Employment Judge S NeilsonMr J Hamilton (instructed by Solicitor) for respondentDate 20 September 2022
JUDGMENT
The Judgment of the Employment Tribunal is as follows:[1]that the claimant suffers from, and at the material time (in or about June 2021 through to December 2021) he suffered from, a disability within the meaning of section 6 of the Equality Act 2010;[2]that the claim under Section 20 Equality Act 2010 (failure to make reasonable adjustments in respect of the interview process in December 2021) is a fresh ground of claim but permission is granted to amend the existing claim to incorporate that claim;[3]that the Tribunal does not consider it appropriate to make any determination regarding time bar in respect of the alleged discrimination claim arising out of the events in June 2021 at this time, and reserves the issue to be determined at a final hearing;[4]that the claim under Section 15 Equality Act 2010 is a fresh ground of claim but the Tribunal declines to consider any amendment on this ground on the basis that there is no written application to amend, clearly setting out the nature of the amendment, before it, at this time;[5]that the Tribunal permits the claimant 14 days within which to provide a written clarification of the terms of the Section 20 Equality Act claim (on the basis that this will be broadly consistent with the Section 20 Equality Act claim set out in writing on 27 April 2022) and the respondent shall have 28 days within which to respond to that Section 20 Equality Act claim.
REASONS
[1]This was a preliminary hearing fixed for the purpose of determining several issues as set out by Employment Judge Gall in his note of 24 May 2022 following a preliminary hearing held on that day. This followed on from an earlier Preliminary Hearing held on 6 April 2022.[2]The claimant had brought a claim for direct discrimination under Section 13 of the Equality Act 2010 (“EA”) against the respondent in respect of discrimination allegedly on the grounds of disability as a consequence of a recruitment process for an apprentice joiner position with the respondent in the period June to December 2021. It being currently alleged that the claimant was not provided with an interview in June 2021 on the grounds of his disability and that an interview he was given in December 2021 was a sham exercise. The claim was lodged with the Employment Tribunal on 7 February 2022.[3]The issues to be determined are(1) whether the claimant was disabled within the meaning of section 6 of the EA at the relevant date(s) when discrimination is said to have taken place;(2) is the allegation that discrimination, by way of a failure to make reasonable adjustments, occurred in December 2021 at the time of the interview with the claimant a fresh ground of claim which the claimant seeks to advance? If so is the claimant to be permitted to amend his claim to enable him to advance that ground of claim?(3) The respondent maintains that the claim of discrimination said to have occurred by reason of events in June 2021 is time barred. The claimant maintains that, assuming he is permitted to advance an argument as to events in December 2021, there is conduct extending over a period, resulting in the claim in relation to the events in June 2021 being brought in time. Does the Tribunal consider it appropriate to consider the question of time bar at this Preliminary Hearing? If it does, is any element of the claim, in particular that related to the events in June 2021, brought out of time? If so, is the Tribunal prepared to extend time to enable the claim to proceed on the basis that it is just and equitable so to do?(4) The claimant seeks to advance a claim of discrimination in terms of Section 15 of the EA i.e. because of the something arising in consequence of his disability. Is amendment required in order to enable him so to do? If so, is amendment to be permitted?(5) If amendment is required and is permitted to enable a claim of failure to make reasonable adjustments or of discrimination arising from disability to proceed, what period of time is the respondent permitted in order to answer any such claim?[4]On 27 April 2022 the claimant had lodged responses to Orders issued by the Employment Tribunal in the Note of 6 April 2022. In that response the claimant sought to set out claims under both Section 15 and 20 of the Equality Act 2010.[5]At the commencement of the hearing the respondent’s representative asked the Tribunal to consider the written application made by him to the Tribunal on 19 August 2022 by e mail. In that written application the respondent requested that the question of disability status not be dealt with at the hearing on 23 August – to allow additional time for an up-to-date medical report to be obtained by the respondent from the Skylark Children’s Unit. The Skylark Children’s Unit issued the medical report in 2012 that is at page 32 of the Documents. Mr Hamilton explained that at the preliminary hearing on the 24 May he had sought a date for this preliminary hearing suitably far in advance to allow time for a medical report to be obtained. He referred to his written application of 19 August 2022 and submitted it would be in the interests of justice to have an up-to-date medical report to assist the Tribunal in determining the disability issue. The respondent was not able to concede the disability issue in the absence of a new medical report. Unfortunately, it had not been possible to obtain that report in time for the hearing today. The Skylark Children’s Unit had turned down the request for a further report but it appears that they may have misconstrued the request. Mr Hamilton has gone back to them with a further request and is still to hear from them. Mr Hamilton did concede that there was no certainty a further report would be obtained from the Skylark Children’s Unit. For the claimant Mr Swan objected to the application to postpone consideration of the disability issue. In his submission there was a medical report from 2012 and there would be evidence from the claimant and Mr Watson, and there was an Impact Statement. There was no certainty that a further medical report would be forthcoming, and we may all end back up at a further preliminary hearing on the disability issue in any event.[6]Having heard from both parties the Tribunal determined that it was not in the interests of justice to delay the determination of the disability issue on the chance that a further medical report may be obtained. There was some evidence available and as further delay would be prejudicial to the claimant (with no certainty that any medical report would be obtained from the Skylark Children’s Unit) the Tribunal decided that the disability issue should be determined at this hearing. Accordingly, the respondent’s application of 19 August 2022 was refused.[7]The claimant and his father (“Mr Watson”) both gave evidence. They were both giving evidence from the same home address but were in separate rooms. Mr Swan asked that whilst the claimant was giving evidence he would wish Mr Watson to remain in the CVP hearing room as an appropriate adjustment for the claimant. Mr Hamilton confirmed that he had no objection to the claimant’s father staying in the CVP hearing room whilst the claimant gave evidence. For his part Mr Swan accepted that if questions of credibility arose regarding the evidence of Mr Watson then his presence during the claimant giving evidence was something that the Tribunal could take into consideration.[8]There was a joint file of documents (“the Documents”) lodged to which the witnesses referred. Both Mr Hamilton and Mr Swan agreed that items 1 to 24 of the Documents are admitted in the sense that they were sent and received and they say what they say.[9]During the hearing Mr Hamilton experienced difficulties with his internet connection to the CVP platform. His connection dropped off on several occasions. On one occasion, during the evidence in chief of the claimant, Mr Hamilton lost the connection for several minutes – before his absence was noted. On re-joining and being provided with an update on the evidence that had been provided during his absence Mr Hamilton confirmed that he was happy to carry on. In the view of the Tribunal there was no material evidence provided during the period Mr Hamilton was disconnected. Mr Hamilton was able to procure another device with a better connection for the remainder of the hearing. Findings in Fact[10]The claimant is 18 years of age.[11]From his time at Nursery school the claimant had difficulty in interacting with other children. In Primary School the claimant received additional learning support.[12]In April 2012 the claimant was assessed at the Autistic Spectrum Diagnostic Clinic by Dr Caroline Clark, Community Paediatrician and Hazel Young, Specialist Speech and Language Therapist and diagnosed as a person who meets the ICD 10 Diagnostic Criteria for Autism. In their written report at that time (“the Skylark Report”) they stated “Despite his improving language abilities, he continues to have significant difficulties with the social elements of communication and also interacting with others at a level appropriate for his age and stage. He has less in the way of repetitive and stereotyped behaviours than many of the children on the spectrum, but does still have a tendency to develop strong quite intense interests, these being more evident at home.”[13]In the period from 2012 to date the claimant has continued to demonstrate behaviours consistent with the diagnosis in the Skylark Report. Specifically the claimant has difficulty interacting with others; he comes across as shy and withdrawn; he has a limited vocabulary; he cannot deal with multiple instructions at the same time and does not integrate well with others.[14]The claimant has a small group of friends who he interacts with by on line gaming. He does not engage with any other sports, clubs or activities.[15]The claimant refused to attend his 6th year school prom as he did not know anyone.[16]The claimant lacks aspects of emotional intelligence. He very rarely expresses how he is feeling and becomes uncomfortable when pushed to express these ideas.[17]The claimants S5/S6 Progress Report dated 7 February 2022 (the 2021 date is an error) states under “Co-Operation with Others: Poor” and on comments “James needs to work on his interaction and team building skills, his work delivered was of a very high standard”.[18]The claimant has difficulty with maintaining regular sleep patterns and takes melatonin to help him sleep.[19]At school the claimant required a scribe for exams and gets extra time allocated to him to complete tasks.[20]The claimant has difficulty in talking to new people and becomes anxious in social situations.[21]On or about 7 June 2021 the claimant submitted an application on-line, through the My Job Scotland website, for the post of “Modern Apprenticeship: Joiner” with the respondent. In that application the claimant disclosed that he suffered from autism.[22]The claimant notified the respondent by e mail on 21 June 2021 of his exam grades.[23]On 3 August 2021 the claimant was notified through the My Job Scotland website that his application for the position of Modern Apprenticeship: Joiner with the respondent was unsuccessful. The claimant had not been interviewed for the position.[24]The claimant notified the respondent by e mail on 23 August 2021 that he gave full permission for the respondent to correspond with Mr Watson in respect of the interview process.[25]Mr Watson corresponded by e mail, on behalf of the claimant, with the respondent concerning the claimant’s unsuccessful application in the period from 3 August 2021 to 1 December 2021.[26]In that correspondence Mr Watson raised with the respondent various concerns, including his concern over the apparent decision not to provide the claimant with an interview, despite the fact that the respondent allegedly had a policy of providing an interview to any applicant with a disability.[27]In response to the correspondence from Mr Watson the respondent did confirm that there would be a second interview process for applicants, such as the claimant, who had been unsuccessful in the June selection process.[28]The claimant submitted a claim to ACAS early conciliation on 1 December 2021.[29]On Tuesday 7 December 2021 the claimant was notified by the respondent that with regard to his recent Modern Apprenticeship application he had been selected for interview for an Apprentice Joiner post on Tuesday 14 December at 11:10 a.m.[30]The claimant had increased levels of anxiety in the run up to his interview.[31]The claimant was not successful at interview for the Apprentice Joiner post. Submissions[32]Mr Swan submitted that in respect of the issue of disability we had both the Skylark report and the evidence from Mr Watson. There was also the school report as independent evidence (Document 25). He made specific reference to the Equality Act 2010 Guidance Document – paragraphs B9, B12 and D3. For Mr Swan the key question was whether the impairment was substantial. He highlighted various matters the claimant struggled with – including writing; conversations; social activities and interacting with colleagues. In his submission the claimant’s disability, autism, was covered by Section 6 EA.[33]On Issue 2 Mr Swan submitted that the Section 20 EA claim was a re-labelling, but in the alternative if it falls to be treated as a fresh claim it should be taken as an amendment as set out in writing in the 27 April 2022 correspondence from Mr Watson. It would be just and equitable to allow the amendment at this time. He referred to Transport & General Workers Union -v- Safeway Stores UKEAT/0092/07.[34]On Issue 3 Mr Swann submitted that the events from June to December were one act. He also referenced City of Edinburgh Council -v- Kaur 2013 CSIH 32 and submitted that if there were any doubt then it was appropriate in this case to defer any decision on the time bar point until the final hearing.[35]On Issue 4 Mr Swann submitted that the Section 15 EA claim was not a material change. It was referenced in the Agenda. The “something” was the application of the interview process.[36]On Issue 5 Mr Swan would leave that to the respondent to suggest an appropriate time period.[37]For the respondent Mr Hamilton accepted that on Issue I the claimant was diagnosed with autism and that it was long term. However, he submitted that it was a matter for the Tribunal to be satisfied as to whether the condition was substantial and adverse.[38]On Issue 2 Mr Hamilton submitted that the Section 20 EA claim was clearly a new claim. It was not referenced at all in the ET1. It is first raised on 27 April 2022. Mr Hamilton referred to Chandhok -v- Tirkey 2015 ICR 527; Ali -vOffice of National Statistics 2004 EWCA Civ 1363; Reuters -v- Cole UKEAT/0258/17 and Selkent Bus Co Limited -v- Moore 1996 ICR 836. It was clearly a new claim and could have been raised in time. There would be prejudice to the respondent in allowing the claim in at this time – and whilst he accepted there would be some prejudice to the claimant this was only one factor.[39]On Issue 3 Mr Hamilton made reference to Amey Services Ltd -v- Aldridge UKEATS/0007/16 and Galilee -v- Commissioner of Police for the Metropolis UKEAT/0207/16 which may impact upon any amendment. The respondent maintains the June and December acts are separate. On the issue of the two separate acts Mr Hamilton referred the Tribunal to Hendricks -v- Metropolitan Police Commissioner 2002 EWACA Civ 1686; Pugh -v- National Assembly for Wales UKEAT/0251/06 and Parr -v- MSR Partners LLP 2022 EWCA Civ 24. He also referenced Veolina Environmental Services UK -v- Gums UKEAT/0487/12 – the involvement of one person does not make it a continuing act and British Coal Corporation -v- Keeble 1997 WL 1104672 - the length of the delay would not make it just and equitable to allow the claim late. Mr Watson had all the information he needed by October to bring the claim in respect of June 2021. There would be prejudice to the respondent in allowing the June claim in late – in terms of time and resources to investigate and defend.[40]On Issue 4 – Mr Hamilton referred back to the legal arguments in connection with Issue 2. It was a similar point. It was not a re-labelling. It was a new claim. It was not clear to the respondent what the “something” was that was sought to be identified under a potential Section 15 EA claim. The document of 27 April 2022 does not really answer that question. It would not be just and equitable to allow this claim in late. There had been delay in bringing this point out.[41]On Issue 5 Mr Hamilton wanted 28 days to respond at any amendment that was allowed.
The Law
[42]Section 6 of the Equality Act 2010 (“the EA”) states “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.”[43]The Tribunal also had reference to the “Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011)”, a statutory code issued under section 6(5) of the 2010 Act. Although the Guidance does not impose any legal obligations in itself, nor is it an authoritative statement of the law, it is stated that “any adjudicating body which is determining for any purpose of the Act whether a person is a disabled person must take into account any aspect of this guidance which appears to it to be relevant”.[44]Schedule 1 of the EA provides further assistance in determining the meaning of disability. Paragraph 2 of Schedule 1 states that the effect of an impairment is long term if it has lasted for at least 12 months, or is likely to last for at least 12 months, or is likely to last for the rest of the life of the person affected.[45]In addition paragraph 5(1) of Schedule 1 of the EA 2010 provides that “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.”[46]With regard to the issue of time bar Section 123 of the EA provides that “proceedings on a complaint within section 120 may not be brought after the end of –(a) the period of three months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.” Section 123(3) of the EA provides “For the purposes of this section – (a) conduct extending over a period is to be treated as done at the end of the period”.[47]With regard to amendment of claims before the Tribunal the Tribunal should have regard to the principles set out in Selkent Bus Company -v- Moore 1996 IRLR 661 and subsequent cases.[48]On the issue of the extension of time for claims on just and equitable grounds the Tribunal should have regard to all the factors that it considers may be relevant to assess (Adedeji -v- University Hospitals NHS Foundation Trust 2021 EWCA Civ 23) which may include the factors set out in British Coal -vKeeble 1997 IRLR 336. Discussion & Decision[49]Although evidence was given both by the claimant and his father, Mr Watson, it was clear to the Tribunal that the claimant had difficulty in responding to the questions that were put to him, both in terms of fully understanding what was being asked and in providing more than one-word answers. It was also clear that it was Mr Watson who had been dealing with the correspondence and the claim on behalf of his son. However, the Tribunal did have the Skylark Report and the evidence of Mr Watson along with his submitted Impact Statement to enable it to consider the disability issue.[50]Dealing firstly with the issue of disability. There are four essential questions that need to be answered in a determination of disability under Section 6 of the EA 2010 (Goodwin -v- Patent Office 1999 ICR 302):-[51]Does the person have a physical or mental impairment? (First Question)[52]Does the impairment have an adverse effect on their ability to carry out normal day to day activities? (Second Question)[53]Is that effect substantial? (Third Question)[54]Is that effect long term? (Fourth Question)[55]For the respondent Mr Hamilton conceded that the claimant does have an impairment – autism. That is certainly supported by the evidence and, in particular, by the diagnosis made back in 2012 by the Skylark Children’s Unit. The Tribunal finds that based on the evidence and the concession by Mr Hamilton that the claimant had at the relevant time – June through to December 2021 a mental impairment, namely autism.[56]On the second question the Tribunal was satisfied that the day to day activities that the claimant’s autism impacted would include taking part in social activities; interacting with colleagues; carrying out interviews and following instructions. There was evidence that on all these points that the claimant’s autism had an adverse impact on his ability to carry out these activities.[57]On the third question was the impact substantial? To be so it must be more than minor or trivial. Based on the evidence the Tribunal was satisfied that the impact was more than minor or trivial.[58]On the fourth question - is the effect long term? The evidence disclosed that the claimant was diagnosed in 2012 with autism. The evidence from Mr Watson was that the claimant’s condition has remained consistent throughout the period from then until today. In the circumstances the condition has clearly lasted for more than 12 months.[59]Accordingly, the Tribunal was satisfied that the claimant was disabled within the terms of Section 6 EA in the period June to December 2021.[60]The second issue is whether the claim of a failure to make reasonable adjustments is a fresh ground of claim which requires an application to amend before it can be considered. This related to the December interview. In the ET1 form the claimant stated at page 7 “James was subsequently interviewed for another council position as their proposed third party partner was not progressing the apprenticeship. This interview lasted less than 10 minutes and there was no feedback provided to James. I am not convinced that the second interview process was genuine.” This was the only reference in the ET1 to the December interview. In the Agenda for Preliminary Hearing completed by the claimant prior to the first Preliminary Hearing on 6 April 2022 the claimant has not referenced a claim of a failure to make reasonable adjustments. He does reference direct discrimination and in Schedule 2 under D5 he references a claim for discrimination arising from disability but under D6 where information is requested about a claim for a failure to make reasonable adjustments no information is provided by the claimant. The claimant first raises the issue of a claim for a failure to make reasonable adjustments in the written response provided to the respondent and the Tribunal on 27 April 2022. The Tribunal accepts the respondent’s submission that the Section 20 EA claim is not merely a “re-labelling”. It is a new ground of claim. It does relate to new facts which would require to be established to allow the claim to succeed. The claimant submitted that if the Tribunal consider that this is a new ground of claim then in the alternative the claimant would seek leave to amend to bring in such a claim on the grounds that it would be just and equitable to do so. Having regard to the fact that the respondent was put on notice on 27 April 2022 about the potential for this claim (just over 4 months after the December interview); that the claimant was supported by his father in dealing with this matter; that his father only sought legal advice in or about mid-July 2022; that in terms of prejudice there is likely to be limited prejudice to the respondent who will be required to deal with the direct discrimination claim in any event and lead evidence relating to the events and process between June and December 2021 whereas there would be material prejudice to the claimant in not being able to pursue a claim, the Tribunal concludes that it would be just and equitable to extend time for the lodging of a claim under Section 20 EA in relation to the interview in December 2021. The Section 20 EA claim is that set out in the written response to the Employment Tribunal on 27 April 2022.[61]The third issue is whether the claim of discrimination said to have occurred by reason of events in June 2021 is time barred. Having heard the evidence and the submissions the Tribunal does not consider it appropriate at this stage to make a determination upon the time bar issue. It is clear to the Tribunal that there is a prima facie case that there may be a course of conduct given the events that occurred between June and December 2021. In particular it is clear from the correspondence that it is certainly arguable that there is one process here from initial application for the role in June through to the interview in December 2021. The claimant’s position is that it was all one process and the second interview only arises because of the failure to deal with matters properly at the first interview. The claimant alleges that it was because of the complaint submitted by Mr Watson that the second interview was offered. It is not appropriate for the Tribunal to make any findings of fact in relation to that at this preliminary stage as it does appear to the Tribunal that issues of liability may well be tied up with the issue of the timescale and the process. The Tribunal accepts the submission made by Mr Swan that in the circumstances it would be appropriate to leave this as a matter to be finally determined at a full hearing of the evidence. In coming to this conclusion the Tribunal is following the decision in the case of City of Edinburgh Council -vKaur 2013 CSIH 32. The interview in December 2021 comes within the time limit as the ET1 was lodged on 7 February 2022. If the interview in December 2021 is part of a course of conduct extending over a period then the claim will be in time (section 123(3) EA). The Tribunal only heard evidence from the claimant and Mr Watson. The e mail correspondence in the documents was agreed by the parties to have been sent and received and their contents were agreed. There is, based on the evidence from Mr Watson, and the e mails referred to, a prima facie case that the actions which commence with the submission of the application through to the interview are all one course of conduct. However, without hearing any evidence from the respondents witnesses it would not be appropriate to come to a concluded view on that. Accordingly the Tribunal makes no determination on the issue of time bar in respect of any discrimination alleged to have taken place as a consequence of the events in June 2021 and leaves that issue to be determined as part of the final hearing.[62]The fourth issue is whether amendment is required for a claim under Section 15 of the EA i.e. because of something arising in consequence of his disability? Before looking at what the claimant stated in his pleadings or other correspondence it is worth considering what it is that would be required to set out a claim under Section 15 EA. Firstly the claimant would need to set out that the respondent treated the claimant unfavourably because of an identified “something”. Secondly it would need to be established that that “something” arose in consequence of the claimant’s disability.[63]Is this a new claim or simply a re-labelling of an existing claim already set out in the pleadings? The claim as currently pled in the ET1 is a direct discrimination claim under Section 13 EA. The ET1 specifically refers to “direct discrimination due to his self-declared autism”. There was no reference to a Section 15 EA claim in the ET1. This was first raised in the Agenda prepared by the claimant for the first preliminary hearing on 6 April 2021. In the Agenda, Schedule 2 at D5 in response to the question “If you complain about discrimination arising from disability, in what way do you say that the respondent treated you “unfavourably because of something arising as a consequence of your disability”?” the claimant (or more accurately Mr Watson) responded “James was treated differently from other applicants. 7 disabled people applied – 3 were given interviews and 4 were not. James met the criteria for an interview and therefore I can only conclude that it was something else on the form that did not get him an interview – I think the Council took the view that autism and joinery did not mix”. The claimant then expanded upon the grounds of his Section 15 EA claim in his written response to the Orders following the Preliminary Hearing on 6 April (sent by e mail on 12 April 2022). The Tribunal has reviewed that written response and the response to D5 at Schedule 2 to the Agenda but cannot discern from that what the grounds for a Section 15 EA claim might be. Indeed it would appear largely to be a re-statement of the direct discrimination claim. In particular it is not clear what the “something” might be. In his oral submissions Mr Swan stated that the “something” was the application of the interview processes as at June 2021 and as at December 2021. However, it is not clear to the Tribunal what the claimant means by that. The claimant’s case, based on the ET1, is that he was not provided with an interview in or about June 2021 and that the interview he had in December 2021 was either a sham or (based on the now allowed amendment) that there was a failure to make reasonable adjustments in respect of that interview. It is not clear on what basis the claimant is now alleging (for the purposes of a Section 15 EA claim) that he was treated unfavourably because of the interview process and how that “interview process” arose in consequence of his disability. It is not clear to the Tribunal on what basis the amendment is being put forward. Chief Constable of Essex Police -v- Kovacevic UKEAT/0126/13 highlighted the importance of only determining an application to amend when the Tribunal has the actual proposed amendment before it. The Tribunal does not have the proposed amendment before it in writing and does not consider that there is sufficient set out in the written responses provided to date by the claimant to set out a valid case under Section 15 EA – as these responses would not allow the respondent to know the case that it faces under Section 15 EA. Accordingly the Tribunal refuses the application to amend at this time on the grounds that it is simply not clear what the amendment would be. This is in contrast to the position regarding the proposed amendment in relation to the Section 20 EA claim where full detail was set out by the claimant in the written response on 27 April 2022.[64]Finally in relation to the fifth issue – as the claimant has been given leave to amend in respect of the Section 20 EA claim the Tribunal permits the claimant 14 days within which to provide a written clarification of the terms of the Section 20 EA claim (on the basis that this will be broadly consistent with the Section 20 EA claim set out in writing on 27 April 2022) and the respondent shall have 28 days within which to respond to that Section 20 EA claim.