Mr P Costello v Glasgow City Council: 4111111/2019
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4111111/2019
Between
Mr P CostelloClaimantGlasgow City CouncilRespondent
Before
Employment Judge A StrainMs G O’Neil (instructed by Solicitor) for respondentDate 8 March 2022
JUDGMENT
The Judgment of the Employment Tribunal is that: (1) the claims under the Equality Act 2010 advanced by the claimant are struck out for non-compliance with orders of the Employment Tribunal
REASONS
[1]The claimant represented himself. He asserted (amongst others) claims under the Equality Act 2010.[2]The respondent was represented by Ms G O’Neill, Solicitor. E.T. Z4 (WR)[3]The issue for determination by the Tribunal was whether or not the claims under the Equality Act 2010 advanced by the claimant should be struck out for non-compliance with orders of the Employment Tribunal.[4]The parties had lodged an Agreed Joint Bundle of Documents with the Tribunal.[5]Both Parties made submissions.
The Relevant Law
[6]A Tribunal is required to have regard to the overriding objective, which is found in the Rules at Schedule 1 to the Employment Tribunals 10 (Constitution & Rules of Procedure) Regulations 2013 which states as follows: “2 Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;(c) avoiding unnecessary formality and seeking flexibility in the proceedings;(d) avoiding delay, so far as compatible with proper consideration of the issues; and(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”[7]Strike out Rule 37 provides as follows: “37 Striking out (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— (c) for non-compliance with any of these Rules or with an order of the Tribunal.”[8]The EAT held that the striking out process requires a two-stage test in HM Prison Service v Dolby [2003] IRLR 694, and in Hassan v Tesco Stores[15]Ltd UKEAT/0098/16. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the Tribunal to decide as a matter of discretion whether to strike out the claim. In Hassan Lady Wise stated that the second stage is important as it is “a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit” (paragraph 19). 9. As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. In Anyanwu v South Bank Students' Union [2001] IRLR 305, a race discrimination case heard in the House of Lords, Lord Steyn stated at paragraph 24: “For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally factsensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.” 10. Lord Hope of Craighead stated at paragraph 37: “ … discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The Tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.” Those comments have been held to apply equally to other similar claims, such as to public interest disclosure claims in Ezsias v North Glamorgan NHS Trust [2007] IRLR 603. The Court of Appeal there considered that such cases ought not, other than in exceptional circumstances, to be struck out on the ground that they have no reasonable prospect of success without hearing evidence and considering them on their merits. The following remarks were made at paragraph 29: “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence.”11. In Tayside Public Transport Co Ltd (trading as Travel Dundee) v Reilly [2012] IRLR 755, the following summary was given at paragraph 30: “Counsel are agreed that the power conferred by rule 18(7)(b) may be exercised only in rare circumstances. It has been described as draconian (Balls v Downham Market High School and College [2011] IRLR 217, para 4 (EAT)). In almost every case the decision in an unfair dismissal claim is fact-sensitive. Therefore where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED & F Man Liquid Products Ltd v Patel [2003] CP Rep 51, Potter LJ, at para 10). There may be cases where it is instantly demonstrable that the central facts in the claim are untrue; for example, where the alleged facts are conclusively disproved by the productions (ED & F Man … ; Ezsias …). But in the normal case where there is a ‘crucial core of disputed facts’, it is an error of law for the Tribunal to pre-empt the determination of a full hearing by striking out (Ezsias … Maurice Kay LJ, at para 29).”12. In Ukegheson v Haringey London Borough Council [2015] ICR 1285, it was clarified that there are no formal categories where striking out is not permitted at all. It is therefore competent to strike out a case such as the present, although in that case the Tribunal’s striking out of discrimination claims was reversed on appeal. That it is competent to strike out a discrimination claim was made clear also in Ahir v British Airways plc [2017] EWCA Civ 1392, in which Lord Justice Elias stated that “Employment Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.”13. In Mechkarov v Citi Bank NA [2016] ICR 1121 the EAT summarised the law as follows: “(a) only in the clearest case should a discrimination claim be struck out; (b) where there were core issues of fact that turned on oral evidence, they should not be decided without hearing oral evidence; (c) the claimant’s case must ordinarily be taken at its highest; (d) if the claimant’s case was ‘conclusively disproved by’ or was ‘totally and inexplicably inconsistent’ with undisputed contemporaneous documents, it could be struck out; (e) a Tribunal should not conduct an impromptu minitrial of oral evidence to resolve core disputed facts.” Discussion and Decision14. The test for strike out is a high one. In this case it is asserted that the claimant has failed to comply with orders of this Tribunal dated 14 July 2020, 8 August 2020 and 8 January 2021 for specification of his claims of disability discrimination. A year has passed and it is asserted that he has still not complied. 15. The Tribunal considered the history of the case as set out in Judge Kearns PH Note of 22 April 2021 paragraphs 2 – 7. Judge Kearns clearly narrates the orders made and the claimant’s response (or lack thereof). This Tribunal has considered the orders, the responses and agrees with Judge Kearns’ analysis and comments.[16]At the PH on 22 April 2021 Judge Kearns asked the claimant what the answers were to the questions that had first been posed at the PH on 14 July 2020; the what, when, where, who and why of his discrimination claims.The claimant’s response was that he had put his case acrosss for discrimination, bullying and harrassment in 70 emails to the Tribunal. Judge Kearns comments that at the time the claimant was unclear as to the dates of the emails. This Tribunal had a similar experience with the claimant at this PH. His position was that he had provided the information requested and that the respondent had hindered or delayed the provision of information that he needed to advance his claim.The claimant was particularly unclear as to the relevance of the information he had requested to the information he had been ordered by the Tribunal to provide.[17]Judge Kearns did not have a copy of the PH Note of 8 January 2021 when she heard the PH on 22 April 2021. This Tribunal has had the benefit of considering the PH Note of 8 January 2021. The claimant was ordered, once again, to provide further specification of his claims in the form of a Scott Schedule (which was provided to him). The order went into coniderable detail as to the information required. It also warned the claimant that if the order was not complied with his claim may be struck out under Rule 37. The Note attached to the order narrates that the Employment Judge went to some length to explain to the claimant the need for him to set out the basis of his claim in order to give the respondent fair notice of the case against them. The Employment Judge clearly explined to the claimant that if he failed to specify the claims then this could lead to them being struck out. The claimant was given until 26 February 2021 to comply with the orders.[18]Following the PH Note and Orders of 8 January 2021 the only correspondence the claimant appears to have had with the Tribunal are the emails of 12, 25 & 26 January 2021,12 February 2021(all of which were in the PH Bundle before the Tribunal). These emails do not provide the information requested by the orders of 8 January 2021, instead they appear to be attempts to obtain rather unspecific documention from the respondents. The claimant was asked by the Tribunal to clarify the informtion he sought by letters of 20 January 2021 and 3 February 2021.No further information was received by the Tribunal from the claimant and the respondent then lodged the application for strike out on 29 March 2021.[19]No further information has been received since then from the claimant in compliance with the order of 8 January 2021 or the previous orders.[20]The Tribunal adopted the two-stage test in HM Prison Service v Dolby [2003] IRLR 694, and in Hassan v Tesco Stores 15 Ltd UKEAT/0098/16. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the Tribunal to decide as a matter of discretion whether to strike out the claim. In Hassan Lady Wise stated that the second stage is important as it is “a fundamental cross check to avoid the bringing to an end prematurely of a claim that may yet have merit” (paragraph 19).[21]It is apparent is that the claimant has not complied with the Tribunal orders of 14 July 2020, 8 August 2020 and 8 January 2021 despite the considerable assitance that has been afforded him by the Tribunal during the course of these Preliminary Hearings. On each ocassion he has been put on notice that failure to comply may lead to strike out of his claims under Rule 37(c). He has been on notice since 29 March 2021 that the respondent was seeking strike out for his failure to comply but to this date maintains that he has provided all the information required – when clearly he has not. The Tribunal was satisfied that stage one of the test (failure to comply with the Tribunal orders) was made out.[22]The Tribunal then went on to consider stage two of the test. In this regard the Tribunal was conscious of the fact that the claimant is a party litigant. Whilst bearing that in mind the Tribunal has to have regard to the overriding objective. In this case the claimant has been given almost a year to provide specification of his claims, he has been guided by the Tribunal on 14 July 2020, 8 August 2020 and 8 January 2021. He has been put on notice of the consequences of failure to provide the specification required by the orders and yet he has still not complied. The Tribunal cannot say whether his discrimination claims have any merit as they have not been sufficiently specified.[23]In the circumstances the Tribunal consider this is a clear case where it should exercise its discretion to strike out and to do so is in accordance with the overriding objective. The application for strike out is granted.
Applicable Law
[24]Section 98 of the Employment Rights Act 1996 indicates how a tribunal should approach the question of whether a dismissal is fair. There are two stages. The first stage is for the employer to show the reason for the dismissal and that it is a potentially fair reason (s.98(1)). A reason relating to the capability of the employee for performing the work he was employed to do is a potentially fair reason under s.98(2). In terms of s.98(3)(a) “capability” is assessed by reference to “Skill, aptitude, health or any other physical or mental quality”.[25]Ms O’Neil cited the case of DB Schenker Rail (UK) Ltd v Doolan UKEATS/0053/09 in support of the proposition that BHS v Burchell [1978] IRLR 379 applies to ill health capability cases. Consequently, to establish that a dismissal was on the grounds of capability, the employer must show that the person who made the decision to dismiss the claimant, (in this case, Mr Scanlon) genuinely believed that the claimant was not capable of providing regular attendance at work. Thereafter, the Employment Tribunal must be satisfied that there were reasonable grounds for that belief and that at the time the dismissing officer reached that belief on those grounds the respondent had conducted an investigation that was within the range of reasonable investigations a reasonable employer might have conducted in the circumstances. The onus is neutral in relation to the grounds for the respondent’s belief and the sufficiency of the investigation. In passing we note that the Schenker case has received “no substantial judicial treatment” either way, although as a decision of the EAT it is binding on this Tribunal. The Tribunal have therefore approached the case below both in the usual way but additionally applying Burchell. Both approaches lead to the same result.[26]If the employer is successful in establishing the reason, the tribunal must then move on to the second stage and apply Section 98(4) which provides: “…where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case.”[27]The test is an objective one. The tribunal has to decide whether, in the circumstances, the employer's decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer might have adopted in those circumstances (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439).[28]The range of reasonable responses test applies both to the decision to dismiss and to all aspects of the procedure by which that decision is reached. Discussion and Decision Reason for dismissal[29]We concluded that the respondent had shown that it dismissed the claimant by reason of his capability (assessed by reference to health) of performing the work he was employed to do. We accepted Mr Scanlon’s evidence that he had reached the belief that the claimant had not been able to provide regular attendance at work over the course of a lengthy period despite management expressing their concern on a number of occasions and that the claimant was not capable of providing regular attendance at work going forward. There were ample grounds for that belief as set out in the findings in fact above, particularly at paragraph 15. The respondent had investigated the matter very thoroughly as described below. The Tribunal concluded that their investigation was well within the band of reasonable investigations a reasonable employer might have conducted in the circumstances (see Burchell). Under s. 98(3)(a) ERA capability may be assessed by reference to health. Capability is a potentially fair reason for dismissal under s 98(2). We therefore find that the respondent has shown the reason for dismissal and that it is a potentially fair reason as required by section 98(1) ERA. Reasonableness[30]We considered whether the procedure used by the respondent in reaching the decision to dismiss the claimant was within the range of reasonable procedures that a reasonable employer might have used.[31]A fair procedure is particularly important in ill health cases. In East Lindsey District Council v Daubney [1977] IRLR 181 the EAT said this: “Unless there are wholly exceptional circumstances, before an employee is dismissed on the ground of ill health it is necessary that he should be consulted and the matter discussed with him and that in one way or another steps should be taken by the employer to discover the true medical position. We do not propose to lay down detailed principles to be applied in such cases for what will be necessary in one case may not be appropriate in another. But if in every case employers take such steps as are sensible according to the circumstances to consult the employee and to discuss the matter with him and to inform themselves upon the true medical position, it will be found in practice that all that is necessary has been done.”[32]It appeared to the Tribunal that the claimant had been very fully consulted and the matter discussed with him in this case and that steps had been taken by the respondent to establish the true medical position. Every ARM invitation letter sent to the claimant stated in bold type that a possible outcome of the meeting was termination of his contract.[33]The claimant’s most recent absence had begun on 13 November 2018. An ‘early intervention’ absence review meeting had been held with him on 30 November 2018 at which his medical condition was discussed. The claimant was referred to the respondent’s Occupational Heath consultants on 17 January 2019. He reiterated to them on several occasions that he felt he was fit for work. On 29 January 2019 the claimant attended an ARM with Mr McAvennie and Mr Ralston. He was offered a transfer to a different work location to assist him to return to work. He declined.[34]On 5 April 2019, the claimant attended a further ARM with Mr McAvennie and Mr Ralston. He was again offered to work in a different work location and again he declined. The claimant said he felt fit to return to work in some capacity and whilst he felt fit to drive, he was unsure if he would be able to go out with a crew. Mr McAvennie explained that he could only provide restricted driving duties for a maximum of four weeks, after which time the claimant would be expected to be fit for his full range of duties. Those present discussed the length of the claimant’s absence and Mr McAvennie explained that it was a cause for concern. He told the claimant that every assistance would be provided to facilitate his return to work. Following this ARM, the claimant was assisted in registering for the respondents redeployment register.[35]On 24 April 2019 the claimant attended a further appointment with the respondent’s occupational health advisor, whose report (J67) stated that the claimant was suffering from mild anxiety and was fit for work. On 10 June 2019 the claimant attended an ARM with Mr McAvennie and Mr Ralston (J69). The claimant said that he was keen to return to work but could only return in a role that was suitable. Mr McAvennie told him that it would not always be possible to accommodate his request to drive particular vehicles or undertake specific duties on a permanent basis as he (Mr McAvennie) had to respond to operational demands.[36]By letter dated 5 July 2019 (J75) the claimant was invited to attend an ARM on 11 July 2019. He was again informed that a possible outcome of the meeting was the termination of his employment. The claimant was assisted at the ARM on 11 July by his trade union representative. He was given in advance the report prepared by Mr McAvennie to enable him to prepare his case. His case was put forward to Mr Scanlon and he was listened to. He was accorded a right of appeal which he exercised.[37]On behalf of the claimant Mr Mitchell submitted that the respondent had adopted a new sickness policy in terms of which they no longer issue warnings. He was very critical of the respondent’s witnesses in relation to the sickness policy but we were not really clear what the nub of his criticism was. Although he submitted that they ‘could not tell you what the new sickness policy was’ the main questions he asked them in cross examination concerned the date the policy had changed. In his submissions for the claimant, Mr Mitchell stated: “On two occasions today I had to remind Michelle Ferns that I was present when the new Robust policy was put in place.” However, he did not develop the point further. The respondent’s sickness policy appeared to be in the bundle of documents but Mr Mitchell did not refer to it when he questioned the respondent’s witnesses. He asked Mr Scanlon why the claimant had not been given warnings for sickness absence under the previous policy. Mr Scanlon said the respondent had not taken disciplinary action over the claimant’s absence because they accepted that the claimant had an underlying health condition. The Tribunal concluded on this point that although, as Mr Mitchell stated, the claimant was not given disciplinary warnings for his sickness absence, he was clearly told on many occasions, both in writing and in person that unless he could achieve a sustained improvement in his attendance at work his employment was at risk. Indeed, as observed above, every ARM invitation letter sent to the claimant stated in bold type that a possible outcome of the meeting was termination of his contract.[38]Mr Mitchell also argued that the respondent should have waited until the claimant had undergone the CBT recommended by his GP before they considered dismissing him. We did not accept this argument because in his letter of 24 June to the claimant confirming what had been discussed at the ARM on 10 June 2019 (J69), Mr McAvennie had recorded that the claimant told him that his GP had referred him for CBT but that he had previously had this treatment and that he could access it at the drop-in clinic if he wished to.[39]Mr Mitchell submitted that the respondent ought to have done a workplace Stress Risk Assessment on the claimant. In his evidence, Mr McAvennie confirmed that he had not carried out such a risk assessment because the reasons for the claimant’s absence related primarily to his personal circumstances. (A fact which both the claimant and Mr Mitchell had confirmed). We did not conclude that the failure to carry out such a risk assessment in the circumstances rendered the claimant’s dismissal or the procedure leading up to it outside the band of reasonable responses/procedures a reasonable employer might have adopted.[40]Mr Mitchell also submitted that at the point when the claimant had been invited to the ARM on 11 July 2019, he had been back at work for three weeks and had passed his HGV driving refresher assessment. He submitted: “All of a sudden he is given a letter to attend an ARM under the new policy. What is the trigger point of that? I have still not been given an answer.” This point had not been explored in that way with the respondent’s witnesses in cross examination or covered in the claimant’s or his own evidence in chief. On the basis of the evidence that was before us, we understood that the trigger was the claimant’s most recent period of absence which had lasted seven months and ended on 12 June 2019. Mr Mitchell concluded his submissions by asking: “Were policies followed correctly by the department and should a more robust policy be put in place?” In order to explore the first question it would have been necessary for Mr Mitchell to take the witnesses to the policy in the bundle of documents, establish its terms and state the ways in which he considered it had not been followed. He did not do so and the issue was not before us for determination. The second question would not be a matter for this Tribunal unless the respondent’s policy was unlawful or one which no reasonable employer would have adopted.[41]The claimant asked to make a submission once Mr Mitchell had finished. Much of it was of a personal nature. With regard to his remarks about the case, he said that the respondent only used PAM Occupational Health advisories that were beneficial to them and not to him. He said that if they had taken an advisory which was beneficial to him they could have put him out with a smaller crew, given him shunting duties or put him onto food waste vehicles. He said that the PAM reports had also said he could be subject to relapse if he perceived stress and that he had been subjected to numerous investigations. The Employment Judge explained to the claimant that his submissions could only refer to facts that were supported by the evidence led. With regard to the requests the claimant had made about a smaller crew, the food waste vehicle and shunting duties, he had raised and discussed these with the respondent. However, the Tribunal concluded that in the absence of agreed variations to his contract or reasonable adjustments under the Equality Act 2010, the respondent was entitled to approach the matter on the basis of the claimant’s capability for performing work of the kind which he was employed by the employer to do ((Section 98(2)(a) Employment Rights Act 1996) and that included his full range of duties.[42]Finally, we considered whether the respondent’s decision to dismiss the claimant was within the band of reasonable responses a reasonable employer might have adopted in the circumstances. The test is an objective one. The tribunal has to decide whether, in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer's decision to dismiss the employee fell within the range of reasonable responses that a reasonable employer might have adopted in those circumstances (Iceland Frozen Foods Ltd v Jones [1982] IRLR 439). If the Tribunal concludes that a reasonable employer might have acted as the respondent did then dismissal is within the range. The Tribunal must not substitute its own view for that of the employer.[43]This case was a little unusual in that although the claimant had most recently been absent from 13 November 2018 until 12 June 2019, a period of some seven months and 86.02% of the year to date, as Mr Mitchell submitted, the claimant had in fact returned to work at the point when he was dismissed. The case was a ‘hybrid’ of long term and intermittent sickness absence. The respondent had looked at the claimant’s employment history and the likelihood that the claimant’s absences would continue and had decided that the claimant’s absence levels were unsustainable. We accepted Mr Scanlon’s evidence that he had no confidence that there would be a sustained improvement in the claimant’s attendance or that he would reach an acceptable level of attendance in future. The general advice from the respondent’s OH advisers was that an employee’s previous attendance levels are the best indication of future attendance. The claimant had informed Mr McAvennie on 29 January 2019 that he would always suffer from personal stress due to his personal circumstances. Alternatives to dismissal had been explored with the claimant. In all these circumstances, we concluded that dismissal was within the band of reasonable responses a reasonable employer might have adopted. It follows that the claim of unfair dismissal does not succeed and is dismissed.[44]It remains for us to thank Ms O’Neil and Mr Mitchell for their assistance and representation.