Crossland v OCS Group Ltd & Anor (Practice and Procedure : Imposition of Deposit) [2013] UKEAT 0340_12_1701

EAT
Crossland v OCS Group Ltd & Anor (Practice and Procedure : Imposition of Deposit)
[2013] UKEAT 0340_12_1701 · 2013-01-17
[1]The Claimant is employed by the First Respondent, OCS Group UK Ltd (“OCS”). He is a diabetic, and it is accepted that that constitutes a disability within the meaning of the Equality Act 2010 . In the period leading up to the dispute that has led to the present proceedings, OCS supplied the Claimant’s services as a security guard to the Second Respondent, British Airways Interior Engineering Ltd, (“BA”), at their premises on an industrial estate near Caerphilly. He worked alone and at night. Part of his duties was to patrol the exterior of the premises. In mid‑2011 (there is a dispute as to the precise date, which does not matter) he was taken off the job after having declined to undertake outside patrols. He was disciplined but not dismissed. He commenced proceedings in the Employment Tribunal against both OCS and BA. I need not set out the totality of his claims as initially pleaded, but they included a claim for breach of the duty to make reasonable adjustments under sections 20 and 21 of the 2010 Act. At a Pre‑Hearing Review in Cardiff on 18 January 2012 Employment Judge Cadney made a deposit order in the sum of £250 in relation to that claim under rule 20 of the Employment Tribunals Rules . The Claimant sought a review of that decision, but the application was refused.[2]This is an appeal against that order. Regrettably, although HHJ Serota directed on the sift in May 2012 that the appeal should be expedited if possible, it does not appear to have been possible to list it until today. The Claimant has appeared in person, as he did below. Although he is a layman, he has a law degree and has indeed undertaken the Bar vocational course. Both his written and his oral submissions have been clear and cogent. OCS has been represented by Mr Bax of counsel and BA by Ms Eeley of counsel, both of whom also appeared below.[3]The duty alleged to have been breached in the present case arises under section 20 (3) of the 2010 Act, which requires, for present purposes, an employer (referred to in the section as “A”), “[…] where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.” I will adopt the usual shorthands of “PCP” for “provision, criterion or practice” and “reasonable adjustment” for the steps that may be required under that sub-section.[4]The Claimant’s case, put broadly, relates to the risk that as a diabetic he may suffer unpredictable hypoglycaemic episodes that may lead to serious injury or indeed in an extreme case to death, particularly if he cannot obtain assistance and that the Respondents should have taken steps to reduce the risk of injury occurring as a result of his suffering such an episode. But although that broad case is clear enough, it has been less clear how he puts it in detail. The grounds pleaded in the ET1 are rather discursive and do not specifically identify either(a) the PCP that is said to put him as a diabetic at a substantial disadvantage or(b) the reasonable adjustments which it is said should have been made in order to reduce that disadvantage. So far as the latter point is concerned, that was addressed at a case management discussion that took place on 22 October 2011. On that occasion the Claimant identified the adjustments as follows as recorded in the Judge’s record:
“(a) having two people on‑site (b) looking at cameras, not requiring him to patrol (c) providing him with a button alarm around the neck (d) gritting the paths (e) stopping external patrols (f) lights around the back of the accommodation (g) the accommodation has a razor‑wire fence around it and OCS would not be able to get in if the Claimant collapsed (h) the emergency key is in a safe 20 miles away from the site (i) the mobile supervisor does not have a key (j) the Respondents should have provided non‑slip boots, and (k) the Respondent did not provide the Claimant with wet‑weather gear.”
As the Claimant acknowledges, items (g) to (i) do not in fact identify any steps that should be taken, but he says that the intended implication is that the mobile supervisor should carry a key so that he could get in if he received a call to assist the Claimant. I should also observe that one or two other of the steps there identified, in particular (d), (j) and (k), do not seem to be peculiar to any risk that the Claimant might suffer as a diabetic. I will say a little bit more about the others in a moment.[5]Unfortunately the opportunity was not taken at that CMD to obtain equivalent clarity about the PCP or PCPs on which the Claimant was relying. Broadly, however, from what is pleaded in the grounds in the ET1 and from the implications behind the identified reasonable adjustments, the possible PCPs are twofold. I take them in turn.[6]The first is the practice of the Claimant working alone. The Claimant can plainly say that working alone puts him at a particular risk compared with a non‑diabetic because if he has a hypoglycaemic episode he is likely to suffer injury from the non‑availability of assistance. The assistance in question might in an appropriate case involve the giving of first aid or the summoning of medical help, but in the first instance it would consist simply of administering sugar to raise his blood sugar level. If all goes well, a diabetic who sees the problem coming can take sugar himself or herself, and indeed the Claimant tells me that he always keeps with him a bottle of Lucozade for that purpose; but it is in the nature of a hypoglycaemic episode that the dulling of the intellectual capacity that it involves sometimes means that the sufferer is unaware of its onset and may need assistance from someone else. That is how the PCP of working alone might put the Claimant at a disadvantage as a diabetic, and there is certainly some reference in the ET1 - though, as I say, not in a very focused way - to the risks of lone working. Likewise, one or two of the adjustments seem to be directed specifically to that - most obviously the adjustment relating to the supervisor having a key to the premises.[7]The other, and more specific, PCP that may be in play is the requirement that the Claimant undertake external patrols. The Claimant’s case as to that is that, although undertaking such patrols does not increase the chance of a hypoglycaemic episode occurring, if one were to occur while he was outside the building the risks of his suffering injury as a result are increased. I return to this aspect later, but it will be seen that several of the adjustments proposed are clearly directed specifically to this point - most obviously adjustment (e) (stopping external patrols) but also (b), which is essentially to the same effect, and the Claimant likewise confirmed that the thinking behind adjustment (a) (having two people on‑site) was so that someone other than the Claimant could undertake external patrols if they were indeed necessary.[8]When the matter came before the Judge at the Pre‑Hearing Review he was rightly concerned to elucidate what the PCP or PCPs was or were that the Claimant was relying on. It is clear from the notes of both counsel, which I have, that he took some trouble to elucidate that. For example, Ms Eeley’s notes contain the following passage:
“What is the PCP? Being asked to do patrols around the building Fact of being asked to do patrol Nothing about patrol ↑ risk of hypo”
As a result of that questioning the Judge satisfied himself that the PCP on which the Claimant was relying was in truth, and was only, the requirement to carry out external patrols. He said at paragraph 16 of the reasons: “The claimant’s case has always been and remains today that he was perfectly able, fit and willing to carry out lone work for the respondent. The only part of his duties which he declined to perform was the obligation to carry out any exterior patrols.” (It is fair to say that that is, as it appears at that point in the reasons, a summary of the Claimant’s submissions; but at paragraph 18 the Judge makes it clear that the Judge regards those submissions as having “a great deal of substance”.)[9]That clarification seems to me to be in accordance with the reality of the situation. It was the requirement to carry out patrols which had led to the dispute between the Claimant and the Respondents. The Claimant had never, as I understand it, argued to the Respondents that he should have been given a second person to work with; and, even if he had, that is unlikely to have been treated as a reasonable requirement under section 20. Some more modest adjustment might have at least mitigated the risk of lone working, such as his request that the supervisor carry a key, but this point was at most secondary to the Claimant’s thinking. Against that background, I find nothing surprising in the Judge reaching the view that the PCP that was truly in play here was the requirement to carry out external patrols rather than the practice of the Claimant working alone.[10]The Judge having identified the PCP in that way, the question was whether the requirement to carry out patrols put the Claimant, as a diabetic, at a special risk. At paragraphs 16‑18 of the reasons the Judge set out the Respondent’s contentions, which in the event he endorsed, that there was little reasonable prospect of the Claimant establishing that it did. Granted, of course, that the Claimant was at special risk of suffering injury in one of the various ways that can follow a hypoglycaemic episode -most obviously of falling and suffering an injury in consequence - it was his view that that risk was no higher outside than inside. If there were any doubts that the Judge had accepted that approach, his position is confirmed by the terms of the review letter.[11]The Claimant says that that approach was wrong in law on five grounds, set out in his clear and helpful Notice of Appeal, which he said that he intended to rely on also as his skeleton argument. I will take those grounds in turn.[12]In ground 1 the Claimant picks up on an observation made in the course of the Judge’s letter refusing a review, in which he says that the Claimant is no more at risk when at work than at home and contends that that is not the correct comparison. I agree with that, but it seems to me that that observation does not reflect the Judge’s overall reasoning. That reasoning was, as I have said, that such increased risk as the Claimant suffered as a diabetic was as a result of lone working and not of having to carry out external patrols, which was the PCP whose effect he was seeking to have removed or mitigated.[13]Ground 2 I should set out in full:
“The law requires that I only identify ‘a (one) provision, criterion or practice’. And, that I have done, for example, I have concentrated (but not exclusively) on external patrols as it was this ‘provision, criterion or practice’ for which I suffered a detriment as per sections 39 and 41 of the Act, i.e. I was removed from site and given a written warning specifically because I was not doing external patrols. The Act does not require that I identify every single one of the provisions, criterions [sic] or practices that may be discriminatory, nor does it require that I lump all the provisions, criterions [sic] or practices that require reasonable adjustments under a collective noun, such as ‘lone working’. The judge has erred because all I had to do was identify a ‘practice’ … ‘in relation to a relevant matter’ for which I was disadvantaged compared to a non-disabled worker.”
The first part of that ground in fact serves to confirm the view that I have expressed above that the Judge was right to understand that the real dispute in this case was about the PCP of external patrolling. But the proposition of law in the second part of the ground is, with all respect to the Claimant, simply wrong. There is no reason at all why he should not have complained of more than one PCP if he said that more than one was discriminatory.[14]Ground 3 is more substantial and is the one to which I have had to give greatest attention. The point that the Claimant makes is that although, as he had expressly accepted, the chance of having a hypoglycaemic episode was no greater when he was on patrol, the risk of injury occurring in those circumstances would be higher than if the episode occurred while he was indoors in the office. He says:
“15. Therefore, in the office or at home, in a well lit and familiar area with plenty of sugar (lucozade) available, I will, it can easily be deduced, be safer than if I was on patrol, walking on ice, in temperatures that have been below -10C, or in snow, or rain, in the dark, falling onto concrete, unable to be easily found, unable to summon help (if, for example, a mobile phone should break when falling or fall out of reach (assuming I could work out how to use it in my confusion)), with metal containers to hit my head on, because of my staggering and confusion, and if injured and hypoglycaemic the situation would be even worse, and having to crawl on my belly (I would not be able to stand) up to 250 metres to get back to the office (assuming I could find the office, in my confusion and unlock the door) so that I could let any rescuer onto the site (via a switch in the office), assuming I would be able to do this (one of the reasonable adjustments is having a key in the possession of a mobile car patrol supervisor to allow a rescuer onto site). And, whilst doing this my sugar level is dropping all the while to what must be extremely dangerous levels if I cannot gain access to sufficient sugar (especially if I manage to spill that which I have, because of the lack of control of my limbs). 16. Although death is reasonably rare from a hypoglycaemic episode – excepting perhaps so‑called ‘death in the bed’ putting estimates at about 5%+ of diabetics dying from hypoglycaemia – in the circumstances, set out above, the prospect of death is a real possibility as the brain’s sugar reduces towards zero inducing a coma and then death.”
[15]In principle, I think that the Claimant is entitled to put his case that way - that is, to contend that the PCP complained of increases the risk, not of a hypoglycaemic episode but of serious injury if one should occur. The question, however, is whether the Judge should have found that there was more than “little” chance of that being established.[16]The first thing to be said is that those points do not seem to have been made to the Judge, or at least not with the same force and in the same detail. The notes do record the following exchange:
“What is it about patrolling that places at greater risk? I am at greater risk because [outside] and then can’t find me EJ – if risk is having hypo on own – what places you at disadv is lone working itself but slightly worse if have to patrol around back of building.”
That is the nearest that the point seems to have been approached in the argument before the Judge. No doubt the notes are not verbatim, but if some of the points now made by the Claimant had been made to the Judge, I am sure they would have been reflected in the notes and/or in the reasons.[17]The Claimant accepts that he did not make these points as fully before the Judge as he does in the Notice of Appeal, but he says that that was because he was “ambushed”. Although he had been notified in a letter from the Tribunal that issues of “strike‑out” and “deposit” were on the agenda for the hearing, he had no indication of the basis on which his case might be said to be hopeless or, as the case may be, to have little reasonable prospect of success. There had been no previous application by either of the Respondents, and there were no skeleton arguments served in advance of the hearing; the points really only emerged in the course of the hearing itself. Thus, when the Judge sought to explore these points with him he had had no real opportunity to think matters through.[18]I do have some sympathy with that submission. It is a recognised problem with Employment Tribunal practice that PHRs are sometimes ordered in circumstances where the parties do not know fully what to expect. However I do not think that I can go so far as to say that the hearing was on that account unfair. I should say by way of preliminary, though this is not my main point, that although the Claimant is a self‑represented party he is, if I may say so without sounding patronising, a particularly intelligent one with substantial legal knowledge, and it is apparent from the skeleton argument that he did prepare for the hearing below, albeit that it was addressed principally to other points, that he knew the legislative background well. More substantially, however, Ms Eeley was, I think, right to submit that what the Claimant was being asked about by the Judge was how he put his case, partly in law but also on the facts; and that that was really something that he should have thought through for himself and been able to articulate when asked. He was not being asked about anything that required great preparation or research.[19]However, I need not decide the point on that basis. If one looks carefully at the particular points on which the Claimant now relies, as set out in the passage from his Notice of Appeal that I have quoted, whether or not those points were made to the Judge I do not think that they amount to a particularly convincing case that the consequences of a hypoglycaemic episode occurring outside would be substantially worse than if the episode occurred in the office. If, for example, the episode was of such severity as to leave him unable to phone, or unable to let a rescuer onto the site, that would be equally so if he were in the office. He appears to accept that he would have a phone with him on patrol, so that in principle it would be no more difficult for him to call help from outside than from inside. He said in the course of oral argument that in the office there would be two telephones, but I am bound to say that that distinction seems to me to be marginal. Another point made is that outside it might be wet or cold, and that it probably would be dark. The wet or the dark do not seem on the face of it significantly to increase the risk of injury. I can see – and this is a point that the Claimant placed particular emphasis on in oral argument – that if he fell and lay for a prolonged period in sub‑zero temperatures before being discovered, that would be worse than lying indoors for an equivalent period, and I accept could have very serious consequences. That would, however, require an extraordinarily unfortunate concatenation of circumstances, and I note from what I was told in any event by the Claimant that it was a recognised reason for not carrying out external patrols that the weather was exceptionally severe. The essential remaining point is that the Claimant would be more likely to injure himself if he fell outside, for example onto concrete or a metal container, to take the particular points made by the Claimant in the Notice of Appeal. That may be right, though it is well recognised that an unfortunate fall indoors can also lead to serious injury; but it is hard to see the difference in risk as substantial. Overall, therefore, even if these points had been made more fully to the Judge than they appear to have been, I do not believe that his decision would or should have been any different.[20]In ground 4 the Claimant picks up on another observation from the Judge’s review letter as follows:
“As the documentary evidence between the various parties demonstrates the dispute was essentially about the claimant’s refusal to carry out lone exterior patrols.”
He says that the focus on patrols was unsurprising because that was what had led to his being taken off the site. He also says that “my employer tried very hard to restrict my hearing to a discussion about patrols”. But, he says, “[…] what this evidence does show is that both my employer and the principle, even though they knew about my diabetes, and knew, or ought to have known, that I was in danger of collapse, refused to do anything by way of a reasonable adjustment, instead preferring to remove me from the site and furnish me with a written warning because I refused to compromise my health and safety made much worse by my disability.” I do not see how that advances the argument. The fact is that it is indeed external patrols on which the Claimant has, for perfectly understandable reasons, concentrated, and the question must be whether the requirement to carry out such patrols did disadvantage him as a diabetic.[21]In ground 5 the Claimant says that the Judge’s focus on the PCP of external patrolling was wrong, because he had in the past raised with OCS possible adjustments to meet the risks of lone working. He quotes the notes of a meeting in which he had raised the issue, though I note in passing that at that meeting OCS had explained that they did in fact have a lone workers’ policy which involved hourly check calls. The Claimant also points out that there are references, as I have already accepted, to lone working in his original ET1. But the fact that he had in the past made points about lone working, and even that he did so in the early stages of this litigation, does not meet the point that the Judge satisfied himself after careful enquiry that that was not in truth what was being relied on in the proceedings going forward.[22]I accordingly believe that the Judge was entitled to reach the conclusion that he did that the Claimant’s claim had little reasonable prospect of success and thus to make a deposit order. I must therefore dismiss the appeal.