Ms A Latter v The Royal Latin School: 3302802/2023

EMPLOYMENT TRIBUNALS

Case No 3302802/2023

Between

Ms A LatterClaimant

The Royal Latin School RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Tynan

In person for claimant

Ms D Grennan (instructed by Counsel) for respondent

Date 7 December 2023

JUDGMENT

on APPLICATION for RECONSIDERATION Upon the Claimant’s application dated 28 June 2024 to reconsider the judgment given on 5 December 2023 (sent to the parties on 14 January 2024) under Rule 71 of the Employment Tribunals Rules of Procedure 2013:-

[1]The Claimant is granted an extension of time to 28 June 2024 to make her application.

[2]The Tribunal determines that it is not necessary in the interests of justice to reconsider its judgment of 5 December 2023 (“the Judgment”).

REASONS

[1]Any page references in these Reasons are to the 98-page reconsideration hearing bundle (“Bundle”).

[2]By an oral judgment given on 5 December 2023, I determined that throughout the period December 2021 to October 2022 the Claimant was disabled within the meaning of Section 6 of the Equality Act 2010 by reason of anxiety, low mood and depression, though not by reason of complex PTSD, an eating disorder and/or autism spectrum disorder. 1 of 8

[3]The Claimant has applied for reconsideration of the judgment in so far as I did not uphold her claim to be disabled by reason of autism spectrum disorder (throughout the rest of this judgement, I shall refer to autism spectrum condition). She relies in this regard upon the results of an assessment undertaken in May and June this year by Dr Angelina Miley, a Clinical Psychologist at the Adult Autism Practice in Dun Laoghaire, County Dublin, Ireland. In a brief initial letter dated 14 June 2024, Dr Miley wrote: “This brief document is to confirm that, following a comprehensive, bestpractice assessment (including three in depth clinical interviews), you meet DSM-5-TR and ICD-11 Autistic criteria. Additional information in relation to this identification and how you met the criteria is provided separately.”

[4]There is a slightly more detailed letter from Dr Miley at pages 21 to 23, together with a ‘To Whom It May Concern’ letter at pages 24 and 25, and a Healthcare Passport at pages 26 to 29. The first two documents are somewhat generic in terms of their content, whereas the latter contains more specific information in relation to the Claimant, albeit it is intended for healthcare providers since it invites the reader to “read the information below prior to engaging with AnnKathrin Latter for any health/medical appointments/engagements”.

[5]Rule 70 of the Employment Tribunals Rules of Procedure 2013 empowers the Tribunal, either on its own initiative or on the application of a party, to reconsider any judgment where it is necessary in the interests of justice to do so. Any suggestion that a Tribunal has made an error of law or that its findings were perverse is generally a matter for appeal – Ebury Partners UK Limited v Acton Davis

[2023] EAT 40

[6]Rule 71 requires that any application for reconsideration must be presented in writing within 14 days of the date on which the written record, or other written communication, of the original decision is sent to the parties, or within 14 days of the date that the written reasons are sent (if later). Written reasons have never been requested by either party. In the circumstances, any reconsideration application should have been submitted by 28 January 2024. Although the application is therefore out of time, it has been submitted within 14 days of the date of Dr Miley’s letters above. Given that the application is made in reliance upon Dr Miley’s assessment, I cannot readily identify any grounds upon which it might be suggested that the application could or ought reasonably to have been made sooner than it was. I am satisfied that the Claimant has pursued her application on a timely basis following receipt of Dr Miley’s letters and accordingly that it would be in the interests of justice to permit the application to be made out of time.

[7]In Outasight VB Limited v Brown

UKEAT/0253/14

, the Employment Appeal Tribunal considered the Tribunal’s powers under Rule 70 of the Employment Tribunal Rules of Procedure 2013. At paragraphs 27 to 38 of her judgment, Her Honour Judge Eady QC, as she then was, set out the legal principles which govern reconsideration applications, and observed: 2 of 8 “The interests of justice have thus long allowed for a broad discretion, albeit one that must be exercised judicially, which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, insofar as possible, be finality of litigation.”

[8]The need to have due regard to the interests of both parties was recognised by the Employment Appeal Tribunal over 20 years earlier in Redding v EMI Leisure Ltd

EAT/262/81

in which it was said: “…When you boil down what is said on [the Claimant’s] behalf, it really comes to this: that she did not do herself justice at the hearing so justice requires that there should be a second hearing so that she may. Now, “justice” means justice to both parties. It is not said, and, as we see, cannot be said that any conduct of the case by the employers here caused [the Claimant] not to do herself justice. It was, we are afraid, her own experience in the situation…”

[9]The reconsideration procedure can be used to correct any error that occurs in the course of the proceedings, whether or not it is a significant error. An important consideration is whether or not a decision has been reached after a procedural mishap, meaning that a party has been denied a fair and proper opportunity to put their case. Reconsideration should not ordinarily be used to correct alleged errors where the parties were afforded that opportunity.

[10]In Phipps v Priory Education Services Limited

[2023] EWCA 652

, the Court of Appeal discussed the principles to be applied on applications for reconsideration, in the particular context of failings by a party’s representative. At paragraph 31 of his leading judgment, Lord Justice Bean said, “The interests of justice test is broad textured and should not be so encrusted with case law that decisions are made by resort to phrases or labels drawn from the authorities rather than on a careful assessment of what justice requires. The ET has a wide discretion in such cases. In dealing with cases justly requires that they have been dealt with in accordance with recognised principles.

[11]The Claimant relies upon the well-known and long established authority of Ladd v Marshall

1954 3 All ER 745

, CA. In Ladd, the criteria established for accepting new evidence in a case on which a judgment has already been delivered, were identified as follows: 1. The evidence could not have been obtained with reasonable diligence for use at the original hearing; 2. The evidence is relevant and would probably have an important influence on the result of the case, though it need not be decisive; and 3. The evidence is apparently credible, though it need not be incontrovertible. 3 of 8

[12]I agree with the Claimant that it is appropriate to have regard to the principles in Ladd in coming to a decision as to whether it is necessary in the interests of justice to reconsider the Judgment. The second and third criteria are undoubtedly met in this case. Although Dr Miley practises in Ireland, there is no suggestion that she is other than suitably qualified and experienced to offer an informed professional opinion as to whether the Claimant is an autistic person. Mr Lewis-Bale accepts that Dr Miley’s evidence is relevant, indeed he confirms in the light of her assessment that the Respondent would not dispute that the Claimant has autism spectrum condition, albeit it does not concede that she would establish the requisite adverse impact upon her normal day to day activities to meet the statutory test for disability. Furthermore and in any event, it denies that it knew she was disabled or put at any relevant disadvantage at the relevant time.

[13]As regards the first of the three Ladd criteria, Dr Miley’s diagnosis may have come six months after the Judgment, but the Claimant has not explained why the assessment could not have been obtained with reasonable diligence for use at the hearing in December last year. For example, it is unclear why the Claimant was assessed by a practitioner in Ireland rather than in the UK, whether she paid for the assessment herself (and, accordingly, might have commissioned it sooner), and why it is directed in particular towards healthcare providers rather than to her employment situation or to the impacts of the condition more generally. In the detailed addendum to her claim, the Claimant said that she was awaiting an autism assessment, but she did not indicate who had commissioned the assessment (assuming it had then been commissioned), who was to undertake it or the timeframe within which any assessment might be undertaken. Nevertheless and notwithstanding the lack of information in these regards, I am content to proceed for today’s purposes on the assumption that an autism assessment could not have been obtained by the Claimant with reasonable diligence for use at the hearing in December last year.

[14]Although the apparent unavailability of an autism assessment is a weighty consideration to which I must have regard, the question still remains as to what justice requires in this case. As the cases referred to above make clear, I retain a broad discretion in the matter and must have regard to both parties’ interests in the matter. The Respondent is certainly not responsible for the fact that an autism assessment was not before the Tribunal.

[15]The autism aspect of the claim has emerged in a somewhat unsatisfactory way. In her claim to the Tribunal, the Claimant did not state in terms that she was disabled by reason of autism spectrum condition. On the contrary, she said in the 20-page addendum to her claim that she was disabled because she struggled with “Major Depressive Disorder, Generalised Anxiety, Social Anxiety Disorder, Complex PTSD, and Avoidant Restrictive Food Intake Disorder (ARFID)”. She did refer to the fact that she was awaiting an autism assessment, but in my judgement this was essentially included by way of further background information or an update. She went on to summarise her claim in the second and third pages of the addendum, where she referred to having disclosed her Generalised Anxiety Disorder and Major Depressive Disorder to the Respondent. She did not allege or infer that she had disclosed that she might have autism spectrum condition. She then set out the alleged 4 of 8 facts in support of her claim under the following five headings: ‘Failure to make reasonable adjustments’; ‘Harassment and Bullying’; ‘Intolerance towards individuals with protected characteristics’; ‘Breach of Duty of Care’; and ‘Unlawful Dismissal’. Over the course of 11 pages she made no reference to autism or neurodiversity, whereas she referred extensively to her claimed mental health impairments, with particular repeated emphasis upon depression, anxiety and complex PTSD, including how she was thereby placed at a disadvantage and why she asserted that certain conduct of hers had arisen from those conditions. In a separate section of the addendum headed ‘Impact’, the Claimant set out the impacts of her Social Anxiety Disorder and Complex Post-Traumatic Stress Disorder, together with what she said were the impacts of the Respondent’s treatment of her. She went on to refer to the fact she was awaiting an autism assessment and said, “I believe that a pending diagnosis as autistic can provide further insights in my difficulties with understanding social cues, developing pragmatic communication skills, and recognizing emotions in others. People with undiagnosed autism may particularly struggle managing their emotions or expressing them appropriately in social situations, a fact that can lead to further isolation and mental health issues.” That is effectively all she had to say about autism spectrum condition in her 20- page addendum. In my judgement, it does not clearly indicate a claim even if I was subsequently invited to determine disability by reference to autism spectrum condition. Instead, she seemed to be offering her emerging perspective as at the date she presented the claim to the Tribunal rather than how she had perceived matters at the time, let alone that this was something the Respondent was aware of, on notice of, or otherwise ought reasonably to have known.

[16]Following the hearing on 8 November 2024, I set out certain observations in a note to the parties. I said: “ … the Respondent will not be liable for discrimination under sections 15 and 20 of the Equality Act 2010 if it did not know and could not reasonably have been expected to know that she had that disability and, in the case of section 20 that she was likely to be placed at a particular disadvantage. It is not sufficient of itself in that regard that an employee may have told their employer that they think they may have an impairment or condition, unless that disclosure ought reasonably to have led the employer to conclude that they are disabled. In this case, if the Claimant herself did not secure a diagnosis until in or around June 2024, the Tribunal will give careful consideration to whether the Respondent ought reasonably to have known that she was disabled by reason of the condition some 2 to 3 years earlier. Knowledge can be imputed to an employer in the absence of a medical report or diagnosis, since a condition or impairment does not need to be medically recognised in order for it to be taken into account by a Tribunal, but it seems to me that the absence of any diagnosis for a further period of 2 to 3 years will be a potentially material factor for the Tribunal to consider, including when I have to consider what is necessary in the interests of 5 of 8 justice. Even if I ultimately decide the application in favour of the Claimant, the issue of the Respondent’s knowledge would still have to be considered at the final hearing: if the Tribunal at that hearing decides that the Respondent lacked the requisite knowledge at the relevant time, then unnecessary time, effort and expense will have been devoted to the issue.” Whilst the Respondent has the burden of establishing the requisite lack of knowledge, having now had an opportunity to re-read the claim form and 20- page addendum in some detail, I note that the Claimant has not asserted any knowledge of autism on the Respondent’s part, or even that there were facts which ought to have placed it on enquiry. As matters currently stand, there would seem to be little reasonable prospect of the Claimant resisting the Respondent’s argument that it did not know and could not reasonably have been expected to know that she was disabled and placed at a relevant disadvantage by reason of autism spectrum condition.

[17]I went on to say in my note: “If the application for reconsideration succeeds, it will then be necessary to consider what complaints the Claimant seeks to pursue with reference to autism. This may be capable of being dealt with on 13 December 2024, but equally it might necessitate a further case management preliminary hearing depending upon the extent to which any related claims and issues are in dispute. That would not be the end of the matter since there would likely be additional disclosure, in turn meaning that the Hearing Bundle would have to be updated. Assuming the parties have complied with my Order of 5 December 2023, witness statements have already been exchanged: further statements would be required which address the Respondent’s knowledge of any autism, as well as any new complaints or issues introduced by reason of the claimed additional disabling condition. I have reservations as to whether the hearing listed in March next year could go ahead in these circumstances and whether the current time allocation would be sufficient. We are now listing multi-day cases of this sort in 2026. The events in question occurred in late 2021 and over the course of 2022. If the Final Hearing would be delayed until 2026, that might cause forensic prejudice in the case and potentially undermine the quality of the evidence on both sides. These might all be further factors when I am considering what is necessary in the interests of justice.”

[18]Given that disability by reason of autism spectrum condition remains in issue, should I grant the Claimant’s application for reconsideration and set aside the Judgment on that issue, I would need to list a further public preliminary hearing to determine the matter since in my judgement it cannot simply be left to the final hearing. In any event, the Agreed List of Issues currently does not address autism spectrum condition, specifically it does not identify what disadvantages resulted from the condition, either alone or in combination with her other accepted conditions/impairments, the PCPs that are said to have given rise to those disadvantages, or the adjustments that might have avoided or ameliorated them. Indeed, it seems to me that the parties would need to amend their pleadings to deal with the Respondent’s knowledge or otherwise of 6 of 8 disability by reason of autism spectrum condition and the disadvantages, if any, to which it may have given rise. These steps alone mean that if I were to grant the application and set aside the relevant part of the Judgment, the final hearing realistically cannot go ahead as planned in March. The earliest date that I could list this case for a public preliminary hearing on the disability issue is February next year. The earliest that a 10-day or longer final hearing could be listed is July 2026. If disability by reason of autism spectrum disorder were to be established at a public preliminary hearing in February next year, the List of Issues would then need to be updated. Even assuming that this could be done at the same hearing in February (I am doubtful about this given the protracted history to these proceedings and the Claimant’s inability to participate fully on at least three occasions to date), there would still need to be further disclosure, not least on the issue of knowledge, as well as amended or supplemental witness statements. Until the issues in the case are defined, I cannot see how these case management aspects can be undertaken. Moreover, I believe that the length of the final hearing would need to be extended by two days to deal with any additional complaints/issues that would likely arise by the introduction of autism spectrum condition.

[19]In a slightly different context, it has been held that it is not necessary, in order for the power to strike out under Rule 37 to be triggered, for a fair trial not to be possible at all; it is enough for the power to be exercisable that, as a result of a party’s conduct, a fair trial is not possible within the trial window - Emuemukoro v 1) Croma Vigilant (Scotland ) Ltd 2) Huggins EA-2020-000006-JOJ. I am clear that a fair trial of any autism spectrum condition issues is not possible within the current trial window of March 2025.

[20]I recognise the potential hardship and prejudice to the Claimant of not reconsidering the Judgment, particularly if she were to establish at a further public preliminary hearing that she was disabled at the relevant time by reason of autism spectrum condition. However, I am not persuaded that this is what justice requires in this case. The Claimant has not sought reconsideration of my judgement that she was not disabled at the relevant time by reason of complex PTSD or an eating disorder. Instead, as matters stand, the case is going forward with reference to her anxiety, low mood and depression. Those conditions/impairments are at the heart of the 20-page addendum that she submitted to the Tribunal with her claim in March 2023. In terms of what justice requires (or, to borrow from HHJ Tayler in Vaughan v Modality Partnership

[2021] IRLR 97

, what the Claimant needs, rather than what she wants), I am satisfied that justice does not require that the Claimant is permitted to pursue her claim in reliance upon and with reference to a condition that was barely mentioned in her original claim to the Tribunal and, even then, effectively by way of further context only rather than as being the foundation for any of her identified complaints, and in respect of which she appears to have little reasonable chance of resisting the Respondent’s claim to lack of knowledge.

[21]I am troubled by the significant forensic prejudice that would result were I to grant the application and go on to determine that the Claimant was disabled at the relevant time: the Claimant herself acknowledged today that she will already struggle in March next year to recall the events in question that are going to trial. If autism spectrum condition is introduced and the final hearing is delayed 7 of 8 until July 2026, the parties will be expected to give evidence over four years after the event as to whether the Respondent knew or ought reasonably to have known she was disabled by reason of that condition in 2022 and put at a disadvantage as a result. There is currently no information before the Tribunal in that regard. Even if it has the burden of proof in the matter, the Respondent likewise currently has no information as why it might be said by the Claimant, if indeed it is said by her, that it had the requisite knowledge at the relevant time. If, for example, the Claimant asserts that the requisite knowledge derived from conversations or even her behaviours in the workplace, this is something about which the Respondent’s witnesses (even assuming the relevant witnesses are still employed by the Respondent) will be expected to comment upon for the first time over two years after the events in question. The Tribunal will then hear their evidence on the matter four or more years after the events in question.

[22]In my judgment, even if Dr Miley’s assessment or another autism assessment could not have been obtained by the Claimant with reasonable diligence for use at the original preliminary hearing in December 2023, I do not consider that justice requires that I reconsider my judgement on the disability issue to allow the introduction, or re-introduction of an issue that is of uncertain relevance to the case and which has uncertain or even limited reasonable prospects of success, and the introduction of which would cause significant additional costs and delay as well as potentially material forensic prejudice. The Claimant’s reconsideration application is therefore refused.