Mr H Mansfield v Shakespeare Lodge TLA Ltd: 3319034/2019

EMPLOYMENT TRIBUNALS

Case No 3319034/2019

Between

Mr H MansfieldClaimant

Shakespeare Lodge TLA LtdRespondent

Before

Employment Judge M Warren

Date 20 July 2020

JUDGMENT

[1]The claimant was not a disabled person as defined in the Equality Act 2010 at the material time and the claimant’s complaints of disability discrimination are therefore dismissed.

[2]The respondent’s application for costs is refused.

[3]The claimant’s claims for automatic unfair dismissal, for failure to provide written terms and conditions of employment and for unpaid wages or breach of contract in the respondent’s failure to pay pension contributions survive and remain to be heard by an

REASONS

[1]Mr Mansfield has brought claims of disability discrimination, unfair dismissal and unpaid wages. The matter came before Employment Judge Loy on 10 October 2019. He directed that the matter be listed for an open preliminary hearing today to decide the preliminary issue as to whether or not the claimant was a disabled person at the material time.

[2]The issue I was to determine today was therefore whether the claimant was a disabled person at the material time, that being the period of his employment between 5 March 2018 and 8 March 2019.

Evidence

[3]The evidence which I had before me today was contained within a pdf bundle provided by the claimant’s representative, for which I am grateful.

[4]I should record that this hearing was to have taken place I think in Watford but because of the Coronavirus crisis, an attended hearing has not been possible. The hearing has been conducted via the Ministry of Justice’s Cloud Video Platform.

[5]The claimant has not attended today. I was referred to a letter from his GP at page 124 of the bundle. It is a letter dated 8 June from Doctor G Hopkinson. It tells me that Mr Mansfield is suffering from depression and anxiety, is having regular treatment with anti-depressants, is under regular review and the Doctor writes: “I feel that the stress of a hearing at present would not be beneficial for his mental health.”

[6]What that letter does not say is that Mr Mansfield is not fit to attend a hearing. It does not address the fact this is not an attended hearing but is a video hearing. No application to postpone has been made, nor has any request been made for any form of adjustment to facilitate his attendance.

[7]I expressed my surprise at the outset of the hearing that the claimant would not be attending. After a discussion with Mr Bussau, I agreed to allow him 10 minutes to make contact with Mr Mansfield in order to see whether he would decide to attend, which could be arranged either by his logging into the video hearing or his attending Mr Bussau’s place of work, which apparently is nearby. After that 10 minute adjournment, Mr Bussau reported that the claimant still chose not to attend and we therefore proceeded in his absence.

The Law

[8]For the purposes of the Equality Act 2010 (EqA) a person is said, at section 6, to have a disability if they meet the following definition: “A person (P) has a disability if –(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

[9]The burden of proof lies with the Claimant to prove that he is a disabled person in accordance with that definition.

[10]The expression ‘substantial’ is defined at Section 212 as, ‘more than minor or trivial’.

[11]Further assistance is provided at Schedule 1, which explains at paragraph 2: “(1) The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,

(b) it is likely to last for least 12 months, or

(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.

[12]As to the effect of medical treatment, paragraph 5 provides: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if –(a) measures are being taken to treat or correct it, and

(b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular medical treatment …”

[13]Paragraph 12 of Schedule 1 provides that a Tribunal must take into account such guidance as it thinks is relevant in determining whether a person is disabled. Such guidance which is relevant is that which is produced by the government’s office for disability issues entitled, ‘Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability’. Although I acknowledge that the guidance is not to be taken too literally and used as a check list, (Leonard v Southern Derbyshire Chamber of Commerce

[2001] IRLR 19

) much of what is there is reflected in the authorities, (or vice versa).

[14]As Sections A3 through to A6 of that guide make clear, in assessing whether a particular condition is an “impairment” one does not have to establish that the impairment is as a result of an illness, one must look at the effect that impairment has on a person’s ability to carry out normal day-to-day activities. A disability can arise from impairments which include mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, unshared perceptions, eating disorders, bipolar affective disorders, obsessive compulsive disorders, personality disorders, post traumatic stress disorder, (see A5) and can also include mental illnesses such as depression. It is not necessary and will often not be possible to categorise a condition as a particular physical or mental impairment.

[15]As to the meaning of ‘substantial adverse effects’, paragraph B1 assists as follows: “The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences and ability which may exist amongst people. A substantial effect is one that is more than a minor or trivial effect”.

[16]Also relevant in assessing substantial effect is for example the time taken to carry out normal day to day activities and the way such an activity is carried out compared to a none disable person, (the Guidance B2 and B3).

[17]The Guidance at B4 and B5 points out that one should have regard to the cumulative effect of an impairment. There may not be a substantial adverse effect in respect of one particular activity in isolation, but when taken together with the effect on other activities, (which might also not be, “substantial”) they may together amount to an overall substantial adverse effect.

[18]Paragraph B12 explains that where the impairment is subject to treatment, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or the correction, the impairment is likely to have this effect. The word ‘likely’ should be interpreted as meaning, ‘could well happen’, (see SCA Packaging below). In other words, one looks at the effect of the impairment if there was no treatment. A tribunal needs reliable evidence as to what the effect of an impairment would be but for the treatment, see Woodrup v London Borough of Soutwark

[2003] IRLR 111

CA.

[19]A substantial effect is treated as continuing, if it is likely to recur, this is explained at paragraphs C5 and C6 by cross reference to Schedule 1, paragraph 2(2) quoted above. However, it is the substantial adverse effect on the ability to carry out day to day activities that must recur, not merely a re-manifestation of the impairment after a period or remission, but to a lesser degree, (Swift v Chief Constable of Wiltshire Constabulary

[2004] ICR 909

EAT).

[20]Similarly, on the question of whether an impairment has lasted or is likely to last more than 12 months, it is the substantial adverse effect which must so last.

[21]Amongst the examples given at C6 are certain types of depression, which includes the following: “A woman has two discreet episodes of depression within a ten month period. In month 1 she loses her job and has a period of depression lasting six weeks. In month 9 she experiences bereavement and has a further episode of depression lasting eight weeks. Even though she has experienced two episodes of depression she will not be covered by the Act. This is because, as at this stage, the effects of her impairment have not yet lasted more than twelve months after the first occurrence, and there is no evidence that these episodes are part of an underlying condition of depression which is likely to recur beyond the twelve month period. However, if there was evidence to show that the two episodes did arise from an underlying condition of depression, the effects of which are likely to recur beyond a twelve month period, she would satisfy the long term requirement”.

[22]As for what amounts to normal day-to-day activities, the guidance explains that these are the sort of things that people do on a regular or daily basis including, for example, things like shopping, reading, writing, holding conversations, using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, taking part in social activities, (paragraph D3). The expression should be given its ordinary and natural meaning, (paragraph D4).

[23]The guidance suggests that whilst specialised activities either to do with one’s work or otherwise, are unlikely to be normal day-to-day activities, (paragraphs D8 and 9) some work related activities can be regarded as normal day-to-day activities such as sitting down, standing up, walking, running, verbal interaction, writing, driving, using computer keyboards or mobile phones, lifting and carrying (paragraph D10). That needs to read in light of Paterson v Commissioner of Police of the Metropolis

[2007] ICR 1522

EAT and Chacon Navas v Eurest Colectividades SA

[2007] ICR 1

ECJ, which are authority for the proposition that normal day to day activities includes activities relevant to participation in professional life, and Chief Constable of Dumfries and Galloway Constabulary v Adams

[2009] ICR 1034

EAT which clarifies that does not apply to specialist skills.

[24]As to what amounts to a ‘substantial effect’, the guidance is careful not to give prescriptive examples but sets out in the Appendix a list of examples that might be regarded as a substantial effect on day-to-day activities as compared to what might not be regarded as such. For example:24.1 ‘Difficulty picking up and carrying objects of moderate weight, such as a bag of shopping or a small piece of luggage, with one hand’ which would be regarded as a substantial effect, as compared to, ‘inability to move heavy objects without assistance or a mechanical aid, such as moving a large suitcase or heavy piece of furniture without a trolley’ which would not be so regarded.

24.2 Also compare, ‘a total inability to walk, or an ability to walk only a short distance without difficulty’ which is a substantial effect to, ‘experiencing some tiredness or minor discomfort as a result of walking unaided for a distance of about 1.5 kilometres or one mile’.

24.3 Also, “Persistent difficulty in recognising, or remembering the names of familiar people such as family or friends” as compared to, “Occasionally forgetting the name of a familiar person, such as a colleague”.

24.4 And, “Persistent distractibility or difficulty concentrating” as compared to, “Inability to concentrate on a task requiring application over several hours”.

[25]The word, “likely” in the context of the definition of disability in the Equality Act 2010, means, “could well happen”, or something that is a real possibility. See SCA Packaging Ltd v Boyle

[2009] ICR 1056

HL and the Guidance at paragraph C3. This is because we are not concerned here with weighing conflicting evidence and making findings of fact, but are in the realm of medical opinion and assessing risk or likelihood in that sense.

[26]A claimant must meet the definition of disability as at the date of the alleged discrimination. That means for example, if the impairment has not lasted 12 months as at the date of the alleged discrimination, it must be expected to last 12 months as at that time, (not the date of the hearing). (Tesco Stores Ltd v Tennant UKEAT0167/19).

[27]In Goodwin v Patent Office

[1999] ICR 302

the EAT identified that there were four questions to ask in determining whether a person was disabled: 1. Did the Claimant have a mental and/or physical impairment? 2. Did the impairment effect the Claimant’s ability to carry out normal day-to-day activities? 3. Was the adverse condition substantial? and 4. Was the adverse condition long term?

[28]In J v DLA Piper UK LLP

[2010] IRLR 936

Mr Justice Underhill, President of the EAT at time, observed that it is good practice to state conclusions separately on the one hand on questions of impairment and adverse effect and on the other hand on findings on substantiality and long term effect. However, Tribunals should not feel compelled to proceed by rigid consecutive stages; in cases where the existence of an impairment is disputed, it makes sense to start by making findings about whether the Claimant’s ability to carry out normal day-to-day activities is adversely effected on a long term basis and then consider the question of impairment in light of those findings. It is not always essential for a Tribunal to identify a specific ‘impairment’ if the existence of one can be established from the evidence of an adverse effect on the Claimant’s abilities. That is not to say that impairments should be ignored, the question of impairment can be considered in light of findings on day-to-day activities.

The Facts

[29]I will begin with the statement of case for Mr Mansfield in his ET1, the particulars of claim at paragraphs 2 and 3. Here he says that in or about 2011 he developed a life-long mental illness in the form of anxiety and depression, which causes on a daily basis varying degrees of impact upon his personal and working life. Then at paragraph 3 it says that since at least 2014, he has from time to time suffered severe sciatica and chronic back pain, an ongoing problem which during flare ups means he is unable to perform normal day to day duties. No specifics are provided in either case.

[30]The matter came before Employment Judge Loy at a preliminary hearing, the hearing summary is at document 6, page 53. At paragraph 15.1 in setting out the issues, EJ Loy records that the conditions the claimant alleges amount to disability are sciatica, depression, anxiety and PTSD. Mr Bussau accepted today after some hesitation, that he had indeed raised the matter of PTSD.

[31]Next, I refer to the GP report which Mr Mansfield has produced in evidence in support of his contention that he is a disabled person. This is in the bundle at page 60. It is dated 7 November 2019, some 8 months after dismissal. The author of the report is Doctor Hopkinson. The report purports to answer questions set out in a standard letter written by the Tribunal:31.1 In answering the question whether the claimant has one or more impairments, the doctor answers yes, that he suffered from depression and back pain. He writes that these have been diagnosed recently, but are long standing.

31.2 Dr Hopkinson writes that Mr Mansfield has had chronic back pain for many years but has worked through it, the pain is intermittent and he is now having physiotherapy.

31.3 As for the depression, this is said to be long standing. Mr Mansfield has not sought help for this in the past. He has now started treatment with anti-depressants, which will be regularly reviewed.

31.4 The doctor writes that the effect of these problems are that Mr Mansfield has some problems with mobility and lower back pain, but no problems with manual dexterity.

31.5 Where he is asked about the physical co-ordination and continence of the patient, Dr Hopkinson writes that Mr Mansfield has some inability to lift heavy items on occasions, that he has no speech, hearing or eyesight problems, his concentration may be affected by his depression on occasions. He says that he thinks the effect of back pain and depression will be ongoing for the next 6-12 months.

31.6 The claimant is also said to suffer from hypertension and is on treatment with Amlodipine and Ramipril.

31.7 The doctor expressly states that he does not think that Mr Mansfield has a progressive illness.

[32]There follows in the bundle the Doctor’s handwritten comments to an information document provided with the Tribunal’s standard letter. Confirming to begin with that Mr Mansfield has depression and back pain, the following is of note:32.1 Question 4 is ‘When was the impairment first diagnosed?’ The answer handwritten is, “diagnosed now – been long standing many years both back pain and depression”.

32.2 Question 5 is ‘Please briefly describe usual symptoms of the diagnosed conditions’, there is nothing written in answer to that.

32.3 Question 6 asks how the impairment affects the claimant’s capacity to carry out a list of normal day to day activities and alongside each activity is a handwritten answer from the doctor, as follows:32.3.1 Mobility – “some effect”.

32.3.2 Manual dexterity – “nil”.

32.3.3 Physical co-ordination – “nil”.

32.3.4 Continence – “ok”.

32.3.5 Ability to lift, carry or otherwise move everyday objects – “some effect”.

32.3.6 Speech, hearing or eyesight – “ok”.

32.3.7 Memory or ability to concentrate, learn or understand – “some problems”.

32.3.8 Perception of risk or of danger – “ok”.

32.4 Question 7 asks whether the impairment has lasted or is likely to last for at least 12 months or the rest of the claimant’s life, to which the doctor has written, “Yes both back pain and depression”.

32.5 Question 8 asks ‘To what extent are you relying on what you are told by claimant?’ If so, is that consistent with your clinical findings? The handwritten answer is, “What the claimant told me”.

32.6 Question 9 asks ‘If you are not relying on what you are told by the claimant, please explain the basis for your opinions.’ The doctor has struck a line below that not giving any answer at all. The brevity of these answers is unhelpful.

[34]Mr Goldup complained to me that the claimant’s representative had not disclosed how the GP had been instructed to provide this report. Mr Bussau responded that the GP was given oral instructions by him, (Mr Bussau) who attended the GP with Mr Mansfield.

[35]That is, I have to say, a highly unsatisfactory method to adopt for instructing an expert to provide a report for use in evidence. Such evidence ought to be sought in an open manner if it is to have any cogency. What is more, one might say that as the legal representative gave direct oral instructions to the doctor, the paucity of information in the report provided is all the more surprising.

[36]The problem with the evidence provided by the GP, apart from its lack of detail and specific information on matters that I need to know about, is that it is based entirely upon what he has been told by Mr Mansfield. There is no mention in the report of any of this, the history, the diagnosis or the assessment being that of the GP.

[37]I turn now to the witness statement which is at pages 119-120:37.1 At paragraph 6 Mr Mansfield tells us that in 2004 he had an accident as a result of which he has since suffered with recurring back pain and sciatica, which has progressively worsened in duration, severity and impact over time.

37.2 At paragraph 7 he tells us that in April 2011 his mother, with whom he was close, passed away in his arms, after which he became extremely depressed.

37.3 At paragraph 8 he tells us that he did not seek medical support, saying that a man such as himself sees seeking help as a sign of weakness.

37.4 At paragraph 9 he says that in 2014 he was a passenger in a car involved in a road traffic accident, which exacerbated his back pain.

37.5 There is further tragedy and sadness at paragraph 10, where he tells us that in March 2017 his 27 year old son died unexpectedly in his sleep.

37.6 At paragraph 11 he says that at the beginning of 2018, he was suffering from severe anxiety which significantly affected his sleep, causing fatigue. He also says that he was suffering from sciatica attacks every 3-4 months.

37.7 At paragraph 14 he says that his back pain or sciatica has inhibited his ability to undertake physical tasks to the extent that he used to or would otherwise like to do.

[38]The problem with this witness statement is that there are serious issues of credibility which Mr Mansfield ought to answer:38.1 He has never sought medical advice about any of the matters to which he refers. Why is that one might ask? He ought to answer that question and give oral evidence as to why it is, if he has suffered in the way that he says he has, that he has never sought medical advice or assistance. It seems improbable.

38.2 The answer I am given by Mr Bussau is that this is a typical exmilitary person toughing it out, but the respondent is entitled to test that evidence and has not had the opportunity to do so.

38.3 Why is there no detail and no examples of the impact of his alleged impairments on his day to day activities, just generalisations? Is that because in truth there is no substantive impact?

38.4 There is also the business of PTSD being raised as a condition relied upon as amounting to a disability at the preliminary hearing. PTSD is a very serious condition and there is no evidence of it before me at all. Why has Mr Mansfield put forward that he suffers from PTSD and relies upon that as amounting to a disability? Is it because he is prone to embellishment and exaggeration, or worse, fabrication?

Conclusions

[39]The burden of proof lies with the Mr Mansfield and I have highlighted the paucity of his evidence. Mr Bussau criticises the respondent for not producing any counter evidence. Well in a disability claim where disability is an issue, it is frequently the case that the respondent does not and cannot produce evidence, all that it can do is put the claimant to proof, see what evidence the claimant produces and test whether such evidence is sufficient to satisfy the burden of proof.

[40]I am sorry to say that the evidence from Mr Mansfield here is woeful. The GP appears to be merely reciting what he has been told by Mr Mansfield. Mr Mansfield’s own evidence in the witness statement is untested and there are serious questions that he would have had to answer had he attended today. Maybe he would have been able to answer them satisfactorily, but he did not attend and has not therefore done so.

[41]Mr Mansfield’s reliance on fit notes post dismissal simply is not helpful to me in deciding whether he was disabled at the material time, i.e. during his employment.

[42]The GP refers to anxiety, depression and back pain. He refers to “some effect on certain day to day activities”; that does not help me with whether that effect is substantial, does not tell me what that the effect is, it does not tell me whether the effect is more than trivial or not, whether it is anything more than the normal differences that people usually experience in life. The GP’s report does not help me with whether at the material time during Mr Mansfield’s employment, which was 8 months and more earlier, his conditions had lasted at that point more than 12 months or at that time could have been expected to last more than 12 months.

[43]I am afraid I have to conclude that these conditions do not meet the definition of disability:43.1 Dr Hopkinson has said that Mr Mansfield has back pain and recently diagnosed depression. I find that he has those impairments.

43.2 Those impairments are likely to have an impact on one’s day to day activities and Dr Hopkinson has said that they have had, “some” such impact.

43.3 However, I am not satisfied that such impact has been substantial. I have no information on what the detail of the impact is, nor its extent. That Mr Mansfield has not sought medical help until 8 months after his employment has ended, makes it more likely than not that the impact is not more than trivial, not any more than the normal differences that may exist between people.

43.4 I am not satisfied that Mr Mansfield had back pain or depression that at the time his employment ended, or if he had, that it had lasted at least 12 months, was likely to last 12 months, or was likely to last the rest of his life, nor in so far as he experienced either thus far at that time, that it could have been said at the time that it was likely to recur.

[44]Mr Bussau has made references to a progressive condition, but as I have noted, the doctor expressly stated there was no progressive condition.

[45]I heard no evidence about PTSD and no evidence about hypertension, (which had not been hitherto mentioned as a condition relied upon as amounting to a disability).

[46]For these reasons I am afraid I conclude that Mr Mansfield was not a disabled person at the material time. Costs Application

[47]Having given my decision, the respondent has made an application for costs. Mr Goldup has referred to the claimant’s non-attendance. He says that Mr Mansfield has been given opportunities to attend. There is no medical evidence, says Mr Goldup, that Mr Mansfield could not attend. There was no application for a postponement. No application for any adjustments. He quoted my comment that the medical evidence in support of Mr Mansfield’s assertion that he is a disabled person as being woeful and he referred to the fact that no evidence has been produced as to his claim that he suffers from PTSD. The respondent seeks £425 as the costs of preparing and attending this hearing.

[48]Rule 76 of the Employment Tribunal’s 2013 Rules of Procedure provide that a costs or time preparation order may be made and a tribunal shall consider whether to do so, where it considers that:(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or

(b) any claim or response had no reasonable prospect of success.

[49]In Gee –v- Shell UK Limited

[2003] IRLR82

Sedley LJ said: “It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers and that in sharp distinction for ordinary litigation in the United Kingdom losing does not ordinarily mean paying the other side’s costs”.

[50]There are many authorities that repeat those sentiments.

[51]In Millan v Capsticks Solicitors LLP & Others

UKEAT/0093/14/RN

the then President of the EAT, Langstaff J, described the exercise to be undertaken by the Tribunal as a 3 stage exercise, which I would paraphrase as follows: 1. Has the putative paying party behaved in the manner proscribed by the rules? 2. If so, it must then exercise its discretion as to whether or not it is appropriate to make a costs order, (it may take into account ability to pay in making that decision). 3. If it decides that a costs order should be made, it must decide what amount should be paid or whether the matter should be referred for assessment, (again the Tribunal may take into account the paying party’s ability to pay).

[52]In my view, the conduct of the claimant cannot properly be described as unreasonable. There is no doubt from the letter produced by his doctor in the last few days, that he is suffering from mental illness. So, there is no doubt in my mind that he may have had some anxiety about attending and there is no obligation of course on a party to attend and give evidence. A witness statement has been offered up. He has simply taken the risk that the witness statement will not be sufficient when a Judge is weighing the cogency of evidence and that has come back to bite Mr Mansfield, but I do not think one can say that his non-attendance today was unreasonable.

[53]As for the evidence offered up, he did produce a letter from his GP which attempted to answer the questions posed in the Tribunal’s standard letter. A claimant is entitled to argue that he or she is a disabled person and look to the Tribunal for a decision. Whilst I think the evidence offered up has not been good enough to cross the balance of probabilities threshold, and I used the throw-away line, “woeful”, I think it goes too far to describe arguing that he is disabled as amounting to unreasonable conduct. The threshold has not been crossed and I therefore I refuse the costs application. Further conduct of the case

[54]In discussion with the representatives and by way of cross reference to the preliminary hearing summary of Employment Judge Loy on 10 October 2019, we identified that the claimant’s surviving claims are of automatic unfair dismissal, failure to provide written terms and conditions of employment and a wages or breach of contract claim in relation to the respondent’s alleged failure to pay pension contributions. The case is listed for 2 days at Watford on 12 and 13 October 2020. I decided that it would be prudent to leave the matter listed for those two days, although it may be that it will be completed in one. That hearing shall now be before a Judge sitting alone. Employment Judge Loy made case management orders in respect of the final hearing and they remain effective.

[55]I was told that Regional Employment Judge Foxwell had caused a letter to be written to the parties, (although the respondent has not received it) asking them whether they would like the case transferred to Bury St Edmunds. Both parties’ answer to that is that they would be, but only if the current listing date could be preserved. I was unable to answer whether or not that would be so. In the circumstances, the parties agreed that it would be prudent to leave the matter listed as it is.

[56]Mr Bussau raised the outstanding matter of his application to strike out parts of the respondent’s amended response. Today’s hearing had not been listed to deal with that application and in any event, there was insufficient time to do so.

[57]The grounds of resistance should be revisited anyway, given that the disability discrimination claim no longer survives.

[58]Mr Goldup told me that there was also an application from the respondent and a wasted costs application. I was unaware of that, but again, there was not sufficient time to deal with it.

[59]I suggested the parties revisited their applications and I reminded the representatives of their obligations to assist the Tribunal in furthering the overriding objective.

Background

[1]This decision is given to the parties on an application made at the outset of what was to have been a 2 day final hearing. At an Open Preliminary Hearing on 14 July 2020, I made a finding that the Claimant was not a disabled person as defined in the Equality Act 2010 at the material time and accordingly, I struck out the Claimant’s claims of disability discrimination. A written Summary with reasons for that decision was sent to the parties on 28 August 2020.

[2]Mr Bussau submitted an application for reconsideration on 30 September 2020. I rejected his application for reconsideration in so far as that related to my finding that the Claimant was not a disabled person as defined. However, in considering that application I noted the Claimant’s reference to perceived disability and I saw apparent references to this in his Particulars of Claim. If it is the Claimant’s case that he was dismissed because he was perceived as meeting the definition of disability, I ought not to, perhaps, have struck out his claim of disability discrimination. I therefore allowed that aspect of the application to proceed to be heard today so that I might consider it at the outset of the Final Hearing, reserving the same to myself. The concept of discrimination on grounds of perceived disability

[3]To consider these points, one needs to understand the basics of a discrimination claim based upon perceived disability. The possibility of such a claim arises because of the way s.13 of the Equality Act 2010 is worded, (the section that defines direct discrimination). It refers to a person being subject to a detriment because of a protected characteristic, so that if a person is perceived as being disabled and they are therefore dismissed, that is because of a protected characteristic.

[4]In the field of disability discrimination, for such a claim to succeed, the Respondent must believe that all the elements of the statutory definition of disability are present, but the Respondent need not necessarily attach the label ‘disabled’ to the Claimant. That perception must be the reason for the detriment, in this case the dismissal. It is not enough that the Respondent dismissed the Claimant because of illness or absence. It must be because it believed that he had a long term impairment that was substantially affecting his ability to carry out day to day activities; an impairment that had either lasted 12 months or was likely to last 12 months.

The facts

[5]I gave the Respondents the opportunity of providing a written response to the reconsideration application with the benefit of my preliminary thoughts and Mr Goldup helpfully did so, in an email of 8 October 2020. There are two essential points that he makes: 5.1. The first is that he says direct discrimination because of perceived disability is not pleaded, and 5.2. His second point is that, in any event, this claim is based upon a bare assertion and therefore has no prospects of success.

[6]I begin my analysis by looking at the Claimant’s pleaded claim, because it is the pleaded claim which the Employment Tribunal has to decide. At paragraph 85, immediately under the heading ‘Disability Discrimination’ the Claimant pleads, “Pursuant to Section 15 Equality Act 2010, a person is discriminated against if they are treated unfavourably as a consequence of something arising from a disability.”

[7]This is a pleading of unfavourable treatment contrary to s.15, what we sometimes call discrimination arising from disability. It is not a s.13 direct disability claim. All that follows in the pleading is on the basis that this is all to do with a s.15, “discrimination arising” claim.

[8]It is though, important that I record paragraphs 92 through to 96: “92. Alternatively (without prejudice to the Claimant’s primary position that reason for the Claimant’s dismissal was the pension’s enrolment requirements) the Claimant takes the secondary position that, a cogent factor in the Respondent’s decision to dismissal was the risk of future sickness absences due to his chronic sciatica. 93. As detailed above, the Claimant’s sickness absence was due to the chronic sciatica on Monday 4 March 2019. The Respondent was informed of the reason for the absence. The Claimant then returned to work, despite on-going pain, on Tuesday 5 March 2019 and was subsequently given the termination notice on that day, which only contained obtuse reasoning for the decision. 94. It would be both frivolous and mischievous to suggest that a Respondent did not perceive, or foresee any potential, that future sickness absence may occur as a result of the Claimant’s chronic sciatica, after being informed of the reason for the Claimant’s sickness absence the day before his dismissal. 95. In Coffey v Norfolk Constabulary, the EAT held that an employer did not need to believe, or consider, a person to be disabled in order to directly discriminate against them. The EAT clarified the only requirement for direct discrimination was that a person had an impairment (physical or mental) which the employer perceived had the potential to have a long-term adverse effect (such as future sickness absence from work). 96. Accordingly, the combined effect of Coffey, Grosset and Valatchi is that if a contributing factor to the Respondent’s decision to dismiss the Claimant was the Claimant’s sickness absences (or perceived risk of sickness absence) linked to the Claimant’s chronic sciatica, then the dismissal would be discriminatory irrespective of whether or not(a) the Respondent believed or appreciated that the Claimant was disabled;

(b) the Respondent appreciated that the sickness absence, or perceived risk of sickness absence, was linked to the chronic sciatica; and

[9]There is one further part of the pleaded claim that I must quote, that is at paragraph 98(b), “The perceived potential of future sickness absence (consequential to his dismissal); was a cogent factor in the Respondent’s decision to dismiss the Claimant.”

[10]There are a number of points to make about those quoted exerts from the Particulars of Claim: 10.1. One is to reiterate they all follow introductory paragraphs that the pleading is a complaint pursuant to s.15 of unfavourable treatment. 10.2. The second is that there is but the one mention of direct discrimination, at paragraph 95. 10.3. Thirdly, the Respondent makes the correct point that pleading a perceived risk of sickness absence is not the same as pleading perceived disability as defined; i.e. it is not pleading the perceived key components of the definition of disability. 10.4. My fourth point is to note that the Claimant is pleading that because of his impairment, the Respondent dismissed him. I note at 98(b) he says as such. The Respondent points out though that the words, “consequential to his disability” are in parenthesis.

[11]At paragraphs 14 to 20 of the Particulars of Claim, the Claimant pleads to a number of absences from work. Then, at paragraph 18 he pleads to another day of absence and on this occasion, his informing the Respondent that the reason for his absence was sciatica. That is in the context of the Claimant’s employment being that of a landscape gardener. Next, at paragraph 19, the Claimant says it was the next working day, a Monday, that he was dismissed.

[12]Now I turn to the written Summary of a Closed Preliminary Hearing that took place before Employment Judge Loy on 10 October 2019. At paragraph 16, EJ Loy identifies the Claimant’s disability claims and he wrote at 16.1, “His dismissal was directly discriminatory in that he was treated less favourably than a hypothetical comparator because of his disability.” At 16.5 he wrote: “The Claimant also said that he includes a perception of disability claim. The Claimant alleges that perception of future absence is included in the s.15 claim.”

[13]For clarity, EJ Loy identifies that there is a direct discrimination claim, he identifies that there is a perception of disability claim, but in the context of s.15 discrimination arising from disability, unfavourable treatment. That is a tad confusing. It is a shame that the point was not clarified at that time.

[14]Later, in EJ Loy’s Summary, we have a heading ‘The Issues’ and then under the sub-heading ‘Disability’ he writes at 23.1.1, “Was the Claimant treated less favourably than the Respondent would have treated a hypothetical comparator because of the Claimant’s disability?” And at 23.1.2 he wrote, “Was the Claimant dismissed because of absence arising out of his sciatica?”

[15]I note that23.1.1 is a reference to direct discrimination and there is no reference to perception of disability.

23.1.2 appears to be a s.15, “discrimination arising” claim.

[16]It is unfortunate that the way the claims are identified under the heading ‘The Issues’ is not set out very clearly.

[17]I note, under the heading ‘Orders’, Order number 1 of EJ Loy directs the parties to inform each other and the Tribunal within 14 days, providing full details, if what is set out about the case and the issues is inaccurate or incomplete in any important way. Mr Bussau for the Claimant accepts that, although he did write in to the Tribunal raising matters of concern arising out of the identification of the issues, he did not raise any concerns with regard to the Claimant’s disability claim.

[18]Next, I turn to the Respondent’s amended Grounds of Resistance filed pursuant to leave granted by EJ Loy. In the amended Grounds of Resistance at paragraph 19, the Respondent pleads, “The Respondent denies that in dismissing the Claimant it treated him less favourably than a hypothetical comparator because of his alleged disability, either actual or perceived.”

[19]Mr Goldup says that is a belt and braces pleading, “just in case”, as it were. It seems to me, that tells me that the Respondent understood from the Closed Preliminary Hearing that the Claimant was indeed claiming direct discrimination by perceived disability.

The Law

[20]When considering an application to amend, one must have regard to the guidance of Mummery J, (as he then was) in the case of Selkent Bus v Moore

[1996] ICR 836

. In exercising discretion, a Tribunal should take into account all the relevant circumstances and should balance the relative injustice and hardship of allowing or refusing the amendment.

[21]Non-exhaustive examples of what might be relevant circumstances given by Mummery J included: 21.1. The nature of the amendment, whether it is a minor error, a new fact, a new allegation or a new claim; 21.2. The applicability of time limits and if the claim is out of time, whether time should be extended, and 21.3. The timing and manner of the application and in particular, why an application had not been made sooner.

[22]On the question of time limits, section 123(1) of the Equality Act 2010 requires that a claim shall be brought before the end of the period of three months beginning with the date of the act to which the complaint relates or such further period as the Tribunal thinks just and equitable. Conduct extended over a period of time is treated as having been done at the end of that period, (section 123(3).

[23]On the just and equitable test, the EAT in the case of Cohan v Derby Law Centre

[2004] IRLR 685

said that a Tribunal should have regard to the Limitation Act checklist as modified in the case of British Coal Corporation v Keeble

[1997] IRLR 336

which includes that: 23.1. One should have regard to the relative prejudice to each of the parties; 23.2. One should also have regard to all of the circumstances of the case which includes: 23.2.1. The length and reason for delay; 23.2.2. The extent that cogency of evidence is likely to be affected; 23.2.3. The cooperation of the Respondent in the provision of information requested, if relevant; 23.2.4. The promptness with which the Claimant had acted once she knew of facts giving rise to the cause of action, and 23.2.5. Steps taken by the Claimant to obtain advice once she knew of the possibility of taking action.

[24]Selkent was revisited by Underhill LJ in the Court of Appeal in Abercrombie v Aga Rangemaster Ltd

[2014] ICR 209

and the guidance of Mummery J approved. Commenting on the now often referred to distinction between label substitution on pleaded facts as compared to substantial alterations pleading new causes of action, Underhill LJ said that it was clear that Mummery J was not suggesting so formalistic an approach that the fact that an amendment pleading a new cause of action, weighed heavily against allowing an amendment. These are just factors likely to be relevant in striking the balance of injustice and hardship. He said that the focus should be not so much on, “formal classification” but more on the extent to which the amendment is likely to involve different lines of enquiry, “the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted”. See paragraphs 47 and 48.

[25]Underhill LJ also explains in Abercrombie that just because the amendment relates to allegations that are out of time, that does not mean we should automatically disallow it. It is still in our discretion to amend.

[26]Whilst tribunals dealing with an amendment application have to consider whether the proposed amendment contains allegations that are out of time, we do not have to actually decide the time point. We can, if appropriate, grant the amendment subject to any limitation points the respondent may wish to raise at the final hearing. An example of when this might be appropriate, is when the subject of the amendment is an allegation that may be part of a continuing act of discrimination, determination of which is fact sensitive and better decided upon after hearing all the evidence at the final hearing, (see Galilee v Commissioner of Police of the Metropolis

UKEAT/207/16

and Reuters Limited v Cole

UKEAT/0258/17

[27]The apparent merits of the proposed amendment may be relevant to the exercise of discretion, see for example Olayemi v Athena medical Centre

UKEAT/0613/10

and Herry v Dudley MBC

UKEAT/0170/17

[28]In exercising my discretion, I must have regard to the Overriding Objective and must seek to balance the relative prejudice to the parties. Rule 2 sets out the Overriding Objective as follows: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”

[29]I should have regard to the fact that the Claimant has been legally advised; his legal advisors ought to have got it right in the first place. That said, I also have in mind the comments of Underhill J, (once again, as he then was) in Evershed v New Star Asset Management

UKEAT/0249/09

when he said that employment tribunals are not in the business of punishing parties or their advisors for errors, pointing out that in most cases where permission to amend is sought, the applying party could have got it right first time around with sufficient care.

[30]I set out the law relating to reconsiderations in my written decision of 2 October 2020.

Conclusions

[31]This is a major amendment in that it is a new cause of action; a complaint of direct discrimination, which is not expressly set out in the pleaded claim. No new facts appear to be relied upon.

[32]The amendment sought is substantially out of time. Therefore, s.123(1) of the Equality Act 2010 is engaged. It is proportionate and appropriate for me to deal with the question of time now. The question is whether it is just and equitable to extend time. I must apply the Limitation Act check list set out in the British Coal Corporation v Keeble.

[33]Considering the length and reason for delay, which also covers the point of timing and manner of the application, in accordance with Selkent: the reason for the delay and the length of the delay, which is significant, is an oversight and an error on the part of Mr Bussau as the Claimant’s legal representative.

[34]The Application is made today at the start of the Final Hearing. Mr Bussau made that Application today when he realised his mistake. In fairness, it seems that EJ Loy identified a direct discrimination claim and the Respondent understood that the claim included a direct discrimination on the grounds of perceived disability. The point has only been taken, (and this is not a criticism) by the Respondent in its email of 8 October 2020, the point being taken of course in reply to my response to the reconsideration application.

[35]In respect of the effect of delay on the cogency of evidence, the Respondent ought to have been focused on showing the reason for dismissal anyway. But, there may be some impact on cogency of evidence in relation to what the Respondent knew or did not know of the Claimant’s impairment.

[36]There is no suggestion of any lack of co-operation from the Respondent in the provision of relevant information leading to this late application to amend.

[37]As for the promptness of the Claimant, acting when he knew of the potential cause of action; in broad terms these proceedings were brought well in time, but as already discussed, this application is very late. The Claimant has sought advice.

[39]I then turn to the balance of prejudice question, which very often is the most important aspect in the decision as to how one should exercise one’s discretion. I will consider the prejudice to the Respondent first.

[40]If I allow the Application, the Respondent will have the expense of preparing for a new hearing, because I would not be able to proceed today; I am a Judge sitting alone and if there is a disability claim, a full tribunal will have to be convened. The Respondent will also have the expense of redrafting its witness statements and also the prejudice of being deprived of the statutory defence that Parliament saw fit to put in place, that of a three month time limit for the bringing of such claims. On the other hand, the Respondent has known since 10 October 2019 that actually, it was certainly the intention that this case included a claim of direct discrimination because of perceived disability. That is why it pleaded to such a claim in its amended Grounds of Resistance. The Respondent appears to have enjoyed something of a windfall, benefitting from my Strike Out of the disability claims without my having realised that there was this potential wrinkle. The Respondent has known the facts relied upon all along.

[41]What of prejudice to the Claimant? If I refuse the Application, he will be deprived of the opportunity of arguing that the Respondent dismissed him because it thought that he was a disabled person due to his sciatica. Reading EJ Loy’s Hearing Summary and the amended Grounds of Resistance, one could be excused for thinking that the direct discrimination because of the perceived disability claim was in fact in place. As noted above, employment tribunals are not in the business of punishing advisors for their errors.

[42]Lastly, on the merits, Mr Goldup says that this aspect of the proposed case is based upon a mere bare assertion. I think, with respect, that is not so, for the Claimant pleads a sequence of absences and then on the day after he informs the Respondent that his reasons for absence are sciatica, he is dismissed. I think the fact that the context is that of a landscape gardener, work that involves physical effort and for which back problems would likely be a major issue, means that the Claimant would have a reasonable prospect of persuading a Tribunal that it should take the view that it requires some form of explanation from the Respondent.

[43]On balance, weighing these matters up, the conclusion which I have reached is that I should allow the application to amend. The amendment should read as follows: The Respondent directly discriminated against the Claimant; treating him less favourably than a hypothetical comparator would have been treated by dismissing him because it perceived that he had sciatica, which was a long term physical impairment which substantially affected his ability to undertake day to day activities and had done so for more than 12 months, or was likely to do so for more than 12 months.

[44]Accordingly, it is necessary in the interests of justice that I vary my Judgment of 14 July 2020 in that the Claimant’s claim that he was directly discriminated against because of perceived disability, as I have just outlined, is not struck out and shall be permitted to proceed. The Claimant’s and Respondent’s Strike Out Applications against each other

[45]The Representatives indicated to me that they each had strike out applications that they wished me to consider before further case managing this case. The Claimant’s strike out application is set out in two letters: one dated 30 June 2020 and the second dated 10 July 2020. They are at pages 69 and 104 of the Respondent’s Bundle. The Respondent’s Strike Out Application is dated 13 July 2020 and is copied at page 21 of the Respondent’s Bundle.

[46]I read the Applications during the lunch time adjournment and upon resuming, indicated to the representatives that it seemed to me neither application had particularly good prospects of success. Strike out is a draconian step and the bar is rightly set very high. I invited each in turn to present to me their application.

[47]Mr Bussau went first. He indicated that he did not wish to apply to strike out the response in its entirety, he simply wished to apply to strike out certain paragraphs of the Amended Grounds of Resistance. As he spoke, he narrowed that down to an application to strike out paragraph 11. This was on the grounds that it was not an amendment occasioned by EJ Loy identifying the issues on 10 October 2019, but it raised a new defence to the Claimant’s claim for payment of pension contributions he says that he should have received. Mr Goldup answered that the Respondent was simply pleading an additional fact which had emerged since the issue of the claim in the original Grounds of Resistance. I declined to strike out the paragraph on that basis; the