[1]This case called for a Hearing at 10am on 9 August 2024 on an application 30 by the claimant for interim relief under section 128 of the Employment Rights Act 1996.[2]The 2 claims made by the claimant in his ET1 claim form to which this application relates are:(1) A claim of automatically unfair dismissal under section 103A of the 35 Employment Rights Act 1996 (“ERA”), on the grounds that he had made protected disclosures; and 800 1075/24 Page 2(2) A claim of automatically unfair dismissal under section 104F(1) of ERA, on the grounds that he had been blacklisted contrary to Regulation 3 of the Employment Relations Act 1999 (Blacklists) Regulations 2010 (“the 2010 Regulations”). 5 3. In accordance with Rule 95 of the Employment Tribunals Rules of Procedure 2013, the Tribunal confirmed at the outset that no oral evidence would be heard from the parties, and that a decision would be made on the basis of submissions and documents presented by the parties. The parties helpfully provided separate bundles of productions, and skeleton 10 arguments, to which they both spoke.[4]The claimant provided two separate documents, one contained within his bundle entitled “Skeleton of application to provide focus to key evidence within the bundle”, and the other entitled “Skeleton argument”. When he finished summarising the first of these documents, it was clear he 15 anticipated that the respondent would then deliver their submission, whereupon he would be given the opportunity to speak to his second document. I clarified that I expected the claimant to make his full argument, and to go through the second document at the same time as making his submission on the first. I advised him that I would then hear the 20 respondent’s submission, and thereafter give him the opportunity to respond to any matters raised in their submission which he wished to take up at that point.[5]The claimant responded that he was content to proceed in this way and that he did not consider any disadvantage to arise to him from this. 25 6. Accordingly, I heard from the claimant first, then from Ms Hogben, and finally the claimant made a further submission in response thereto.[7]Having heard submissions, I adjourned at approximately 1.30pm, and resumed the Hearing at 3pm in order to deliver the following oral decision.[8]In order to succeed with his application for interim relief, the claimant must 30 demonstrate, in accordance with section 129 of ERA, that it is likely that in 800 1075/24 Page 3 determining his claim, the Tribunal will find that the reason or principal reason for his dismissal was that he made a protected disclosure or protected disclosures, and/or that he was blacklisted contrary to section 104F(1) of ERA. 5 9. Both parties referred me to Taplin v C Shippam Ltd [1978] IRLR 450, in which the EAT defined likely as meaning “a pretty good chance of success”. Further, Mr Justice Underhill, in Ministry of Justice v Sarfraz [2011] IRLR 562, EAT, observed that the test of a pretty good chance does not simply mean “more likely than not” but connotes a significantly higher degree of 10 likelihood, “something nearer to certainty than mere probability.”[10]Dealing first with the claim of automatically unfair dismissal for having made protected disclosures, it is noted that the claimant seeks to rely, in his ET1, on 3 protected disclosures. In order to assess the interim relief application, it is necessary to consider the terms of the claims pled by the claimant, and 15 not to take into account any other matters to which the claimant may wish to draw attention.[11]That means looking to the disclosures currently alleged in the ET1 paper apart. It is noted that the claimant referred in his submission to Chesterton Global & Anor v Nurmohamed & Anor (Rev 1) [2017] EWCA Civ 979 (as 20 did the respondent), in reliance on the proposition that his disclosures should be considered to have been made in the public interest.[12]Ms Hogben also referred to Cavendish Munro Professional Risks Management Ltd v Geduld 2010 ICR 325, which set out the principle that a worker’s disclosure should disclose facts, and not merely amount to 25 allegations.[13]I accept that multiple points may comprise a disclosure, as a series of disclosures.[14]Accordingly, in this case, the claimant sets out 3 alleged disclosures. I do not wish to make any findings in fact which may be said to bind any future 30 Tribunal dealing with this claim, nor do I consider it to be my task in this 800 1075/24 Page 4 application to determine whether or not these claims have any reasonable prospect of success, in the language of Rule 37.[15]The first disclosure or disclosures is set out in paragraph 9 of the ET1 paper apart (R18), the claimant asserts that he raised protected disclosures 5 between 1 July 2022 and 1 May 2024 about, broadly, data issues. He does not set out in his claim any detail about the individual disclosures on which he seeks to rely, when they were made, to whom and how; nor how they could be said to be in the public interest. On that basis, I cannot find that the claimant has a pretty good chance of succeeding with his claim in relation to 10 these alleged disclosures as he has not clearly specified what those disclosures were, and under what specific sub-section of section 43B of ERA they fell.[16]The second disclosure was said, at paragraph 15 (R19), to have comprised disclosures which he made on 24 March 2023 in a detailed Avoidance of 15 Harassment and Bullying in the Workplace complaint. He set out five categories of conduct about which he was complaining. Again, there is some difficulty in identifying what specific disclosures of information the claimant made in this document, as he simply outlines the headings of his complaints. The respondent submits that these were not disclosures of 20 information but merely allegations. Without reaching any definitive conclusion at this stage, I tend at this stage to agree with that submission. The lack of detail, and how these matters are said to be specifically related to the sub-sections of section 43B, means that while the claimant may persuade a Tribunal that these were in fact disclosures of information 25 following the hearing of evidence, I am unable to find that there is a pretty good chance that the Tribunal would make such a finding, nor that the allegation have a pretty good chance of success in these circumstances.[17]The third disclosure was said, at paragraph 27 (R23), to have been contained in multiple concerns raised with Jana Siber on 11 April 2024, but 30 does not say in his pleadings what those concerns were, nor how they could be said to meet the definitions within section 43B of ERA. In these 800 1075/24 Page 5 circumstances, it cannot be said that the claimant has a pretty good chance of succeeding with this aspect of the claim.[18]It is important to note that I must review the terms of the claim form as setting out the claimant’s claim, and not take into account any additional 5 material which the claimant has introduced or referred to in his submissions before me. This process requires an assessment of the claim as pled, not of the claim as it might have been pled. Further, a reference to a document which the respondent has seen, such as a grievance or a complaint document submitted as part of its internal processes, does not form part of 10 the claimant’s claim. The respondent, and the Tribunal, can only address the claim as it has been presented to the Tribunal. If the grievance or complaint documents set out clear details about a complaint or concern, that does not affect the terms of the claim before the Tribunal.[19]In assessing this matter, therefore, I have restricted myself to a review of 15 the claimant’s pleadings as they currently stand.
Relevant law
[20]On top of this, I have been directed to other documents, including the witness statement of Andrew Swanson and to the dismissal letter which he sent to the claimant. It is unnecessary for me to go into detail as to the content of these documents, beyond observing that it is clear that there is a 20 significant factual dispute between the parties as to the meaning of the letter of dismissal, and whether Mr Swanson was honest in saying that the protected disclosures, and his knowledge or lack thereof of the details of the disclosures, played any part in his decision to dismiss the claimant.[21]The claimant made a strong submission that it is effectively self-evident that 25 there can be no innocent explanation for the dismissal in light of what he considers to be flaws in the process, and dishonesty on the part of the respondent’s witnesses. I cannot sustain that submission, since in my judgment it is impossible to reach any safe conclusion on this matter without hearing evidence from the relevant parties and witnesses. 800 1075/24 Page 6[22]I have therefore come to the conclusion that the claim of automatically unfair dismissal set out under section 103A of ERA is not one which can be said to have a pretty good chance, to be likely, of succeeding.[23]The second claim made by the claimant is that the reason for dismissal was 5 that the claimant was blacklisted by the respondent, contrary to section 104F(1) of ERA, by reference to Regulation 3 of the 2010 Regulations.[24]It is very difficult to disentangle the precise basis of the claimant’s claim here. He has made regular reference to his treatment over a period of years by a number of employers. He submitted that the source of the blacklisting 10 was his treatment at Sellafield, where he said that he had been assaulted. In order to succeed with his claim, the claimant will require to prove wrongdoing on the part of the respondent, and not of any previous employer. He must show that they blacklisted him in terms of Regulation 3.[25]Regulation 3(1) provides that “no person shall compile, use, sell or supply a 15 prohibited list.”[26]Regulation 3(2) defines a prohibited list as a list which:(a) “contains details of persons who are or have been members of trade unions or persons who are taking part or have taken part in the activities of trade unions, and 20(b) Is complied with a view to being used by employers, or employment agencies, for the purposes of discrimination in relation to recruitment or in relation to the treatment of workers.”[27]The claimant has not clearly set out that either of these situations are likely to be demonstrated by the evidence in this case. There is no doubt that the 25 claimant is convinced that there is an industry-wide blacklisting to which he has been subjected, and that the respondent is responsible for perpetuating the conduct of others. If I may say so, there is a degree of sophistry in the claimant’s language here; he is seeking, subtly, to make the respondent responsible for a campaign of blacklisting while denying that he is saying 30 that. It is unclear what basis he has for a claim under section 104F or the 800 1075/24 Page 7 2010 Regulations, or that that claim will be made out. Accordingly, I am not satisfied that he has demonstrated that he has a pretty good chance of success with this claim.[28]I noted that the claimant made regular references to procedural failings and 5 unfairnesses inherent in the dismissal process. Caution must be exercised in these circumstances not to stray into the area of “ordinary” unfair dismissal. The issue is not whether the claimant was fairly dismissed in the general sense, but whether he was dismissed for either or the reasons which the claimant asserts were the real reasons for his dismissal. It is 10 therefore my conclusion that the claimant is not likely to succeed in his claim under this heading.[29]It is therefore my judgment that the application for interim relief should be refused.[30]I observe that my task in this hearing was to determine this application 15 alone. My decision has no bearing on any final Judgment which may be reached in this case by the Tribunal which shall have the benefit of oral testimony, refined by cross-examination, and consideration of all relevant documentary evidence. 20 30 I confirm that this is my Decision in the case of Logan v Centrica PLC and that I have signed the Decision by electronic means. Employment Judge: M A Macleod Date of Judgment: 12 August 2024 Entered in register: 19 August 2024 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8001075/2024 5 Preliminary Hearing held in Edinburgh on 23 January 2025 Employment Judge Sangster 10 Mr A Logan Claimant In person 15 Centrica plc Respondent Represented by Ms A Bennie Advocate 20[35](1) No one gains by truly hopeless cases being pursued to a hearing.(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate.(3) If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will 5 be appropriate.(4) The claimant’s case must ordinarily be taken at its highest.(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is. 10(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim.(7) In the case of a litigant in person, the claim should not be ascertained only 15 by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in 20 writing.(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be 25 explicitly pleaded in a manner that would be expected of a lawyer.(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.’ 30 Deposit Orders 30. Under Rule 40(1) of the Employment Tribunal Procedure Rules 2024, where the Tribunal considers that any specific allegation or argument has little reasonable prospects of success, it may order the party (‘the depositor’) to pay a deposit not exceeding £1000 as a condition of continuing to advance 35 that allegation or argument. 31. Whilst this is a lower hurdle than having no reasonable prospects of success (under Rule 38 on strike out), there must be a reasonable basis upon which to doubt that the legal arguments are valid, or that the material facts necessary to support the allegation will be established. 32. Under Rule 40(2), when deciding the amount of each deposit, the Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit, and have regard to such information when deciding the amount of the deposit. Where multiple allegations or arguments are advanced (as is the case here) 5 there may be multiple deposits ordered, not exceeding £1,000 each. However the Tribunal should stand back and consider whether the total deposit awarded is proportionate 33. Under Rule 40(4), if a deposit is ordered and the depositor fails to pay the deposit, the specific allegation or argument will be struck out. 10 34. Under Rule 40(7), if a deposit is ordered and paid, the deposit shall be refunded to the depositor, unless Tribunal ultimately decide to rejects the specific allegation or argument for substantially the same reasons. If the Tribunal does reject the specific allegation or argument for substantially the same reason, the depositor must (unless the contrary is shown), be treated 15 as having acted unreasonably when considering an award of expenses (costs) and the deposit must be paid to the other party. 35. In Hemdan v Ishmail [2017] IRLR 228, it was confirmed that the purpose of the rule was to identify claims with little prospect of success at an early stage and discourage those, but was not intended to act as a barrier to access to 20 justice or to “strike-out by the back door”. In that case, it was stated: ‘10. A deposit order has two consequences. First, a sum of money must be paid by the paying party as a condition of pursing or defending a claim. Secondly, if the money is paid and the claim pursued, it operates as a warning, 25 rather like a sword of Damocles hanging over the paying party that costs might be ordered against that paying party (with a presumption in particular circumstances that costs will be ordered) where the allegation is pursued and the party loses. There can accordingly be little doubt in our collective minds that the purpose of a deposit order is to identify at an early stage claims with 30 little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. That, in our judgment, is legitimate, because claims or defences with little prospect cause costs to be incurred and time to be spent by the opposing party which is unlikely to be necessary. They are likely to cause both wasted 35 time and resource, and unnecessary anxiety. They also occupy the limited time and resource of courts and tribunals that would otherwise be available to other litigants and do so for limited purpose of benefit. 11. The purpose is emphatically not, in our view, and as both parties agree, 5 to make it difficult to access justice or to effect a strike out through the back door… 12. … The test, therefore, is less rigorous in that sense, but nevertheless there must be a proper basis for doubting the likelihood of a party being able to 10 establish facts essential to the claim or the defence. The fact that a tribunal is required to give reasons for reaching such a conclusion serves to emphasise the fact that there must be such a proper basis. 13. The assessment of the likelihood of a party being able to establish facts 15 essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini-trial of the facts is to be avoided, just as it is to be avoided on a strike out application, because 20 it defeats the object of the exercise. Where, for example as in this case, the Preliminary Hearing to consider whether deposit orders should be made was listed for three days, we question how consistent that is with the overriding objective. If there is a core factual conflict it should properly be resolved at a Full Merits Hearing where evidence is heard and tested.’ 25 36. In determining an application for a deposit order, the Tribunal is accordingly entitled to have regard to the prospects of any party making out any factual assertion on which the claim is based as well as purely legal issues (Van Rensburg v Royal Borough of Kingston-upon-Thames UKEAT/0095/07). However, the Tribunal ‘must have a proper basis for doubting the likelihood 30 of the party being able to establish the facts essential to the claim or response’ (Van Rensburg para 27) although this should not involve a trial of the facts as this would defeat the purpose of the rule (Hemdan). Discussion and Decision – Amendment[37]I considered the nature of the amendment proposed, applicable time limits 35 and the timing and manner in which it was made, before assessing the balance of injustice and hardship.[38]At the First Preliminary Hearing, it was noted that the claimant included in his agenda document that he wished to amend his claim to include a complaint of discrimination arising from disability. In the Note, I highlighted that the claimant made reference to section 15 of the Equality Act 2010 in his agenda document, but that was not referred to in his claim. I highlighted that no detail of the basis for any potential complaint of discrimination arising from disability 5 was specified in the agenda document: the claimant simply referenced the section of the legislation, which is not sufficient for the purposes of an amendment application. I indicated in the Note that ‘If the claimant wishes to amend his claim, he will require to prepare a document setting out the wording he wishes to add. This can either be a separate document or highlighted as 10 proposed tracked changes to the DoC. This should clearly set out the factual and legal basis for any further complaints.’ The process of applying for an amendment, and the factors the Tribunal would require to consider to determine that application, if the respondent objected to it, were then also set out. 15 39. The claimant applied to amend his claim on 8 December 2024. Whilst the application to amend was made outside the time limit for raising such a complaint, I did not view that as particularly significant in the overall context of this claim.[40]With his application to amend, the claimant provided an amended version of 20 his DoC, with tracked changes reflecting the amendments he sought. The claimant’s proposed amendment simply seeks to remove all references in his DoC to s13 EqA, and replace them with references to s15 EqA. He proposes that these changes be made to paragraphs 22, 25 & 28 of the DoC (as well as on pages 12 & 16 where he sets out the terms of the legislation). No further 25 changes are proposed.[41]When discussing paragraphs 25 and 28 of the DoC at the First Preliminary Hearing however, the claimant clarified that the complaints he brought in relation to those paragraphs were failure to make reasonable adjustments and victimisation, not direct discrimination. In relation to paragraph 22 he 30 indicated that he brought a complaint of direct discrimination and failure to make reasonable adjustments, namely that he was subjected to daily pressure, unrealistic deadlines and a hostile working environment because of his disabilities, and/or that this placed him at a disadvantage because of his disabilities, in that it exacerbated the symptoms of his disabilities, which he had informed the respondent of on 14 March 2023, 13 March 2024 and 3 May 2024. 5 42. Within the Note, I included a list of the complaints being advanced, based on the DoC and the detailed discussion at the First Preliminary Hearing. It is clear from that that the content of paragraphs 25 & 28 of the claimant’s DoC have not been included as complaints of direct discrimination. The claimant did not indicate any disagreement to the list of complaints as detailed in the 10 Note (despite being directed to do so if he did).[43]In light of the above points, I have reached the conclusion that the proposed amendments do not contain sufficient detail to enable the Tribunal, or the respondent, to understand the complaints of discrimination arising from disability being advanced, for the following reasons: 15 43.1. In relation to the proposed amendments to paragraphs 22, 25 and 28 there is absolutely no specification of what the claimant asserts constitutes unfavourable treatment. Whilst it could be assumed that the unfavourable treatment is the same as the less favourable treatment relied upon for the direct discrimination complaint and the detriment for 20 the victimisation complaint, this is not clear from the proposed amendment. That is particularly the case, given that the claimant indicated that he was simply recategorizing complaints of direct discrimination which he had previously stated were not contained in paragraphs 25 & 28. 25 43.2. In relation to the proposed amendments to paragraphs 22, 25 and 28, there is no specification of what the ‘something arising from disability’ is that he asserts caused that unfavourable treatment, or the basis upon which he asserts the ‘something’ arose in consequence of disability; and 43.3. In relation to the proposed amendments to paragraphs 22, 25 and 28, 30 there is no specification of why he believes the something arising from disability that he relies upon caused the unfavourable treatment that he asserts he received.[44]As a result, I have reached the conclusion that proposed amendment does not set out a valid complaint under s15 EqA in the degree of detail which 5 would be required to give the respondent fair notice of the case it may be required to meet.[45]If the application to amend were permitted, the respondent would be prejudiced, as further particulars and/or case management preliminary hearings would be required, to clarify these matters. The claimant’s DoC is 10 detailed, he produced a very detailed agenda document containing further particulars, and a great deal of time was spent in discussion with him at the First Preliminary Hearing, to identify the complaints which he brings with reference to these documents. These were then set out in detail in the Note, which he was given the opportunity to consider and comment on. The 15 requirements for an application to amend were also discussed and set out in the Note. The claimant was then given the opportunity to apply to amend his claim. It is not proportionate to permit him a further opportunity to do so, or to provide further particulars which may or may not provide the requisite specification. Whilst he is a litigant in person, he is an experienced litigant, 20 having brought a number of other claims against other organisations, which the Tribunal has been referred to. He also has other complaints in this claim, in relation to the factual circumstances referenced in the paragraphs of his DoC which he sought to amend, which remain and will proceed (subject to consideration of the separate application for strike out, which is considered 25 below).[46]Taking all of these points into account, I concluded that the balance of hardship and injustice weighs in the respondent’s favour and concluded that the application to amend the claim should be refused. 30 Discussion and Decision – Strike Out and Deposit Orders Protected Disclosure Detriments & Dismissal[47]A qualifying disclosure is defined in section 43B ERA as “any disclosure of information which, in the reasonable belief of the worker making the 5 disclosure, is made in the public interest and tends to show one or more of the following:a. That a criminal offence has been committed, is being committed or is likely to be committed;b. That a person has failed, is failing or is likely to fail to comply with any 10 legal obligation to which he is subject;c. That a miscarriage of justice has occurred, is occurring or is likely to occur;d. That the health or safety of any individual has been, is being or is likely to be endangered; 15e. That the environment has been, is being or is likely to be damaged; orf. That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.”[48]The respondent’s principal assertion in relation to these complaints was that they had little or no prospects of success as the claimant cannot establish 20 that the asserted disclosures were qualifying disclosures. (They accept that, if they were qualifying disclosures, they would be protected disclosures as they were made to the respondent).[49]The Tribunal assessed the available information in relation to each asserted disclosure in turn, and reached the following conclusions: 25 49.1.Disclosure 1. The claimant states that this related to the unnecessary processing of billions of rows of data, at significant cost to customers and shareholders. The Tribunal noted that the claimant’s position, as stated at the First Preliminary Hearing and this preliminary hearing, is that several communications constituted Disclosure 1, as stated at 30 paragraph 6.3.1 above. It was not however clear, by the time of the Second Preliminary Hearing, which precise documents the claimant relies upon as containing Disclosure 1. 49.2.The respondent had provided some Azure DevOps communication records to the claimant in advance of the Second Preliminary Hearing, 5 as well a number of further emails. They asked the claimant to confirm if these were the correct documents regarding Disclosure 1, as the dates of the documents they identified differed from the dates stated in the Note (as replicated at paragraph 6.3.1 above). They also asked whether the Azure records provided contain the protected disclosures he intends 10 to rely on. If so, they asked him to identify the disclosures by page and paragraph number. The claimant did not respond. He has not provided confirmation of whether a) the Azure records are the correct documents; b) he now has the totality of documents he relies upon in relation to Disclosure 1; or c) his position is that further documents require to be 15 produced by the respondent and, if so, what. 49.3. If he now has the totality of documents he relies upon, he must identify which documents he relies upon and highlight which parts of those documents he relies upon as constituting Disclosure 1 and the basis for that. Until the claimant does so, it is not possible to assess whether his 20 complaints based on Disclosure 1 have little or no prospects of success (‘Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is’ Cox v Adecco), or to proceed to a hearing on the merits. It is not for the Tribunal, or indeed the respondent, to review these documents to try to identify, within the 25 significant detail included, what may or may not be relied upon by the claimant. The claimant must confirm what his case is in sufficient detail to enable the Tribunal and the respondent to know precisely what the claimant relies upon as Disclosure 1 and why. 49.4.Disclosure 2. The claimant stated at the First Preliminary Hearing that 30 he relied upon information disclosed in a written Avoidance of Harassment and Bullying in the Workplace complaint dated 24 March 2023, which he then expanded upon in a meeting with Helen Elspy, as reflected in the written records of that discussion. Copies of those documents were contained in the bundle produced for the Second Preliminary Hearing. 5 49.5.Having now had the opportunity to review those documents, it is clear that both documents are detailed - extending to 19 & 35 typed pages respectively – and cover a wide range of matters. Whilst the claimant referenced particular paragraphs of these documents in his written ‘Evidence and Bundle References’ Document, it is not clear from this, 10 what paragraphs the claimant relies upon as constituting protected disclosures and the basis for that. Until the claimant clarifies this, it is not possible to assess whether his complaints based on Disclosure 2 have little or no prospects of success (‘Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know 15 what it is’ Cox v Adecco), or to proceed to a hearing on the merits. It is not for the Tribunal, or indeed the respondent, to review these documents to try to identify, within the significant detail included, what may or may not be relied upon by the claimant. The claimant must confirm what his case is in sufficient detail to enable the Tribunal and 20 the respondent to know precisely what the claimant relies upon as Disclosure 2 and why. 49.6.Disclosure 3. The claimant stated at the First Preliminary Hearing that this disclosure comprised the other concerns raised in his email to Jana Siber on 11 April 2024. That email was contained in the bundle on three 25 occasions: an incomplete version, not including all of the embedded ‘figures’ (or screenshots) was included from page 475 -514; and what appear to be complete versions were included from pages 423-474, and again from page 515-566. It should be noted that, in their submission, the respondent referred to the complete document as being from page 30 475-477 of the bundle. That is clearly not the case. The full document continues, as stated above, and as recorded in the index to the bundle of documents for the preliminary hearing. 49.7. Having now had the opportunity to review these documents, it is clear that, whichever version is considered, the claimant’s email to Jana Siber on 11 April 2024 is very detailed and covers a wide range of matters. Again, whilst the claimant references particular paragraphs of that email 5 in his written ‘Evidence and Bundle References’ Document, it is not clear from this, what paragraphs the claimant relies upon as constituting protected disclosures and the basis for that. Until the claimant provides that clarification, it is not possible to assess whether his complaints, based on Disclosure 3, have little or no prospects of success (‘Put 10 bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is’ Cox v Adecco), or to proceed to a hearing on the merits. It is not for the Tribunal, or indeed the respondent, to review that email to try to identify, within the significant detail included, what may or may not be relied upon by the claimant. The claimant must 15 confirm what his case is in sufficient detail to enable the Tribunal and the respondent to know precisely what the claimant relies upon as Disclosure 3 and why. 49.8.Case management orders, in relation to the provision of this information, are made separately. 20 Blacklisting – detriment and dismissal[50]The respondent asserted that the complaints should be struck out as the claimant has not pled that he was subjected to the asserted detriments/dismissal because his name is on a prohibited list. However, that submission ignores the fact that a great deal of time was spent at the First 25 Preliminary Hearing (at which Ms Bennie was not representing the respondent), identifying each detriment relied upon and what the claimant asserts caused each, as recorded in the Note. The claimant’s claim is that his name was on a prohibited list and the respondent subjected him to the identified detriments as a result. While the respondent disputes this, for the 30 purposes of this application, the claimant’s claim must be taken at its highest and the Tribunal must assume the claimant will make out the facts he offers to prove, unless those facts are conclusively disproved or totally and inexplicably inconsistent with contemporaneous documents. That has not been demonstrated. It cannot therefore be said, on a preliminary assessment, that his claim has no or little prospects of success. There is a factual dispute 5 as to whether the claimant’s name was on a prohibited list and whether the claimant was subjected to detriments. If those issues are established the Tribunal will require to determine causation. That will require evidence from the decision makers and consideration of what, if any, inferences should be drawn from the established facts and circumstances. It cannot be said, 10 without hearing that evidence, that that complaint has little or no reasonable prospect of success. Victimisation[51]The respondent asserted that the complaints should be struck out as the claimant has not identified the protected act relied upon, or pled that he was 15 subjected to the asserted detriments because he did a protected act or acts. Again, however, that approach ignores the fact that time was spent at the First Preliminary Hearing identifying the asserted protected acts and detriments relied upon, as recorded in the Note. In his ET1, the claimant sets out that he believed his colleagues were aware of his previous Employment 20 Tribunal complaints. He sets out the basis for that belief. His complaint of victimisation is that, as a result of that and/or the fact that he raised grievances asserting discrimination and/or victimisation (on 24 March 2023 and 12 June 2024), the respondent subjected him to the identified detriments. While the respondent may dispute these points, for the purposes of this 25 application, the claimant’s claim must be taken at its highest and the Tribunal must assume the claimant will make out the facts he offers to prove, unless those facts are conclusively disproved or totally and inexplicably inconsistent with contemporaneous documents. That has not been demonstrated. It cannot therefore be said, on a preliminary assessment, that his claim has no 30 or little prospects of success. It appears, from the documents produced at the preliminary hearing that the claimant has previously brought proceedings under the EqA in the Employment Tribunal against other organisations. It also appears, from the documents produced at the preliminary hearing, that the claimant asserted, in grievances raised on 24 March 2023 and 12 June 2024, that the respondent contravened the EqA. Whether the claimant was subjected to detriments, and if so the reason or cause for that, will require 5 evidence from the decision makers and consideration of what, if any, inferences should be drawn from the established facts and circumstances. It cannot be said, without hearing that evidence, that that complaint has little or no reasonable prospect of success. Direct Disability Discrimination 10 52. The respondent’s application in relation to the direct discrimination complaint is shortly stated in their skeletal submission and was not expanded upon orally. They state, at paragraph 84, ‘As before, there has been no attempt to specify any disability claim. Re direct discrimination who is the comparator? Moreover, his claim as per the Note is inconsistent with his grievance and his 15 many other complaints which is that he was removed from work and had insufficient work.’ Many claimants, particularly litigants in person, do not specify comparators. Many claims, particularly ones which involve a large number of asserted complaints, involve inconsistencies. The issue to be determined at this preliminary hearing was however whether the respondent 20 has demonstrated that the complaints of direct discrimination have little or no prospect of success, when taken at their highest. The Tribunal concluded that they have not done so. At best they have demonstrated that further particulars of this complaint may be required in relation to specification of whether the claimant relies upon an actual or hypothetical comparator in relation to this 25 claim. Those details can however be provided in advance of any final hearing. Failure to Make Reasonable Adjustments[53]In relation to the complaints of failure to make reasonable adjustments, the respondent, with reference to the case of Ishola v Transport for London 2020 ICR 1204, asserted that a PCP must be capable of being applied to 30 others. They assert that the PCPs relied upon (other than one) are treatment which only applied to the claimant. Alternatively, in respect of those that may be PCPs, the respondent submitted that ‘the treatment can be objectively justified which means no reasonable prospects of success and so strike out of the relevant claims’[54]In Ishola, at paragraph 38, Simler LJ states: 5 ‘In context, and having regard to the function and purpose of the PCP in the Equality Act 2010, all three words carry the connotation of a state of affairs (whether framed positively or negatively and however informal) indicating how similar cases are generally treated or how a similar case would be treated if it occurred again. It seems to me that 'practice' here connotes some 10 form of continuum in the sense that it is the way in which things generally are or will be done. That does not mean it is necessary for the PCP or 'practice' to have been applied to anyone else in fact. Something may be a practice or done 'in practice' if it carries with it an indication that it will or would be done again in future if a hypothetical similar case arises…I consider that although 15 a one-off decision or act can be a practice, it is not necessarily one.’[55]The claimant’s position is that each PCP relied upon is/was capable of being applied to others, or was or constituted a practice. Whether similar cases are generally treated this way, or would be treated that way if they occurred again, is a factual matter which is disputed and will require to be determined by the 20 Tribunal at a final hearing, having heard all the evidence. Similarly, if it is found that there was a PCP which placed the claimant at a substantial disadvantage in comparison with persons who are not disabled, whether the respondent took such steps as were reasonable to avoid the disadvantage is not a matter which can be determined at this stage, on a summary 25 assessment. Evidence will require to be led for this to be established. In addition, it relates to what the respondent is offering to prove. The focus in relation to this application is on the claimant’s pleadings and what he, taking his claim at its highest, is offering to prove. 30 Unfair Dismissal[56]In relation to the complaint of ‘ordinary’ unfair dismissal, the respondent asserted only that this has little reasonable prospect of success (rather than no reasonable prospect). In their skeletal submission they simply referred to 5 a number of documents in the bundle by page number, namely communication to the claimant re suspension, the letter confirming termination of the claimant’s employment, a witness statement from the dismissing manager and the appeal outcome. Having done so, they stated ‘based on same, it is submitted that the test for a deposit order is met, the 10 unfair dismissal claim enjoying little prospect of success’[57]In almost every unfair dismissal case the decision to dismiss is fact-sensitive (Tayside Public Transport company Ltd (t/a Travel Dundee) v Reilly [2012] Scot CS CSIH 46, per Clerk LJ).[58]In this case, the respondent asserts that the claimant was dismissed for some 15 other substantial reason, namely irretrievable breakdown in relationships between the claimant and his colleagues. The claimant asserts that the reason put forward by the respondent is not in fact the real reason why he was dismissed. There is accordingly a core of disputed fact in relation to why the decision was taken to dismiss the claimant. That factual conflict should 20 properly be resolved at a full merits hearing, where evidence is heard and tested. Without hearing that evidence, in particular from the dismissing manager, it cannot be said that the claimant’s claim has little reasonable prospects of success. Conclusions re Strike Out/Deposit Order 25 59. For these reasons, the respondent’s application for strike out, failing which a deposit order, is refused. Date sent to parties ____________________________ 30 E.T. Z4 (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 8001075/2024 Held in Edinburgh on 18 August 2025 Employment Judge Sangster Mr A Logan Claimant In person Centrica plc Respondent Represented by Ms A Bennie Advocate[1]The claimant brings a number of complaints, including direct disability discrimination and failure to make reasonable adjustments.[2]The case was listed for an open preliminary hearing to determine disability status. The claimant relies on two impairments, namely Essential Tremor and Generalised Anxiety Disorder.[3]It was agreed at the start of the preliminary hearing that the relevant dates, for determining disability status, were 15 May 2022 to 17 July 2024 (the Relevant Period).[4]A joint bundle of documents was agreed, extending to 125 pages. The respondent also provided copies of some of the pleadings, to be referred to at the preliminary hearing, at the commencement of the hearing.[5]The claimant gave evidence at the preliminary hearing. No further witnesses were called. Findings in fact[6]The Tribunal found the following facts, relevant issues to be determined, to be admitted or proven. The claimant is 45 years old. Essential Tremor[8]The claimant noticed, around the age of 14, that his thumbs would tremor when his arms were outstretched. This was initially unproblematic and restricted to that particular movement. Over time, however, the tremor became gradually worse. By 2021, it also involved the fingers on each hand, when he was holding his hands in certain positions, with certain movements and when holding objects, such as when he was writing, eating or drinking - each of which had become increasingly difficult tasks for him to undertake. His handwriting was illegible. He was unable to use tools, such as a screwdriver, for DIY. By the start of 2023, his whole hand would shake when his arm was raised. The tremor prevented him, for example, lifting a kettle and writing (he would, by that stage, only type rather than write things by hand, and even that presented challenges for him, in that he was slower at using a keyboard than he had been previously). Eating and drinking also now presented particular challenges: eating anything with a spoon (such as soup) required two hands, but would still result in spillages, as would, drinking and eating small items, such as peas.[9]The claimant was formally diagnosed as having Essential Tremor, by a Neurologist, on 8 February 2023. His condition is exacerbated by strenuous exercise, coffee and psychological stress. Generalised Anxiety Disorder[10]The claimant consulted his GP on the following occasions: 10.1. On 6 & 19 September 2007, when he reported that he reported stress and anxiety, which was linked this to having recently being made redundant. 10.2. On 28 January 2010, in relation to an ‘acute anxiety episode’, where on examination it was noted that he was ‘emotional and anxious. keen to go back to work as sees benefit of keeping occupied. no sign major psychiatric illness’. His employment with Ryanair ended in January 2010, in circumstances where the claimant believed he had been constructively dismissed. 10.3. On 24 June 2013, when his GP recorded that he had ‘some anxiety symptoms and low mood re ongoing situation’. The ‘ongoing situation’ was recorded as being ‘workplace bullying’ and that the claimant was, at that time, suspended from his work. A medical certificate was issued confirming that he was fit to work. The claimant was employed by Vodafone at the time, and was suspended for a period of 18 months. 10.4. On 25 March 2014, where the GP noted that he was fit to work and no mention was made of anxiety. 10.5. On 22 May 2014, when his GP recorded that the claimant had ‘ongoing concerns re his ‘isolation’ as he is being ‘prevented’ from working – also ongoing concerns re widespread dissemination [redacted section] offered NHS psych ref – [redacted section] – anxious today…’ The claimant remained suspended from Vodafone at the time of this consultation. 10.6. On 10 May 2024, when he was certified as unfit to work for two weeks, due to ‘stress at work’. The claimant had been suspended from his role with the respondent on 3 May 2024. 10.7. On 23 May 2024, when it was noted that he was experiencing ‘stress at work and anxiety’. He was certified potentially being fit to work taking into account advice that workplace adaptions may be required for 4 weeks. The comments noted were that ‘patient’s anxiety significantly worsened with current workplace environment/uncertainty. Would benefit from stable environment and work interaction for mental health.’[11]At the times when the claimant consulted his GP, he was generally experiencing sleep disturbances, anxiety, difficulty concentrating, ruminating thoughts, worry and feeling overwhelmed.[12]The claimant did not consult his GP in relation to symptoms of anxiety other than as stated in paragraph 10 above. He accordingly did not consult his GP in relation symptoms of anxiety in the 10 year period from May 2014 to May 2024. He was not, at any point, prescribed any medication or other treatment for anxiety.[13]The claimant raised Employment Tribunal proceedings against BAE Systems Surface Ships Limited in October 2016, having been employed by them from 23 March 2015 to 20 July 2016. The hearing took place over 12 days in the period May to July 2017. The Judgment, dated 12 January 2018, records that the complaints included complaints of disability discrimination, on the basis that the respondent perceived the claimant to be a disabled person. The Judgment recorded that, at a preliminary hearing for case management, ‘it was agreed that during the claimant’s employment he did not have a disability envisaged by section 6 of EqA.’ The findings of fact of the Tribunal, recorded in the Judgment (at paragraphs 53 & 54) state that during the claimant’s employment with BAE, he ‘denied any symptoms of psychological ill health’ and that the claimant stated that ‘he had no significant underlying medical conditions’. This, it is recorded in the findings in fact, was supported by the findings of an occupational health practitioner at that time, who concluded that 'there was no evidence of a psychological illness at that time.’[14]During his employment with the respondent, the claimant expressed the following: 14.1. In May 2023 that he was stressed by the way he was being treated; 14.2. In January 2024, that he was finding a particular task stressful; 14.3. On 13 February 2024 that he was ‘unable to cope with my ongoing treatment…I am taking time off ill to protect my health’; and 14.4. On 7 May 2024 that he was ‘unable to work due to incidents and treatment at the workplace that had affected my health. My symptoms include, but are not limited to, acute elevated blood pressure, headaches, racing heart, hyperventilation, sleep disturbances and anxiety.’[15]The claimant’s employment with the respondent terminated on 17 July 2024. He has since commenced alternative employment.[16]On 28 February 2025, the claimant’s GP wrote a letter addressed to ‘To whom it may concern’ which referenced the claimant in the header and stated ‘The above gentleman suffers from Anxiety Disorder. I would be grateful if you could take this into consideration when discussing Alastair’s return to work with reasonable adjustments.’ No further details were provided. Submissions[17]The claimant made submissions with reference to an 8 page skeleton argument, which he spoke to. He also responded orally to the respondent’s submission.[18]Ms Bennie, for the respondent, gave her submission with reference to a 20 typed skeleton, which she spoke to.[19]While not replicated here, both were carefully considered, as were the authorities referenced and produced.
Relevant Law
[20]Section 6(1) EqA provides: ‘A person (P) has a disability if — P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.’[21]Schedule 1 EqA contains supplementary provisions in relation to the determination of disability. Paragraph 2 states ‘(1) The effect of an impairment is long-term if -(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected.’[22]The Equality and Human Rights Commission: Code of Practice on Employment (2011), at Appendix 1, sets out guidance on the meaning of disability. It states at paragraph 7 that ‘There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause.’[23]The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (the Guidance) does not itself impose legal obligations, but the Tribunal must take it into account where relevant (Schedule one, Part two, paragraph 12 EqA).[24]The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and states ‘The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.’[25]Paragraphs B4 and B5 state that: ‘An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effect on more than one activity, when taken together, could result in an overall substantial adverse effect. For example, a person whose impairment causes breathing difficulties may, as a result, experience minor effects on the ability to carry out a number of dayto-day activities such as getting washed and dressed, going for a walk or travelling on public transport. But taken together, the cumulative result would amount to a substantial adverse effect on his or her ability to carry out these normal day-to-day activities.’[26]Paragraph B1 should be read in conjunction with Section D of the Guidance, which considers what is meant by ‘normal day-to-day activities’.[27]Paragraph D2 states that it is not possible to provide an exhaustive list of dayto-day activities.[28]Paragraph D3 provides that: ‘In general, day-to-day activities are things that people do on a regular or 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.’[29]D16 provides that normal day-to-day activities include activities that are required to maintain personal well-being. It provides that account should be taken of whether the effects of an impairment have an impact on whether the person is inclined to carry out or neglect basic functions such as eating, drinking, sleeping, or personal hygiene.[30]In Goodwin v Patent Office [1999] IRLR 4, the EAT held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are: 30.1. Does the person have a physical or mental impairment? 30.2. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? 30.3. Is that effect substantial? 30.4. Is that effect long-term?[31]The burden of proof is on a claimant to show that he or she satisfies the statutory definition of disability.[32]In cases such as J v DLA Piper UK LLP 2010 ICR 1052, Herry v Dudley Metropolitan Council 2017 ICR 610, and Igweike v TSB Bank plc 2020 IRLR 267, the EAT have it clear that a distinction needs to be drawn between a mental impairment amounting to a disability under the EqA and an adverse reaction to life events (such as anxiety/stress brought on by allegations of misconduct or stress/depression triggered by a close family bereavement). Observations on Evidence[33]The claimant was clear there were ‘peaks and troughs’ in the symptoms he described which he attributed to Generalised Anxiety Disorder, but gave little/no detail on when he experienced those. He was however clear in his evidence that the workplace stressors, in various workplaces, caused his anxiety reactions. The Tribunal could see, from the excerpts of medical records and employment history produced that there was a clear correlation between the workplace difficulties and the anxiety reactions. It was also very notable that the claimant did not produce any evidence of him consulting his GP in relation to anxiety, other than when there were particular workplace difficulties ongoing. The Tribunal concluded that, had the claimant been experiencing ongoing symptoms in the intervening periods, he would have consulted his GP at that time, and produced evidence of this to the Tribunal. Discussion & Decision[34]The Tribunal’s conclusions in relation to questions posed in Goodwin v Patent Office, in relation to each impairment relied upon, are set out below. Essential Tremor[35]Does the claimant have a physical or mental impairment? This was not in dispute in relation to Essential Tremor. The respondent conceded that the claimant had a physical impairment.[36]Was there an adverse effect on the claimant’s ability to carry out day to day activities as a result of the impairments? The Tribunal’s findings in relation to this are set out in paragraph 8 above. Eating, drinking and writing are all day to day activities. The Tribunal concluded that these findings demonstrate that there was an adverse effect on the claimant’s ability to carry out day to day activities, as a result of Essential Tremor, in the Relevant Period.[37]Was that effect substantial? The Tribunal was satisfied that the adverse effects on the claimant’s ability to carry out day to day activities, as identified in paragraph 8 above, were substantial. They were clearly more than minor or trivial.[38]Was that effect long-term? The Tribunal was satisfied that the substantial adverse effects were long term by the commencement of the Relevant Period: the fingers on each hand were shaking, as well as his thumbs, when his hands were held in certain positions, with certain movements and when holding objects. The claimant’s ability to write, eat and drink were being adversely impacted, and had been since 2021. The adverse effects were becoming gradually worse, rather than improving. They were likely to continue for at least 12 months.[39]For these reasons the Tribunal concluded that the claimant was a disabled person, as a result of Essential Tremor, in the Relevant Period. Generalised Anxiety Disorder[40]Does the claimant have a physical or mental impairment? The claimant asserted that he had Generalised Anxiety Disorder from at least 2005 to date. He relied upon excepts from his medical records in relation to this (see paragraph 10 above), as well as his oral evidence.[41]Whilst the claimant produced a letter from his GP, dated 28 February 2025, stating that he ‘suffers from Anxiety Disorder’, the letter post-dated the Relevant Period and there was no indication in the letter as to when the claimant started to experience this, only that, as at the date of the letter, he did so. The Tribunal accordingly concluded that the letter did not assist in determining whether the claimant had a mental impairment in the Relevant Period. Other than the GP letter dated 28 February 2025, there was no evidence before the Tribunal that referenced the claimant having, or being diagnosed with, Anxiety Disorder or Generalised Anxiety Disorder, or suggesting any underlying medical condition linked to anxiety.[42]Whilst the claimant consulted his GP, and mentioned anxiety, twice over a two week period in 2007 and on one occasion in each of the years 2010, 2013 and 2014, each episode was expressly linked to adverse circumstances he was experiencing in relation to his work at that particular time. Each episode could be seen as a normal reaction to the adverse circumstances which the claimant was experiencing at that particular time. The next time he consulted his GP, and mentioned anxiety, was 10 years later, when he was again experiencing adverse circumstances in relation to his work. The claimant did not consult his GP in relation to similar symptoms at any other time, was not prescribed medication for anxiety and did not receive any treatment related to anxiety. In 2017, his view, as expressed to the Employment Tribunal in relation to proceedings which were ongoing at that time (see paragraph 12 above), was that he did not have a disability envisaged by section 6 of EqA, and indeed, had no underlying medical conditions and no symptoms of psychological ill health.[43]The claimant stating to his employer that he was ‘stressed’ by treatment, or finding particular tasks stressful, does not support an underlying mental impairment. Nor does his statement that he was unable to cope with treatment on a particular date and was taking time off to protect his health.[44]Taking all of the above into account, the Tribunal concluded that the claimant did not demonstrate that he had the impairment of Generalised Anxiety Disorder from 2005 to date, as he asserted, or within the Relevant Period. There was no evidence before the Tribunal which suggested that the anxiety the claimant experienced was as a result of a mental impairment. Rather, the evidence pointed to this being isolated reactions to adverse circumstances he was experiencing at that time.[45]Was there an adverse effect on the claimant’s ability to carry out day to day activities as a result of the impairment? If so, was that effect substantial & long term? The Tribunal accepted the claimant’s evidence that he suffered adverse effects on his ability to carry out day to day activities when he was experiencing episodes of anxiety. The Tribunal accepted that those adverse effects were substantial. However, for the reasons set out above, the Tribunal did not accept that the adverse effects were as a result of a physical or mental impairment. In addition, it is clear that the effects were not long term. As set out above, the claimant consulted his GP, and mentioned anxiety, twice over a two week period in 2007, on one occasion in each of the years 2010, 2013 and 2014 and then again in May 2024. The medical evidence presented did not support any findings that the episodes of anxiety were anything other than very short, isolated, reactions to adverse circumstances. There was no medical evidence which demonstrated that the effects lasted other than for very short periods, and none to suggest that they were likely to last 12 months, or were likely to reoccur.[46]For these reasons the Tribunal concluded that the claimant was not a disabled person, as a result of Generalised Anxiety Disorder, in the Relevant Period.