Mrs J Kugaswaran v The London Borough of Brent: 3311862/2023
EMPLOYMENT TRIBUNALS
Case No 3311862/2023
Between
Mrs Josephina KugaswaranClaimantThe London Borough of Brent RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge S MooreIn person for claimantMs A Fedipe (instructed by counsel) for respondentDate 31 July 2024
JUDGMENT
The claim is struck out because the complaints of disability discrimination have no reasonable prospect of success.
REASONS
[1]The Claimant has been employed by the Respondent as a Care Assessor since 11 May 2006. She is still employed by them.[2]Early Conciliation took place between 11 August 2023 and 22 September 2023. 1 of 5[3]On 18 October 2023 she brought a claim alleging disability discrimination.[4]A Preliminary Hearing took place on 19 March 2024.[5]At that hearing the Claimant stated she was relying on the following disabilities: - musculoskeletal condition - degenerative spine; and - rotator cuff injury[6]The claim were identified as follows:(1) Failure to make reasonable adjustments (s. 20 Equality Act 2010 (EqA)) The Claimant says the Respondent failed to provide a laptop to her on or after 2 May 2023 which put her at a substantial disadvantage by causing her severe pain.(2) Victimisation (s.27 EqA) The protected act is the bringing of this claim on 18 October 2023 and the detriments relied upon are: o On 3 January 2024 at a return to work meeting Miss D Migacz insisted on the Claimant going through some 400 emails, which she felt was punishment for bringing the proceedings; o On 8 January 2024 the Claimant was issued with a laptop and locker but could not access the locker because of a defect with the PIN code. She says she was repeatedly asked by Miss Niemi why she could not access her locker.[7]The judge also determined that the following issues should be determined at a further Open Preliminary Hearing: 1. Whether the Claimant has a disability within the meaning of the EqA 2. Whether the claims should be struck out as having no reasonable prospect of success 3. Whether the claims have little reasonable prospect of success and a Deposit Order should be made.[8]In an email of 13 June 2024 the Respondent accepted that at the relevant time the Claimant was a disabled person for the purposes of the EqA by reason of having a degenerative spine and rotator cuff injury. The Respondent did not make any concessions in respect of the Claimant’s musculoskeletal condition but submitted that in view of its other concessions this was academic. 2 of 5[9]I therefore proceeded to hear the Respondent’s application to strike out the claim (or for a Deposit Order) on the basis that at all material times the Claimant was a disabled person within the meaning of the EqA. Application for Strike Out[10]Under rule 39 of the Employment Tribunal Rules of Procedure 2013 a Tribunal may strike out all or part of a claim if it has no reasonable prospect of success.[11]The threshold for striking out a claim is high; however it may be appropriate to do so where the facts alleged are totally and inexplicably inconsistent with undisputed contemporaneous documentation (Ezias v North Glamorgan NHS Trust [2007] IRLR 603 (CA); Romanowska v Aspirations Care Ltd UKEAT/0015/14). Further it has been held that tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established (Ahir v British Airways [2017] EWCA Civ 1392). As HHJ Taylor stated “No one gains by truly hopeless cases being pursued to a hearing” (Cox v Adeco [2021] ICR 1307).[12]I record that at the outset of the hearing the Claimant complained that the Respondent had not served the bundle on her until yesterday evening. I asked her if she would therefore like an adjournment to have more time to consider the documents but she said she did not need any more time. In the event I took a short adjournment of about 30 minutes after Ms Fedipe had made her submissions so that the Claimant could gather her thoughts. Reasonable Adjustments Complaint[13]The Claimant clarified that her complaint is that she was without a second laptop at work between 2 and 17 May 2023.[14]The bundle contains an Occupational Health Report dated 29 September 2022 which recommends the Claimant being supplied with another laptop for use in the Civic Centre and a locker for storage, to prevent the Claimant having to carry her laptop to and from home and relieving the effect on her musculoskeletal issues.[15]There is no dispute that the Claimant was supplied with such a laptop.[16]The Claimant was then off sick from 28 November 2022 until 19 March 2023. She was then on leave for a period 5 weeks and returned to work on 2 May 2023.[17]In the meantime her laptop at the Civic Centre had been locked away for safekeeping on a different floor of the building to where it had previously been kept because the team had changed location within the building. 3 of 5[18]A letter dated 19 May 2023 recording a back to work meeting on 10 May 2023 records it being agreed the Claimant would meet with someone called Dorota at the Civic Centre on 18 May 2023 to gain access to the laptop.[19]The Claimant disputed that at the meeting on 10 May 2023 she had agreed to to meet Dorota on 18 May 2023, but in any event her complaint is that she was without a second laptop only between 2 and 17 May 2023.[20]On or about 19 May 2023, the Claimant went off sick again and didn’t return until 20 December 2023.[21]The Claimant was therefore without a second laptop for only two weeks. Further the fact she was without a second laptop for that period was because it had been locked away while she was on sick leave, and arrangements had to be made for her to access the laptop when she returned from sick leave. In these circumstances, I consider the Claimant has no reasonable prospects of proving the Respondent failed in its duty to make reasonable adjustments.[22]The complaint of failure to make reasonable adjustments is therefore struck out. Victimisation Complaints[23]As regards the Claimant’s complaint that she had to look through a backlog of 400 emails on her return, even taking her case at its highest which is that she says her line manager kept asking her if she had gone through those emails, I accept Ms Fedipe’s submission that this was a reasonable request that was part of normal office activities and did not amount to a detriment within the meaning of s.27 EqA.[24]In any event I consider the Claimant has no reasonable prospect of showing the reason she had to go through her backlog of emails and/or that she kept being asked if she had gone through those emails was because she had brought this tribunal claim in October 2023. The obvious reason she had a backlog of emails to go through is because she had been away from work for a lengthy period. Further a back to work meeting dated 27 December 2023 records it being agreed that the Claimant would be allocated two cases once she had read her emails, so the obvious implication is that her line manager kept asking whether the Claimant had read her emails because she needed to know when to allocate her the cases.[25]As regards the Claimant’s complaint that she was repeatedly asked why she couldn’t access her locker, the background is that on Thursday 4 January 2024 the Claimant found she couldn’t access her locker. In fact two facilities management officers came to repair the locker that afternoon but by that time she had already left the office. However she says that at a meeting with her line manager on Monday 8 January 2024 she was repeatedly asked why she was still unable to access her locker and she felt she was being treated 4 of 5 like a criminal. In the event the Claimant recovered access to her locker shortly after that meeting on about 9 January 2024. She showed the Tribunal an email chain from a colleague, Jennifer, who had also had an issue with her locker and who, the Claimant says, was offered more support.[26]As regards the colleague, Jennifer, the email chain shows that her locker problem arose on 21 December 2023 and the matter being resolved on or about 4 January 2023. In the Claimant’s case, officers from facilities management came out the same day (but the Claimant wasn’t there) and in any event the problem was resolved on about 9 January 2023. It therefore cannot be said that the comparison with Jennifer shows that the Claimant suffered any possible detriment in respect of the length of time it took to resolve her locker issue.[27]As regards the questioning at the meeting on 8 January 2024, even taking the Claimant’s case at its highest, I don’t consider that repeated questioning of the Claimant about why she was still unable to access her locker is capable of amounting to a detriment for the purposes of s.27 EqA. It was reasonable for the Claimant’s manager to want to understand why the Claimant was still unable to access her locker (and therefore work in the office) given that facilities management officers had been dispatched the same day to resolve the problem.[28]In any event I consider it fanciful to suggest the Claimant was questioned about the locker access issue because she had brought this claim, rather than because the manager was trying to understand why the Claimant still didn’t have access to her locker, and I consider she has no reasonable prospect of showing the fact she had brought the tribunal claim was the reason for the questioning.[29]It follows that the complaints of victimisation are also struck out.
Conclusion
[30]Since the complaints of failure to make reasonable adjustments and of victimisation have both been struck out the claim is struck out in its entirety. COSTS JUDGMENT The application for costs is dismissed.
Conclusion
[1]This claim for disability discrimination was struck out at a hearing on 31 July 2024 on the grounds it had no reasonable prospect of success. The judgment was sent to the parties on 17 September 2024. By email of 14 October 2024 the Respondent made an application for costs in the sum of £12,194.19 for the preparation of the grounds of resistance and the conduct of the defence including two preliminary hearings and counsel’s fees. The costs incurred were set out in a schedule and the basis of the cost’s application was that the Claimant had chosen to pursue a hopeless case. The Respondent pointed out that it had been forced to incur significant costs to defend its position and that as a taxpayer funded organisation it must take action to recover unnecessarily incurred expenditure.[2]The cost’s application was referred to me on 23 October 2024 and on the same day I directed that the Claimant was to have 21 days to respond to the application and give reasons as to why she should not have to pay the Respondent's costs, or any part of them. Further that I would decide the costs application after she had had that opportunity to respond, whether she chose to respond or not.[3]By email of 31 January 2025 I was informed that the Claimant had not responded to the cost’s application.[4]Rule 76(1)(b) of the Employment Tribunals Rules of Procedure 2013 provides that a Tribunal may make a costs order, and shall consider whether 1 of 2 Case Number: 3311862/2023 (CVP) to do so, where it considers that any claim (or response) had no reasonable prospect of success.[5]While I have sympathy with the Respondent’s position, I have decided not to make a costs order in this case. I note the Claimant was not legally represented and that the Respondent did not suggest in its costs application that it had ever warned the Claimant that her claim was hopeless and that she might be liable to pay costs if it failed or was struck out. Accordingly, the Claimant may well have believed that her claim was a reasonable one, particularly since (as the Respondent conceded) at the material time she was a disabled person within the meaning of s.6 Equality Act 2010. Further, although the Claimant did not respond to the cost’s application, or provide any evidence of her means, since she is/was employed as a Care Assessor and has had lengthy absences from work on account of her disability it is likely that her means are modest.