Mr G NashClaimantArgyll and Bute CouncilRespondent
Before
Employment Judge W A MeiklejohnMrs A Weaver (instructed by Solicitor) for respondentDate 3 December 2021
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant was disabled within the meaning of section 6(1) of the Equality Act 2010 at the relevant time for the purpose of his complaints of unlawful discrimination.
REASONS
[1]This case came before me for an open preliminary hearing, conducted remotely by means of the Cloud Video Platform, to determine whether the claimant was disabled within the meaning of section 6(1) of the Equality Act 2010 (“EqA”) at the relevant time for the purpose of the complaints of unlawful discrimination he brought against the respondent. The claimant appeared in person and Mrs Weaver represented the respondent. Procedural history[2]The claimant presented his ET1 claim form on 2 July 2020 following ACAS early conciliation which commenced with the claimant’s notification to ACAS on 18 May 2020 and ended with the issuing of the early conciliation certificate on 26 June 2020. The respondent’s ET3 response form was submitted on 3 August 2020.[3]At a closed preliminary hearing (before me) on 7 October 2020, Mrs Weaver confirmed that the respondent did not accept that the claimant had been disabled at the relevant time. I directed that the claimant should provide a disability impact statement (or statements).[4]The claimant duly complied and also provided statements from his wife, Mrs G Nash, from his former line manager, Mr A McCulloch, and from his father, Mr G Nash (to whom I will refer as Mr Nash Snr). Mrs Weaver responded to these, stating that the respondent maintained its position that disability was not conceded.[5]Following a further closed preliminary hearing on 21 April 2021 (before Employment Judge Wiseman), the present hearing was fixed to determine the issue of whether the claimant was disabled at the relevant time.
Preliminary matters
[6]A number of matters were discussed at the start of the hearing (and subsequently). I have recorded these in a separate Note.
Evidence
[7]I heard evidence from the claimant and, on his behalf, from Mrs Nash, Mr McCulloch and Mr Nash Snr. I had an electronic bundle of documents from the claimant in a Dropbox file. I also had an electronic bundle from the respondent. Findings in fact[8]I should state at the outset that it is not the function of the Tribunal to record every piece of evidence presented to it and I have not attempted to do so. I have focussed on those parts of the evidence which were most relevant to the issue I had to decide, ie whether (rather than why) the claimant was disabled at the relevant time. I have deliberately sought to avoid making findings in fact which might impact on the determination of the complaints brought by the claimant.[9]It was a matter of agreement between the parties that the relevant time for the purpose of those complaints was 7 February 2020 to 3 September 2020. Claimant’s work[10]The claimant was employed by the respondent as a Senior Engineer between December 2017 and 30 September 2020. Mr McCulloch was his line manager. The claimant had previously worked for an engineering consultancy firm in New Zealand. Before that he had worked for the respondent.[11]In his role as Senior Engineer, the claimant managed six employees. One of these proved difficult. There was an incident in March 2018 when the employee refused to attend a site meeting on Islay. This led to informal disciplinary action initiated by the claimant. There was a further incident in March 2019 when the employee was verbally abusive towards the claimant. Shortly thereafter the employee again refused to go to Islay. The employee raised a grievance against the claimant which was pursued to the appeal stage but rejected. This delayed (because of doubtful HR advice) disciplinary action against the employee. There were further incidents involving the employee and the claimant in September 2019. Claimant describes his “normal” self[12]The claimant described himself as naturally resilient, good natured and long suffering. He was by nature a “glass half full” person. He had no history of long term absence from work nor of mental health issues. Claimant describes changes[13]The claimant said that his sleep pattern “became increasingly interrupted”. He normally slept for seven/eight hours each night and described himself as a “quite heavy sleeper” who did not normally wake up in the middle of the night. From around March 2019 the claimant described going to bed “mentally exhausted” and being unable to get to sleep easily. He would get up once or twice during the night. Issues at work “dominated” his thoughts.[14]The claimant described a negative impact on family relationships and social interactions. Normally his focus was to support his wife and family, and to enjoy what Scotland had to offer. From around March 2019, he said that he gave “lip service” to spending quality time with his family, such as bike rides with his son. He developed a “short fuse”. He brought his pent-up anxiety home and his family bore the brunt of this.[15]The claimant also described how he found it “increasingly difficult to find the desire to exercise regularly”. He said that his enjoyment of exercise diminished as unresolved issues at work tended to dominate his thinking.[16]While the claimant spoke of putting on his “game face” at work, he described how his ability to focus on problems was affected by the “physical and mental effects of unresolved issues at work”. He would normally promote face-toface communication but he found that this became strained and he would focus on written communication. He described the prospect of dealing with the difficult employee as “nauseating”. He was reluctant to carry out this employee’s annual performance review and had to be persuaded by Mr McCulloch to do so. The claimant described his ability to focus on his work as “compromised” as his underlying focus was elsewhere. Mrs Nash describes the claimant[17]Mrs Nash described the claimant as patient and long suffering. She said that he was by nature “calm and peaceable”. He was not keen on confrontation. He was “level headed and easy going”.[18]From March 2019 Mrs Nash noticed a change in the claimant’s disposition. During a family holiday in late March/early April 2019 the claimant was “very low on enthusiasm and enjoyment”. He seemed more stressed than normal on holiday and seemed not to have switched off completely. Mrs Nash described the claimant as “withdrawn and distant”.[19]After the family holiday, Mrs Nash described a noticeable lessening in the claimant’s motivation for normal activities. She referred to family cycling and playing football or boules in the garden. The claimant would not participate and would say things like “I can’t think right now” or “I can’t do that just now”. He seemed “overwhelmed”.[20]At the time of their tenth wedding anniversary in July 2019, Mrs Nash had wanted to arrange a family gathering but the thought of this was too much for the claimant. He said he did not want to do anything. He told Mrs Nash “just get yourself something”. Mrs Nash again described him as “overwhelmed with something” and spoke of his “agitation”.[21]Mrs Nash referred to a visit by friends from New Zealand in August/September 2019. They expressed concern to her about the claimant. They noticed a change in his personality, his nervous ticks, his inability to concentrate and his lack of energy, enthusiasm and motivation. They described him as “very narky”. This made Mrs Nash more aware of the changes in the claimant’s personality.[22]Mrs Nash observed that during 2019 the claimant was having difficulty in concentrating. He became “paranoid” about safety. He was “obsessive” about checking that taps were tuned off. He lost interest in social activities.[23]Mrs Nash described how the claimant’s sleep pattern became erratic. Previously he would sleep for eight hours but during 2019 he began to wake during the night and be unable to get back to sleep. He had difficulty getting out of bed in the morning.[24]Mrs Nash described how the change in the claimant affected their son. It was difficult for a child to express but he understood when the claimant narked at him that “Daddy was stressed”. He stopped asking the claimant to play football or go on the bike.[25]Mrs Nash also described physical changes in the claimant. He developed digestive problems. From around November 2019 he began to lose his hair, and his hair and beard started to turn grey. He suffered from palpitations, on one occasions sufficient to cause Mrs Nash to consider calling an ambulance. Claimant consults his GP[26]Towards the end of 2019 Mrs Nash encouraged the claimant to consult his GP. She was concerned about his physical and mental wellbeing. The claimant did so on 17 January 2020. He asked for a “To whom it may concern” letter to give to the respondent. He was provided with such a letter dated 20 January 2020 in these terms – “Mr Nash attended the surgery at Lochgilphead on 17 January 2020. He has been under a considerable amount of work related stress for the last 18 months. It is clear that this is now having negative impact on his health. He will return for follow up consultation in 2 weeks time to reassess the situation.”[27]Following his GP appointment the claimant sent an email to Mr J Smith, Head of Service (and Mr McCulloch’s line manager), on 17 January 2020 stating that he had “not requested to be signed off work at this stage due to stress” but indicating that his GP had confirmed that he was “prepared to do so if requested”. Claimant commences sickness absence[28]The claimant began a period of medically certified absence from work on 10 February 2020. His fit notes gave the reason for absence as “stress at work”. That absence continued until 24 August 2020.[29]The claimant was asked in cross-examination about the effect on his health of the principal stressor being removed by reason of his absence. He acknowledged this but indicated that there had been other events during his absence which had added to his stress levels. He referred to the change of line manager (in terms of managing his absence), the sharing of an OH report (which he regarded as a data protection breach) and delays in the absence management process. The claimant said that the lack of resolution and the fact that his entitlement to contractual sick pay was running out contributed to his stress.[30]Mrs Nash confirmed that the state of the claimant’s mental health continued to deteriorate after he went off sick. She said that he had enjoyed a good relationship with Mr McCulloch and the change of line manager (in terms of managing his absence) had been stressful for him. He had been “overwhelmed” by what he perceived as a GDPR breach. He lost hope of there being a resolution.[31]Mrs Nash said that the claimant’s nervous ticks got worse and that he was “constantly agitated and fidgety”. She said that he “panicked” when the phone rang or an email arrived. He began to suffer from profuse sweating. Mrs Nash described life being “very sad and difficult” for the claimant. Occupational health reports[32]The respondent referred the claimant to PAM OH Solutions on three occasions. The first OH report was dated 11 March 2020. The OH opinion was as follows – “In my opinion, the ongoing perceived work issue requires to be addressed in order for Mr Nash to recover and resume work sooner rather later (sic). Over the past two years, the build up of stress has clearly affected him and this was also noted by his family members. Mr Nash describes difficulties with his sleep pattern, focus/concentration and also having a good work-life balance. Since this has become more apparent this year, his GP recommended that he takes some time away from work….I do not think that he requires medication for his reactive stress but if the matters are not dealt with, he may be vulnerable to worsening symptoms including chronic anxiety and depression.”[33]In response to a question about whether the claimant was likely to be able to make a return to the full duties of his post within the next three months, the report stated “Yes – see comments above”. That was a reference to the need to resolve the “work issue” to enable the claimant to recover and resume work, i.e it was conditional.[34]The second OH report was dated 19 June 2020. The OH opinion was expressed in these terms – “In my opinion, the ongoing perceived work issue requires to be addressed further in order for Mr Nash to be able to consider resuming work. As advised previously, I do not think that he requires medication for his reactive stress but if the matters are not dealt with in a timely manner, he remains vulnerable to worsening symptoms including chronic anxiety and depression.”[35]The same question about the claimant’s ability to return within the next three months was answered in a similar conditional way – “Yes – if an agreement could be reached by both parties”.[36]The third OH report was dated 19 August 2020. In the current issues section, the report recorded that the claimant “describes ongoing psychological symptoms dating back to 18 months when the perceived work issues started”. The OH opinion was as follows – “In my opinion and as previously advised, the ongoing perceived work issues requires to be addressed further in order for Mr Nash to be able to consider resuming work in any capacity. He is suffering from symptoms of reactive stress and anxiety which in most cases would improve once the trigger for stress has been addressed.”[37]In this report the question about a return to work was again asked and answered, but on this occasion the period specified was seven, not three, months. The answer given was - “See comments above. A return to work could only be anticipated if the perceived work issues can reach some resolution. It would be difficult to predict any specific timescales for this.” Second GP letter[38]The claimant produced a second “To whom it may concern” letter, this time from his usual GP, dated 9 July 2020. This letter was in these terms – “I am Graham Nash’s regular general practitioner. I have been seeing Mr Nash on a regular basis since January 2020 in relation to his ongoing stress at work. He was finding that his ongoing perceived stress at work was now impacting his general health, sleep, mood and home life. Unfortunately, by February 2020 perceived stress at work was affecting Mr Nash so significantly we agreed that it would be much better for his physical and mental health to take a break from work. He was encouraged at this time to continue discussions with his line manager to find a way forward that could manage these issues and so facilitate a return to work as soon as possible. I understand that Mr Nash has had several meetings with his line management and has also been assessed by occupational health. I understand that occupational health has recommended that if the situations at work causing the ongoing stresses could be remedied that Mr Nash could return to work. I have also been writing on Mr Nash’s sick lines that a return to work could be expatiated [expedited?] if these ongoing stresses could be alleviated. I do feel that Mr Nash’s general health both mental and physical would be greatly improved if he could return to work.” Claimant requests medication[39]On 24 August 2020 the claimant told Mr McCulloch that he was returning to work. On 25 August 2020 the claimant emailed his GP in terms which indicated that they had spoken on 24 August 2020. He said that he and his wife had been discussing “treatments as discussed yesterday” and requested a prescription. The GP replied on 26 August 2020 confirming that a prescription would be available later that day. This was for anti-depressant medication, which the claimant continues to take. Evidence of Mr McCulloch and Mr Nash Snr[40]Mr McCulloch’s evidence was broadly supportive of the claimant in terms of his having mental health issues from January 2020 onwards. Mr Nash Snr became involved in phonecalls between the claimant and the respondent from May 2020. He had become aware that the claimant had an issue at work in February 2020 because Mrs Nash had spoken to his wife, but he “respected [the claimant’s] privacy”.[41]Mr McCulloch agreed that the claimant had referred to his “game face” before he went off sick. It was apparent that while Mr McCulloch was aware that the claimant was unhappy about matters relating to the difficult employee, he was not aware of the impact of this on the claimant outside of work.[42]Similarly, Mr Nash Snr was unaware of the issues troubling the claimant until he became involved in May 2020. He spoke of leaving his children to lead their lives and not checking up on them. When he became involved, he noticed that the claimant became “increasingly anxious” and was “quick to react” which was not his normal manner. Comments on evidence I found all of the witnesses credible.[44]Without wishing to be disrespectful to them, the evidence of Mr McCulloch and Mr Nash Snr added little to my assessment of whether the claimant satisfied the statutory definition of disability at the relevant time. That was because there was ample evidence that the claimant was suffering from a mental impairment at the relevant time. The key issue was whether the other elements of the statutory definition were satisfied, and their evidence did not contribute anything of significance to that.[45]The claimant was, not surprisingly, somewhat uncomfortable when recalling events and emotions which he would have preferred never to have happened. However, his evidence was measured and not overstated.[46]Mrs Nash was robust in her support of the claimant. She was challenged in cross examination about the much greater level of detail in her oral evidence when contrasted with the terms of her disability impact statement. Her response was that it was the first time she had written such a statement. She had done it herself as she did not want the claimant or anyone else to help her. She asserted that her testimony was not inconsistent with her statement but added details.[47]That answer served to enhance Mrs Nash’s credibility. By linking her observation of the claimant’s behaviour to particular events where she could be certain of the dates, she provided a compelling account of the impact on the claimant of his mental impairment. Submissions – claimant[48]The claimant accepted that the burden of proof was on him to demonstrate that he was at the relevant time disabled within the meaning of EqA. He sought to dispel any suggestion that he had obtained letters from his GP with the intention of pursuing a claim against the respondent. He described it as “ludicrous” that he would deceive his GP and his wife and family, and take long term medication, just to help him win a disability claim.[49]The claimant argued that he had demonstrated that he had an impairment. His wife, Mr McCulloch and his father had all seen the changes in his character from different perspectives. His wife had seen the problems develop and had described them eloquently.[50]The claimant submitted that the effects of his impairment had been substantial. They had impacted on him day to day. This was supported by the evidence from his GP and OH. He had not “flicked a switch” in February 2020. The problem had developed over a long period. His own evidence and that of Mrs Nash indicated that he had been impacted from March 2019.[51]The claimant, in the context of whether his impairment was likely to last twelve months or more, referred to SCA Packaging v Boyle [2009] UK 37. “Likely” meant “could well happen”. Submissions – respondent[52]Mrs Weaver reminded me that there were four elements to the definition of disability in section 6 EqA – it was for the claimant to establish a mental impairment which had a substantial and long-term effect on his ability to carry out normal day-to-day activities. “Substantial” was defined in section 212 EqA and meant “more than minor or trivial”. In terms of Schedule 1, paragraph 2 EqA, “long-term” meant that the impairment had to have lasted twelve months or be likely to last twelve months.[53]Mrs Weaver reminded me of the ways in which the claimant’s impairment had been described by his GP, including in his fit notes, by OH and by the claimant himself. She suggested that the starting point should be to look at the claimant’s ability to carry out normal day-to-day activities. The Tribunal would have to make a decision on the truthfulness of the evidence presented.[54]The claimant was saying that Mrs Nash seemed to know more about the effects on him than he himself did. She gave much more information during her evidence than was in her disability impact statement. Mrs Weaver pointed out that the claimant and Mrs Nash were not independent in the sense that they had an interest in the outcome.[55]While further medical evidence was not essential, the available evidence was limited and the Tribunal should look closely at the GP letters and fit notes and the OH reports. Mrs Weaver stressed that the focus was on the claimant’s ability to carry out normal day-to-day activities, not on his enjoyment of or inclination to do those activities. She referred to Aderemi v London and South Eastern Railway Ltd UKEAT/0316/12 (at paragraph 14) – “It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is on (sic) adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial in section 212(1) of the Act. It means more than minor or trivial.”[56]There had to be an impairment within the statutory definition, as opposed to a reaction to life events – Herry v Dudley Metropolitan Borough Council UKEAT/0069/19. The respondent accepted that the claimant had problems at work which resulted in stress, but not that he had a mental impairment satisfying the statutory definition. He spoke of not feeling like doing things, but there was a lack of evidence about his ability to do them.[57]In answer to a question from me about the impact on the claimant’s sleeping pattern, Mrs Weaver acknowledged that the claimant said he had trouble sleeping but queried the extent of the problem. It was normal for stress at work to cause problems sleeping. While the claimant spoke about such problems, Mr McCulloch said nothing to that effect in his evidence and indeed referred to the claimant’s conduct being “exemplary”. The Tribunal could not be satisfied that the claimant’s ability to carry out normal day-to-day activities at work was affected if his line manager did not notice.[58]If it was accepted that the claimant had a mental impairment, when did he have it and was it long-term? Mrs Weaver noted that the claimant did not go to his GP until January 2020. There was no clear evidence that he went for treatment or indeed needed treatment. Arguably he went to obtain the GP’s first letter to try to resolve a workplace situation. There was no evidence that he had gone to his GP because of his physical symptoms such as palpitations. The lack of medical evidence made it more difficult to be convinced about the seriousness of the claimant’s symptoms or the long-term nature of the claimed disability.[59]Mrs Weaver referred to J v DLA Piper UKEAT/0263/09 (at paragraph 40) – “Accordingly in our view the correct approach is as follows:(1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin.(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense….to start by making findings about whether the claimant’s ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings.(3) These observations are not intended to, and we do not believe that they do, conflict with the terms of the Guidance or with the authorities referred to above….”[60]Referring to Goodwin v The Patent Office [1999] IRLR 4, Mrs Weaver said that the Tribunal should not go through rigid consecutive stages but , where the existence of an impairment was in dispute, should look at the effect on the claimant’s ability to carry out normal day-to-day activities on a long-term basis. Mrs Weaver urged me to find that the claimant had not shown that he had a disability, looking at the elements of the statutory definition.
Applicable law
[61]The definition of disability is found in section 6(1) EqA – “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.”[62]This is supplemented by Schedule 1 EqA which, so far as relevant, provides as follows – “2. Long-term effects (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 at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.” Guidance[63]I reminded myself of the Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) (the “Guidance”). I noted in particular the following parts of the Guidance –(a) Section A3 (Meaning of “impairment”) states – “The definition requires that the effects which a person may experience must 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. In many cases there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.”(b) Section B9 states – “Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty.”(c) Section C3 (Meaning of “likely”) states – “….”likely” should be interpreted as meaning that it could well happen”.(d) In relation to the meaning of “normal day-to-day activities”, Section D2 states – “It is not possible to provide an exhaustive list of day-to-day activities, although guidance on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix.”(e) In the Appendix, the list of factors which it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities includes –• Persistent general low motivation or loss of interest in everyday activities.• Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships, for example because of a mental health condition or disorder.• Persistent distractibility or difficulty concentrating.• Compulsive activities or behaviour, or difficulty in adapting after a reasonable period to minor changes in a routine.
Discussion
[64]In Goodwin the Employment Appeal Tribunal said that the words of the section (at that time section 1(1) of the Disability Discrimination Act 1995 – the terms of which are identical to section 6(1) EqA) require a Tribunal to look at the evidence by reference to four different conditions – “(1) The impairment condition Does the applicant have an impairment which is either mental or physical? (2) The adverse effect condition Does the impairment affect the applicant’s ability to carry out normal day to day activities….and does it have an adverse effect? (3) The substantial condition Is the adverse effect (upon the applicant’s ability) substantial? (4) The long-term condition Is the adverse effect (upon the applicant’s ability) long-term?”[65]I considered whether the claimant had an impairment. I looked at the following parts of the evidence –(a) The claimant’s own evidence – he described himself as “naturally resilient, good natured and long suffering”. I accepted his evidence about the changes in his disposition. The work issue involving the difficult employee began to dominate his thoughts. His sleep pattern became disturbed. He became short-tempered. He lost his appetite for and enjoyment of family life and exercise including things like cycling or playing football with his son.(b) The evidence of Mrs Nash – her observations about the changes in the claimant mirrored his own evidence. Her description of those changes painted a graphic picture of a material deterioration in the claimant’s disposition and mood. The linking of those observations to particular events such as the family holiday in March/April 2019 and the visit by friends from New Zealand in August/September 2019 made her evidence compelling.(c) The evidence relating to the claimant’s GP – the letter of 20 January 2020 confirmed that the claimant’s stress at work was having a negative impact on his health. The fit notes confirmed a diagnosis of stress at work. The letter of 9 July 2020 confirmed that perceived stress at work was affecting the claimant to an extent that he needed a break from work.(d) The OH evidence – I reminded myself of the passages quoted at paragraphs 32-37 above.[66]I found that all of this evidence pointed to the claimant having a mental impairment at the relevant time. His disposition and mood had changed for the worse. Impairment is the state or fact of being impaired. The definition of “impaired” is “weakened or damaged”. I considered that those words were apt to describe the claimant. He did have a mental impairment at the relevant time.[67]I next considered whether the claimant’s impairment affected his ability to carry out normal day-to-day activities, and whether that effect was adverse. I gave careful thought to Mrs Weaver’s argument that, per Aderemi, the focus was on the claimant’s ability to carry out those activities. I found no evidence that the claimant was unable, in the physical sense, of doing things like cycling or playing football with his son. I did find that his motivation to do these things was affected.[68]I came to the view that it would be wrong to approach “ability” in the binary sense of simply looking at whether someone is able to do an activity or they are not. “Ability” means possession of the means or skill to do something. Persistent low motivation or loss of interest in everyday activities is included within the Guidance as an example of a factor which it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. Having the “means” to do something seems to me to include having a state of mind which does not amount to a barrier to doing the activity. Viewed in that way, the claimant’s lack of motivation and low mood did affect his ability to engage in activities like cycling and football.[69]It was a matter of regret for the claimant that he had lost his enthusiasm for activities, such as exercise, which he previously enjoyed. He was not able to derive enjoyment from things he previously enjoyed. I had no difficulty in deciding that this was an adverse effect on the claimant.[70]Even if I had been persuaded by Mrs Weaver’s argument on “ability”, I would still have found that the claimant’s impairment had an adverse effect on his ability to carry out a range of day-to-day activities. These included social interaction, concentration and sleeping. I accepted the claimant’s evidence, which was supported by Mrs Nash’s evidence (see paragraphs 20-23 above), about these matters.[71]I moved on to consider whether the adverse effects on the claimant were substantial. “Substantial” means more than minor or trivial – section 212(1) EqA. The changes in the claimant’s mood and disposition were, in my view, quite clearly more than minor or trivial. They were sufficient to cause friends who had not seen the claimant for some years to express concern about the change in his personality. They caused Mrs Nash to become concerned. They were apparent to the claimant’s young son. The claimant reported to his GP that his perceived stress at work was “impacting his general health, sleep, mood and family life”.[72]Finally, I addressed the long-term condition. For this to be satisfied, at the relevant time (i.e between 7 February and 3 September 2020) the claimant’s mental impairment had to either(a) have lasted for at least twelve months or(b) be likely to last for at least twelve months. This required me to form a view about when the claimant had come within the definition in section 6(1) EqA (apart from the long-term aspect).[73]I decided that there was sufficient evidence to indicate that the claimant had first come within the statutory definition (apart from the long-term aspect) in March 2019, ie from that time he had a mental impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities. He spoke of “mental exhaustion” and a change in his sleeping pattern at that time. Mrs Nash spoke of his being “low on enthusiasm and enjoyment” and “withdrawn and distant” during the family holiday in March/April 2019. These were adverse effects on his ability to carry out normal day-to-day activities such as social interaction and sleep.[74]I noted the point Mrs Weaver made about the GP’s letters referring to his stress “now having negative impact on his health” (January 2020) and “now impacting his general health, sleep, mood and home life” (July 2020) (my emphasis on “now”). I understood Mrs Weaver to be asking me to conclude that the use of the word “now” implied that the adverse impact had not previously existed. I did not agree with that. I did not read into the use of the word “now” that the state of affairs being described had not existed the week before, or the month before, or even the year before. I considered that it did no more than describe how the claimant presented at the time of the consultation in the case of the January letter. In the case of the July letter “now” was used in the context of referring back to the January consultation (“he was finding….”).[75]The consequence of my finding that the claimant had first come within the statutory definition of disability (apart from the long-term aspect) in March 2019 was that he satisfied the long-term condition as from March 2020. I found that he continued to do so until the end of the relevant period (3 September 2020). Although he returned to work as from 24 August 2020, I noted that he had sought a prescription for anti-depressant medication the following day and his GP’s willingness to prescribe these indicated that he continued to suffer from his mental impairment.[76]To determine if the claimant satisfied the statutory definition of disability as at 7 February 2020, I had to decide whether, judged at that time, his impairment was likely to last for at least twelve months. I noted that the claimant said in his email to Mr Smith on 17 January 2020 that his GP was prepared to sign him off work due to stress (see paragraph 27 above). I reminded myself that “likely” meant “could well happen”. I was satisfied that as at 7 February 2020, when the claimant had been within the statutory definition (apart from the long-term aspect) for around eleven months, it could well happen that he would remain within that definition (apart from the long-term aspect) for at least twelve months.[77]Lest I be criticised for proceeding by “rigid consecutive stages” I should add that if I had started by looking at the effect on the claimant’s ability to carry out normal day-to-day activities, I would have come to the same conclusion. Similarly, if I looked at matters in the round, I came to the same outcome.[78]Accordingly, my decision is that at the relevant time (i.e. between 7 February and 3 September 2020) the claimant was disabled within the meaning of section 6(1) EqA.
Discussion
[1]The claimant’s claims of victimisation are dismissed on withdrawal.[2]The claimant’s claim for indirect disability discrimination is dismissed under Rule 37 of the Rule of Procedure 2013 as having no reasonable prospect of success.[3]The claims set out at paragraphs 35, 37, 38, 39 and 40 of the Reasons below shall proceed to a final hearing.
Introduction
[1]This case was listed for an open preliminary hearing to consider the respondent’s application to strike out some or all of the claims being pursued by the claimant. I had before me a copy of the Tribunal’s file and in particular the order for the claimant to provide further particulars of his claims, his response to that order and the respondent’s subsequent application for strike out.[2]It is not necessary for me to set out the procedural history of this claim given that there have already been several preliminary hearings dealing with various matters which adequately set out what has happened to date. However, despite those preliminary hearings the claimant was unable to sufficiently particularised his complaints in such a way that they would be understood by both the respondent and the tribunal ultimately hearing the claim. it was in that context that further particularisation was ordered.[3]Following receipt of the further particulars miss Weaver on behalf of the respondent produced a detailed set of written submissions seeking a strikeout of what she understood to be the extant claims being pursued by the claimant.[4]Having read the file and in particular the claimant’s further particulars it was clear that there were a number of difficulties with the claimant’s response to the order. These are first that the claimant had not clearly signposted what less favourable or unfavourable treatment he had suffered, nor had he specified in relation to his victimisation claims the protective act he relies upon and in general there was still a lack of detail over the applicable law to the particular factual allegation. For that reason, I spent the first part of the hearing going through the claimant’s further particulars with him in order to determine what factual claims were being pursued and what the causes of action were in relation to those claims. I set these out below.
Relevant law
[5]The material parts of the Tribunal Rules are as follows: “Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success… Direct disability discrimination[6]In relation to direct discrimination, for present purposes the following are the key principles.[7]Under section 13 Equality Act 2010 (EqA), there are two issues:(a) less favourable treatment and(b) the reason for that less favourable treatment. These questions need not be answered strictly sequentially (Shamoon v Chief Constable of the Royal Ulster Constabulary 2003 ICR 337).[8]Given the treatment must be “less favourable” a comparison is required, and a comparator must “be in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class” (Shamoon above).[9]The burden of proof is set out in section 136 EqA. The leading cases on the burden of proof pre-date the Equality Act (Igen Ltd v Wong 2005 EWCA Civ 142 and Madarassy v Nomura international Plc 2007 EWCA Civ 33, [2007] IRLR 246) but in Hewage v Grampian Health Board 2012 the Supreme Court approved the guidance given in Igen and Madarassy.[10]By virtue of section 136, it is for a claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, absent any explanation from the respondent, that the respondent has discriminated against the claimant. If the claimant does that, the burden of proof shifts to the respondent to show it did not discriminate as alleged.[11]In Madarassy v Nomura international Plc 2007 EWCA Civ 33, the Court of Appeal held that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status (e.g. sex) and a difference in treatment. This merely gives rise to the possibility of discrimination. Something more is needed.[12]Any inference about subconscious motivation has to be based on solid evidence (South Wales Police Authority v Johnson 2014 EWCA Civ 73).[13]As well as direct disability discrimination the claimant also seeks to pursue claims for indirect disability discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment related to disability. The claimant intimated he was making a claim for victimisation but for the reasons set out below that is no longer the case. Finally, the claimant is making a claim for breach of contract Section 15 Equality Act 2010 (EqA)[14]Section 15 EqA, which is headed ‘Discrimination arising from disability’, provides that a person(a) (A) discriminates against a disabled person(b) (B) if:a. A treats B unfavourably because of something arising in consequence of B’s disability, andb. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.[15]Section 15(2) goes on to state that ‘[S.15(1)] does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.’ In other words, if the employer can establish that it was unaware — and could not reasonably have been expected to know — that the claimant was disabled, it cannot be held liable for discrimination arising from disability.[16]In Secretary of State for Justice and anor v Dunn EAT 0234/16 the EAT (presided over by Mrs Justice Simler, President) identified the following four elements that must be made out in order for the claimant to succeed in a S.15 claim:a. there must be unfavourable treatmentb. there must be something that arises in consequence of the claimant’s disabilityc. the unfavourable treatment must be because of (i.e. caused by) the something that arises in consequence of the disability, andd. the alleged discriminator cannot show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.[17]The EHRC Employment Code indicates that unfavourable treatment should be construed synonymously with ‘disadvantage’. It states: ‘Often, the disadvantage will be obvious and it will be clear that the treatment has been unfavourable; for example, a person may have been refused a job, denied a work opportunity or dismissed from their employment. But sometimes unfavourable treatment may be less obvious. Even if an employer thinks that they are acting in the best interests of a disabled person, they may still treat that person unfavourably’ — para 5.7.[18]In Pnaiser v NHS England and anor 2016 IRLR 170, EAT, Mrs Justice Simler considered the authorities, and summarised the proper approach to establishing causation under S.15. First, the tribunal has to identify whether the claimant was treated unfavourably and by whom. It then has to determine what caused that treatment — focusing on the reason in the mind of the alleged discriminator, possibly requiring examination of the conscious or unconscious thought processes of that person, but keeping in mind that the actual motive of the alleged discriminator in acting as he or she did is irrelevant. The tribunal must then determine whether the reason was ‘something arising in consequence of the claimant’s disability’, which could describe a range of causal links. This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.[19]The distinction between conscious/unconscious thought processes (which are relevant to a tribunal’s enquiry on a S.15 claim) and the employer’s motives for subjecting the claimant to unfavourable treatment (which are not) was described by Simler J in Secretary of State for Justice and anor v Dunn EAT 0234/16 in the following terms: ‘[Counsel for the claimant asserts] that motive is irrelevant. Moreover, he submits that the claimant did not have to prove the reason for the unfavourable treatment but simply that disability was a significant influence in the minds of the decision-makers. We agree with him that motive is irrelevant. Nonetheless, the statutory test requires a tribunal to address the question whether the unfavourable treatment is because of something arising in consequence of disability… [I]t need not be the sole reason, but it must be a significant or at least more than trivial reason. Just as with direct discrimination, save in the most obvious case, an examination of the conscious and/or unconscious thought processes of the putative discriminator is likely to be necessary’. The enquiry into such thought processes is required to ascertain whether the ‘something’ that is identified as having arisen as a consequence of that claimant’s disability formed any part of the reason why the unfavourable treatment was meted out.[20]In Hall v Chief Constable of West Yorkshire Police 2015 IRLR 893, EAT, the EAT clarified that a claimant needs only to establish some kind of connection between the claimant’s disability and the unfavourable treatment. Harassment[21]Three forms of behaviour are prohibited under S.26 EqA, which is entitled ‘Harassment’:a. ‘general’ harassment, i.e. conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment — S.26(1);b. sexual harassment — S.26(2); andc. less favourable treatment following harassment — S.26(3).[22]The general definition of harassment set out in S.26(1) applies to all protected characteristics except marriage and civil partnership and pregnancy and maternity. It states that a person(a) (A) harasses another(b) (B) if:a. A engages in unwanted conduct related to a relevant protected characteristic — S.26(1)(a); andb. the conduct has the purpose or effect of (i) violating B’s dignity; or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B — S.26(1)(b).[23]There are three essential elements of a harassment claim under S.26(1):a. unwanted conduct;b. that has the proscribed purpose or effect; andc. which relates to a relevant protected characteristic. Failure to make reasonable adjustments[24]Section 20 EqA states that the duty to make adjustments comprises three requirements:a. a requirement, where a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage — S.20(3)b. a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage — S.20(4)c. a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid — S.20(5).[25]In the case of an employer, a ‘relevant matter’ for the above-mentioned purposes is any matter concerned with deciding to whom to offer employment and anything concerning employment by the employer — para 5, Sch 8.[26]In Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194, CA, the Court of Appeal held that the duty to comply with the reasonable adjustments requirement under S.20 begins as soon as the employer can take reasonable steps to avoid the relevant disadvantage.[27]It is no part of the duty to make reasonable adjustments for the employer actively to consult the employee about what adjustments should or could be made (Tarbuck v Sainsbury’s Supermarkets Ltd 2006 IRLR 664, EAT). Indirect disability discrimination[28]The definition of indirect discrimination is contained in S.19 EqA. All four conditions in S.19(2) must be met before a successful claim for indirect discrimination can be established. That is:a. there must be a PCP which the employer applies or would apply to employees who do not share the protected characteristic of the claimant;b. that PCP must put people who share the claimant’s protected characteristic at a particular disadvantage when compared with those who do not share that characteristic;c. the claimant must experience that particular disadvantage; andd. the employer must be unable to show that the PCP is justified as a proportionate means of achieving a legitimate aim. Strike out[29]Turning to the strike out provisions of the Rules, I note that claims of discrimination are rarely struck out where there is a factual dispute between the parties (Anyanwu v South Bank Student Union 2001 UKHL 14, and also see Mechkraov v Citibank NA 2006 ICR 1121). However, the test is of course whether there is no reasonable prospect of success, even if there are factual disputes.[30]Having said that, I note that I should, when considering strike out, take the claimant’s pleaded case at its highest however, I do not lose sight of the fact that in many, indeed almost certainly in most claims of discrimination the Tribunal will need to draw inferences from disputed findings of fact which I am not in a position to, and indeed nor should I, do. Those inference may be critical in many cases.[31]Caution should be exercised if a case has been badly pleaded, for example, by a litigant in person whose first language is not English. Taking the case at its highest may well ignore the possibility that it could have a reasonable prospect of success if properly pleaded. In Mbiusa v Cygnet Healthcare Ltd UKEAT/0119/18 (7 March 2019, unreported) it was held that in view of the lack of clarity as to the claimant's arguments, the proper course of action would be to establish more precisely what the claimant was arguing, if necessary make amendments and then, if still in doubt about chances of success, make a deposit order. At paragraph 21 Judge Eady provided useful guidance about the problem of imprecise pleading, particularly by litigants in person, as follows: ''Particular caution should be exercised if a case is badly pleaded, for example, by a litigant in person, especially in the case of a complainant whose first language is not English: taking the case at its highest, the ET may still ignore the possibility that it could have a reasonable prospect of success if properly pleaded, see UKEAT/0098/16 at para 15. An ET should not, of course, be deterred from striking out a claim where it is appropriate to do so but real caution should always be exercised, in particular where there is some confusion as to how a case is being put by a litigant in person; all the more so where – as Langstaff J observed in Hassan – the litigant's first language is not English or, I would suggest, where the litigant does not come from a background such that they would be familiar with having to articulate complex arguments in written form.''[32]Particular caution needs to be exercised before striking out a discrimination claim without a hearing where, even though the primary facts may not be in dispute, there is nevertheless a dispute about the inferences to be drawn from them. As Simler J explained in Zeb v Xerox (UK) Ltd UKEAT/0091/15 (24 'the question of what inferences to draw forms part of the critical core of disputed facts in any discrimination case' (para 21), as do the respondent's explanations for alleged less favourable treatment (para 23); accordingly, employment judges need to be alert to the possible inferences that might be drawn and the lines of enquiry that will need to be pursued at a hearing before striking out such claims.
Claims
[33]I spent some time explaining the various types of claim which the claimant could make under the Equality Act 2010. This was necessary because the claimant had been ordered to set out the “causes of action” which he was relying upon which I took to mean the legal provisions upon which his claims were based and although he had put his claims under the various headings it seemed clear to me upon reading his further particulars that he had mislabelled a number of claims.[34]Having gone through that exercise the claimant is seeking bring to the following claims.[35]Direct disability discrimination:a. The respondent changed the claimant’s line management;b. This was less favourable treatment because of a disability.[36]Indirect disability discrimination:a. The respondent applied a PCP which was that line managers must manage those for whom they are managerially responsible;b. The claimant and a member of staff who was particularly difficult to manage and he says that the PCP put those with the disability of stress at the particular disadvantage of being unable or less able to manage such staff members; andc. The claimant was in fact unable to manage the particular staff member in question.[37]Discrimination arising from disability:a. The claimant says that the something arising in consequence of his disability was his inability to manage a particularly difficult individual in his team;b. The claimant says he was required to continue to manage the individual referred to above; andc. The claimant says that this amounted to unfavourable treatment because of his inability to manage the individual, which is the something arising.[38]Failure to make reasonable adjustments:a. The respondent applied a PCP which was that line managers must manage those for whom they are managerially responsible;b. The substantial disadvantage was the inability to manage particularly challenging employees;c. The respondent failed to make reasonable adjustments as follows: i. Not having the individual managed by somebody else; ii. Not following the recommendations of occupational health and other medical advisors; and iii. Not following the respondent’s policies and procedures with respect to the claimant’s absence.[39]Harassment: a. The claimant says that the following amounted to acts of harassment related to disability: i. Changing his line management; ii. Sharing an occupational health report with what the claimant refers to as his quasi-line manager.[40]Breach of contract: a. The claimant says that the respondent’s failure to follow its procedures for attendance reviews amounted to a breach of contract as a result of which the claimant went into half pay and he is therefore entitled to damages in respect of the difference between full pay and half pay for the period between the time he went into half pay and the termination of his employment.[41]The claimant withdrew all his victimisation claims. Respondent’s application[42]I shall deal first with a matter raised by Ms Weaver in relation to the claimant’s harassment claims. As well as the claims I have set out above, the claimant also indicated he was making the following two claims of disability related harassment:a. Refusing to allow the claimant to return to work on 24 August 2020 without a fit for work note; andb. Trying to force the claimant to meet with the quasi-line manager in late August 2020.[43]Ms Weaver pointed out that these claims were not set out in the claim form and amount to an amendment in respect of which there has been no application to amend the claim. Mr Nash agreed He said that he had added them in but that it was not his intention to sneak in new claims. I have therefore not included those in the list of claims because should Mr Nash wish to pursue them, he must do so by way of an application to amend the claim.[44]Turning to the application to strike out, this was contained in a four-page document headed “submissions” which Ms Weaver was content to rely upon and which of course I have considered.[45]The submissions are essentially a mixture of the fact that the claimant has failed to fully particularised a number of his claims in accordance with the order that he do so, that it was unclear which provisions of the Equality Act were being relied upon in a number of cases and that The respondent did not have “fair notice” of those claims which had been poorly pleaded or which had not been properly particularised. In effect the respondent’s submission is that the lack of factual clarity, the lack of specification and the lack of legal clarity means that claims have no reasonable prospect of success. so for example at paragraph ‘B’ of the submissions the respondent complains that the section 15 claims have not been specified sufficiently and then says: “the respondent is entitled to fair notice of the claim. These paragraphs do not give fair notice of any claim under this section of the Act. Any claim under section 15 of the EA 2010 should be struck out as it has no reasonable prospects of success”[46]I cannot accept the broad proposition that all of the claimants claims lack sufficient particularity either for the respondent to understand the case it has to meet or for the Tribunal dealing with the merits of the claims to understand the issues it has to respond to. For example, although the claimant has not identified the date his line management was changed, the respondent, having made the change, will no doubt already know when that took place that does not seem to me to be sufficient reason to take the draconian step of striking out an entire claim furthermore having set out the claims which are being pursued it should be relatively simple for the respondents and the claimant to put dates on matters should that be necessary.[47]The submissions do not specifically make an application to strike out any of the claims because of the claimant’s failure to comply with the order to provide further details of his claims but even if it did, I would not be minded to strike out any of the claims for that reason. I note the decision of the Employment Appeal Tribunal in the case of Mbiusa v Cygnet Healthcare which says that caution should be exercised where cases have been badly pleaded, in this case by somebody who is not legally qualified Dealing with, in some cases, quite complex areas of law which occasionally challenge the legal profession. In my judgement the claimant has done his best to set out his factual claims albeit that he has not been focused solely on that and has tended to draft in a way which seeks to over-explain the basis of and background to his claims rather than simply stick to the essential point of each allegation.[48]That leaves the respondents application to strike out the claims because they have no reasonable prospect of success.[49]I can in fact deal with this application quite shortly. I keep in mind two essential principles in respect of this area of practise. The first is that in many cases and this is clearly one of them in my judgment issues of fact will arise which can only be determined after hearing evidence and having made appropriate inferences from primary findings of fact. The second is that I must take the claimant's case at its highest.[50]In relation to harassment, what the claimant says is that the insistence that he manage a particular individual in his team who was a source of considerable stress for him, and the sharing of an OH report with what he calls the quasiline manager are clearly capable of amounting to harassment simply on the basis that the matters complained of relate to the claimant’s stress which of course is his disability. I do note that there is a particular difficulty with the prospect of both harassment allegations succeeding. The claimant accepts that it was appropriate for the respondent to share the occupational health report with his line manager. His first allegation is that his line manager was changed. His second allegation is that the occupational health report was then shared with that replacement line manager, but the claimant also refers to him as a quasi-line manager suggesting that he was not in fact the correct or proper line manager. But if the first allegation succeeds, that is that the claimants line manager was in fact changed then the sharing of the occupational health report with that person was appropriate and the second allegation must fail. If the first allegation fails because the line manager was not in fact changed then the second allegation could succeed if it was not appropriate to share the occupational health report with this third person. This will require considerable fact finding and I am not in a position and indeed should not do that today. Therefore, I cannot say that such a claim has no reasonable prospect of success[51]Furthermore, assuming the claimant’s line management was changed, and assuming as the claimant asserts that this was done in order that a tougher manager was required to manage him and implicitly manage him out, that is clearly an arguable case of direct disability discrimination. I am not in a position to say that such a claim has no reasonable prospect of success.[52]Likewise, and again taking the claimants case at its highest, assuming he can show that the PCP he alleges was applied and caused him a substantial disadvantage as he sets out then there is no reason to suppose that a tribunal could not find that the duty to make reasonable adjustments was engaged and that they respondent failed to make reasonable adjustments. I certainly am not in a position to say that such a claim has no reasonable prospect of success.[53]In relation to the section 15 claim, while I consider that such a claim is not straightforward, it may be possible for the claimant to show that his inability to manage or manage appropriately as required by the respondent was the something arising from his disability and that therefore the requirement that he managed the individual who caused him difficulty was unfavourable treatment because of that something arising. Again, I cannot say that such a claim has no reasonable prospect of success.[54]In relation to the breach of contract claim, again putting the claimants claim at its highest, if the respondent’s policies are contractual, and if they were not followed and therefore the respondent was in breach of contract, that may well have given rise to the loss which the claimant asserts. Again, at this point I am not in a position to say that such a claim has no reasonable prospect of success.[55]I do have some difficulty with the claimant’s indirect disability discrimination claim. The claimant’s assertion is that the requirement that he as a manager manages his staff was applied to everyone but that the requirement had a disproportionate adverse effect on those who share his disability being stressed. My judgement is that the claimant will have an insurmountable difficulty ensuring the group disadvantage required by the legislation. It is a bold assertion to say that everyone who has stressed which amounts to a disability would have difficulty managing difficult people. Stress affects people differently and I am not aware of any evidence which could be relied upon to show that in general people who are disabled by reason of stress cannot or have difficulty managing difficult people. I do not say that it is impossible but in my judgment there is no reasonable prospect of such acclaim succeeding and therefore that claim should be struck out. Further procedure[56]The Tribunal will contact the parties separately about A case management hearing to deal with listing the case and making any necessary case management orders to prepare the case for hearing.