Mr J Conry v Royal Mail Group Ltd: 4105209/2018
JUDGMENT
The tribunal decided:-(a) to refuse the respondent’s application to have the complaints in terms of sections 15, 19 and 20 of the Equality Act struck out;(b) to refuse the respondent’s application for a deposit order in respect of the 25 complaints brought in terms of sections 15, 19 and 20 of the Equality Act and(c) the case should now proceed to be listed for a hearing to determine the complaints of unfair dismissal and disability discrimination in terms of sections 15, 19 and 20 of the Equality Act.REASONS
[1]This preliminary hearing was arranged to determine the respondent’s application to have the complaints of disability discrimination in terms of sections 15, 19 and 20 of the Equality Act struck out, failing which to have a deposit ordered.[2]I heard submissions from the respondent’s representative, Dr Gibson, and from the claimant’s representative, Mr Lawson. The claimant was present but chose not to give any evidence regarding his financial means.[3]I was also referred to a small number of documents produced by the claimant’s representative. Respondent’s submissions[4]Dr Gibson referred the tribunal to the terms of rule 37(1)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (the Rules) and invited the tribunal to strike out the complaints brought in terms of sections 15, 19 and 20 of the Equality Act because they had no reasonable 10 prospect of success.[5]Dr Gibson referred to the terms of section 15 of the Equality Act, and noted that in order to succeed the claimant had to satisfy the tribunal that the respondent treated him unfavourably (by dismissing him) because of something arising in consequence of his disability.[6]In paragraph 11 of the Statement of Claim, it was said: “It is asserted that the claimant’s decision making on the day in question was affected by his mental health impairment and the medication he was prescribed to treat that impairment. … By dismissing the claimant in these circumstances the respondent discriminated against the claimant in terms of 20 section 15 of the Equality Act by treating the claimant unfavourably because of something arising in consequence of his disability…”[7]Dr Gibson noted this was only an assertion made by the claimant.[8]Dr Gibson submitted this was not a finding of fact the tribunal could make. The real issue was whether the tribunal could find a medical basis for the 25 claimant’s contention. Dr Gibson referred to the Consultant Psychiatrist report obtained by the claimant and produced at pages 37 – 44, and submitted there was no reasonable prospect of the tribunal making that finding.[9]The Psychiatrist had been asked in the letter of instruction (page 36): “you will note that the claim form asserts there was a link between Mr Conry’s mental health and his decision making at the time of the events on 21 October 2017 which resulted in his dismissal. We would be grateful if you could provide your opinion on whether or not any such link existed.”[10]The Psychiatrist responded to this point at paragraph 21.04 of his report, where he stated: “I consider that Mr Conry was suffering with a Mild Depressive Disorder in October 2017 and his mental condition at that time is likely to have impeded his decision-making and his general work performance, compared to his likely circumstances had he not been suffering 10 from a Depressive Disorder. It would be a matter of speculation as to whether he may have made different decisions or acted in a significantly different way, had he not been suffering from a Mild Depressive Disorder on the 21 October 2017.”[11]Dr Gibson submitted these two sentences were entirely contradictory 15 because how could the comparison made in the first sentence be possible when the psychiatrist went on to say it was a matter of speculation. A tribunal could not engage in speculation.[12]Dr Gibson submitted that even taking the claimant’s case at its highest, it fell short of what was required. A speculative medical opinion was all the tribunal 20 had to go on and there was no reasonable prospect of success of a tribunal finding as a matter of fact that there was a link between the unfavourable treatment and the disability. A tribunal could never find there was a link between the claimant’s mental impairment and decision-making on the day because the psychiatrist could not say the claimant would not have made the 25 same decision if he had not had the impairment. The only conclusion a tribunal could draw from the medical report was that they would have to speculate whether the claimant’s decision-making was affected by his disability.[13]Dr Gibson invited the tribunal to strike out the complaint brought under section 30 15 of the Equality Act because it had no reasonable prospect of success.[14]Dr Gibson next referred to the claims brought under sections 19 and 20 of the Equality Act, and invited the tribunal, for the reasons set out above, to also strike out those complaints.[15]Dr Gibson submitted that should the tribunal decide not to strike out the claims, then it should order a deposit of £1000 to be paid by the claimant as 5 a condition of proceeding with these complaints.[16]Dr Gibson accepted strike out of a claim may be seen as a draconian measure, and that it should be used only in the clearest of cases. He submitted this was a clear case: a tribunal could not make the finding of fact necessary for the claim to succeed, and in those circumstances it had no 10 reasonable, or little reasonable prospect of success.[17]The medical report presented a problem for the claimant because, taken at its highest, it was contradictory and would require the tribunal to engage in the same speculation as the psychiatrist and it was submitted a tribunal could not do this. The psychiatric report did not support the claimant to get him over 15 the bar necessary for his claims to succeed. There was little prospect of success and in the circumstances a deposit order should be made.[18]Dr Gibson, in his response to the claimant’s submission, clarified that when he spoke of the tribunal not engaging in speculation, he meant the tribunal could not make a finding of fact that the claimant’s decision-making was 20 impaired that day because to do so would be based on the speculative view of the psychiatrist. Claimant’s submissions[19]Mr Lawson referred to paragraph 12.04 of the Psychiatrist’s report and submitted the first sentence was supportive of the claimant’s position. The 25 Psychiatrist was an experienced psychiatrist and well placed to give an opinion on the likely effect of the depressive disorder the claimant had. It was inevitable, in circumstances where the claimant had a depressive disorder, that speculation would be required when considering what would have happened had the claimant not had this disorder.[20]Mr Lawson questioned the respondent’s suggestion a tribunal could not engage in speculation.[21]Mr Lawson referred the tribunal to the case of Mechkarov v Citibank UKEAT/41/16 where the EAT had provided a helpful summary of the authorities regarding strike out. Mr Lawson referred to paragraph 14 where 5 the approach to be taken by tribunals was set out.[22]Mr Lawson submitted the claimant’s assertion would turn on oral evidence: it was a core issue and should not be decided without hearing oral evidence.[23]Mr Lawson invited the tribunal to refuse the respondent’s application to strike out the disability discrimination complaints, and to refuse the application to 10 order a deposit. Discussion and Decision[24]I firstly had regard to the terms of rule 37(1) of the Rules, which provide that “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 .. on any 15 of the following grounds – (a) that it … has no reasonable prospect of success”.[25]Rule 39 of the Rules provides “where the tribunal considers that any specific allegation or argument in a claim .. has little reasonable prospect of success, it may make an order requiring a party (the paying party) to pay a deposit not 20 exceeding £1000 as a condition of continuing to advance that allegation or argument.”[26]I next had regard to the terms of section 15 of the Equality Act, which provide that “a person(a) (A) discriminates a disabled person(b) (B) if A treats B unfavourably because of something arising in consequence of B’s disability 25 …”[27]I noted the respondent conceded the claimant was a disabled person at the relevant time of 21 October 2017, when he acted in the way which led to his dismissal.[28]I further noted the claimant’s position was that the respondent treated him unfavourably, when they dismissed him, because of something arising in consequence of his disability. The “something arising in consequence of his disability” was said to be his decision-making that day which was affected by his mental health impairment and medication.[29]The Consultant Psychiatrist was asked to provide an opinion regarding whether there was a link between the claimant’s mental health and his decision-making on the 21 October 2017. The Psychiatrist gave his opinion in response to that question, and stated the claimant was suffering from a Mild Depressive Disorder in October 2017, and that his mental condition at that 10 time “is likely to have impeded his decision-making and his general work performance, compared to his likely circumstances had he not been suffering from a Depressive Disorder.”[30]The Psychiatrist then went on to say that the issue of whether the claimant would have made different decisions or acted in a significantly different way, 15 had he not been suffering from a Mild Depressive Disorder on that day, would be a matter of speculation.[31]Dr Gibson’s submission was, essentially, that the Psychiatrist could not have his cake and eat it: the Psychiatrist could not, in the first sentence, engage in a comparative exercise and conclude the claimant’s mental health condition 20 is likely to have impeded his decision-making compared to his likely circumstances if he had not been suffering from a depressive disorder, but then say such a comparative exercise would be a matter of speculation. Dr Gibson went on to say that the tribunal would have to engage in the same speculation and would be unable to make a finding of fact supportive of the 25 claimant’s position.[32]I decided it would be appropriate to have regard to the authority to which I was referred by Mr Lawson, before returning to give consideration to Dr Gibson’s submission. The EAT in the Mechkarov case, reviewed the authorities regarding strike out, and, at paragraph 14, it was stated: “On the basis of those authorities, the approach that should be taken in a strike out application in a discrimination case is as follows:(1) only in the clearest case should a discrimination claim be struck out;(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;(3) the claimant’s case must ordinarily 5 be taken at its highest;(4) if the claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out, and(5) a tribunal should not conduct an impromptu mini trial of oral evidence to resolve core issues of disputed facts.”[33]Dr Gibson submitted this was a case which was clear. I could not accept that 10 submission. I considered a tribunal will be required to hear the evidence the claimant wishes to give regarding his belief that his decision-making on the day was impeded by his mental health condition. This is a core issue of fact which is in dispute. Mr Lawson also referred to other witnesses coming to speak about this matter. In addition to this there is also the Psychiatric report 15 to be considered.[34]Dr Gibson’s submissions regarding the psychiatric report are but one factor to be considered by a tribunal hearing the case.[35]I was not persuaded by Dr Gibson’s submissions regarding the interpretation to be placed on the medical report, or the issue of speculation and the extent 20 to which a tribunal may do so. The sanction of strike out is a draconian measure and, having had regard to the authority to which I was referred, I was satisfied this case could not be described as one of the “clearest” of cases meriting strike out.[36]I accordingly decided to refuse the respondent’s application for strike out of 25 the complaints brought under sections 15, 19 and 20 of the Equality Act. (I have referred above only to the claim brought under section 15 of the Equality Act, but the reasons set out apply equally to the claims brought under sections 19 and 20 of that Act).[37]I next turned to consider the respondent’s application for a deposit order. The 30 basis of the application was the same as set out above for the strike out application. I decided to refuse the application for a deposit order on the same basis as I have refused the application for strike out.[38]I, in conclusion, decided to refuse the respondent’s application for(a) strike out and(b) a deposit order in respect, of the claims brought under sections 15, 19 and 20 of the Equality Act.[39]This case should now be listed for a hearing to determine the complaints of unfair dismissal and discrimination because of the protected characteristic of disability. Employment Judge: L Wiseman Date of Judgement: 01 August 2019 Entered in Register, Copied to Parties: 02 August 2019 EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4105209/2018 Mr J Conry Claimant Royal Mail Group Limited Respondents