Whitburn v Royal Devon & Exeter NHS Foundation Trust (Disability Discrimination) [2015] UKEAT 0188_15_3010

EAT
Whitburn v Royal Devon & Exeter NHS Foundation Trust (Disability Discrimination)
[2015] UKEAT 0188_15_3010 · 2015-10-30
The Appellant appealed against orders striking out some of the allegations made in her claims for alleged disability discrimination and ordering her to pay deposits in relation to other allegations. The appeal was allowed in part, on the basis that the Employment Judge had not adequately differentiated between applying the test for striking out (no reasonable prospect of success) and the test for establishing whether an allegation had been made out of time. Of the three allegations that had been struck out, one was restored in its entirety, another in part, and the third remained struck out because the cause of action relied upon (discrimination arising from a disability) did not exist at the time of the conduct complained of. The appeal against the making of deposit orders in respect of four allegations of direct discrimination was dismissed, on the basis that the Employment Judge had applied the correct test (little reasonable prospect of success) in each of the four cases.

THE HONOURABLE MR JUSTICE KERR

Introduction

1. This is an appeal that was allowed to proceed by HHJ David Richardson, who in a Rule 3(10) Hearing on 28 May 2015 allowed certain of the Appellant’s grounds of appeal to proceed to a Full Hearing, while disallowing others. Employment Judge Roper at a hearing on 31 October 2014 in the Employment Tribunal sitting at Exeter, made a decision signed on 3 November 2014 and sent to the parties on 5 November 2014, which contains the decisions now appealed against. The background can be taken, and I gratefully adopt it, from the Judgment of HHJ David Richardson at the first hearing in this Tribunal as follows:“2. Mrs Pamela Whitburn (“the Claimant”) seeks to appeal against a Judgment of Employment Judge Roper … She had brought wide-ranging complaints against Royal Devon & Exeter NHS Trust, the Respondent. These were eventually listed in a Scott Schedule containing 35 allegations. The Employment Judge dismissed three allegations (numbers 4, 5 and 6), finding that they were out of time and that it was not just and equitable to extend time. The Employment Judge made deposit orders in relation to 17 allegations.3. The background facts can be stated quite briefly. The Claimant was employed by the Respondent from 23 November 1987 until 10 January 2014, when she resigned. Originally she was a Receptionist. She became a Ward Clerk on 8 November 1999. I am told that she worked when well enough to do so, effectively two weeks on and one week off, ten hours per week, in an “on” week. She was conceded to be a disabled person by virtue of ME and anxiety and depression, and by virtue of back pain. The Respondent conceded that it knew of these conditions, respectively by May/June 2007 and July 2011.”2. Employment Judge Roper decided at a preliminary hearing the issues before him as follows. By reference to the Scott Schedule containing 35 allegations, he began by setting out the background and the relevant law. He then referred to certain case law, which he considered, and then set about dealing with the allegations in turn. In relation to allegations 4, 5 and 6 he said this:“24. Allegation 4 is one of “discrimination arising from disability” and is that the claimant was subjected to disciplinary action for alleged misconduct because disability related absences were treated as gross misconduct. She alleges that this occurred on 26 July 2007 and was “ongoing until end of employment”. The respondent asserts that the disciplinary action was taken because the claimant took unauthorised absence, and failed to notify the respondent of her absence, and not because of the absence itself. The claimant was absent without leave, and in a letter at the time the claimant acknowledged that disciplinary action was appropriate. However, the claimant was notified on 12 October 2007 that the disciplinary action was no longer being pursued and no further action was taken. The respondent denies that there was any continuing act of discrimination, and makes the point that there was no such thing as a claim for discrimination arising from disability prior to section 15 of the Equality Act 2010.25. In my judgment this allegation relates to a discrete isolated act taken by the respondent with good reason and which cannot on the face of it be said to be discriminatory. It is a stand-alone allegation which in my judgment cannot sensibly be said to be part of any continuing act of alleged discrimination. That allegation is out of time.26. Allegation 5 is one of indirect discrimination and discrimination arising from disability between July and December 2007. This arises from the requirement for the claimant to work on week days. In fact it is clear from contemporaneous documents that this action was recommended by Occupational Health and agreed in principle by the claimant. It is difficult to see why the claimant now says this requirement was discriminatory. In any event the claimant herself accepts that the matter was revisited and remedied in March 2009. In my judgment this is a complaint about a discrete isolated act in 2007 which on the face of it is not discriminatory and cannot be said to be part of any continuing act of discrimination. In any event it was concluded by 2009. The claimant is not precluded from pursuing her main claim relating to reasonable adjustments in different circumstances and following different occupational health reports from mid to late 2012. In my judgment there was no continuing act of discrimination, and this allegation is also out of time.27. Allegation 6 is one of discrimination arising from disability and harassment. It relates to a remark which the claimant says her manager Emma Knowles made to her on her return to work on 1 October 2007. In discussing the claimant’s requirement to attend work, she is alleged to have said words to the effect:
“This is not a social club”
. The respondent denies that this was part of any continuing act and confirmed that Mrs Knowles ceased to manage the claimant in 2009 and left the respondent’s employment on 31 December 2012. In any event this matter was dealt with during a concluded grievance process in December 2007. The respondent repeats the point that there was no such thing as a claim for discrimination arising from disability prior to section 15 of the Equality Act 2010, and the alleged words cannot meet the statutory definition of harassment.28. In my judgment this is a complaint about a discrete isolated act in 2007 which on the face of it is not discriminatory and cannot be said to be part of any continuing act of discrimination and this allegation is also out of time.29. In her detailed submissions to the tribunal, both previously and today, and with her oral submissions today, the claimant has asserted that these three allegations are all continuing acts of discrimination. However, the claimant has not put forward any submissions that if the allegations were not part of a continuing act, and were held to be out of time, then it would be just and equitable to extend time. The allegations are all effectively from 2007 which predate [sic] the issue of these proceedings by seven years. With regard to whether it might be just and equitable to extend time, I have considered the factors in section 33 of the Limitation Act 1980 which is referred to in the [ British Coal Corporation v ] Keeble [ [1997] IRLR 336 ] decision. I deal with each of these in turn.a. The first is the length of and the reasons for the delay. The delay is seven years. The claimant has given no reason as to why she did not issue proceedings within time.b. Secondly I have considered the extent to which the cogency of the evidence is likely to be affected by the delay. This is likely to be considerable, and to cause prejudice to the respondent, particular with regard [sic] to evidence required from employees such as Mrs Knowles who no longer work with them. On the other hand the prejudice to the claimant is minimal because she is still able to pursue her main complaints at a full hearing in two months’ time.c. Thirdly I have considered the extent to which the parties co-operated with any request for information. This is not relevant in this case.d. Fourthly, I have considered the promptness with which the claimant acted once she knew the facts giving rise to the cause of action. The claimant did not act promptly at all.e. Finally, I have considered the steps taken by the claimant to obtain appropriate professional advice. I have received no information in this regard, other than that the claimant apparently had access to a full-time union adviser at the time.30. I have also considered the comments of Auld LJ in the Robertson v Bexley Community Service [ [2003] IRLR 434 ] decision as follows “It is also important to note that time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time so the exercise of discretion is the exception rather than the rule”.31. For all these reasons, and given that the claimant has not convinced me that it is just and equitable to extend time, and she is not significantly prejudiced in that she is still able to pursue her main claims at the full main hearing, I strike out allegations numbered 4, 5 and 6 because they are out of time.”3. The Judge made deposit orders in respect of 17 of the allegations. I was shown this morning the order made by him, which he attached to his Reserved Judgment with Reasons. In several cases it appears that the Judge intended that a deposit must be paid in respect of more than one contention per allegation, although this is not entirely clear. If that is correct, and it may well be, that means that there are in fact 28 deposit orders for £50 each, separately payable if all aspects of each of the 17 allegations in respect of which a deposit order was made were to be advanced. In the result, it would appear that the total amount of deposit required to run all points relied upon in the claim is £1,400. A few days after giving his decision the Judge was asked to reconsider it, and he did so, but that is not a matter that is relevant to this appeal.4. The Appellant appealed. The appeal was initially rejected by HHJ Eady QC under Rule 3(7) of the Employment Appeal Tribunal Rules as disclosing no reasonable grounds for bringing the appeal. That was conveyed to the Appellant in a letter dated 9 March 2015. She exercised her right to an oral hearing, which came before HHJ David Richardson, who, as I have said, allowed certain grounds to go forward to a Full Hearing but not others. I shall now deal with those points of appeal that HHJ David Richardson allowed to go to the Full Hearing that took place before me today. The Claimant appeared and represented herself with skill and courtesy, making submissions more lucid than some we hear from qualified lawyers. The Respondent, in the interest of saving costs, relied on written argument and did not attend the oral hearing through a representative.

Allegations 4, 5 and 6

5. The Appellant emphasised in written and oral argument that these had to be seen in their proper context. She showed me a document that had not been part of the bundle up to now, comprising five pages, which formed part of her initial online application to the Tribunal. Those five pages comprised 46 paragraphs, and it is clear that the Respondent was on notice of the 46 allegations made in those paragraphs, since the Respondent had pleaded to them by reference to their numbering in an appendix to their grounds of resistance.6. Later the allegations were compressed down into the form of the Scott Schedule, as I have said, containing 35 allegations, and the Appellant emphasised that it was her case that the allegations as originally advanced and subsequently expressed in the Scott Schedule, amounted to a continuum, as she submits, whereby the Respondent imposed upon her discriminatory practices in relation to her work patterns and intermittent absences by reason of her disability in various ways.7. In particular, she submitted that the allegations numbered 4, 5 and 6 were closely related to other allegations that were not said to be out of time nor struck out nor, save in one case, made the subject of a deposit order, and that are due to go to trial. Those included, adopting the numbering in the Scott Schedule, allegation 1, which is “Indirect discrimination/discrimination arising from disability” alleged to have been “Continuous from 2002 to end of employment”; and that is a claim for failure to make the reasonable adjustment of “Maximum flexibility to make up hours/shifts missed due to disability-related absence”. The second allegation that remains live alleges the same form of discrimination over the same period, the relevant reasonable adjustment being:
“Adjustment to the application of this policy [sickness absence and monitoring] so that I was not recorded as being sick for periods of up to 10 days when I was e.g. only sick for 1 day and had no contractual obligation to the Respondent for the remaining 9 of them.”
8. The third allegation that is also live and will be tried, asserts the same form of discrimination in relation to a “PCP [provision, criterion or practice] of recording/treating all disability related absences like normal sickness absences” and asserts a failure to make the reasonable adjustment:
“… to the application of this policy so that disability-related absence was recorded and treated separately from ordinary sickness absence and an agreed proportion of disability-related absence discounted for absence management purposes and/or an agreed adjustment to the absence scoring system (higher trigger point/score threshold) to take account of disability.”
9. This again is said to be indirect discrimination or discrimination arising from disability. Finally, the Appellant pointed out that the 33rd allegation on which she relies of “Discrimination by failing to make reasonable adjustments”, “continuously from November 2002 to end of employment”, refers to:
“… repeated and continuous failure to make the appropriate reasonable adjustments to the Respondent’s PCPs (as detailed above) … high scores on absence monitoring, repeated absence management meetings with warnings of action under disciplinary or capability policies and efforts to manage me out of my job. The real threat of dismissal was always present, year in, [year] out.”
10. Those allegations, says the Appellant, are all of a piece with and part of the same continuum as the specific allegations that were struck out, namely allegations 4, 5 and 6, which, as I shall come to, relate to specific disagreements that arose in relation to the Appellant’s work patterns and practices during 2007.11. The Respondent submitted in writing on this aspect to the appeal that the Employment Judge had not made any error of law or approach in deciding to strike out these three allegations. In particular, the Respondent submitted that the Judge had complied with the requirement derived from City of Edinburgh Council v Kaur [2013] CSIH 32 (referred to by the Employment Judge and also in HHJ David Richardson’s interim Judgment) to put the Appellant’s case at its highest when considering whether it was possible to treat her allegations as amounting to an “conduct extending over a period” within section 123(3)(a) of the Equality Act 2010 ; and that the Judge in particular had used the expression “on the face of it” when giving his Reasons.12. Secondly, the Respondent submitted that the causes of action were in all but one case not viable in respect of alleged conduct pre-dating 1 October 2010, when the operative provisions of the Equality Act 2010 came into force. Although the Respondent accepted that transitional provisions (see SI 2010/2317) do provide for the 2010 Act to apply to any act of discrimination commenced before 1 October 2010 and continuing after that date, that only applied to acts that were unlawful under the previous enactment, the Disability Discrimination Act 1995 . Specifically, the Respondent submitted that there was no equivalent under the 1995 Act to what is now a cause of action under section 15 or 19 of the 2010 Act for, respectively, discrimination arising from disability and indirect discrimination.13. Furthermore, the Respondent submitted in its written submissions, the Judge’s conclusion that the allegations made in allegations 4, 5 and 6 were not capable of amounting to or forming part of conduct extending over a period was one that was open to the Judge on the facts before him and that he approached the matter in the right way and without any flaw or error of principle affecting his decision.14. In my view, the Employment Judge did not adequately disentangle the issues(1) as to whether allegations 4, 5 and 6 were out of time and(2) whether those allegations should be struck out because they had no reasonable prospect of success. He would have been wise to deal with the two issues separately. An out of time claim may have had excellent merit while it was in time; conversely, a claim that is brought in time may lack any merit.15. The two exercises under consideration by the Judge are different conceptually even though the chance of success at trial may be linked on the facts to the chance of showing at trial that the claim is in time and not out of time, or to the chance of obtaining an extension of time. I therefore do not feel able to decide that the Judge reached conclusions that were open to him, applying the correct principles in the correct manner, and I propose to look again at the viability of allegations 4, 5 and 6 both in relation to whether they are out of time and whether they have any reasonable prospect of success.16. As to allegation 4, in that allegation the Appellant alleges “Discrimination arising from disability” from “July 2007 ongoing until end of employment” - which was in 2014 - by treating certain absences as misconduct and bringing disciplinary proceedings in consequence of which allegations of gross misconduct were made, though subsequently withdrawn in about September or October 2007. It seems to me that that allegation has no reasonable prospect of success at trial. The only cause of action advanced is “Discrimination arising from disability”. That cause of action is not viable in respect of conduct prior to 1 October 2010. The Respondent is right that there was no equivalent cause of action under the Disability Discrimination Act 1995 .17. If the Appellant had alleged direct discrimination on the same factual basis, I would have found that she had a reasonable prospect of success at trial. I would not have been of the view that her claim was necessarily out of time either, because it seems to me that she might have been able to show on the basis of the arguments made to me by her that I have already mentioned, that that allegation formed part of “conduct extending over a period” within section 123(3)(a) of the 2010 Act . But the allegation is not made in that way, and it must therefore remain struck out.18. I turn next to allegation 5. The Appellant asserts “Indirect discrimination/discrimination arising from disability” arising from a “PCP that I had to work weekdays upon return to work in 2007”. The Appellant asserts that the treatment she received amounted to:
“renewed stress and anxiety caused by busier, noisier environment/increased customer facing requirements/unfamiliar duties/attendance closely monitored/knowledge of not being trusted/loss of contact with staff and colleagues most familiar with/further spell of sickness absence/further conflict with management/loss of large proportion of usual pay/forced to go through grievance process to resolve.”
19. In my judgment, that allegation is not hopeless and should not be struck out as having no reasonable prospect of success at trial. The cause of action relied upon is indirect discrimination as well as discrimination arising from a disability. It is said to be indirectly discriminatory, and a pool of comparators is identified. The cause of action is also cited as “discrimination arising from a disability”. Indirect discrimination but not discrimination arising from a disability corresponded to an equivalent under the Disability Discrimination Act 1995 .20. At least arguably, the Respondent is not necessarily correct to submit, as it does, that there is no equivalent in the 1995 Act to what is now section 19 of the 2010 Act ; nor, in my view, is the claim necessarily out of time. It seems to me, for the reasons I have already given, that the Appellant may succeed, in so far as this allegation is brought as one of indirect discrimination, in showing that the requirement or “PCP” formed part of a “common thread” extending back in time, of conduct amounting to continuing discriminatory practices in relation to her work patterns and absence dating back to 2007.21. I add in parenthesis that the claim would also be potentially viable (and less complicated for the parties in the Tribunal) if it were run as one of direct discrimination, which also has a predecessor equivalent under the old Disability Discrimination Act 1995 to what is now section 13 of the 2010 Act .22. So, in my judgment, in so far as allegation 5 is brought as a claim for discrimination arising from a disability, it should remain struck out, but in so far as it is brought as a claim for indirect discrimination, it should not be.23. I then turn to allegation 6, which is expressed as one of “Discrimination arising from disability/Harassment” and arises from a conversation that is said to have taken place on 1 October 2007 between the Appellant and Ms Knowles in her capacity as manager. It is said that Ms Knowles made discriminatory remarks in response to a request from the Appellant for reasonable adjustments, refused to discuss her request for an adjustment of:
“… flexibility to take account of disability of ME, continuing failure to take account of my disabilities at all and making discriminatory remarks and responses. This conduct was hostile, offensive and humiliating.”
24. That claim is expressed as one of discrimination arising from a disability and harassment. The latter but not the former was a viable cause of action in respect of conduct before 1 October 2010 under the Disability Discrimination Act 1995 , as the Respondent accepts.25. I do not think that this allegation should be struck out as having no reasonable prospect of success on its merits. As to whether it is out of time, it may seem far-fetched that an act of harassment, if that is what it was, could form part of conduct extending over a period with a common thread of discriminatory practices in relation to the Appellant’s work patterns. However, I do not think it is necessarily impossible. The subject of the conversation giving rise to the allegation is said to have been a refusal to discuss adjustments and flexible work patterns to take account of the Appellant’s disability. It is in that context that the alleged harassment is said to have taken place. I would allow the appeal in respect of allegation 6.

Allegations 19, 21, 26 and 31

26. I now turn to the other limb of this appeal, which HHJ Richardson allowed to go to a Full Hearing. This second limb relates to allegations 19, 21, 26 and 31. The Employment Judge reasoned as follows when deciding to order a deposit in respect of those allegations (paragraph 45):
“45. Allegations 19, 21, 26, and 31 all relate to what the claimant says are applications of PCPs to her and the claims are expressed to be direct discrimination, discrimination arising from disability, harassment, and victimisation. In each case the claimant explains the PCPs in question which she says applied to her. The respondent makes the technical point that in these circumstances either one of the direct or indirect discrimination claim [sic] is doomed to failure. I agree with that contention. If the PCPs of which the claimant complains were applied to her only, and not appropriate comparators, then there might be a successful direct discrimination claim, but the indirect discrimination claim would then fail because the said PCPs were not being applied to a group of people such as to establish group disadvantage. Alternatively, as is more likely the case, if the claimant is contending that the alleged PCPs applied generally and caused group disadvantage and then caused her particular personal disadvantage, then the PCPs must be applied to others and there is no direct discrimination claim. It seems to me that this latter explanation is more probable from the claimant’s assertions, and in my judgment therefore the direct discrimination claim under each of these allegations enjoys little reasonable prospect of success, and I order a deposit in that respect as well.”
27. The deposit orders made by the Employment Judge in respect of those four allegations related to section 13, i.e. the direct discrimination claim, only. The Appellant emphasised in written and oral submissions that she regarded her claim as primarily one for direct discrimination in relation to these allegations, that the claim founded on the same facts but for indirect discrimination was made in the alternative and that it was commonplace in litigation for alternative claims to be put in different ways and alternative arguments advanced.28. Indeed, before me at the hearing today she made clear that the “PCPs” she relies upon were on her case applied to her as an individual. The indirect discrimination claim was really secondary, a makeweight argument and not her primary case. She indicated that she was willing to withdraw the indirect discrimination part of the claim under the rubric of those four allegations, although it does not form the subject of a deposit order.29. The Respondent submitted in writing, through Mr Wyeth of counsel, that the Judge made no error of law in approaching his decision to order deposits in respect of these four allegations and that deposit orders are a useful tool to deter a “scattergun” approach to litigation.30. There is little authority in case law on deposit orders, perhaps not surprisingly, since they require an exercise of discretion and judgment that is very much the province of an Employment Tribunal, so that there will be little scope for interference at the stage of an appeal unless something had gone wrong in principle (see, for example, Stadnik-Borowiec v Southern Health & Social Care Trust [2014] NICA 53 ).31. In the present case I have some concern about the Employment Judge’s description of the Respondent’s point as “technical”. That is the point that where there are alternative claims of direct and indirect discrimination, one or the other must necessarily fail since they cannot coexist upon the same facts. It seems to me that for present purposes the point is not technical but one of substance.32. Where one of two alternative ways of putting a case must necessarily fail, while the other may succeed, the fact that one or other is doomed to fail says nothing about the merits of whichever one is not doomed to fail. If a claim is put in the alternative and one of the two alternatives has more than little reasonable prospect of success, it would not be right to order a deposit purely because the other does not.33. Nevertheless, I do not think that in the present case the Employment Judge fell into that error. It seems to me that he did properly address the test in Rule 39(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 for ordering a deposit (“little reasonable prospect of success”); and that he did so separately in relation to the prospects of success of the claim framed as, respectively, a direct and an indirect discrimination claim.34. I can find no error in his approach, and I will therefore dismiss the appeal against the deposit orders made in respect of allegations 19, 21, 26 and 31.

Conclusion

35. In the result, I shall dismiss the appeal in relation to allegation 4; I shall allow the appeal in relation to allegation 5 but only to the extent that it can proceed as an allegation of indirect discrimination under the then Disability Discrimination Act 1995 , which is saved by the transitional provisions ushering in the 2010 Act ; I shall allow the appeal in respect of allegation 6; and I shall dismiss the appeal in respect of allegations 19, 21, 26 and 31.