England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Honourable Mr Justice Underhill (the President)
Appeal No: UKEAT/0340/12/SM BAILII: [2013] UKEAT 0340_12_1701

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th May 2014

Lord Justice Rimer :

Introduction

1. This appeal is brought by Keith Crossland, the claimant in employment proceedings, who appeared before us in person, as he has done at all stages below. The respondents are OCS Group UK Limited ('OCS') and British Airways Interior Engineering Limited ('BAIE'), who were represented by Akash Nawbatt before us, although by other counsel both in the Employment Tribunal ('the ET') and the Employment Appeal Tribunal ('the EAT').
2. Mr Crossland brought various employment claims against the respondents. They were considered at a pre-hearing review ('PHR') conducted in the ET by Employment Judge Cadney, sitting alone, on 18 January 2012. The outcome of that hearing, as reflected in Judge Cadney's judgment sent, with reasons, to the parties on 15 February 2012, was that one of Mr Crossland's claims was dismissed upon his withdrawal of it; and no order was made on his claims against OCS under sections 44 and 48 of the Employment Rights Act 1996.
3. Mr Crossland also had a disability discrimination claim against OCS and BAIE under the Equality Act 2010 and the outcome of the PHR in relation to that claim was that the judge ordered him to pay a deposit of £250 as a condition of being permitted to pursue it. It is that decision that is the subject of Mr Crossland's appeal. Mr Crossland first sought a review of the decision. In giving his reasons on 20 March 2012 for refusing a review, Judge Cadney said that he was also treating Mr Crossland's application as one for an extension of time for paying the deposit and he extended it until 3 April 2012. Mr Crossland did not pay the deposit by then and so on 5 April 2012 the ET made an order striking out his claims against OCS and BAIE under rule 18(7)(e) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (which enables the striking out of a claim for non-compliance with an order).
4. Mr Crossland appealed to the EAT against Judge Cadney's judgment of 15 February 2012. His appeal was heard by the President, Underhill J (as he then was), who dismissed it by an order of 17 January 2013. Mr Crossland's appellant's notice to this court against that order was filed on 4 February 2013. I granted Mr Crossland permission to appeal on the ground that I regarded him as having an arguable point that the ET had erred in carrying out the comparative exercise required for the purposes of the assessment of his discrimination claim.

The Equality Act 2010

5. Sections 20 and 21 of the Equality Act 2010, under the heading 'Adjustments for disabled persons', provide materially:

'20. Duty to make adjustments

(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, 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.

(4) The second requirement is a requirement, where a physical feature 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.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put 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 provide the auxiliary aid. …

(10) A reference in this section, section 21 or 22 or an applicable Schedule (apart from paragraphs 2 to 4 of Schedule 4) to a physical feature is a reference to –

(a) a feature arising from the design or construction of a building,

(b) a feature of an approach to, exit from or access to a building,

(c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises, or

(d) any other physical element or quality. …

21. Failure to comply with duty

(1) A failure to comply with the first, second or third requirements is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person. …'

The ET's jurisdiction to order the payment of a deposit

6. Rule 20 of Schedule 1 to the 2004 Regulations provides materially:

'20. Requirement to pay a deposit in order to continue with proceedings

(1) At a pre-hearing review if an Employment Judge considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little reasonable prospect of success, the Employment Judge may make an order against that party requiring the party to pay a deposit of an amount not exceeding £1,000 as a condition of being permitted to continue to take part in the proceedings relating to this matter.

(2) No order shall be made under this rule unless the Employment Judge has taken reasonable steps to ascertain the ability of the party against whom it is proposed to make the order to comply with such an order, and has taken account of any information so ascertained in determining the amount of the deposit. …'

The facts

7. Mr Crossland is employed by OCS as a security guard. From 15 March 2009 until 27 May 2011, OCS supplied his services to BAIE at their premises on an industrial estate near Caerphilly. He worked alone and at night. His primary duties were to view the security cameras from within the office in which he was based, but his duties included doing regular exterior patrols. On about 25 May 2011, BAIE asked OCS to replace him with an alternative security guard, following which Mr Crossland's last shift was the nightshift of 30/31 May 2011. BAIE claimed that Mr Crossland had failed in several respects to abide by its working instructions. Mr Crossland's case is that part of the reason for his removal from the BAIE site was his admitted failure to undertake outside patrols. His claims against OCS and BAIE included a disability discrimination claim for a breach of duty to make reasonable adjustments under sections 20 and 21 of the Equality Act. It is this claim whose prosecution the ET made conditional upon the payment of the deposit.
8. As is agreed, Mr Crossland suffers from type 1 diabetes and is liable to suffer hypoglycaemic attacks. Judge Cadney explained in his reasons that:

'13. … These can happen very suddenly with little or no warning and depending when and where they do occur, can have very serious and even fatal consequences. [Mr Crossland] gave me examples, including suffering an episode whilst driving his car and crashing, and suffering an episode in which he collapsed whilst in his bathroom suffering injury, both of which came on without any warning. Once such an episode has occurred it is very important that the blood sugar levels are resorted extremely quickly. If such an episode occurs when a diabetic person is on their own this can have very serious consequences.'

9. A case based on a failure to make reasonable adjustments under section 20(3) of the Equality Act must identify the 'provision, criterion or practice' ('PCP') said to have disadvantaged the disabled claimant. Both the ET and the EAT understood that Mr Crossland's only case in this respect was that the relevant PCP was BAIE's requirement that he should carry out exterior patrols, and that the respondents were in breach of duty to him by not taking such steps as it was reasonable to take to avoid the substantial disadvantage which performance with that PCP is said to have placed him as a disabled person. His case was that the suffering of a hypoglycaemic episode during an external night patrol could result in serious injury to him, or worse, and that the respondents should have made reasonable adjustments to the working conditions in which he was to carry out such patrols so as to reduce such risk.
10. In the EAT, Underhill J noted in his judgment that Mr Crossland's pleaded case in his ET1 was 'rather discursive' and did not identify either the PCP said to put him at a substantial comparative disadvantage or the reasonable adjustments that it is said should have been made in order to reduce the disadvantage. Underhill J explained that at a case management discussion ('CMD') held in the ET on 22 October 2011 Mr Crossland had at least identified under 11 heads the reasonable adjustments he claimed should have been carried out. They were, as recorded by the judge who conducted the CMD, as follows: (a) having two people on-site; (b) looking at cameras, not requiring him to patrol; (c) providing him with a button alarm around his 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 [Mr Crossland] collapsed; (h) the emergency key [to the site] 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 [Mr Crossland] with wet-weather gear.
11. Underhill J also pointed out, however, that the opportunity was not taken at the CMD also to identify the PCP or PCPs upon which Mr Crossland was relying. He said that the facts pleaded in the ET1 and the clarification of what were said to be the appropriate reasonable adjustments at the CMD showed the possible PCPs to be twofold: (i) the practice of requiring Mr Crossland to work alone; and (ii) the requirement to carry out external patrols.
12. As for the first possible PCP, if Mr Crossland works alone he is at greater risk compared with a non-diabetic, since if he suffers a hypoglycaemic episode he is likely to suffer injury in consequence of the non-availability of assistance: 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, may in consequence fail to administer sugar so as to raise his blood sugar level and so may need assistance from someone else. Certain of Mr Crossland's suggested adjustments were directed to the fact of lone working. As for the second possible PCP, whilst undertaking external patrols does not increase the risk of an episode, if one were to occur during such a patrol the risk of injury is increased. Certain of the suggested adjustments were apparently directed to the carrying out of external patrols.
13. Underhill J then explained that at the hearing of the PHR, Judge Cadney had been rightly concerned to clarify precisely what the PCP or PCPs was or were that Mr Crossland was relying on. He said that counsel's notes of the hearing of the PHR demonstrated that the outcome of Judge Cadney's elucidation of that matter with Mr Crossland was that the only PCP he was relying upon was the second one identified above, namely the requirement to carry out external patrols. That is clearly reflected in what Judge Cadney said in his reasons.

The decision of the ET

14. I can now return to Judge Cadney's reasons, which did not explain the background as regards the applicable PCP as fully as Underhill J had unearthed it to be, and shall set out what Judge Cadney said in the material part of his decision:

'12. In my judgment, the relevant part of the [Equality Act 2010] is Section 23 [sic: he plainly meant section 20] which provides that the first requirement is a requirement where a [PCP] 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. It is accepted by the respondent that as [Mr Crossland] suffers from Type 1 Diabetes, he is a disabled person. What is not accepted is that there was a [PCP] which put him at a substantial disadvantage.

13. [I have set out the material parts in paragraph 8 above.]

14. It is not in dispute that the purpose for which [Mr Crossland] was engaged by [BAIE] was to be a Lone Nightshift Security Guard. His primary duties were to view the security cameras, but his duties also included doing regular exterior patrols. The respondent submits that there was no [PCP] which placed [Mr Crossland] at a substantial disadvantage in comparison with persons who are not disabled. It is not in dispute that neither lone working nor any other feature of the respondent's employment practices increased the risk of [Mr Crossland] suffering a hypoglycaemic episode. [Mr Crossland] accepted that having to patrol outside did not in and of itself increase the risk.

15. The respondent accordingly contends that [Mr Crossland] was at no more risk than any non-disabled person, in that any non-disabled person who was working on their own would be liable to serious consequences if they suffered some medical emergency. The fact that a particular type of medical emergency is more predictable in the case of [Mr Crossland] than for example, the risk of a heart attack or a stroke, or tripping over and knocking oneself unconscious would be for any other non-disabled employee does not engage the duty. [Mr Crossland] contends that the duty is engaged precisely because, as a diabetic, it is more likely and foreseeable that he will suffer a hypoglycaemic episode than any other individual non-disabled employee may suffer some unpredictable medical emergency. It seems to me that this point is arguable and would need to be considered in the light [of] the full facts which only a full Tribunal would have.'

15. Pausing there, Mr Crossland accepted before us the correctness of the last two sentences of paragraph 14. As for paragraph 15, it needs to be read against the background that (as is made clear in the later paragraphs, to which I shall come) the only PCP that Mr Crossland was asserting before the ET was the carrying out of external patrols; and the respondent's contrary case was that that did not amount to a PCP placing Mr Crossland at a substantial disadvantage. The respondent's point was that, if lone working was not (as it was not) being advanced as a PCP disadvantaging Mr Crossland, the PCP he was advancing could occasion him no substantial disadvantage, for the reasons explained in paragraph 15. For the reasons he gave in the last two sentences, Judge Cadney did not, however, regard that line of challenge as dealing a terminal blow to Mr Crossland's case. The more material part of the judge's reasoning is, however, in what follows:

'16. The respondents have a second and subsidiary submission which appears to me to have more substance. They submit that even if the duty is engaged, it can only be on the basis that the [PCP] which put [Mr Crossland] at substantial disadvantage was the practice of lone working itself. If [Mr Crossland] is at greater risk of suffering a hypoglycaemic episode than a non-disabled person and if as a result he is likely to suffer a serious consequence, then the duty to make reasonable adjustments is engaged by the fact of lone working. As they point out this has never been [Mr Crossland's] case. [His] 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. The respondents submit that as there was no logical distinction, on the basis of [Mr Crossland's] condition, between the requirement to perform exterior patrols or the requirement to sit inside and watch the TV Cameras that [Mr Crossland's] case is fatally flawed. They contend that as [he] himself accepts that there is no increased risk by means of reason of working alone itself, and as that must apply equally to lone working inside the office as to exterior patrol. If [Mr Crossland] is right that no adjustment was required to the lone working requirement in and of itself, self evidently there was no duty to make an adjustment by removing the lone exterior patrol.

17. They submit [Mr Crossland] cannot not [sic] now amend (and has not in fact applied to do so) to plead a completely different case that the reasonable adjustment was to the practice of lone working itself. Even if [Mr Crossland] sought to do so, which at present he has not, it would be totally unreasonable to allow it as that that [sic] was never the claim made to the respondent at the time. Effectively, they contend that the Tribunal would be to invent a claim for [Mr Crossland], which he himself never made at the time and to this day has never made [sic]. [I read this sentence as meaning 'Effectively, they contend that this would be for the Tribunal to invent a claim for [Mr Crossland], which …].

18. In the absence of amendment [Mr Crossland's] claim is fundamentally flawed as it is based upon the proposition that is unsustainable; that there is a distinction which can be drawn between lone working per se and lone external patrol. That is not a distinction which bears any examination and [Mr Crossland's] pleaded claim is bound to fail. It appears to me that there is a great deal of substance in this and that whilst I cannot go as far as to say that it has no reasonable prospect of success, it does appear to me that it is correct to say that the contention that there was a requirement to make adjustments to one part of [Mr Crossland's] duty, but not to others, is one which does have little reasonable prospect of success.

19. Accordingly, I do propose to order [Mr Crossland] [to] pay a deposit as a condition of being permitted to pursue the claims under the Equality Act against both respondents. Having heard from [Mr Crossland] as to his means the amount for deposit is £250.00.' (My emphases in paragraphs 16 and 17)

16. As Underhill J noted in his judgment in the EAT, paragraphs 16, 17 and the first two sentences of paragraph 18 are in fact summaries of the respondents' submissions: they are not findings by Judge Cadney. But in the third sentence of paragraph 18, Judge Cadney said that he considered that there was a great deal of substance in the submissions; and the only inference from that is that he was unqualifiedly accepting that the only PCP advanced by Mr Crossland, as the respondents' submissions had made clear, was that of having to carry out exterior patrols: in particular, Mr Crossland was not advancing 'lone working' per se as a PCP upon which he was relying. Had Judge Cadney not accepted that, he would obviously have said so and the thrust of his reasoning and decision would have been different. As Underhill J noted, Mr Crossland had made clear to Judge Cadney that that was indeed his case.

The decision of the EAT

17. Before the EAT, Mr Crossland advanced five grounds of appeal against Judge Cadney's judgment. Ground 1 was based on something Judge Cadney had said in his reasons for refusing a review, namely that Mr Crossland was no more at risk when at work than when at home, which was said to be an incorrect comparison for the purposes of his reasonable adjustments complaint. Underhill J agreed, but said that, in his reasons just quoted, Judge Cadney's conclusion addressed the correct comparison; namely, that such increased risk as Mr Crossland suffered as a diabetic as compared with non-disabled people was as a result of lone working, and not in having to carry out exterior patrols, whereas the latter was the only PCP in respect of which he was claiming that reasonable adjustments fell to be made for him.
18. Ground 2 was based on Mr Crossland's proposition that the law only required one PCP to be identified, not all of them; and he claimed he had done that by, as he said, concentrating – 'but not exclusively' – upon the external patrols requirement. Underhill J regarded that as underlining that the only PCP Mr Crossland had identified before the ET was indeed the external patrols requirement. But he also said that Mr Crossland was wrong in asserting that the Equality Act did not require him to identify every PCP he was relying on. He said there was no reason why he should not have complained of more than one PCP if it was his case that more than one was discriminatory.
19. Underhill J regarded ground 3 as more substantial. The point there was that whilst Mr Crossland accepted that the chance of a hypoglycaemic episode happening was no greater when he was on an external patrol, the risk of injury occurring in such circumstances was greater than if the episode happened while he was indoors in the office. In short, the PCP relied upon was one that was said to increase the risk, not of the occurrence of an episode, but of serious injury if an episode should occur.
20. Underhill J noted Mr Crossland's acceptance that he had not made this point as fully to Judge Cadney as to the EAT – it is one that finds no reflection in Judge Cadney's reasons – and that the respondents had submitted in response that there was no reason why he could and should not have done so. Underhill J was disposed to agree, but did not decide the point on that basis. He disposed of it on the following basis:

'19. … If one looks carefully at the particular points on which [Mr Crossland] now relies, as set out in the passage from his Notice of Appeal …, 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 [Mr Crossland] 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 [Mr Crossland] that it was a recognised reason for not carrying out external patrols that the weather was exceptionally severe. The essential remaining point is that [Mr Crossland] 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 [Mr Crossland] 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.'

21. Ground 4 returned to the focus before Judge Cadney about Mr Crossland's refusal to carry out external patrols. The point here appeared to have been a complaint that the inquiry into that was too narrow. Underhill J said, however, that the carrying out of patrols was the PCP that Mr Crossland had identified, and so it was reasonable that the question before Judge Cadney was whether the requirement to carry them out disadvantaged Mr Crossland as a diabetic.
22. Ground 5 appears to have been another complaint about Judge Cadney's focus on the relevant PCP being that relating to the requirement to carry out external patrols; and Mr Crossland referred to references in his ET1 to lone working. Underhill J disposed of this ground by saying that:

'21 … the fact that [Mr Crossland] 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 inquiry that that was not in truth what was being relied on in the proceedings going forward.'

23. Underhill J was, therefore, satisfied that Judge Cadney had been entitled to conclude that Mr Crossland's claim had little reasonable prospect of success and thus to make a deposit order. He dismissed the appeal.

The appeal to this court

24. Mr Crossland explained his grounds of appeal to this court against the EAT's order in skeleton arguments covering many repetitive pages. In his grounds of appeal dated 1 February 2013, however, he summarised his grounds of appeal succinctly as follows. First, he said that Underhill J had answered the question whether he was substantially disadvantaged by his disability in carrying out external patrols (when he may suffer a hypoglycaemic episode) by comparing his position when carrying out such a patrol with his situation when in the office (where he may equally have such an episode). In that respect, he said that Underhill J was comparing him (the disabled person) in one set of circumstances with himself (the same disabled person) in another set of circumstances. That was, he said, wrong because the correct comparison should have been between himself (the disabled person) doing external patrols and another (a non-disabled person) in similar circumstances also doing external patrols. The error was, he said, apparent from the statutory language of section 20(3) of the Equality Act.
25. Secondly, Mr Crossland said that, even accepting (which he does not) that the EAT had made the correct comparison, Underhill J was wrong to decide whether the comparative circumstances were substantially different. He should have done no more than ask himself whether it was arguable that they were. Underhill J could not, he said, come to the definitive decision that he did without having had the benefit of the type of expert medical evidence that would be adduced at a substantive hearing of the issue before the ET.
26. Whilst Mr Crossland's first ground of appeal summarised above appears clearly to have reflected his recognition that the only PCP he had advanced before the ET was the carrying out of external patrols, he sought in his oral submissions to us to make a rather wider case. It would, I consider, be a fair summary of the first 45 minutes of his submissions to say that they were devoted to making good a point to the effect that before the ET he had not confined himself to a case that the only PCP he was advancing was the making of external patrols, but that he was also complaining about the discriminatory features of lone working per se.
27. In that context, he referred us to OCS's notes of his exchanges with Judge Cadney at the hearing, whose substantial accuracy he did not question. They appear to me, however, to show exactly that to which Underhill J had referred, namely that Mr Crossland's unequivocal answer to Judge Cadney's question as to the PCP upon which he was relying was that of 'being asked to do patrols around building.' That appears to have provoked a supplementary question from Judge Cadney as to what, given that this was a lone worker site, was the distinction between patrolling and sitting in the office – that is, what was it about patrolling that placed Mr Crossland at greater risk. The answer was that he was at greater risk when patrolling because he is outside and so more difficult to find if he has a hypoglycaemic episode and collapses.
28. In the course of his submissions to the court, Mr Crossland made it plain that the only special request he had ever made of BAIE was the provision of a key which would enable a mobile supervisor to gain access to the site in circumstances in which he, Mr Crossland, was unable to give the supervisor access himself (which he would normally be able to do by pressing a button on the desk in the office in response to the supervisor's flashing of his lights or a telephone call). Whilst Mr Crossland admits that from the outset he declined, and later positively refused, to do any external patrols, his response to the court's question as to whether he ever told the respondents that he could not do lone working was 'absolutely not'. He nevertheless asserted that, whilst he could do lone working, he was at risk both from such working and from doing the external patrols. His case before us effectively became that lone working generally and the lone carrying out of external patrols were indivisibly linked. One can well understand why Mr Crossland never suggested that he was not equal to lone working: that would have been to exclude him from the opportunity of the job he wanted. He also repeatedly said that it was not for him to propose to BAIE the making of adjustments to his office work conditions so as to reduce any substantial disadvantage to which they subjected him as compared with a non-disabled person doing the same job. He said that the respondents knew that he was a diabetic and it was their duty to make any necessary adjustments. That may be legally correct. It appears to me, however, to be a somewhat legalistic response to the practical situation in which Mr Crossland's chosen occupation placed him. More significantly, it was plainly no part of Mr Crossland's case before the ET that the PCP of which he was complaining was lone working per se, or that he made any case to the ET that lone working per se placed him at a substantial disadvantage as compared with someone who is not disabled.
29. To the extent, however, that Mr Crossland was driven to accept that his case before the ET was based exclusively on a PCP requiring him to do external patrols, he submitted that both the ET and the EAT had applied the wrong comparative test in the assessment of whether he had an arguable case of discrimination under section 20 of the Equality Act. He said that the substance of what was reflected in paragraph 16 of Judge Cadney's reasons was a comparison between (a) his own disadvantaged position as a diabetic doing lone external patrols and (b) his own position as a diabetic doing lone security duty in the office. He said that was wrong because the correct comparison ought to have been between (a) his position as a diabetic doing lone external patrols and (b) that of a non-disabled person doing such patrols. The ET had therefore made a material error of law in their approach to the case.
30. Mr Nawbatt, for the respondents, reminded us that the ET's decision at the PHR was a case management decision. The ET was there deciding nothing finally; it was merely making a deposit order based on a preliminary assessment as to whether Mr Crossland's disability discrimination claim did or did not have a reasonable prospect of success. Provided that in carrying out that evaluative exercise the ET made no error of law, its decision could only be challenged on appeal on the basis that it was perverse or irrational. If, however, as Mr Nawbatt submitted, the ET made no error of law, there was no basis for an assertion before either the EAT or this court that the ET's decision was either perverse or irrational, nor was any such case made to the EAT or to this court. The critical question was whether, in carrying out the comparative exercise, the ET had made any error of law. Mr Nawbatt said that Mr Crossland's case advanced to the EAT was not the same as that which he had advanced to the ET; and he said that before us he had sought to depart yet further from his case originally made to the ET. It is of course the correctness of the ET's decision with which we are concerned.
31. Mr Nawbatt referred us to the decision of the EAT (Langstaff J and members) in Royal Bank of Scotland v. Ashton [2011] ICR 632. He pointed out that this was an authority with which Mr Crossland was familiar, since he had referred to it himself in paragraph 6(o) of his skeleton argument of 18 January 2012 for the PHR. By reference to the Equality Act's relevant equivalent predecessor provisions in the Disability Discrimination Act 1995, Langstaff J there said:

'14. A close focus upon the wording of sections 3A(2), 4(a) and 18B shows that an employment tribunal – in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination – must be satisfied that there is a [PCP] which has placed the disabled person concerned not merely at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled.

15. The duty, given that disadvantage and the fact that it is substantial are both identified, is to take such steps as are reasonable to prevent the [PCP] (which will of course have been identified for this purpose) having the proscribed effect – that is the effect of creating that disadvantage when compared to those who are not disabled. It is not, therefore, a section which obliges an employer to take reasonable steps to assist a disabled person or to help the disabled person overcome the effects of their disability, except in so far as the terms to which we have referred permit it.

16. The fact that this requires in particular the identification of the [PCP] concerned and the precise nature of the disadvantage which it creates by comparison with those who are non-disabled, was set out clearly by this tribunal in Environment Agency v. Rowan [2008] ICR 218, para 27. …'

32. That citation shows the need for a complainant of alleged disability discrimination by a failure to make reasonable adjustments to identify the PCP which he claims substantially disadvantages him as compared with others who are not disabled. That is why Judge Cadney, at the PHR, had been anxious to identify what PCP was being alleged by Mr Crossland. Mr Nawbatt said that OCS's notes of the PHR recorded that Mr Crossland's answer to Judge Cadney was that the PCP he was asserting was doing external patrols; and the same was recorded in BAIE's notes of the hearing, which were the notes to which Underhill J had referred in his judgment.
33. Having elicited that from Mr Crossland, Mr Nawbatt said that Judge Cadney then dealt with the preliminary issue relating to the disability discrimination claim on the basis that that was the only PCP being asserted. Both sets of notes, however, also reflected Judge Cadney's expressed reaction that there was no obvious distinction between the risk of working alone inside the office and the risk of carrying out night patrols alone; and the OCS notes record him as expressing his own interlocutory view that what really placed Mr Crossland at a disadvantage was working alone, but that the disadvantage was slightly worse if he had to perform outside patrols.
34. As regards the suggestion that Judge Cadney applied the wrong comparative exercise in assessing Mr Crossland's case, Mr Nawbatt said that could be seen to be wrong from Judge Cadney's reasons, and he referred to them in order to make good that submission. He also referred to Judge Cadney's reasons for refusing Mr Crossland's review application; and he took us through Underhill J's reasoning with a view to showing that he too made no error in the comparative exercise either. Mr Nawbatt's submission was that there had been no error of law as regards the comparative exercise in either the ET or the EAT, and no basis, therefore, for any challenge to the ET's decision to make a deposit order.

Discussion and conclusion

35. I agree with Mr Nawbatt that all we are concerned with is the correctness or otherwise of a decision of a case management nature made by Judge Cadney in the ET. Whilst this is formally an appeal against the order of the EAT, the heart of the question before us is whether Judge Cadney made any error of principle in his approach to the comparative exercise required by section 20 of the Equality Act. If he did not, he made the evaluative decision he did in relation to the deposit order by a correct application of the law and there is (and could be) no challenge to his decision on perversity or irrationality grounds.
36. In my judgment, Judge Cadney made no error in relation to the comparative exercise. To understand his reasoning, it is important to recognise that it appears to have been at most only a very minor part of Mr Crossland's case before him that the real alleged vice of external patrols was that, whilst they did not increase the risk of the occurrence of a hypoglycaemic episode, if such an episode did occur on such a patrol, the consequences of injury were potentially more serious than if such an episode occurred within the relative warmth of the office. Mr Crossland appears to have majored on that point before Underhill J, who pointed out that Mr Crossland accepted that he had not made this point as fully to Judge Cadney as he had to him; and it is striking that the point finds no mention in Judge Cadney's reasons. The plain inference is that it hardly featured in Mr Crossland's case to the ET, a case which has plainly undergone some development both before the EAT and this court. What counts, however, is the case made to Judge Cadney. It cannot have been any error of law on his part not to take into account factual matters that were, so it appears, hardly advanced to him.
37. Turning to Judge Cadney's reasons, in paragraph 12 Judge Cadney opened by directing himself correctly as to the required comparative exercise, also there noting that the respondent's case was that there was no PCP that placed Mr Crossland at a substantial disadvantage. Mr Crossland did not dispute the correctness of paragraph 13 or that of the last two sentences of paragraph 14. The first sentence of paragraph 15 also correctly refers to the required comparison being between Mr Crossland's position and that of a non-disabled person.
38. The heart of Judge Cadney's reasoning is, however, in paragraph 16 (which, although recording the respondents' submission, was one he substantially accepted). Central to an understanding of the paragraph are the sentences reading:

'[Mr Crossland'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 the exterior patrols'

Mr Crossland's grounds of appeal to the EAT included no challenge to that.

39. What paragraph 16 reflects is that if Mr Crossland was at a greater risk of suffering injury, and serious consequences, from the fact that he might suffer a hypoglycaemic episode whilst working alone whereas a non-disabled person would not face a like risk, the only applicable PCP must be the requirement of lone working. Yet that was disclaimed by Mr Crossland, who (as paragraph 16 records) accepted that he was as fit as a non-disabled person to carry out lone work for the respondent. In that connection, it is plain that the focus of the argument was on the risk of a hypoglycaemic episode occurring. If, as Mr Crossland accepted, his diabetic condition did not result in any increase of that risk whilst working alone, and in particular did not prevent him from working alone in the office, there was no logical reason why he was at any different or greater risk whilst working outside the office on an external patrol. Therefore, the argument ran, the requirement of external patrols was not a PCP causing him substantial comparative disadvantage.
40. Judge Cadney accepted that argument and regarded it as pointing to the conclusion that Mr Crossland had little prospect of succeeding in his case at a full tribunal hearing. I do not accept that Judge Cadney's approach and conclusion involved the making by him of any false comparison. I follow that on one view his reasoning might perhaps be read as comparing Mr Crossland's circumstances as a diabetic when carrying out a lone patrol with his circumstances as a diabetic when working alone in the office. But to analyse the comparison in that way is to misunderstand the substance both of Mr Crossland's own case to the ET and Judge Cadney's understanding of it. Mr Crossland's case was that, although a diabetic, he could, with one exception, do the lone security job as well as a non-disabled person and, subject to that one exception, he required no special adjustments to be made for him. The one exception was the making of external patrols. The reason, however, why that argument did not add up is because the risk of a hypoglycaemic episode occurring during a patrol was the same as the risk of one occurring in the office, yet the latter risk was not a disadvantage for which, as compared with a non-disabled person, Mr Crossland required any adjustment to be made; and he was, therefore, as regards office work, in the same position as a non-disabled person. In substance, therefore, the comparison Judge Cadney was making was that between Mr Crossland as a diabetic doing an external patrol and a non-disabled person whether doing such a patrol or working in the office; and that pointed to the suffering by Mr Crossland as a diabetic doing a patrol from no substantial comparative disadvantage.
41. In my judgment, therefore, Judge Cadney did not misdirect himself as to the comparative exercise he had to carry out. If Mr Crossland had placed more focus before Judge Cadney on the fact that the risk of injury from an episode occurring on a patrol could be regarded as of a different nature from that occurring in the office, because it could or might result in more serious consequences, it is possible that Judge Cadney might perhaps have viewed the case differently. But it is apparent that Mr Crossland placed no emphasis on that way of putting his case. The main focus of his argument was on the risk of an episode occurring either in or out of the office: not on the potentially different consequences of an episode occurring, depending on where it occurred. Judge Cadney recorded the same 'risk' point in his reasons for refusing a review. Moreover, Underhill J gave cogent reasons for his view that even if Mr Crossland had emphasised to Judge Cadney the potential seriousness of an episode occurring during an external patrol as compared with one occurring in the office, it was unlikely that it would have made any difference to Judge Cadney's decision.
42. Mr Nawbatt took us through Underhill J's judgment in order to show that he too did not undertake any false comparative exercise. I shall not extend this judgment by also considering that judgment. I shall, however, at least comment on Mr Crossland's submission as to where he said Underhill J misdirected himself as to the comparative exercise. He referred us to the first few lines of paragraph 19 of Underhill J's judgment (see paragraph 20 above), said that Underhill J was there using the statutory language derived from section 20(3) but was nevertheless making a false comparison between the circumstances of the suffering by Mr Crossland of a hypoglycaemic episode on a patrol with one occurring in the office. With respect to Mr Crossland, he has misunderstood what Underhill J was there doing and saying. Underhill J was not there misdirecting himself in the way of which Mr Crossland accused him. All he was dealing with, and answering, was Mr Crossland's own point to him that, if he suffered an episode outside it could likely have more serious consequences than if it occurred inside. Underhill J was not there carrying out any comparison of the nature required by section 20(3).
43. I conclude by saying simply that I am satisfied that, on the case made to him by Mr Crossland, Judge Cadney made no error of law in deciding to make the deposit order. Underhill J was right to dismiss the appeal to the EAT. I would also dismiss the appeal to this court.

Lord Justice Sullivan :

44. I agree.

Lord Justice Kitchin :

45. I also agree.