. However, he had not actually made the submission himself as he was not tax qualified.[51]This claim was not the first claim that the Claimant has issued in the Employment Tribunal. It is one of about 60 claims that the Claimant has made against recruiters or potential employers relating to the recruitment process they have followed in the Claimant’s case. The Claimant explained he was able to include an accurate ACAS Early Conciliation Number on each ET1 Claim Form by cutting and pasting the Number from the ACAS Early Conciliation Certificate.[52]We were taken to the Response in one such claim suggesting that the Claimant had successfully completed an online application form. We were also taken to comments that were made by Judges in some of those cases. In Mallon v Ginger Recruitment Services Limited, Employment Judge Sharkett concluded that the Claimant had made an unrealistic job application so he would be rejected and this would open the door for him to bring a tribunal claim. He dismissed the Claimant’s disability discrimination claim. Deliberately making an unrealistic application made it unreasonable for him to bring an employment tribunal claim in that case. As a result, the Judge made a costs order against the Claimant. In Mallon v Ela8 Limited Employment Judge Goodman recorded a strong suspicion that the Claimant was making vexatious claims given the long sequence of claims which had been brought and then withdrawn. In Mallon v Electus Recruitment Solutions Limited, part of the Claimant’s case was struck out. The judge noted that he shared the concerns with other judges “over the claimant’s motives for this large number of claims”. The Respondent argues that the comments made in those cases are relevant to the decision that we have to make as to whether there has been disability discrimination in the respects alleged.
Issues to be determined
[53]The Respondent accepts that the Claimant was a disabled person at the relevant time by reason of his dyspraxia.[54]The issues to be determined in these proceedings are as follows:(1) Did the Respondent apply a provision, criterion or practice (PCP) in relation to the Claimant’s job application?(2) Did that PCP put the Claimant at a substantial disadvantage in comparison with those not sharing the Claimant’s disability? This itself requires the Tribunal to decide: i. Was the Claimant genuinely applying for the advertised role? ii. Did the Claimant’s symptoms put him at a substantial disadvantage, given the PCP adopted by the Claimant?(3) Did the Respondent know that the Claimant had a disability and was by reason of that disability liable to be at a substantial disadvantage?(4) Ought the Respondent to have known that the Claimant had a disability and was by reason of that disability liable to be at a substantial disadvantage?(5) What reasonable steps ought the Respondent to have taken to avoid the disadvantage?(6) Did the Respondent fail to take the reasonable adjustments that it should have taken?[55]When this case was considered in the EAT, HHJ Tayler raised the potential relevance of an alternative way of framing a case of failure to make reasonable adjustments, namely a failure to provide an auxillary aid, by way of providing assistance in completing an online form. This formulation of the case was not addressed by either party in closing submissions. Given our Judgment finding in favour of the Claimant in relation to the first requirement, it is not necessary for us to analyse whether there has been a failure to provide an auxillary aid. We note that HHJ Tayler said at paragraph 33 that it probably does not make much difference in the present case whether it is analysed as an auxillary service case rather than a PCP case. Relevant legal principles[56]The Tribunal must assess whether the Respondent applied a provision, criterion or practice which placed the Claimant at a substantial disadvantage in comparison to those employees not sharing her disability. If so, the duty to make reasonable adjustments is engaged. The Tribunal must then consider whether a reasonable adjustment might have eliminated or reduced that disadvantage.[57]In order for the disadvantage suffered by the employee to be “substantial” it must be more than minor or trivial: Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 at paragraph 21.[58]Paragraph 20 of Schedule 8 to the Equality Act 2010 is worded as follows: An employer is not subject to a duty to make reasonable adjustments if the employer does not know and could not reasonably be expected to know … that the employee has a disability and is likely to be placed at a disadvantage.[59]The burden of proof is on the Claimant to establish the existence of the provision, criterion or practice and to show that it placed her at a substantial disadvantage - see Project Management Institute v Latif [2007] IRLR 579 at paragraph 45. In other words, to establish that the duty to make reasonable adjustments has been engaged.[60]Thereafter the onus remains on the Claimant to identify the potential reasonable adjustments with a sufficient degree of specificity to enable the Respondent to address them evidentially and the Tribunal to consider the reasonableness of providing them. At the point where the duty to make reasonable adjustments has been engaged, and the Claimant has identified one or more potential reasonable adjustments, the burden of proof is reversed. The Respondent must then show, on the balance of probabilities, that the adjustment could not reasonably have been achieved – Latif at paragraphs 53-54.[61]In Newham Sixth Form College v Saunders [2014] EWCA Civ 734 at [14] Laws LJ confirmed: “These three aspects of the case – nature and extent of the disadvantage, the employer's knowledge of it and the reasonableness of the proposed adjustments – necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and the extent of the substantial disadvantage imposed upon the employee by the PCP. Thus an adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage. Implicit in this is the proposition, perhaps obvious, that an adjustment will only be reasonable if it is, so to speak, tailored to the disadvantage in question; and the extent of the disadvantage is important since an adjustment which is either excessive or inadequate will not be reasonable.”[62]The reasonableness of the steps to be taken to avoid the disadvantage is to be determined on an objective basis: Griffiths v Secretary of State for Work and Pensions [2017] ICR 160 at paragraph 73.[63]Guidance as to the considerations that are relevant in assessing reasonableness is provided in paragraph 6.28 of the Employment Statutory Code of Practice. The Tribunal is required to have regard to this Code when considering disability discrimination claims. Conclusions Did the Respondent apply a provision, criterion or practice (PCP) in relation to the Claimant’s job application?[64]The provision, criterion or practice applied by the Respondent was a requirement that candidates for job vacancies were expected to apply on an online form. This had two dimensions. The first was that candidates were expected to create an account, by providing a username and password, in order to access the online form. The second was that candidates were expected to answer the questions raised by inserting his information and answers on the online application form in the spaces provided. Did that PCP put the Claimant at a substantial disadvantage in comparison with those not sharing the Claimant’s disability? This itself requires the Tribunal to decide:(1) Was the Claimant genuinely applying for the advertised role?(2) Did the Claimant’s symptoms put him at a substantial disadvantage, given the PCP adopted by the Claimant?[65]We have concluded that the Claimant was a genuine applicant for the advertised role. Our reasons are as follows:(1) He had the necessary qualifications to perform the role for which he was applying;(2) He had performed a similar role for the Respondent in the past, which he had enjoyed in terms of the nature of the work and the calibre of the clients;(3) He was out of work at the time and needed to find paid employment to provide financially for his wife and son. He was also applying for other roles at this time, including a role with Baldwins, where his application was successful;(4) When his previous role at the Respondent had ended, he had specifically sought an assurance that he could reapply for at role with the Respondent in the future;(5) He was applying to work in a different office, the London office, and therefore in a different team from where he had worked previously when employed by the Respondent, namely the Birmingham office. It was therefore potentially a fresh start, despite the circumstances in which his previous employment with the Respondent had ended;(6) Although other applicants may have chosen not to apply to the same employer where they had previously failed their probationary period, our assessment of the Claimant’s character is that he would not have regarded this as an inevitable impediment to succeeding with his application;(7) The geographical distance between the Claimant’s home and the London office did not make such a commute impossible. The Claimant’s evidence was that, back in 2018, there was a 6am train from Stafford station which arrived in London before 7.15am. In addition, the Claimant had previous been prepared to work a substantial distance from home during the week and commute on a weekly basis. He did this by continuing with his role in Aberdeen even though the family home moved to Cannock.(8) Whilst we note the multiplicity of Employment Tribunal claims for other jobs with other employers, and the comments of the two Judges in the cases detailed above, we do not consider it is necessary to infer from those cases and comments that the Claimant was not serious about making this application. The unique or almost unique feature here is that the Claimant was applying for a similar role to that he had previously performed with an employer for whom he had enjoyed working.[66]We accept the Claimant’s evidence as to the nature and the extent of the substantial disadvantage caused to him by being required by the Respondent to fill in an online form. By the time he came to apply to the Respondent in August 2018 he found the task too stressful to undertake, given his particular difficulties in expressing his thoughts in writing in the context of previous difficulties he had experienced with online forms. Therefore, although all applicants would be able to opt to see the characters in their chosen password before retyping the same characters, this was a task that the Claimant did not undertake. He was too anxious about the process of completing an online form that he did not embark on the first stage of the process.[67]We do not consider that the Claimant’s evidence on this point is undermined by the various documents referred to in the evidence that he had previously completed. He had previously completed the Candidate Information Form with assistance from his partner. He had been able to complete the Early Conciliation aspect of Employment Tribunal Claim Forms by copying and pasting the ACAS Early Conciliation Numbers from the EC Certificates. He gave convincing explanations for why he was able to submit documents at Company’s House and sell items through eBay. Did the Respondent know that the Claimant had a disability and was by reason of that disability liable to be at a substantial disadvantage?[68]The Respondent knew that the Claimant had dyspraxia. It knew this from his previous employment with the Respondent. It also knew this because the Claimant had referred to it in his CV which had been forwarded at the time of registering his interest in the role.[69]It also knew that as a result of his dyspraxia, he had a difficulty in filling in the online application form. This was a point that the Claimant had made repeatedly during the protracted email exchanges by requesting, by way of alternative, that he be permitted to make an oral application. He had not identified the specific reasons why completing an online application form was a particular difficulty. Ought the Respondent to have known that the Claimant had a disability and was by reason of that disability liable to be at a substantial disadvantage?[70]If the Respondent wanted further clarification of the reasons why the Claimant found it difficult to complete the online application form, given his dyspraxia, it could ask him to provide more detail by telephone. On one view of the capitalised and bold section of his CV, the Claimant was volunteering to have such a discussion with the Respondent.[71]The caselaw requires employers to make enquiries as to the extent of the difficulties that a disabled person may face, at least in circumstances where the general difficulty has been raised by the Claimant. The onus is on the employer to seek the information rather than on the employee to provide the information. Given his difficulties with written communication, it was not reasonable to expect the Claimant to explain these matters in an email. The Claimant had provided his phone number and suggested convenient times when he could be contacted. As Mrs Parker accepted in the course of oral evidence, with hindsight she should have telephoned the Claimant to find out further information. She had not been directly involved in his previous application or his previous employment to fairly conclude that such a conversation would have been futile.[72]There was no good reason given as to why someone in the HR department or the Talent Recruitment Team could not have spoken to him to find out the particular difficulty he was experiencing with the online application that for whatever reason he may have been reluctant or unable to explain in an email. What reasonable steps ought the Respondent to have taken to avoid the disadvantage?[73]The Respondent ought to have taken one of two alternative courses of action. Either it ought to have emailed him a log in and a password so he could create an account. At that point he is likely to have been able to populate some of the other boxes on the online application by importing the information from his LinkedIn profile. Alternatively, it ought to have phoned him in order to carry out an oral application, recording his answers on the application form and then sending the completed form to him for him to check. Mrs Parker accepted in her evidence that both steps could have been taken. Indeed she had suggested at the time in her internal email to Ms Tew that the Claimant may need to be give assistance in completing the application form. When the Claimant applied for a third time in 2019, the Claimant was permitted to make an oral application. There is no evidence that such a step would have been unduly onerous for the Respondent to take.[74]The Respondent has argued that this was not a reasonable adjustment, because the Claimant could have sought assistance from his wife or from some other person with completing the form. The Tribunal notes the views expressed by HHJ Tayler when this case was considered in the EAT (at paragraph 22): “If an employer, would otherwise be under a duty to make an adjustment, care should be taken before it is assumed that the adjustment is not reasonably required because someone else can make the adjustment. Friends and family may be prepared to help a disabled person, but they should not be expected to step in and make a reasonable adjustment for an employer, or potential employer, to save it from the trouble of having to make the adjustment itself. Similarly, great care should be taken before concluding that a PCP does not place a disable person at a disadvantage because someone other than the employer, or potential employer, can provide the help that would otherwise have been required as a reasonable adjustment.”[75]We accept the Claimant’s evidence that his wife had agreed to help him with those applications that led to an interview. She had not agreed to help him write his initial applications. As the Claimant said, his wife was not his carer. She had her own responsibilities. Therefore, we do not accept that the possibility that the Claimant could have obtained assistance from others in completing the online application form removes the duty on the Respondent to make reasonable adjustments in these respects. Did the Respondent fail to take the reasonable adjustments that it should have taken?[76]In its emails, the Respondent did offer to provide the Claimant with assistance in completing the online application form. Such an offer was conditional on the Claimant identifying the specific problems he was experiencing. It did not amount to an unconditional offer to conduct an oral application. The stance adopted by the Respondent in its email correspondence did not amount to taking the required reasonable adjustments.
Conclusion
[77]We note the extent to which the Claimant has brought other Tribunal claims where job applications have been unsuccessful. We note too the conclusions which have been reached by Judges in those cases that have reached a Final Hearing.[78]However, we have concluded in this case that the Claimant was genuinely applying for a role he considered he was capable of doing, in circumstances where he had previously been successful in applying for a similar role with the same employer.[79]Therefore, this particular case was not a case where the claim was scandalous or vexatious by the end of the proceedings. In any event, given our conclusions, the claim has sufficient merit to succeed, and any strike out application must be dismissed.[80]A Remedy Hearing should be listed to consider the remedy the Claimant should be awarded for the discrimination he has established in these proceedings. This will be an award of injury to feelings for not being able to pursue this application, and an assessment of the lost chance of securing the role. REMEDY JUDGMENT The judgment of the Tribunal is that:- The Claimant is awarded the sum of £2,000 for injury to feelings, together with accrued interest of £700. No remedy is appropriate for financial loss.[1]The Tribunal has been asked to decide the remedy to award to the Claimant for a single act of disability discrimination. Following a hearing in November 2021, this Tribunal decided that the Respondent had failed to make a reasonable adjustment in failing to provide the Claimant with further assistance in registering his job application in August 2018 for an advertised role. As a result, the Claimant was not considered for this role. We need to consider what award to make for injury to feelings and whether to make an award for any financial loss resulting from the discrimination.[2]The Remedy Hearing took place on 16 November 2022 by Cloud Video Platform. The Claimant represented himself. Miss Barsam of counsel represented the Respondent. She had submitted a written skeleton argument in support of her client’s position. The Claimant had submitted examples of injury to feelings awards previously made in cases involving disability discrimination.[3]Oral evidence was given by the Claimant and by her witness, Ms Newport. Mr Timothy Jackson, Director and Head of Fiscal Incentives, was called as a witness by the Respondent. The Tribunal was referred to an electronic bundle of 207 pages prepared by the Respondent and a further bundle prepared by the Claimant, 29 pages long. At the end of the evidence and submissions there was insufficient time to deliver an oral judgment. As a result, the decision was reserved and is now sent to the parties together with our written reasons. Findings of fact[4]We have re-read the reasons given for our decision on liability, noting the factual findings that are potentially relevant to the remedy issue. Relevant findings are repeated here. In addition, based on the evidence called by both parties at the Remedy Hearing, we make further findings of fact.[5]The Claimant had worked in about twenty-five previous job roles before working for the Respondent in 2017. In previous jobs, the Claimant had been prepared to work a considerable distance away from where he lived, including at one point in Aberdeen.[6]For many years, the Claimant has lived in Cannock in Staffordshire. He has lived there throughout the period with which this claim is concerned.[7]During 2017, he had commuted from Cannock to the Respondent’s Birmingham office to perform the role of Associate in the Research and Development Team of the Fiscal Incentives Service Line (“the 2017 role”). Other roles in the same team, which was about 10 strong, were based in either Birmingham or London. Mr Jackson provided different details about the 2017 role, its contrast with the 2018 role, and the relationship between those in the Birmingham and London offices than Ms Parker had given at the liability hearing. We accept that the evidence of Mr Jackson is likely to be more accurate, given his closer involvement in the day to day running of the R&D work than Ms Parker. The role had three main aspects. The first required a strong technical capability; the second required business development skills. The final element was a leadership dimension, aiming to expand the R&D capability in the Birmingham office. The Claimant’s salary in the role was £65,000 a year, together with a car allowance of £3,250 per annum.[8]He had started this role on 10 April 2017. It was subject to the satisfactory completion of a six-month probation period. Towards the end of his first six months, his performance had not been assessed to be satisfactory. As expressed in an email sent by Mr Jackson to the Claimant on 15 September 2017, he was noted to have made a slow start to developing the service. As a result, his probation period was extended by a further three months. The new date on which his probation ended was 10 January 2018. Because his performance was still considered unsatisfactory by December 2017, he was dismissed. His last day was 18 December 2017.[9]In that role, the Claimant’s line manager was Tim Jackson. Mr Jackson was based in the London office but would communicate with the Claimant on a regular basis, including a weekly email and a conversation about every three weeks. He was the person who had decided to extend the Claimant’s six-month probation period and who had decided to dismiss the Claimant before the end of the further three month extended probation period. Although the Claimant had been hired because he had claimed to have lots of contacts in the Birmingham area and lots of experience, he did not engage new clients and grow those relationships.[10]There was an evidential dispute as to whether there were any documents recording the Claimant’s poor performance whilst working for the Respondent. There is an email noting that the Claimant’s probation would be extended, but no contemporaneous records showing his performance during the first six months. In an email sent to HR on 26 September 2017, Mr Jackson accepted: “It’s taken some time to get the necessary support for Christian in terms of suitable external marketing material but that has now materialised and Christian has all he needs to make a success of the role. We therefore feel it is only fair to give Christian a further three months to make a success of the role but, as we have discussed, it he does not do so we will not approve his probations and will have to think again”[11]The Tribunal finds that Mr Jackson had not paid as close attention to the Claimant’s role in the first six months and was recognising he needed further support to make it a success. It was only at the six month point that the Claimant was given specific targets to achieve in his role. These were to secure one meeting a week with a potential client or gatekeeper; and to secure four appointments to provide R&D services to new clients.[12]As the Claimant himself accepted in oral evidence, he had not achieved either of the core business goals set by the middle of December 2017. This point had been made in the dismissal letter, written by Mr Jackson. He wrote: “there has been no effective progress to date against the targets we set and I concluded that, despite the support provided to you, you have not met the required standards to successfully pass your probation period”. [114][13]Mr Jackson fairly accepted that he had limited knowledge of the Claimant’s technical abilities. He did have concerns about the Claimant’s knowledge of the relevant legislation based on the Claimant’s approach when viewing the Respondent’s own claim for R&D tax relief. Whilst there was a factual dispute about the extent of the Claimant’s technical abilities, with the Claimant insisting that he was fully capable in this field, we accept that Mr Jackson had doubts about the Claimant’s technical abilities based on his limited experience.[14]The Claimant’s position in relation to that employment is that he had not been given suitable contact details for prospective clients. Most of AECOM’s existing clients, who were landlords, did not employ staff. As a result, it was difficult for them to claim R&D tax relief on the staffing costs. As a result, the Claimant had not been able to arrange meetings with key individuals to market the Respondent’s products. We accept that the Claimant had had limited contact with prospective clients. There appears to have been a misunderstanding between the Claimant and Mr Jackson as to who would take the lead in sourcing new business opportunities. We accept that Mr Jackson expected the Claimant to be showing leadership in this area, using his own initiative to find new business.[15]Following this dismissal, the Claimant sought an assurance from the Respondent that he would be able to apply for future vacancies with the Respondent. He was told he was not prevented from applying for future vacancies. This indicates the Claimant had not abandoned hope that he might be employed by the Respondent in the future. We accept his evidence that he had enjoyed working for the Respondent and hoped to work for them again.[16]The Claimant issued employment tribunal proceedings following his dismissal alleging that it was an unfair dismissal and an act of disability discrimination. The Tribunal was not told of the alleged disability relied upon in those proceedings. That claim was settled in June 2018 for a total payment of £6,800 including a payment of £800 for expenses, with no admission of liability.[17]In August 2018, the Claimant applied for another role with the Respondent. The role for which the Claimant was applying was that of a Research and Development Consultant within AECOM’s UK Fiscal Incentives Team. It was based at the Respondent’s London office. Had the Claimant been successful in his application, this would have required the Claimant to commute for at least an hour and a half each way, each day. Although there were significant similarities between this role and the role the Claimant had been performing for AECOM in the Birmingham office, this was a more junior role. It was more focused on technical delivery rather than business development, but still had a business development element. The evidence given by Sarah Parker at the liability hearing (her witness statement para[25]stressed the business development side of the role. We prefer the evidence of Mr Jackson that this was a subsidiary aspect of what was essentially a technical role. This is confirmed by the bullet points set out in the Job Profile for the 2018 role [80-81]. Only one of the many bullet points could be interpreted as business development. This contrasts with the much clearer focus on business development in the equivalent document for the 2017 role [76-77]. 18. The hiring manager for this London role was Tim Jackson. He would have considered the Claimant’s application had it been properly submitted. He would inevitably have been influenced in his assessment of the Claimant’s potential for the role by his own assessment of how the Claimant had performed in the 2017 role. 19. Mr Jackson made the decision as to who to appoint to this role. The salary range advertised for the 2018 London role was £30,000 to £50,000. It was not the higher range given by Sarah Parker in her witness statement at paragraph 9. The successful candidate started on a salary of £36,000 [207]. That person had three years of working with HMRC scrutinising research and development tax rebate claims, particularly in their last six months. This put him in a good position to be able to assess the requirements of an effective R&D tax-relief claim. The Claimant was not able to offer equivalent HMRC experience. To this extent, the successful candidate had more applicable technical experience than the Claimant. The successful candidate was appointed to the London office, as had been advertised. They were not appointed to the Birmingham office as Ms Parker had said in her witness statement at paragraph 9. 20. The Claimant accepted in oral evidence that he was not depressed; nor did he say he was suffering from low mood in the aftermath of his unsuccessful job application in 2018. 21. At the same time in 2018 that the Claimant was applying for the role with AECOM, he was also applying for other jobs with other employers. One such role was a position with Baldwins accountants. He was successful in this application and started work on 17 September 2018. In this role, his annual salary was £50,000. The Tribunal was not provided with any documents recording the Job Description or even the title of this role. It was described by the Claimant as that of Tax Manager. It is clear it had an R&D focus. It was based in Tamworth which was about 15 miles from his home in Cannock. This salary was substantially lower than the salary he had earned whilst working for AECOM in 2017. He resigned from that role on 3 May 2019 because he did not see his long-term future in that position. Before his resignation and based on the salary he was earning at the time, he had been able to re-mortgage his house. He described this role as “the worst R&D job that [he] had been in”. 22. The Tribunal finds that the salary in the role he accepted with Baldwins was at least the same as, or was higher than, the salary he would have received in the 2018 AECOM role for which his application was unsuccessful. The successful candidate was paid £36,000 pa. 23. In 2019, the Claimant made a further application for a role with the Respondent. The role was the same role as the role for which he applied in 2018, which is the subject of these proceedings. It had an identical or almost identical Job Profile to the 2018 role. On that occasion, the Claimant was permitted to make an oral application. As a result, the application was accepted. It was considered by Tim Jackson. Mr Jackson reviewed the Claimant’s CV. He considered that the Claimant’s activities in this field are “fairly generic and non-specific about relevant abilities or skills”. He noted in a contemporaneous email that his career achievements were in the field of engineering which was not relevant to the position for which the Respondent was recruiting. He also considered that the Claimant lived too far from east London to make it practicable to commute to the Respondent’s office. None of the candidates who applied for the position in 2019 were successful. The position was not filled. 24. The Claimant has applied unsuccessfully for about 60 different jobs since being dismissed from AECOM in December 2017. In relation to several of these roles, he has issued disability discrimination proceedings. He has received a little over £35,000 in settlement of these claims. Legal principles 25. When assessing the remedy to award in a discrimination claim, a Claimant is entitled to receive a sum in damages which puts him in the same financial position as if the discrimination had not occurred. Where, as here, the act of discrimination relates to an unsuccessful job application, the Tribunal must assess:a. the percentage chance that the application would have been successful if there had been no discrimination;b. the likelihood that the Claimant would have accepted the role if offered, given the potential alternative roles available elsewhere; andc. the difference in salary (if any) between the role in question and any alternative role secured by the Claimant.[26]The approach is to assess matters of chance in a broad and sensible way (Ministry of Defence v Cannock [1994] ICR 918).[27]Where a replacement role has ended before the date of the Tribunal remedy hearing, the Tribunal must assess whether any subsequent losses have been caused in part by the discriminatory act or are instead entirely caused by the circumstances in which that replacement role ended. There must be a direct causal link between the act complained of and the loss being claimed. A resignation from mitigating employment can break the chain of causation from an earlier discriminatory act, just as can a voluntary resignation (absent repudiatory breach) from the employment in issue (Ahsan v Labour Party UKEAT/0211/10).[28]So far as the injury to feelings award is concerned, we remind ourselves that the relevant Vento bands were as follows:(1) Lower band of £900 to £8,600 (less serious cases);(2) Middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band)(3) Upper band of £25,700 to £42,900 (the most serious cases)[29]The injury to feelings caused by the loss of a good chance of securing a role will be greater than the loss of a slim chance of securing a job role.[30]In relation to any ongoing financial losses, interest is payable from the midpoint of the period over which the loss has been suffered at the rate of 8% per annum until the date of assessment. Interest on injury to feelings is calculated at 8% per annum from the date of the discriminatory act to the date of assessment.
Conclusions
[31]The act of discrimination relates to a single application for a job role. The discrimination prevented him from being considered for the role.[32]There was a protracted series of emails between the Claimant and AECOM in which AECOM persistently refused to grant the Claimant the opportunity to make an oral application, without providing a convincing reason why this could not be offered. That would have been inevitably distressing.[33]Whilst we have found that the Respondent should have done more to assist the Claimant in lodging his application, the Claimant could have done more to explain the particular problem he was experiencing with the online form, either on the telephone or in an email.[34]We need to consider the percentage chance that the Claimant would have secured the role. This does impact on the size of an award for injury to feelings relating to discrimination in the application process.[35]We do not consider that the Claimant had any realistic prospect of securing the role for which he was applying. Even though it was a more junior role, the recruiting manager was Tim Jackson. He had been the Claimant’s line manager when the Claimant had been employed by AECOM during 2017. He was the person who had decided to extend the Claimant’s initial six-month probation period because he was dissatisfied with the Claimant’s performance. He was the person who had decided not to extend the probation period further three months later, with the result that the Claimant was dismissed. He did not consider that the Claimant had the skillset required for the 2017 role. The Claimant had not achieved the objectives set at the six- month probationary review hearing, focusing on business development. Mr Jackson’s negative perception of the Claimant’s abilities would inevitably have impacted on how he evaluated the Claimant’s application. The Claimant’s CV did not identify any further experience gained in the period since his dismissal to enable Mr Jackson to see the Claimant’s candidacy in a stronger light. There were other candidates applying for the same role who had more relevant experience, including the successful candidate.[36]Mr Jackson had considered a further application from the Claimant in 2019 for the same role as the 2018 role. He had rejected him on paper without offering him an interview. We find that this was because he did not consider that the Claimant had the necessary skills to do the role. He would inevitably have taken the same decision for the same reasons had the Claimant submitted an application in 2018. In 2018, the Claimant would have had less experience than he had in 2019.[37]There was therefore a 100% chance that the Claimant’s application would have been unsuccessful.[38]Before the Claimant had been told that the 2018 role had been filled, he had secured and started an equivalent role with a firm called Baldwins. This role was based in Birmingham, which was closer to the Claimant’s home. The Tribunal finds that any job offer from the Respondent would have post-dated the start of his employment with Baldwins. We think it very unlikely that he would have chosen to resign from the role with Baldwins to take up a role with the Respondent. It is reasonable to assume the Claimant’s salary offer with the Respondent would have been the same as the successful candidate, namely £36,000. This was £14,000 less each year than he was receiving with Baldwins. In addition, it was substantially lower than the salary he had been receiving from the Respondent during the 2017 role. The Baldwins role was located far closer to his home in Cannock within easy commuting distance, unlike the Respondent’s role. If the Claimant had opted for the role with the Respondent, he would have inevitably incurred substantial additional expense in commuting costs. He was motivated by money considerations to the extent that he needed to have a sufficient salary to enable him to achieve a suitable re-mortgage of his property at the end of the fixed term.[39]In the very unlikely event he would have chosen to accept the Respondent’s role, he would not have suffered any loss of earnings. The Respondent’s role would have paid substantially less than the role with Baldwins.[40]He chose to resign his Baldwins employment seven and a half months later because he was dissatisfied with the quality of the work. At the time of his resignation, he had not secured another job. Although he had occasional income from his eBay business and from consulting work, the lack of a full-time role caused financial difficulties for him and his family. It was those financial difficulties which impacted on the state of his mental health and led to many of the problems he records in his witness statement. These are also detailed in the evidence from the Claimant’s partner Miss Newport. These problems flow from his decision to resign from his role at Baldwins, not from the failure of his 2018 application to the Respondent. As a result, his financial loss from mid-2019 onwards was caused by this, rather than by the Respondent’s discrimination in relation to the 2018 application. Injury to feelings award[41]As the Claimant himself accepted in evidence, although he was sad that his application with AECOM was not progressed, he did not suffer any particular reaction, given he was fully engaged in the role for Baldwins. This role continued for a period of seven and a half months.[42]In all the circumstances, we consider that the appropriate sum to award for injury to feelings is £2000. This is within the lowest Vento band for injury to feelings. It is appropriate that the award is in the lowest third of the lowest Vento band. The sum we have chosen reflects the additional burden on the Claimant in repeatedly emailing the Respondent to request he be permitted to make an oral application. It reflects the fact he had previously worked for the Respondent, an organisation for which he had enjoyed working. It recognises that the role for which he was applying was a more junior role than the role he had previously performed at the Respondent, and therefore one which would not necessarily reflect his career aspirations. It also reflects our conclusion that he had no chance of being accepted for the role and was very unlikely to have accepted the role if it was offered. It reflects the reality that he had started in an alternative role before the Respondent’s application process had concluded. Once in that employment, from 17 September 2018 onwards, we do not accept that his failure to secure the role at the Respondent continued to cause any significant ongoing injury to feelings. The period in which any injury to feelings lasted is therefore limited to a few weeks at most. Interest on injury to feelings[43]Interest on this sum is calculated at 8% from the date of the act of discrimination. We consider that the Respondent ought to have taken one of the two alternative courses of action identified at paragraph 73 of the Liability Judgment and Reasons by 20 August 2018 at the latest. This was a week after the Claimant had first requested a change to the standard application process, and several days after there had been correspondence on this topic. We take this date – 20 August 2018 - as the date from which interest runs. To 3 January 2023, this is a period of 1598 days, which equates to total interest of 1598/365.25 x 8% = 35%. Applied to the sum of £2000 for injury to feelings, this is therefore a sum of £700 for interest. Financial loss[44]As to financial loss, because we do not find that the Claimant had any realistic prospect of securing the advertised role with AECOM and is most unlikely to have accepted such a role in any event, we do not consider that the discrimination has caused the Claimant any financial loss. Furthermore, the role he secured with Baldwins paid the Claimant a salary of £50,000. This was substantially higher than he would have been paid had he secured the role with AECOM. The successful candidate started on a salary of £36,000. As a result, he has not suffered any financial loss in the period immediately after his application. Any financial loss from May 2019 onwards was the result of his decision to resign his employment with Baldwins. It did not flow from the act of discrimination.[45]Therefore, there is no award for financial loss. Recommendations[46]There was a discussion at the end of the closing submissions as to whether the Claimant was seeking a particular recommendation, and whether this is something that the Tribunal should consider. The Claimant was unable to identify any specific recommendation he was seeking. We do not consider that a recommendation is appropriate in this case.
Summary
[47]The total award is therefore:a. Injury to feelings £2000b. Interest on ITF £700c. Financial loss £0 Total £2,700.