Mr C Baugh v Work it Group Ltd and C Enstone-Watts: 3320707/2021
EMPLOYMENT TRIBUNALS
Case No 3320707/2021
Between
Mr C BaughClaimantWork it Group Ltd (1) Charles Enstone-Watts (2)Respondent
Before
Employment Judge A FrazerMr Day (instructed by Counsel) for claimantMr Anderson (instructed by Counsel) for respondentDate 11 January 2023
JUDGMENT
The Claimant was not a disabled person for the purposes of s.6 Equality Act 2010 at the relevant time.
REASONS
[1]The Claimant was born on 29th April 1988 and is 34 years old. He has documented his difficulties as a child firstly at age 4, then at age 11 and then at age 17. I shall deal first with the evidence relating to his childhood and then go on to deal with that related to his adulthood.[2]He produced notes of a meeting on 22nd September 1992. This documented that he had displayed some challenging behaviours including violent behaviours, which included violence towards other children, and disruptive classroom behaviours as a consequence of which he was excluded. The Claimant was referred to an educational psychologist and the report is at page 104 of the bundle. There was some comment in the report about the Claimant’s behaviours being down to his parents’ separation and divorce.[3]When the Claimant was 11 he had a violent outburst which involved him using a hockey stick to destroy school property. Following this he saw the school counsellor to manage his anger on 5 occasions. The school did not keep records so he has not produced those today.[4]When the Claimant was around 17 and from early 2005 to the summer of 2006, he attended weekly therapy sessions during term time with psychotherapist Janet de Heger. She talked about the purpose of these sessions being to explore his responses and reactions to people and situations. She commented that after leaving school the Claimant continued to attend to see her privately during his year out and the three years at university. She commented ‘he recognised that as he begun his adult life with all its challenges and demands the potential for his emotional reactions to get the better of him was high.’ She went on to say ‘Chris has contacted me on a few occasions since leaving university when matters have presented him with difficult and stressful situations and he has recognised his need for support and space to think before he becomes negatively overwhelmed by his feelings.’ (p.110). The Claimant himself said that he did feel low upon first referral and in fact queried whether he could take pills but that his mood lifted upon speaking to the therapist. The Claimant said that when he was at university he saw her consistently as he would otherwise struggle to cope. By aged 21 or 22 he had better coping strategies and did not continue to see her. From then onwards it is fair to say that the Claimant seemed to cope by himself. There was then a 10 year gap approximately when the Claimant did not have any therapy.[5]The Claimant managed to sustain ostensibly congenial employment working for a charity and then as a professional boxing coach. He described the circumstances in 2019 as having taken on a lot more work and responsibility. He described struggling more which involved not sleeping and the other effects that he has described.[6]From January to August 2019 the Claimant had weekly psychotherapy from Bob Lynton. That letter refers to them exploring a number of issues including work-related anxiety which he reports featured frequently (p.109). This chimes with what the Claimant says in his statement which is that he sought treatment because of the onset of symptoms in Spring 2019.[7]At page 111 there is a letter from Alison Easton, Cognitive Hypnotherapist to say that the Claimant came to see her ‘in order to manage a particular situation he was feeling anxious about’ and to navigate a way forwards. He had 6 sessions with her from 11th March to 12th April 2020 which transitioned to online sessions owing to the pandemic. Thereafter those sessions stopped as the Claimant said that he did not like doing the sessions online as they made him anxious. The Claimant said that he had felt that there was something wrong in his working relationship with Mr Enstone Watts and he did not know how to handle it. He did not go back to see this therapist or to see anyone else during the period leading up to the end of his employment.[8]The Claimant states in his impact statement that he has ongoing effects which are not intermittent and he sets these out at paragraph 2 including nightmares, insomnia, waking in the night with a racing pulse, dry mouth and sweats, trouble concentrating including in business meetings and on reading and writing and hyper vigilance in public spaces which he says affects his ability to go about his normal day to day business. He also gave evidence of waking in the night thinking there was someone in the house or he was under threat and that he would have to pull over when driving as he was oversensitised to traffic. He stated that he would hear overtalking in meetings because his mind would replay the previous conversation he had heard when he was listening to someone talk.[9]The Claimant’s evidence was that he takes CBD, uses cold water therapy and deploys meditation and breathwork techniques. He has never taken prescription medication nor has seen a GP or other doctor for any of his symptoms. He says that he prefers not to take prescribed medication. He says that if things are going well in his life he can rely on self-care practices to support himself and does not need to see therapists but that if going through difficulties in work or personal life he is prone to ‘flare-ups’.
The Law
[10]s. 6 Equality Act 2010 (1)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. (2)A reference to a disabled person is a reference to a person who has a disability.[11]I have referenced the Guidance in this case, that is ‘Guidance on matters to be taken into account in determining questions of disability’. At A3 this states that the definition requires that the effects which a person may experience may arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established nor does the impairment have to be the result of an illness.[12]In J v DLA Piper [2010] ICR 1052 Underhill J as he then was at paragraph 42 onwards distinguished between the symptoms of low mood and anxiety as arising from two different states of affairs; one from a mental condition and the second as a reaction to adverse life events. He commented that there may indeed be an overlap and that the distinction may be hard to apply in practice particularly given the loose application of terminology such as depression, anxiety or stress. He went on to say at paragraph 42; ‘Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long- term effect requirement. If, as we recommend at para 40(2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant’s ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was indeed suffering clinical depression rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long-lived.’
Conclusions
[13]I have heard about effects on the Claimant such as insomnia, the effect on his concentration in meetings and on reading and the effect on him driving. I find these are substantial adverse effects on his normal day to day activities as they are more than minor or trivial. The question is whether these arise from an impairment and whether they are long term.[14]Dealing with the question of impairment and the Claimant’s behaviours aged 4 and 11, I cannot infer from those reports singularly or in conjunction with the other reports that those behaviours arise from any impairment as opposed to being the normal consequences of growing up or the adverse psychological effects on the Claimant of life events notably the transition into secondary school and his parents’ separation. As for the counselling he received when he was aged 17 and beyond, this was a way of helping him explore his feelings and reactions to people and situations which may also have been simply a consequence of another transition: namely the transition into adulthood and the thoughts and feelings that this may have given rise to. I make that conclusion on the reports themselves and in conjunction with the later evidence that I have from Janet de Heger, Bob Lynton and Alison Easton.[15]I accept that the labels of mood disorders in this case are loose terms and have not been ascribed by a doctor in accordance with clinical classification models. While I appreciate that the repeal of schedule 1 now means that there does not have to be a clinically diagnosed illness, I also cannot find that the periods of time when the Claimant says he is overwhelmed or experiencing insomnia or other symptoms are due to any mental impairment as opposed to stressful triggers in his life which promote responses. The evidence seems to suggest that there is mostly a situational cause and the Claimant has not adduced sufficient evidence on which I could properly infer an impairment.[16]There was some inconsistency in the evidence with the pattern of effects. The Claimant said in his statement they were not intermittent but then he did say there were occasions in his life when he could cope and he was not affected by them. The periods of time where he does not seek therapy tend to bear this out and as I said I noted a period of ten years where he did not seek therapy. There was difficulty in pinpointing how long any adverse effects had continued for in relation to the period of time in question and therefore it was difficult to conclude that it was such a long period that there would be an inference that this arose from a mental impairment particularly given that there was no medical or expert evidence to assist with this.
The Law
[1]On 10th February 2023 I retrospectively rejected the Claimant’s claim for unfair dismissal, a failure to provide a s.1 statement and unlawful deductions from wages under Rule 12(1)(f) of the Employment Tribunal Rules of Procedure 2013.[2]In the Notice I found that the number on the claim form did not relate to the early conciliation certificate that had been filed in respect of the First Respondent, Work It Group Ltd, as it related to the Second Respondent, Charles Enstone Watts. I then concluded that the error as identified was an error of numbering (12(da)) as well as an error of name and address (12(f)). I then went on to apply Rule 12(2A) which was the escape clause which relates to names and addresses and found that it did not apply to the present case as it related to errors concerning names and addresses (paragraph 10). I relied on the authority of E.On Control Solutions Ltd v Caspall UKEAT /0003/19/JOJ – which was the applicable law at the time - and reminded myself that there were points of which I needed to take cognisance according to the dicta in that case:2.1.1 The non-compliance cannot be remedied by any case management discretion exercisable under rule 6.2.1.2 There can be no amendment under rule 29 as the rejection means that the claim falls away and therefore there is nothing to amend. The Claimant’s Application and Further Submissions[3]The Claimant applied for reconsideration on 22nd February 2022. The basis for the application was that I had erred in recognising the case as a ‘numbering’ error case but had failed to apply 12(2ZA) or had in fact misapplied 12(2A). I had fallen into error because I had failed to recognise the Claimant’s first early conciliation certificate which had instituted proceedings against Work It,Group Ltd. The claim form had referred to the number on the second early conciliation certificate which was against the individual, Mr Watts. It was submitted that had I followed the correct approach, I would have found that there was a numbering error and it was in the interests of justice not to reject the claim. It had been implicit in my comments that I had ‘sympathised’ with the Claimant that this was a technical point and that I would have felt it was in any event in the interests of justice not to reject the claim had I applied the law correctly.[4]The Claimant provided further submissions on 17th April 2023. By that time the Court of Appeal had published its decision in Sainsbury’s Supermarkets Limited v Maria Clark and others [2023] EWCA Civ 386, handed down on 6th April 2023. It was submitted that while Clark had primarily determined the case under Rule 10 the principle of the decision related to the ‘fundamental reason relating to the structure and wording’ of the rules. Paragraphs 35 to 43 of Lord Justice Bean’s judgment were set out in the application. He also cited paragraph 51: “51. I return to Mr Milford's submissions about giving effect to the legislative purpose. The legislative purpose of s 18A of the 1996 Act was to require claimants to go to ACAS and to have an EC certificate from ACAS (unless exempt from doing so) before presenting a claim to an ET in order to be able to prove, if the issue arises, that they have done so. I do not accept that it is part of the legislative purpose to require that the existence of the certificate should be checked before proceedings can be issued, still less to lay down that if the certificate number was incorrectly entered or omitted the claim is doomed from the start. If the claim is rejected in its earliest stages under Rule 10 or 12 then the claimant may seek rectification or reconsideration. If it is not, then the time for rejection of the claim has passed. The respondent may instead apply to have the claim dismissed under rule 27 or struck out under rule 37, with the tribunal having the power to waive errors such as the one relied on in the present case under Rule 6.”[5]The Claimant submitted that it was wrong for the Tribunal to have rejected the claim restrospectively once it had got through the filter to the case management stage. To the extent that the law in EON Control Solutions v Caspall [2020] ICR 552 was that the obligation to reject a claim continues at the case management stage, this was overruled by Clark. It was also submitted that the Tribunal had not been required to receive further submissions from the Respondent as Rule 13(3) contemplated hearing any hearing to be attended only by the Claimant. It was submitted that it was proportionate and in accordance with the overriding objective for the matter to be dealt with by way of reconsideration and not on appeal.[6]To the extent that the further submissions were out of time, I allow them in as provision of further information. Indeed prior to the Claimant writing in I had drafted a direction which I had asked to be sent to the parties inviting their comments on Clark but the Claimant’s further submissions arrived anyway and I instructed the administrative staff not to send my direction out. The Respondent’s Responses[7]Having requested the Respondent’s response, I received submissions from the Respondent to the Claimant’s application which were dated 31st March 2023. The Respondent also sought wasted costs against Sheridans’ Solicitors under Rule 80(1) or in the alternative costs against the Claimant under Rule 75(1).[8]It was submitted that I had correctly identified that both Rules 12(1)(da) and 12(1)(f) applied at paragraph 7. The Claimant’s application failed to grapple with the fact that Rule 12(1)(f) also applied. Because Rule 12(1)(f) applied the consequence provision in 12(2A) therefore also applied subject to the escape provision. Therefore whether or not the result would have been the same had 12(2ZA) applied was immaterial. The finding that there was no error relating to name and address was correct because the error was due to the Claimant’s representatives using the same number twice. The Claimant’s application would mean that the Claimant would have had to work backwards from the escape clauses in order to ascertain what category the rule fell under which was not the correct process.[9]In its response to the Claimant’s further submissions dated 25th May 2023 the Respondent submitted that while it accepted that Clark overruled EON, legal certainty required that the Tribunal’s ruling stood further to the decision of the Supreme Court in Cadder v HM Advocate [2010] UKSC 43. Alternatively, it was open to the Tribunal to strike out the Claimant’s claim under Rule 37 for failure to comply with the applicable rules or as an abuse of process. The Claimant’s further submissions amounted to a second reconsideration application presented out of time. In the absence of knowledge as to whether the Court of Appeal decision would be appealed it was submitted that the case be adjourned to a one-day hearing in October at which point the appellate future of Clark may be more certain. In the alternative, it was submitted that the Claimant had breached the rules and there was no adequate explanation for that breach. In addition the delay occasioned by the error on the certificate would result in the Respondent having to defend the claim two years’ on. The Respondent would pray in aid its previous submissions in relation to any strike out application.[10]At paragraph 7 of the Notice I accepted that on the facts that the claim was one which instituted relevant proceedings and that the early conciliation number on the claim form was not the same as the one on the early conciliation certificate under 12(1)(da). I had also identified this case as one which instituted relevant proceedings and the name of the Respondent was not the same as the prospective Respondent on the early conciliation certificate (12(1)(f)). At paragraph 8 onwards I considered the matter under 12(2A) only and not 12(2ZA) as well. However I did expressly state at paragraph 10 that while both 12(1)(f) and 12(1)(d) applied to the category of claim, ‘this case appears to be an error of numbering as opposed to an error of name or address’. Having done so I ought to have considered whether the escape clause applied in 12(2ZA) applied primarily and I did not.[11]Accordingly I find that the Claimant made an error in relation to the early conciliation number in that the number on the claim form was not the same as the one on the relevant early conciliation certificate. I find that this was an error caused by his representatives. While the Respondent submits that the proper cause of action would be for the Claimant to bring a negligence claim against his representatives, I consider that it would not be in the interests of justice to reject the claim on the basis of this error alone. There were two early conciliation certificates that were presented in relation to both the First and the Second Respondent so substantively the early conciliation process had been followed by the Claimant prior to instituting proceedings. The prejudice in rejecting the claim for the Claimant would be significant because he would lose the opportunity to bring his claims whereas the fault was a technical numerical error. I have taken into account the Respondent’s contention that the claim is now two years on but there is nothing before me to suggest that it is not possible to have a fair trial.[12]Accordingly the decision to reject was wrong and the Claimant’s claims for unfair dismissal, failure to provide a s.1 statement and unlawful deductions from wages are reinstated.[13]I had regard to the Respondent’s submissions on Cadder and do not accept that the decision was wrong because of the effect of Clarke as the authority in EON was binding at the time of the original decision. However I do not consider that it would be proportionate to delay this matter further by holding a hearing to consider the possibility of overturn of Clarke. This matter shall now proceed to case management.[14]If however, I am wrong on that point and the decision to reject was wrong because of the dicta in Clarke, if I were to consider whether to strike out the claim as an abuse of process I would not do so given that I have found that it was in the interests of justice not to have rejected the claim under 12(2ZA). Wasted Costs[15]The Respondent has made an application for wasted costs against the Claimant’s representatives who made the error in relation to numbering or alternatively, against the Claimant. Given that I have corrected the decision to reject, I am satisfied that there is no basis for such an application or any strike out application and it is therefore dismissed.