Case No 4121485/2018Venue GlasgowHearing 12 February 2020
Between
Miss F GreasleyClaimantCommon Thread LimitedRespondent
Before
Employment Judge R GallMr C Edward (instructed by Advocate) for respondentDate 5 November 2020
JUDGMENT
The Judgment of the Tribunal is that the claimant had, at the relevant time, a disability in terms of Section 6 of the Equality Act 2010 in that she had, at the relevant time, a mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day-to day activities. The case will therefore be set down for a case management Preliminary Hearing in order to make arrangements for the hearing itself.
REASONS
[1]This case called for a Preliminary Hearing (“PH”) at Glasgow on 12 February 2020. The claimant appeared in person. She gave evidence as did her father, Mr Greasley. The respondents were represented by Mr Edward, advocate. They led no witnesses. A joint bundle of productions was available and spoken to at the PH. Four further productions were added by the claimant, without objection from the respondents, prior to commencement of the PH.[2]The claim brought is one of discrimination, the protected characteristics being race and disability. The respondents did not accept, on the information which they had, that the claimant was disabled at the relevant time. The issue for E.T. Z4 (WR) determination at the PH was whether the claimant was, at the relevant time, disabled as that term is defined in the Equality Act 2010 (“the 2010 Act”). The relevant time was in June 2018.[3]This PH therefore did not consider the merits of the case. It was not concerned with the question of whether there had or had not been discrimination. It was not concerned with any issue of race. The focus of the PH was upon the medical position of the claimant and whether, on the evidence, the Tribunal was persuaded that the claimant was at the relevant time a disabled person. The respondents also dispute that they knew or ought to have known of the disability of the claimant. That was not a matter for consideration at this PH.[4]In the claim form, the claimant states in paragraph 14 that an employee of the respondents “didn’t appear to bring my dyslexia into consideration when he was discussing the paperwork, how having 2 brain surgeries affected my reading and writing. It can also affect my focus and sometimes I find getting a heavy load of paperwork challenging.” In the agenda return, when asked what physical or mental impairment the claimant considered affected her, she stated “dyslexia”.
Facts
[5]The following were found to be the relevant and essential facts as admitted or as established on the evidence. Background.[6]The claimant is currently 27 years old having been born on 25 November 1992. She came to Scotland when she was 9 years old. When she was 10 she was unfortunately diagnosed as being affected by an abscess on her brain. She had taken seizures. She had an operation to remove a cyst from her brain.[7]Medical records confirming this history to the claimant’s health appeared at pages 141 to 144 of the bundle. They included a letter dated 23 September 2010 from Doctor Chris Mair. That letter states:-[8]“I understand that this patient of mine is entering further education and you require confirmation of significant neurological injury in 2003 when she required drainage of cerebral abscesses. She made a good recovery from this but I understand that there are learning issues for which she may benefit from additional input.”[9]After the operation, the claimant has experienced significant difficulty in several areas. There was no sign of any such difficulty prior to the operation. She has difficulty with concentration, reading and in particular reading lengthy documents, and also in writing. Her time management is poor. She finds it difficult to organise herself to arrive somewhere on time, notwithstanding allowing extra time for the journey. She will get lost en-route. Her sense of direction is poor. She avoids public transport due to this lack of selforganisation. She is forgetful. She finds multitasking extremely difficult as she becomes distracted easily if, for example, someone speaks to her while she is attempting to carry out a different task. Her ability to communicate is also affected. If asked a question, the claimant will address that question. She struggles to provide information beyond a direct answer to the question which is being asked.[10]Whilst at school, the claimant required and was given extra time for exams. A reader and scribe was provided for her. A letter confirming that continuous support was given in class and some individual support, together with support for all class tests, by way of extra time, reader, reader and scribe plus comparison tests with no support, appeared at page 121 of the bundle, the report carrying over to page 123 of the bundle. That report confirms that the claimant was tested aged 13 years and 10 months. Her reading age was found to be 9 years and her comprehension age 7 years 10 months. That report confirms that the claimant “would qualify for support reader, extra time and scribe for the SQA subjects she was taking”.[11]At page 122, a summary is provided. It states: – “Fifi had an operation which set her back following great strides in her first 1½ years in Lairg. Tables and number bands are not as good as they were before operation.”[12]The claimant was recommended for dyslexia screening testing whilst at school. This was on the basis that she might have dyslexia or other learning difficulties. That testing did not however take place due, it is understood, to a lack of resource on the part of the local authority. A report recommending that testing, the report being from a secondary outreach visit of 20 June 2006, appeared at pages 88 to 90 of the bundle.[13]The claimant’s difficulties have not altered since that time. She now uses a laptop. She has a computer program on that laptop which she uses. That converts speech to text. It reads text from documents back to her. She also has coloured screens which assist with her reading of any documents on the computer.[14]The claimant attended Perth College UHI. Whilst there, she contacted the additional support team to request a Specific Learning Difficulties Assessment as to possible diagnosis of dyslexia. That was undertaken in 2011/2012. The results have not been retained by the college. A letter at page 116 of the bundle from the Additional Support Team Leader, Mr McLaughlin, contained the following sentence: – “As the identified support worker for Fifi at the time, I can advise that I remember that Fifi was forwarded for an SpLD assessment and that a diagnosis of dyslexia was provided. Support was consequently put in place.”[15]A Study Aids and Study Strategies Assessment Report by North Highland College appeared at pages 41 to 53 of the bundle. It detailed the history of the claimant’s health as reported by her. It recorded difficulties which the claimant set out with her concentration and memory, reading blocks of text, written work, remembering names and speaking on a one-to-one basis with a stranger for any length of time, this being an issue, in the view of the claimant, due to higher level of concentration being required. Recommendations were made as to use of a digital recorder by the claimant and software known as Read & Write Gold. A recommendation was made that the claimant be provided with a separate room, 25% extra time and use of a reader/scribe for examination.[16]The claimant finds difficulty in organising herself and carrying out of household chores such as cleaning and organising a cupboard. If she is to organise the clothes in her wardrobe, for example, this is a major task for her.[17]The claimant cannot tell the time through an analogue clock. Even with the use of digital clocks she finds it hard to organise herself to be able to leave at the time which has been scheduled. She will, as mentioned, get lost en-route despite having planned her journey. She will often lose items such as keys, forgetting where she has placed them. The claimant has often locked herself out of the house requiring to replace locks on the house. The claimant regularly requires to renew her bank card having lost a card or forgotten where she has placed it. She had 7 replacement bank cards within the last 12 months. She requires to set timers on her phone if, for example, she is cooking as any time for cooking will elapse without the claimant noticing it if she becomes involved in any other task. She will not remember when it is appropriate to check what is being cooked as the cooking time has expired. The fire alarm in her property has been triggered on various occasions due to “forgotten” cooking. This is an example of difficulty in multitasking and of the claimant’s inability to focus and recall any requirement to do something by a particular time.[18]The claimant is married. She has received a lot of support from her husband in trying to ensure that she remembers particular things or names of people. Her husband will try to assist her to find her keys or other items. If he is not present to keep the claimant “on track” the claimant’s day does not go as she has planned it.[19]The claimant’s father also provides assistance to her and has done since the issues she has experienced commenced. The claimant speaks to him at least once per day. She returns home to visit him on average once per month. He will look over emails or documents for the claimant, correcting any mistakes and making suggestions as to alterations or improvements as he sees them.[20]The issues which the claimant has had since the operation on her brain have not improved over the time between the operation in 2002 and the relevant date, June 2018.[21]The claimant completed an application form prior to obtaining employment with the respondents. Her father helped her with this application form. A copy of the form appeared at pages 69 to 76.[22]In that document, the claimant sets out, cogently, her background employment and why, in her view, the job for which she is applying is one which she is capable of performing. She declared that the information was accurate and she that she wrote it herself. That declaration appears at page 76 of the bundle. In fact, the application was prepared by the claimant but “filtered and revised” by her father.[23]In the application form the claimant refers to her wish in the future to learn French, Spanish and to learn yoga. In fact, she has not undertaken any of those learning experiences. Her intention was however so to do. She also states that she learns “better on my own or on a one-to-one basis and through demonstrations where I get to copy the person who is showing me something and set myself personal goals.” The claimant has used a template since the age of 16 so that she can initially complete job applications. Her father will help her refine that for any particular job for which she wishes to apply.[24]As part of the process of seeking to obtain the post with the respondents, the claimant was asked to attend for an all-day interview, comprising an all-day assessment programme incorporating group discussions, group tasks and group presentations. She attended that and did not request any adjustments. She participated in group discussions which comprised, for example, one-toone with a fellow member of a group where one person would talk with the other person being asked not to listen or vice versa.[25]During her probation review meeting and also an appeal meeting, minutes of which appeared at pages 133-140, the claimant did not mention that she was affected by dyslexia or any other learning difficulty. She was not asked that specific question and took the view that she was answering the questions which she was asked. The issue[26]The issue for determination by the Tribunal was whether the claimant had a disability, in this case being a mental impairment, in terms of Section 6 of the 2010 Act at the relevant time, being June 2018.
Applicable law
[27]Section 6 of the 2010 Act states that a person has a disability if they have (relevant in this case) a mental impairment which has a substantial and longterm adverse effect on their ability to carry out normal day-to-day activities. The onus is on the claimant to establish that this is so to the satisfaction of the Tribunal.[28]In considering whether a person has a disability, the Tribunal must first look at the information as stated in the claim form. A purposive approach to the interpretation of the legislation is to be taken. Schedule 1, paragraph 12 of the 2010 Act requires the Tribunal in its determination of whether any person is a disabled person, to take account of any aspect of the Guidance on Matters to be taken into Account Determining Questions relating to the Definition of Disability 2011, insofar as that appears to be relevant. The Tribunal must take into account any part of the Equality and Human Rights Commission Code of Practice on Employment (2011) which appears to it to be relevant to any questions arising in proceedings. Appendix 1 of that Code provides guidance in relation to the meaning of disability.[29]An important part of the question for the Tribunal is, in this case, whether a mental impairment exists. The “label” which a claimant has placed on a specific impairment can be considered against the evidence presented to the Tribunal and the facts, in particular, found by that Tribunal.[30]“Substantial” is defined as “more than minor or trivial”. This is in terms of Section 212 (1) of the 2010 Act. The case of Anwar v Tower Hamlets College EAT 0091/10 (“Anwar”) found that an impairment could be more than trivial but in the category of being minor rather than substantial. That case found that the medical condition involved, although “by no means negligible, did not give rise to a substantial adverse effect”. The conclusion of the EAT in that case was that an impairment being found to be more than trivial did not meet the test as it could be minor, even if it was more than trivial.[31]In Aderemi v London and South Eastern Railway Ltd 2013 ICR 591 (“”) the EAT took a view different to that in the Anwar. It said that the 2010 Act “Aderemi does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other”.[32]Appendix 1 to the EHRC Employment Code states that normal day-to-day activities are activities carried out by most men and women on a fairly regular and frequent basis. It states that this includes but is not limited to activities such as walking, driving, using public transport, cooking, eating, lifting and carrying every day objects, typing, writing (and taking exams), going to the toilet, talking, listening to conversations on music, reading, taking part in normal social interaction or forming social relationships, nourishing and caring for oneself. It also states that normal day-to-day activities also encompass the activities which are relevant to working life.[33]Paragraph D3 of the Guidance on the definition of disability states: – “In general, day-to-day activities are things people do on a regular daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities and study and education-related activities such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern.”[34]A Tribunal must be alert to the fact that the claimant may have developed avoidance or coping strategies and may underplay or play down the effect of a disability. It must have regard to medical evidence and all information before it in assessing the question of whether the claimant is disabled in terms of the 2010 Act.[35]The focus of consideration of a Tribunal should be on what the claimant cannot do or can only do with difficulty rather than considering what the claimant can do. This is confirmed in the Guidance on Definition of Disability issued in 2011 and referred to above. Submissions Submissions for the claimant[36]I was urged by the claimant to look through the notes of evidence and the documents she produced, including in particular the reports from her school and Doctor, and to find that she was disabled. In response to the submissions for the respondents, the claimant stated that she had had a brain injury. Dyslexia had impacted upon her. The surgery was why she had the difficulties she had.[37]Insofar as it was said that she had not mentioned those difficulties at appeal, her cognitive impairment was such that she answered questions as asked. It was easy for someone to say that she should have said something in particular at time of appeal.[38]In summary, the claimant said that she had produced evidence in her view establishing that she had learning difficulties for over 17 years and that they would not go away. She urged that I found her to have been disabled at the relevant time. Submissions for the respondents[39]Mr Edward reminded the Tribunal that the onus was on the claimant to persuade the Tribunal that she was disabled. Dyslexia had been referred to. He wished to address the diagnosis and existence of dyslexia and then the effects of dyslexia.[40]The Tribunal had not been presented, in the case of the claimant, with any diagnosis of dyslexia by anyone who was qualified to make that diagnosis. The email at page 116 saw someone in Perth College recall a diagnosis of dyslexia. There was no information however as to who had made that diagnosis, what their qualifications where, how they had diagnosed it and what the details of that diagnosis were.[41]Dyslexia was not a condition which was automatically a disability.[42]In those circumstances there had been, Mr Edward submitted, practically no evidence of dyslexia. The terms of Section 6 of the 2010 Act had not been met. In the next part of his submission Mr Edward proceeded on the assumption that the claimant was affected by a mental impairment of dyslexia. He turned to the test as to whether there was a long term substantial adverse effect on the claimant’s ability to do normal day-to-day activities.[43]The key element from the respondents’ perspective was their submission that there was not a substantial adverse effect. Substantial meant more than minor or trivial. The respondents’ position on the evidence was that whilst what had been spoken about was not trivial, it was not more than minor. It was therefore not substantial.[44]In advancing this argument, Mr Edward referred the Tribunal to the claimant’s evidence and her description of the impact of the impairment. She talked of concentration and organisation. What she had said however was no more than a minor impact. She said she could not multitask such as cook and speak to someone. She became tongue-tied and required extra time to get somewhere. She had a tendency to be late. All of these where not more than minor effects, said Mr Edward. Most of the impact seemed to be that things took longer for the claimant than they might otherwise. There was no evidence of substantive things which the claimant could not do.[45]The claimant said that she was able to write reports with help in some instances but sometimes by herself in her previous employment. Mr Edward highlighted the application form completed by the claimant relative to her job with the respondents. She had not mentioned disability at that point or any difficulty in doing anything. She had said nothing as to obtaining assistance in completion of the form.[46]Importantly, said Mr Edward, at the probation review meeting, and at the appeal meeting in particular, there had been no mention by the claimant of this health issue. She had not sought extra time to write reports nor had she explained that her impairment was a reason for being late. It would be natural to have raised this, especially at an appeal when she knew that she had been dismissed. If her impairment was more than minor she would certainly have mentioned it to the respondents, he said.[47]Whilst the claimant said she had not mentioned this as the respondents had not asked a question about it, Mr Edward said that the Tribunal should keep in mind that it was the claimant’s appeal. She had instigated it. She had the ability to bring up issues and to explain them, as she had done to the Tribunal.[48]In short, submitted Mr Edward, the claimant had failed to prove that she was disabled in terms of Section 6 of the 2010 Act.[49]Mr Edward referred to the case of Anwar. “Substantial” meant something more than minor or trivial. He referred to paragraph 9 in that case in particular and to paragraph 21. He urged that I regard the effect on the claimant’s dayto-day activities as being more than trivial but not more than minor. On that basis the claimant should be found not to have been disabled in terms of the 2010 Act at the relevant time. Discussion and decision[50]It seems to me it is appropriate to look at the different elements of the requirements of Section 6 of the 2010 Act, always remembering to look at the evidence in the round as well as on specific points. Mental Impairment[51]The claimant refers to mental impairment, mainly attaching the label of dyslexia to it. She also refers in the claim form to having had 2 brain surgeries which affected her reading and writing, her focus and her ability to deal with a heavy load of paperwork.[52]It seems to me that it is right not to be particularly concerned as to whether the claimant has been affected by dyslexia since birth, or even by dyslexia and nothing beyond that since the operations she underwent as a 10 year old. Dyslexia is not a mental health issue which has symptoms all of which are always present in every case or all of which are always present to the same extent in every case. There are certain features which would regularly be part of a diagnosis of dyslexia and commonly understood to be in that category. Those would be difficulty with reading and writing and often with numbers. Many of the symptoms of the claimant as she described them in evidence were consistent with that.[53]The claimant’s father used an interesting and potentially apposite phrase whilst giving evidence. He referred to the claimant being affected by “acquired dyslexia”. This was on the basis that she had shown no signs prior to the operations of the difficulties she experienced, and continues to experience, after the operation. I recognise that the claimant’s father is not medically qualified. I took the phrase he used as descriptive or explanatory rather than as a medical diagnosis.[54]It is true that the claimant has not produced a medical report or medical evidence in person confirming that she is affected by dyslexia. What she has talked about herself are symptoms experienced by her which are consistent with dyslexia existing. That clearly was the view of the school and college which she attended. The school did not refer her for an assessment in relation to dyslexia. That was recommended. The test was not carried out due, as I understood it, to lack of resources. The letter from Mr McLaughlin of Perth College, page 116 of the bundle, details his recollection that a diagnosis of dyslexia was provided.[55]The test under Section 6 is whether a mental impairment affects the claimant, which mental impairment has the effect detailed in Section 6.[56]Given the reference in the claim form and indeed in evidence to the brain operations and to the impact of those, I was satisfied that there was a mental impairment affecting the claimant. It does not seem necessary to me for the evidence to establish whether the “label” of dyslexia was properly attached to it or not. If not dyslexia, the mental impairment which affects the claimant has several of the characteristic aspects of dyslexia.[57]Those are, most obviously, difficulties with reading and writing. Those difficulties are confirmed by the steps which were taken both at school and at college to assist the claimant by way of extra time being given to her at times of test, a reader and scribe being provided for exams, a quiet room being provided and suitable computer software being given to her to assist with speech to text and text to speech occurring.[58]I regarded the claimant’s evidence on this, and indeed and all other matters, as entirely credible. I was satisfied that she did indeed experience these difficulties and had since time of the operation. Her father was quite clear that that was the position. She gave her answers to questions, both during evidence in chief and in cross examination, in a clear and straightforward manner. I regarded her as being open and honest in that evidence. Similarly, I accepted her father’s evidence as to the difficulties from which she suffered and indeed as to the role which he had played and continues to play in providing assistance to her with written work in particular.[59]Having concluded that the claimant was affected by mental impairment, I then came to look at the other elements in Section 6.[60]I considered whether the impairment has a substantial and long-term adverse effect on the claimant’s ability to carry out activities, then turning to whether what had been described to me in evidence was an inability to carry out normal day-to-day activities. Substantial and long-term adverse effect[61]I recognise the argument advanced by Mr Edward that whilst not trivial, the effect of the mental impairment in relation to the claimant’s ability to carry out normal day-to-day activities was minor as opposed to substantial. The potential for there to be such a finding exists given Anwar, notwithstanding Aderemi.[62]My view is that the position detailed in Aderemi is a more appropriate interpretation of the legal provisions. In this case however the facts were such that I was not, as I saw it, troubled with consideration of this point and the differences between those cases.[63]As at June 2018, the effects of the mental impairment were, on the evidence I accepted, substantial whether that is as interpreted in terms of Anwar or Aderemi. I did not see a basis on which they could properly be regarded as minor.[64]I came to this view given accepted evidence of the inability of the claimant to deal with exam papers within the time given as a matter of standard to students whether at school or college. The difficulty in sitting exams other than with a scribe added to this picture. The need for relevant computer software in relation to text to speak and speak to text activities further illustrated the extent of the adverse effect of the mental impairment. The claimant’s ability to time keep, potentially influenced by her inability to read an analogue clock, her inability to organise herself and to multitask to the extent of doing two tasks rather than one also supported the adverse effect of the mental impairment as being substantial, in the sense of more than minor or trivial. Issues with the claimant’s sense of direction and her forgetfulness also assisted with my conclusion that the adverse effect was substantial as that term is defined in the 2010 Act. The frequency of keys and bank cards being lost, with consequent need to change locks and order replacement bank cards also illustrated the extent of the difficulty caused by the mental impairment. Long term[65]The claimant had experienced all of these problems, apart no doubt from loss of keys, bank cards and the need for computer programs, all of which would be more relevant to the last few years, since time of operations i.e. over a period of 17 years. That was borne out by her own evidence, her father’s evidence and paperwork from school and college. Adverse effect on the claimant’s ability to carry out normal day-to-day activities.[66]There is no definition in the 2010 Act of what are normal day-to-day activities. The Guidance on the definition of Disability in 2011 referred to above and that within the EHRC Employment Guide, again mentioned above, are both of assistance.[67]Several of the elements mentioned as potentially being day-to-day activities were ones which had been adversely affected by the mental impairment of the claimant. The impact of the mental impairment was such that the claimant was, at the relevant time, affected in an adverse, substantial way over the long-term. She was unable to keep to time. She struggled to travel. She avoids travel by public transport. Travel driving a car was and is difficult for her. This is as she often loses her way as she tries to get somewhere. The claimant had difficulty reading and writing and required significant help with both. That extended both to job applications, correspondence by way of email, in reading anything beyond approximate two paragraphs long and in sitting exams, where a reader and scribe were necessary. Operation of computers was difficult unless appropriate text/speech software had been installed.[68]The facts led me clearly to the view that the test of the claimant’s having a mental impairment which had a substantial, long-term adverse effect on her normal day to day activities had been met.[69]On the basis of the foregoing, the claimant was, the relevant time, a disabled person in terms of Section 6 of the 2010 Act.[70]The case should now be set down for a case management PH so that the issues can be agreed, practical arrangements made in respect of papers included within the bundle for the hearing and dates of the hearing can be set down. The Clerk to the Tribunals is requested to make contact with parties to arrange such a case management PH.
Applicable law
[1]The case proceeded by Video conference hearing utilising Cloud Video Platform (CVP). Due to the coronavirus pandemic a hearing in-person was not practicable. Parties consented to proceeding by CVP.[2]Ms Greasley represented herself. She gave evidence on her own behalf. The respondents were represented by Mr Edward. Evidence on their behalf was given by Darren Dow who was the respondents’ care services manager at date of the Tribunal hearing, Neil McKechnie, Head of Commercial with the respondents and Allison Sharp, formerly a Therapeutic Support Worker with the respondents. A joint file of documents was with the Tribunal.[3]Ms Greasley was employed by the respondents as a therapeutic support worker between 21 February 2018 and 15 June 2018. The respondents provide support and care for young people who have been affected by trauma, serious abuse and neglect.[4]The claims brought are of discrimination. Ms Greasley alleges race discrimination, being direct discrimination and harassment. She alleges disability discrimination, being a failure to make reasonable adjustments and discrimination arising from disability. Disability discrimination.[5]In terms of the Equality Act 2010 (“the 2010 Act”) it is a defence to claims under Sections 20 and 21 and also Section 15 of the 2010 Act that the employer did not know and could not reasonably be expected to know that a claimant had a disability.[6]The disability by which Ms Greasley is affected is dyslexia. Her position was that she had told the respondents of this disability soon after she commenced work with them and also during her employment. She did not disclose it at time of interview or in the offer of employment medical questionnaire (page 220 of the bundle). She disclosed in that form that she had a gluten intolerance and did not mention any disability. She did not raise her dyslexia at the probation review meeting which led to dismissal or at the appeal meeting following her dismissal. She said that she informed Mr Dow and also Ms Sharp of her disability and that arrangements for a quiet room had been made during training after she had informed staff of her dyslexia. The respondents denied that any information as to her dyslexia had been given to them at those or any other times.[7]The Tribunal weighed the evidence. It has to decide the facts it believes on the balance of probabilities. It concluded that there had been no information given to the respondents by Ms Greasley that she was affected by dyslexia.[8]The Tribunal accepted the evidence of Ms Sharp as being credible and reliable in all areas about which she gave evidence. She is no longer employed by the respondents and cannot therefore be influenced by any existing employment relationship. She explained, in evidence accepted by the Tribunal, that she had assisted Ms Greasley in completion of some forms as it was the first time Ms Greasley had undertaken this task. Ms Greasley had not mentioned dyslexia to her. When Ms Sharp had pressed Ms Greasley to finish the forms later that day, Ms Greasley had said it was too late and she was too tired. She had not mentioned dyslexia or difficulties she was experiencing in completion of the forms. Ms Sharp had no sense then or later that Ms Greasley was affected by dyslexia.[9]The evidence from Mr Dow as to disclosure to Ms Greasley of his own medical issue was somewhat unsatisfactory. Ms Greasley said there was, in effect, an exchange of information by her and Mr Dow. She had told him of her dyslexia, and he had informed her of his own health issue. In his statement he denied having given any such detail to Ms Greasley, although he accepted at Tribunal that he talked relatively openly about his health issue. The Tribunal accepted his evidence that he did not know of Ms Greasley’s dyslexia, notwithstanding this movement in Mr Dow’s evidence with regard to disclosure of his own health condition to Ms Greasley.[10]One important factor in the Tribunal concluding as it did was that, on its view on the evidence, if the respondents had been made aware by Ms Greasley of her dyslexia or associated difficulties, steps would then have been taken to try to support Ms Greasley. Alternatively, she would have been likely to follow up any such discussion seeking that such steps were taken. Neither of those things occurred. The respondents have other employees who are affected by dyslexia and therefore have equipment and systems in place which provide assistance to employees with dyslexia. The Tribunal was therefore satisfied that had Ms Greasley intimated that she was affected by dyslexia, the respondents would have made arrangements to assist her with equipment and support, as they did with other employees similarly affected. Both they and Mr Dow were quite open to such steps being taken and were also quite familiar with what could be done to assist in such circumstances.[11]In addition, had Ms Greasley informed the respondents of her disability, then when the respondents mentioned an issue with late completion of reports in the meeting which led to her dismissal, Ms Greasley would have had a starting point in explaining this, by referring the respondents to her disclosure of dyslexia. She made no such reference. During her employment she also made no requests for assistance by way of adjustments. Indeed, her evidence was that she believed at the time and still believed that she had complied with any requirements for submission of reports. She also made no mention of dyslexia at the appeal hearing.[12]Some of those elements were relevant to consideration by the Tribunal of whether the respondents could or could not reasonably be expected to know that Ms Greasley had a disability. On the evidence, forms which required to be completed following incidents were submitted late by Ms Greasley. That however is not of itself indicative of dyslexia existing. There was no evidence of signs of any significance indicating dyslexia from which the Tribunal could conclude that the respondents could reasonably have been expected to know that Ms Greasley was affected by dyslexia.[13]On the basis that the respondents did not know of Ms Greasley’s disability and that they could not reasonably have been expected to know of it, the claim of disability discrimination cannot succeed. Race discrimination.[14]The working environment in which employees of the respondents, including Ms Greasley in her time there, operate is a very difficult one. The young people for whom they care are very wary and mistrustful of adults, including the workers at the homes where they stay. They will test the adults working at those homes by being insulting towards them. The insults are often very personal. The young people look to get a reaction from the worker. They target any perceived weakness. Physical abuse is directed towards workers too. The respondents provide training to try to prepare the workers for this verbal and physical abuse. They have processes in place to try to assist with management of these types of behaviours. There is a high staff to young person ratio. There is a shift arrangement in operation. It is important that there is consistency and that everyone in the team works adopts the same principles.[15]The respondents’ clear method of approach is that where a young person is verbally abusive towards a worker, that worker should be the person to respond. It should be made clear to the young person that the behaviour is unacceptable. The respondents’ view is that if this is not the procedure followed, if, for example, someone else steps in immediately to address the situation with the young person, the young person will perceive that the worker has a weakness in the area where the abuse is focused. The young person may revisit that topic in being abusive towards the worker in future scenarios, including occasions when the worker is on their own. On the other hand, if the worker addresses the behaviour and makes it clear it will not be tolerated, then the young person will often quite quickly depart from that type of insult. Management or other employees will therefore only intervene if a worker does not reply or deal with a situation themselves.[16]Ms Greasley, on the evidence the Tribunal heard, is of a different view as to how such remarks should be treated. When the basis of the insult is personal and of a serious nature her view is that management should make it clear it will not be tolerated.[17]It is not for this Tribunal to express a view on which approach is to be preferred or is likely to be more successful. The Tribunal does not have the expertise to do that. It is also not relevant to this case.[18]In Ms Greasley’s case, the young people made very offensive remarks to her on the basis of her race. Staff, including Mr Dow, did not themselves make any such remarks. Ms Greasley’s position was that Mr Dow ought to have stepped in to prevent the type of insults that were made. Other elements of behaviour by Mr Dow were also said to constitute direct discrimination.[19]The allegations of race discrimination required the Tribunal to consider the actings and omissions of Mr Dow. For Ms Greasley to be successful the Tribunal would have to find that Mr Dow was racially motivated when the acts or omissions complained of occurred, if the Tribunal accepted on the evidence that they had occurred.[20]In its assessment, the Tribunal kept in mind the provisions in the 2010 Act as to burden of proof.[21]There was no evidence accepted by the Tribunal from which it could be inferred that Mr Dow was racially motivated in his actions or omissions. Whether and when to intervene at the time remarks of a very offensive nature in relation to her race were being made to Ms Greasley by young people were matters of judgment. Perhaps Mr Dow might have stepped in when he did not. The whole approach and philosophy of the respondents is however based upon the worker challenging such behaviour in the first instance. Ms Greasley was asked by Mr Dow or other workers about the insults directed towards her and said she was “fine”, that it “didn’t bother” her or that she had “heard it before”. There was no evidence that she had asked for support or a different approach.[22]Although Ms Greasley’s evidence was that Mr Dow had stepped in when others were taunted by being called names, that was denied by Mr Dow and Ms Sharp. The evidence from Ms Sharp on this and other areas was accepted by the Tribunal as being credible. It was preferred.[23]Ms Greasley also referred to other instances where she said she had been treated differently. There was however no indication, if she was treated differently, that this was because of race.[24]The Tribunal did consider both whether the individual instances were discriminatory behaviour and also whether there was an accumulation of incidents such that an inference of discrimination was appropriately made. It concluded that whether viewed individually or cumulatively there was not a basis for that inference from the facts as it found them to be. Time-bar.[25]Whilst the dates of some incidents founded upon by Ms Greasley were more than 3 months prior to presentation of the claim and of the initiation of the claim by contact being made with ACAS, the Tribunal regarded there as being allegations of conduct extending over a period, concluding with an alleged act which had occurred within the 3 month period. The claim was not therefore time-barred. General comments.[26]Dismissal was not viewed by the Tribunal as being an act of discrimination. The reasons explained by the respondents for ending Ms Greasley’s employment were accepted by the Tribunal as being the genuine basis for that decision. Whilst the Tribunal could understand that the respondents had concerns as to Ms Greasley’s work and her continuing employment with them, there would have potentially been some concern had it been examining the decision to dismiss in the context of unfair dismissal. Careful consideration would have had to have been given to a claim of unfair dismissal had that been a ground open to the claimant and pursued by her. Steps short of dismissal, for example, were open to the respondents. To be clear however, no view is expressed by the Tribunal as to the fairness of dismissal. That is not a matter before this Tribunal.[27]It also appeared to the Tribunal that performance management during the time of probation might have seen clearer guidance given to Ms Greasley in areas where performance was an issue. That might have given her a better chance of addressing those areas. That said, Ms Greasley did not seek help or regard herself as requiring help. Again, this was not a relevant matter looking to the claims open to Ms Greasley and those therefore before the Tribunal.
Conclusion
[28]This case involved a tricky area of law. Giving of evidence and undertaking cross examination was an understandably emotional experience for Ms Greasley. Conducting the case was demanding for all involved. There were technical IT issues from time to time during the hearing. The Tribunal wishes to express its thanks to Ms Greasley and Mr Edward for their patience and for the diligent and thorough way in which they presented their respective cases.[29]For the reasons set out the Tribunal concluded unanimously that the claims were unsuccessful.
Conclusion
[1]This case called for hearing on 22 September 2020. It had been set down for that day and the following 3 days. It was to be conducted by video conference, utilising the CVP platform. The claimant appeared on her own behalf. Mr Edward appeared for the respondents.[2]On the day prior to the hearing the respondents had emailed the Tribunal and the claimant. They explained that their principal witness, Mr Dow, had been involved in an incident at work. He had, as a result, been affected by concussion. The incident had occurred on the evening of 13 September/early morning of 14 September. He had consulted doctors and had received treatment. He required to be symptom free for 24 hours before being considered fit for work and potentially fir to give evidence.[3]Mr Edward updated the Tribunal. Unfortunately, whilst Mr Dow had attended work on 21 September, he felt sick that day and was affected by memory loss. He had sought to obtain a GP appointment; however, it was a local holiday. He was attending his GP on 22 September. This was to obtain a fit note and also to obtain a note in relation to his fitness to give evidence. He was however unable to be present as a witness at the Tribunal.[4]The position of the respondents was that it would be possible to procced with the claimant’s evidence and that of Mr McKechnie, their other witness. Mr Dow could give evidence at a future date when fit so to do. They were however “neutral” as to whether the diet proceeded with the case going part heard or, in the alternative, was rescheduled without evidence having commenced.[5]They also explained in an email of 18 September that Ms Sharp and Mr Austin, whose witness statements had been submitted, were not now to give evidence. When I enquired as to whether there was an issue from their point of view with devices or internet connection, Mr Edward candidly said that the prospective witnesses had changed jobs and were reluctant to appear as witnesses. He sought however that their statements be taken into account by the Tribunal. Mr Edward is, of course, aware of the possibility of witness orders being sought.[6]Ms Greasley was very disappointed, she said. She had hoped that the case would proceed at this hearing. The respondents had presented their statements late, had then said that 2 witnesses would not be appearing and were now explaining that Mr Dow could not appear today. She was not keen on the case going part heard, however. That would involve her own evidence and cross examination with any re-examination, together with the evidence of Mr McKechnie being taken. In her view this would place her at a disadvantage.[7]Mr Edward recognised and understood the claimant’s disappointment. He said that the case had been “live” for some time, with the reasons for that not lying at the respondents’ door in many instances. He recognised that the respondents could have informed the Tribunal of the issue from Mr Dow’s point of view at an earlier stage. It was always their hope and their understanding that he would be able to give evidence in this diet. As soon as that became a real difficulty, they had contacted the claimant and the Tribunal to explain the position more fully.[8]The Tribunal adjourned to consider the position. It returned to confirm its unanimous decision that this hearing would be postponed. It was explained that the Tribunal was concerned at possible prejudice to the claimant if the case proceeded at present with her evidence and that of Mr McKechnie being taken, the evidence from Mr Dow to follow. It appeared very possible unfortunately that Mr Dow would not be able to give evidence during the course of this week. The option of rescheduling was considered by the Tribunal to be a far fairer one than that of taking some of the evidence at the moment.[9]The Tribunal later concluded that 4 days remained the appropriate time for the hearing when it did proceed. It was conscious of the emotional nature of evidence. It might be that due to that and the tiring nature of evidence being given over video, more breaks than would otherwise be the case were necessary. The Tribunal was keen that the hearing be concluded at as early a date as was possible.[10]Looking to dates, after discussion it was agreed that the hearing be set down to be conducted by CVP on 2, 3, 4 and 5 November. The hearing should be before this Tribunal if at all possible as this Tribunal has read the papers, including the statements. A reading day should, nonetheless, be set down for 30 October as the Tribunal will require to re-familiarise itself with the case. Deliberations and writing days should also be set down. The Clerk to the Tribunals is requested to issue the appropriate hearing notices.[11]In relation to the statements of Ms Sharp and Mr Gracie, the Tribunal stated that it would not have regard to those in circumstances where the witnesses were not to be present to speak to them and to be cross-examined on them. Although they bore to be signed, the Tribunal had no knowledge of the circumstances of signature. The Tribunal was now being informed that these witnesses did not wish to be present at Tribunal to speak to their statements.[12]At a later stage, Mr Edward expressed his view once more that the statements should be read by the Tribunal as part of the evidence. The Tribunal could then put such weight as it felt appropriate on the statements. The respondents recognised that the weight attached to them might not be of particular significance. They were however, said Mr Edward, written representations from a party and so in terms of Rule 42 the Tribunal required to have regard to them.[13]Ms Greasley opposed the statements being considered by the Tribunal when she could not challenge them[14]The Tribunal in its second adjournment considered the further submissions of Mr Edward on this, and other, points. It remained of the view that in circumstances where the witness is not present and especially where the witness is known to be unprepared to attend Tribunal to confirm his/her statement and to be cross-examined on it, it would be wrong to have regard to the statements. Rule 42 did not in the view of the Tribunal deal with this point. That Rule referred to written representations from parties. A statement from a witness is not viewed as a written representation from a party. It might support a party. It was not however from a party. Equally, it did not comprise written representations in the view of the Tribunal. The conclusion of the Tribunal was that a document produced by a party purporting to be the evidence of a witness was not what was envisaged in Rule 42 as being something which the Tribunal required to consider. Taking it to an extreme it is recognised, that view would entitle a party to submit purported statements from people said to be witnesses who never appeared as witnesses and therefore might or might not exist and who might or might not be “torn apart” if subjected to cross examination. This interpretation would require the Tribunal to consider any such document. Notwithstanding the possibility of the Tribunal attaching little or no weight to such a document, it was the view of the Tribunal that it would not be in the interests of justice for the Tribunal to consider such a document. There might be the appearance of the Tribunal being influenced by comments made in an untested statement given by a purported witness.[15]Other preliminary points were covered at this hearing before it concluded.[16]It was agreed that the email from Rianne Ward-Hilton to Mr Dow which was attached to his statement would be added as an additional document in the file for the hearing.[17]It was also agreed that the information provided by the claimant in paragraph[24](a) of her statement setting out her view of there being hypocrisy on the part of Mr Dow in relation to the incident with Ms Ward-Hilton was background information rather than an allegation of discriminatory conduct.18. In the Scott Schedule submitted by the claimant she refers to dismissal as being an act which is one of direct discrimination, Section 13 of the Equality Act 2010 being the relevant provision. After discussion, it was agreed by the claimant that her position was that dismissal was in fact alleged to be discriminatory in terms of Section 15 of that Act. This was as that had been understood by the respondents and indeed the Tribunal. The reference to Section 13 in relation to dismissal is therefore to be disregarded.19. The claimant alleges that comments were made by Mr Dow in relation to the colour of her knees. She does this in paragraph 14 of her statement. She also refers to hits as an act of discrimination in the Scott Schedule. The respondents objected to this being present in the statement whether it was an allegation of discrimination or whether it was said to be background. The claimant said it was an allegation of discriminatory conduct and wished it to be treated as such. Failing that, she sought that it remain, as background information.20. The Tribunal considered the submissions made to it. No view is expressed by the Tribunal, clearly, as to the truth of the events as described by the claimant. That has yet to be determined. It was clear, however, that this event had not previously been mentioned by the claimant. It was appreciated that the claimant’s disability means that her memory is such that sometimes she remembers things only when going over events, as she had in her statement. Nevertheless, this claim has been current for some time. Opportunities have been given for the claimant to specify her claim. Orders, including Unless Orders in some areas, have been issued. Other allegations sought to be added at earlier stages have been refused. On balance the view of the Tribunal was that this would not be permitted as an additional ground of claim. It was the decision of the Tribunal that it did however legitimately form part of background information which potentially might assist the Tribunal in its assessment of the motivation and approach of Mr Dow. The Tribunal therefore allowed the information to remain in the claimant’s statement on that basis. It is not however an allegation of discriminatory conduct.21. It was recognised by the Tribunal that Mr Dow had not had any opportunity to answer this comment. He is therefore given 21 days from date of this PH to respond to this element of the statement.22. Mr Edward submitted that paragraphs 38-42 of the claimant’s statement, together with paragraph 45 (a) should be excluded. Those dealt with matters which were irrelevant to this hearing, which was on liability. The references to SSSC had already been ruled out as a potential ground of claim when sought to be added as a claim of victimisation.23. Ms Greasley submitted that these paragraphs were relevant. They described her experiences. She understood and accepted that her claim of victimisation had not been permitted to proceed. Her view was that her experience, which had involved approaching and involving her MSP, was something about which the Tribunal should hear. 24. The Tribunal adjourned on two occasions. Firstly, it adjourned to consider the possible postponement of the case and the issue of the witness statements from Ms Sharp and Mr Gracie. It later adjourned to consider that further points made by Mr Edward in relation to the witness statements and also with regard to the content of the claimant’s statement. It returned on each occasion to announce its unanimous view as recorded above.[25]The hearing will therefore proceed on the November dates detailed. 30 25 20 15 10 E.T. Z4(WR) 1 . (iii) The tribunal decided:- Common Miss F Greasley (ii)(i) The hearing today was a preliminary hearing to determine three issues: to refuse the claimant’s application to amend the claim. (Constitution to issue an Unless Order in terms of rule 38 of the Employment to refuse the respondent’s (iii)(ii) (i) Thread of victimisation in terms of section 27 Equality Act. The claimant’s application to amend the claim to include a complaint Whether the claimant was a disabled person at the relevant time and respond to various Orders; The respondent’s[26]The claimant’s response 25. 24. 23. 22. 21 . 20. 1 9. 18. was the responsibility Ms Greasley understood been a sufficient explanation for the non-compliance Mr Edward, in response to the claimant’s submission, Mr Edward, in the alternative sought an Unless Order. submitted the tribunal should strike out the claim. so. He submitted the claimant, who had had every opportunity to respond, but had failed to do Mr Edward submitted the content of the Orders was within the knowledge claim. claimant did not respond, steps would need to be considered to strike out the tribunal to note the Employment Judge had confirmed in his Note that if the with the Order on the 8 May, but had failed to respond. Mr Edward invited the Mr Edward submitted the claimant had been given a final chance to comply postponed. response to this Order and the forthcoming preliminary hearing had had to be 26 April, with a time limit for response by the 2 May. There had not been a The Order regarding the disability impact statement had been reissued on the passed. acting, but noted this was after the time limit for responding to the Orders had Mr Edward acknowledged timescale, or indeed at all. Mr Edward confirmed the claimant had not responded to the Orders within the to provide a response. hearing at paragraphs 8, 9 and 10 (page 90). The claimant was given 14 days The three other Orders were set out in the Note following the preliminary• do you have any medical evidence concerning your condition. no further opportunity of her previous representative Mr Edward’s frustration the claimant’s representative to respond should be given and but suggested with the Orders. who had given poor stated there had not had withdrawn any delay from of 33. 32. The respondent’s 31 . 30. 29. The claimant’s application to amend the claim 28. 27. the respondent’s requirement, Mr Edward SSSC. management November, but the Agenda completed by the claimant prior to the first case Mr Edward noted the SSSC may not have contacted recently lost a job because matters with SSSC had still not been resolved. by then she had met with Citizens Advice, and received advice, and she had Ms Greasley waited until May 201 9 to make the application to amend because difficult for her. employment. Ms Greasley submitted this had had consequences conducted. informing her they understood she had resigned prior to an investigation being October 2018. She had then received a letter from the SSSC in November, claimant’s employment ended in June 2018 and she presented her claim in standard procedure Ms Greasley told the tribunal that she had been informed by ACAS that it was Islands explaining the adjustments she had required. The claimant produced dismissal. Her claim was that the discrimination Ms Greasley confirmed the application form because she has a learning difficulty. in the claim form. Ms Greasley suggested she had not noted her disability on medical notes and confirmed her claim for race discrimination was as set out advice and had had poor communication for employers to inform the SSSC of the type of issue noted in further response to the application to amend preliminary hearing, showed she was aware of the report to the Ms Greasley considered ET3. noted it was not only standard for employers a letter from the University she was not complaining to report dismissals the respondent skills. Ms Greasley had provided led to her dismissal. for her in her alternative about (ordinary) of the Highlands practice, was making life very to the SSSC. The but also a unfair until and 38. 37. Discussion 36. 35. 34. factors, including:- deal with cases fairly and justly. This requires a tribunal to consider all relevant I next had regard to the overriding objective set out in rule 2, of seeking to tribunal. ” (c) on any of the following grounds - application of a party, a tribunal may strike out all or part of a claim or response “At any stage of the proceedings, follows: (Constitution I firstly had regard to the terms of rule 37(1 )(c) of the Employment(i) to amend. out application, and the additional points above, and to refuse the application Mr Edward invited the tribunal to have regard to the issues raised in the strike protracted. was allowed, it would lead to further delay with the claim which was already would be required to respond to the new claim. If the application Mr Edward submitted the balance of prejudice lay with the respondent no indication of the protected characteristic. January. Further, the amendment was not specified: for example, there was circumstances Mr Edward submitted the amendment•• for non compliance with any of these Rules or with an order of the what disruption, unfairness or prejudice has been caused; representative; whether the magnitude of the non compliance; and Decision The respondent’s and Rules of Procedure) Regulations 201 3, which provides as where the claimant had been aware of the SSSC report since Page 7 the default application to strike out the claim was the responsibility either on its own initiative should have been made earlier in of the party or on the to amend Tribunals or her who 15 10 30 25 20 43. 42. 41 . 40. 39. she provided a letter on the 22 May attaching a letter from her GP surgery, an The claimant’s position at its highest is that in response to the various Orders had not responded to the Orders. was somewhat perplexed by the fact the claimant could not tell me why she (page 92) and she confirmed she understood what was being asked of her. I provided noting she had Dyslexia. I asked the claimant to read the Order and the only point she put forward was to refer to documents which had been I asked the claimant why she had not responded to the disability impact Order, to the Orders previously, nor provided a response to the Orders. document at its highest, it neither explained why there had been no response tribunal only had the page starting with 5/6. 1 considered that even taking the been another page, but she did not have it and the document page, with the numbers starting at 5/6. The claimant suggested there had the 8 May. The difficulty with the document referred to was that it was one paperwork she produced when seeking the postponement preliminary hearing where the Orders were made. She also referred to some representative, Orders. The claimant The claimant was unable to explain to me why she had not responded to the reply. 26 April, and the claimant was given until the 3 May to respond. She failed to The Order concerning the disability impact information was re-issued being asked of her. No response was provided to the Orders. I noted the claimant did not seek to suggest she had not understood what was hearing on the 7 March. I considered the Orders were clear in their terms and regarding I addressed•• response to the disobedience. whether striking out or some lesser remedy would be an appropriate whether a fair trial is still possible and the fact an Employment each of these points in turn. I noted there was no dispute but these were provided referred to the further particulars Judge issued Orders at a preliminary prior to the case management of the hearing on provided sent to the by her on the 15 10 30 25 20 48. 47. 46. 45. 44. to be confusion between the claim form, which referred to racial harassment, complaint of race discrimination except for a reference to reasonable adjustments documents, but beyond this there is no hint of the type of claim being brought the claim form. There is reference to dyslexia and requiring more time to read hand, that the claim of disability discrimination is not set out with any clarity in I had regard to whether a fair trial was still possible. I considered, on the one made regarding clarifying the claim. to attend case management when it was presented in October 2018. The respondent has been required respond to the Orders lies in the fact that the claim is no further forward than The disruption, so. the Orders since the representative in circumstances representative. The claimant, today, sought to place blame for failure to respond on her respond. as set out above, reissued the disability impact order. The claimant failed to contacted the claimant direct to ask if she was proceeding with her claim and, representative The claimant was, at the time the Orders were issued, represented. been a total failure by the claimant to respond to each of the Orders. I, in considering the magnitude of the non-compliance, claim. of the race discrimination seeking information regarding communication provided previously. There has been no attempt to respond commencing Students Awards Agency dated 2 November 2010 and a one page document undated letter from her High School (which she left in 2008), a letter from the with point 5/6. I noted some of these documents I could not accept the blame lay wholly with the representative withdrew unfairness where the claimant has had every opportunity to respond to from acting on the 10 April 2019. The tribunal claim and the legal basis of the unfair dismissal or prejudice caused by the claimant’s preliminary hearings, but no progress has been is more factually detailed, but there appeared withdrew from acting and has not done of her disability; the legal basis in the final paragraph. The was satisfied there had to the Orders had been failure to The 30 25 20 15 10 55. 54. 53. 52. 51. 50. 49. 4121485/2018 include the previous orders and some additional points. have not been complied with, and to issue a new Unless Order which will I also decided it would be appropriate to set aside the existing Orders which her claim will be struck out. some comfort from the fact that if the claimant does not comply with the Order, opportunity to provide the information decided to issue an Unless Order because this will give the claimant one final above, to refuse the respondent's I decided, having had regard to and having balanced all of the points set out acknowledged I also had regard to the fact that striking out a claim is a draconian action. I attending the various preliminary hearings which have taken place thus far. respondent has been put to the cost (both a financial cost and a time cost) of forward comply with the Orders and that the parties were, essentially, considering this point, had regard to the fact there has been a total failure to appropriate response to the claimant’s failure to respond to the Orders. I, in I next considered whether striking out, or some lesser remedy, would be an that a fair trial is not possible. be struck out on the basis of a party’s conduct unless a conclusion is reached question of a strike out order, ordinarily, neither a claim or a response should the EAT made clear that although certain conduct could lead directly to the I had regard to the case of De Keyser Ltd v Wilson 2001 IRLR 324 where a fair trial. I concluded that with further case management upon hearing the claimant’s evidence, to consider and prepare their position. any hearing and that the respondent could be given time, if necessary and I, on the other hand, considered that it would be for the claimant to go first in February, which referred to a claim of direct discrimination. and the further particulars provided by the claimant’s representative with the case than they were a year ago. I also accepted a lesser remedy of an Unless Order was available to me. application to have the claim struck out. I sought, and will give the respondent it would be possible to have no further the 20 15 61 . 60. 59. 58. 57. 56. (race) discrimination form to a failure to make reasonable adjustments and to a complaint of direct being pursued, although (as stated above) there was reference in the claim discrimination. The initial claim form concerned claims of disability discrimination I had regard to the nature of the amendment the claimant wishes to make. factors may include: caused to the parties by granting or refusing the amendment. The relevant regard to the interests of justice and to the relative hardship that would be always carry out a careful balancing exercise of all the relevant factors, having should approach applications for leave to amend. It was said a tribunal must where the then President of the EAT gave some guidance as to how tribunals I also had regard to the case of Selkent Bus Co Ltd v Moore 1996 ICR 836 amendments I had regard to rule 29 of the Rules which gives tribunals power to allow(ii) Unless Order. I encouraged tribunal (and the respondent) how her disability impacts on her. evidence I also explained to the claimant that she is not being asked to provide medical following the same numbering. points at 1-9 of the Order, and to set out her response to each point, and the questions set out in the Order. I would encourage her to take each of the I explained to the claimant (at the preliminary hearing) that she must answer••• the timing and manner of the application. the applicability of time limits and the nature of the amendment; The claimant’s application to amend the claim of her disability. at any stage of the proceedings. the claimant to seek legal advice before responding Page 1 1 There is a lack of clarity regarding the nature of the claims and/or harassment. The claimant is being asked to explain and race to the to the 30 25 20 15 67. 66. 65. 64. 63. 62. application is granted, the respondent will require to defend another claim and aspect of the claim. On the other hand, I took into account that if the the application will mean the claimant is denied an opportunity to advance this refusing the application. I balanced, on the one hand, the fact that refusing I next had regard to the relative hardship which may be caused by granting or was not possible to reach any firm conclusions. I acknowledged and should, have raised the matter earlier. reported the matter to the SSSC in January 2019 and therefore she could, Mr Edward suggested the claimant consequence matter until May because it was only at that time she lost her job as a received a letter from the SSSC in November 2018 but she did not raise the on her ability to hold alternative employment. The claimant suggested she had their own investigation into matters. The claimant says this has had an impact respondent reporting her dismissal to the SSSC, and the SSSC undertaking from I next had regard to the timing and manner of the application. I understood whether any such claim was presented in time. subject to what is said below) there would appear to be an issue regarding claim form was dated 22 May 2019. 1 was satisfied that on the face of it (and Tribunal on the 12 October 2018. The claimant’s application to amend the 1 3 September on the 13 August 2018 and the early conciliation certificate was issued on the with the respondent ended on the 14 July 2018. Early conciliation commenced I next had regard to the applicability of time limits. The claimant’s employment wishes to make, is to introduce a new head of claim. in the claim form. I concluded, on that basis, that the amendment the claimant specified, there was no complaint of victimisation referred to or foreshadowed I was satisfied that notwithstanding of delay with the SSSC concluding matters. Page 12 2018. The claim form was presented this may impact on the issue of timebar, and at this stage it that the complaint the fact the complaints have not been knew of the fact the respondent of victimisation to the Employment is based had claim form. I, for these reasons, decided to refuse the claimant’s application to amend the specify her existing claims mitigated against the application being allowed. claim in circumstances of prejudice was with the respondent. I decided, having had regard to all of the points set out above, that the balance opportunity to provide the information requested by the tribunal. pursued. to obtain information from the claimant regarding the other complaints factor in this case because of the difficulties there have been to date in trying of the complaint it seeks to introduce. I considered this to be an important I also had regard to the fact the application to amend does not include details hearing. this will involve them in preparation An Unless Order has been issued giving the claimant where the claimant is already finding it challenging I considered the introduction time and is likely to lead to a longer of a new a final being to