Mr Steven McCullagh v Analog Republic Ltd: 4112604/2018

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4112604/2018

Venue Glasgow

Hearing 4 October 2018

Between

Mr Steven McCullaghClaimant

Analog Republic LimitedRespondent

Before

Employment Judge W A Meiklejohn

Mr G Fletcher (instructed by Solicitor) for claimant

Date 20 December 2018

JUDGMENT

The Judgment of the Employment Tribunal is that:(1) The Claimant’s claim of (i) unfair dismissal, (ii) discrimination arising from disability and (iii) failure to make reasonable adjustments succeed, and

(2) A Hearing on Remedy will be fixed to determine the amount of compensation to be awarded to the Claimant.

REASONS

[1]This case came before me for a Final Hearing on 4 October 2018. Mr Fletcher appeared for the claimant.

[2]The Respondent had not lodged an ET3 response form, and did not attend the Hearing on 4 October 2018.

[3]Mr Fletcher lodged a bundle of documents for the Claimant, extending to 71 pages. This included(a) a witness statement from the Claimant (pages 66- E.T. Z4 (WR) 69) which reflected the contents of the Paper Apart to the Claimant’s ET1 claim form and

(b) a Disability Impact Statement from the Claimant which detailed the effects of the Claimant’s mental impairments (depression and adjustment disorder) on his ability to carry out normal day to day activities.

[4]The Claimant gave evidence. He adopted the said witness statement as a statement of his evidence to the Tribunal. Similarly, he adopted the Disability Impact Statement as forming part of his evidence to the Tribunal.

[5]I found the Claimant to be a credible witness. I was satisfied that the Claimant was disabled within the meaning of Section 6 (1) of the Equality Act 2010 (“EqA”). He suffered from mental impairments which had a substantial and long-term adverse effect on his ability to carry out normal day to day activities. This was supported by a letter from the Claimant’s GP dated 10 September 2018 (page 40).

[6]In the absence of any evidence from the Respondent that their unfavourable treatment of the claimant as described in the Claimant’s ET1 and witness statement was a proportionate means of achieving a legitimate aim (per section 15 (1)(b) EqA), the Claimant’s claim of discrimination arising from disability under section 15 EqA succeeded.

[7]The work requirements placed on the Claimant by the Respondent as described in his ET1 and witness statement constituted a provision, criterion or practice (“PCP”) which placed a disabled person at a substantial disadvantage in comparison with persons who are not disabled. That placed on the Respondent a duty to make reasonable adjustments being such steps as it was reasonable to have to take to avoid the disadvantage (section 20(3) EqA).

[8]The Respondent failed to comply with that duty. No adjustments were made. Accordingly the Respondent discriminated against the Claimant within the meaning of section 21 (2) EqA.

[9]In terms of section 98(1) of the Employment Rights Act 1996 it was for the Respondent as employer to show a potentially fair reason for the Claimant’s dismissal. They had not done so and accordingly the Claimant’s claim of unfair dismissal succeeded.

[10]I decided that I did not have sufficient information to deal with remedy. In particular I believed that further medical evidence would be required(a) to support the statement in the Claimant’s GP’s letter of 10 September 2018 that the Claimant’s dismissal had given rise to a material exacerbation of his conditions,

(b) to provide an assessment of when the Claimant might be likely to be fit for work and

[11]Accordingly a Hearing on Remedy will require to be fixed. One day should be sufficient for this.

[12]The Claimant agreed to provide, in advance of the Hearing on Remedy, a revised Schedule of Loss giving credit for the Employment and Support Allowance he had received (that benefit not being covered by the Employment Protection (Recoupment of Benefit) Regulations 1996).

[1]I issued a Judgment on liability dated 12 October 2018 (the “original Judgment”) in favour of the Claimant following a Hearing in Glasgow on 4 October 2018. That Hearing proceeded on the basis that the Respondent had not lodged an ET3 response form. A Hearing on remedy was subsequently listed for 7 December 2018.

[2]By letter dated 16 November 2018 the Respondent’s representative sought(a) reconsideration of the original Judgment under Rule 71 contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and

(b) an extension of time under Rule 20 for presenting a response to the claim. There was also an application to vacate the Hearing on remedy.

[3]A draft of the Respondent’s proposed ET3 did not accompany the Rule 20 application because the Respondent had not as at 16 November 2018 had sight of the Claimant’s ET1. The proposed ET3 was sent to the Tribunal by the Respondent’s representative on 7 December 2018. I was satisfied that the Respondent had provided an explanation of why it was not possible for a draft of the ET3 to accompany the application made under Rule 20(1).

[4]By their letters dated 22 November 2018 and 12 December 2018 the Claimant’s representative objected to the applications under Rules 71 and 20. They did not oppose the application to vacate the Hearing on remedy but submitted that this should be postponed and relisted.

[5]The grounds upon which the Respondent’s applications under Rules 71 and 20 were made were set out in the said letter of 16 November 2018 and can be summarised briefly. The address given in the Claimant’s ET1 for the Respondent was Flat 108, City Pavillion, 33 Britton Street, London EC1M 5UG. This had been the home address of Mr D Currie, one of the Respondent’s directors, between 10 July 2014 and 1 June 2017. Mr Currie had then moved to Flat 4, 1 Hoxton Square, London N1 6NG. The Claimant was aware of this because he had attended the Respondent’s Christmas party on 16 December 2017.

[6]The Respondent also alleged that the Claimant was aware of the address of their registered office (20-22 Wenlock Street, London N1 7GH) because this was set out in the Respondent’s offer letter to the Claimant dated 25 August 2015. The Respondent had not received the Claimant’s ET1 or other correspondence relating to the case and had been unaware of the proceedings until 15 November 2018. This was why the application had been submitted outwith the period of 14 days referred to in Rule 71.

[7]The Claimant’s representative denied that the wrong address had been used. Each of the Claimant’s payslips and his P45 had given the Respondent’s address as Flat 108, City Pavillion, 33 Britton Street, London, EC1H 5UG. Any failure to ensure that this documentation was accurate was the fault of the Respondent, not the Claimant. It would not be in the interests of justice to grant the Respondent’s applications.

[8]I did not refuse the application under Rule 71 (in terms of Rule 72) on the basis that there was no reasonable prospect of the original Judgment being varied or revoked. I did not express a provisional view on the application. I directed that the Hearing on remedy should not proceed. Both parties agreed that the Respondent’s applications under Rule 71 and Rule 20 should be decided without a Hearing.

[9]I reminded myself of the terms of Rules 70-72. An application for reconsideration of a Judgment could be granted where it was necessary in the interests of justice to do so.

[10]The normal time limit for making such an application was, in terms of Rule 71, 14 days. However, I could extend this time limit in terms of the Tribunal’s power to extend or shorten any time limit specified in the Rules under Rule 5.

[11]I was satisfied from the terms of the Respondent’s representative’s letter of 16 November 2018 that the Respondent had been unaware of these proceedings until 15 November 2018. In these circumstances I decided that it was appropriate to extend the time limit for submitting an application under Rule 71. The interests of justice required that the Respondent should be allowed to answer the claim brought by the Claimant. The prejudice to the Respondent if prevented from doing so outweighed the prejudice to the Claimant in losing the benefit of the original Judgment.

[12]I was also satisfied that the Respondent should be allowed an extension of time under Rule 20 to lodge the ET3 and that the proposed ET3 submitted on behalf of the Respondent should be accepted. My reasons for so deciding were(a) the same as set out in the preceding paragraph and

(b) that the proposed ET3 contained a stateable defence to the claim.

[13]I noted from the Respondent’s ET3 that a number of preliminary issues arose:-(a) it was not conceded that the Claimant was disabled within the meaning of the Equality Act 2010;

(b) it was not conceded that the Respondent was aware of the Claimant’s alleged disability; and

[14]I considered that it would be consistent with the overriding objective in Rule 2 to fix a Preliminary Hearing for the purposes of case management to determine further procedure in this case.