England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
EMPLOYMENT APPEAL TRIBUNAL
THE HONOURABLE MR JUSTICE LANGSTAFF
UKEAT/0312/14/

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/07/2017

LADY JUSTICE ARDEN :

1. The appellant, Mr Ukegheson, appeals against the orders dated 21 May and 3 July 2015 of Langstaff P, sitting in the Employment Appeal Tribunal ("the EAT"). By his 21 May order, the EAT set aside the order of Employment Judge Manley dated 21 October 2013 save for parts relating to religious and disability discrimination ("the excluded claims") and a victimisation claim, and remitted the matter to the Employment Tribunal ("ET"). Mr Ukegheson contends that the excluded claims should also be remitted to a new ET. By his 3 July order, the EAT refused Mr Ukegheson's application for a review of his 21 May decision and Mr Ukegheson contends that this order should also have remitted the religious and disability discrimination claims and the victimisation claim to a new ET. These appeals relates only to the excluded claims, and not the victimisation claim, so I need say no more about that.

Background

2. Mr Ukegheson has dual British and Nigerian nationality. He was called to the Bar as a Barrister and Solicitor of the Supreme Court of Nigeria. He is also a member of the Chartered Institute of Legal Executives. At the material time, he was the deputy manager of a support centre operated by the respondent ("Haringey"), namely the Hazlemere Family Support Centre, from 22 January 2010 until 18 January 2013. He resigned in December with effect from 18 January 2013. He claimed that there had been a breakdown in the relationship between himself and his line manager, Ms Osho. He also made some twenty claims based on discrimination on the grounds of race, sex and religion, and alleged harassment. Details of his claims may be found in the judgment of the EAT.
3. It is not necessary to go into the facts in any detail since the question before us is simply whether the excluded claims should have been treated as disclosing no reasonable prospect of success and that question falls to be assessed in this case not on the basis of the facts on which Mr Ukegheson relies but on the question whether the claim has any prospect in law. It suffices therefore to give a short summary of the material factual allegations, which, as the EAT rightly held, must be considered at their highest when considering whether the strike-out order was rightly made.
4. Mr Ukegheson suffers from cancer. In his claims in the ET, he contended that the conduct of Ms Osho who, knowing him to be a church-going Christian, had required him to work extra Sundays the day before his resignation, was religious discrimination against him. He contended that, as a cancer sufferer, he needed Sundays off to be able to pray for healing, which he considered had been an important factor in his survival. He also contended that he should have flexible working hours so that he could start at 10am rather than the 9am required by Ms Osho. He wrote in an email of January 2013 to Ms Osho:

your undue pressures such as insisting that I must report on duty at 9 am even though my presence was not required has not helped me at all. The disruption of my family life and extra cost of child care has been a source of worry for me which had made my health worse. One of the reasons I liked my job was the flexible working which you have decided to take away from me notwithstanding my pleadings to you to be compassionate towards my plight.

5. In addition, Mr Ukegheson complained about Haringey's refusal of this request to be transferred to another workplace in breach of its own policy.
6. The EAT summarised his ET1 commencing these proceedings as follows:

10 In his ET1, he complained in several of the paragraphs of the interim statement of claim, in matters which were repeated and augmented in the attached e-mail, of a series of incidents that had happened between, essentially, him and his manager, a Ms Osho, during the course of his employment at the centre. It reads to me, and I think would read to any fair reader, that this is a series of complaints about the way in which she related to him in relation to his work. He claimed that she had not done, in respect of him, that which she should have done such as carrying out appraisals, which he asserted (see para 19) was a breach of contract; that she had not taken the elementary steps of giving him appropriate advice and instruction when, for instance, (see para 65) his job classification changed from one, RH7, to another, PO3; that she had failed to keep promises in respect of his training and development. But more critically the underlying flavour is that throughout, from these unpromising beginnings, she treated him in a way which was, essentially, demeaning of his status, his expertise, his qualifications and ability. Essentially he was complaining about the relationship between the two. Thus, he argued (see paras 32–33) that, in effect, she froze him out of making management decisions, which were supposed to be joint, complained (para 34) that she often undermined him; (para 35) that she raised concerns which were inappropriate in respect of some of his behaviour including his taking time off in lieu, a matter of which she disapproved, when he thought that he had secured the approval of higher management for that, particularly when she was absent off at the time; that he had taken the difficult decision of disciplining three members of staff for their inadequate care, using a formal process at a time when she was not present, but on her return to work she had overruled him and issued a verbal warning instead, thereby undermining his authority in the workplace; that, although she was supposed to have regular meetings with him, had a meeting only on one occasion to discuss what was called standard setting when this was, in effect, demeaning of him; that she had not adopted a policy which he had taken some time and care to discuss in relation to children's clothing, again at a time when she was absent from the workplace; had ignored concerns that he had expressed about the poor management of an aspect of the work called "Breathing Space"; that she had adopted an abrasive style, on one occasion saying to him "Just do as you're told, period" and in this process had asked him to do that which she knew it would be difficult for him to do given his particular background. She knew he was a church-attending Christian. Although he was not unhappy to work one Sunday in a month, she asked him, without he thought good and proper reason, to work three Sundays. She knew that for his family reasons he wished to start work at 10 am (indeed part of his claim says she had agreed to that) when he took over the task of another woman, Jasmine Wong, she having worked from 10 am. He found that Ms Osho insisted that he began at 9 am.

11 It is frequently the experience of life that, where parties fall out, they may see in that which the other does toward them a real or, it may be, imagined slight in circumstances in which others, not being aware of the background, nor feeling as keenly as the parties to the personality dispute do, would regard as unexceptional and anodyne.

12 In mid-December, just before he issued his letter of resignation, the claimant says that Ms Osho sent him an e-mail requiring him to complete a leaver's form for an employee. The terms of the e-mail were set out in the judge's judgment. Without knowledge of the context between the two individuals, the words would seem unexceptional. So indeed they did to the judge. They read: "Please action. If you are unfamiliar with the form let me know and I will show you how to complete it. Regards." If, however, the evidence established that in fact the recipient of the e-mail was fully familiar with such a form and did not, given his experience and ability, need to be told how to complete what was a simple form, one which he had done before, then the e-mail might take on a very different force and meaning. It might then be seen as belittling or sarcastic. It may very well be that the proper interpretation is the former. But the claimant's interpretation, taking the view that he did of the history between the two, was the latter, as he suggests in his ET1, and accordingly he thought this meant that he should at that stage resign and thought himself entitled to do so, he maintains.

13 In the course of this hearing, as it happens, I have been shown a number of e-mails which from time to time appear to record his complaints to her about her management style and her behaviour towards him, which are consistent with the view he expressed in his ET1.

14 He not only, however, complained that he had been subject to constructive unfair dismissal by reason of what amounted to conduct, which taken as a whole was a breach of the implied term of trust and confidence or could be seen that way, but to the 20 other claims to which I have referred. Those which have featured before the judge and here centrally were claims that in what happened he had been discriminated against on the ground of his race, that he had been discriminated against on the ground of his gender, that since he suffered, to the knowledge of his employer, with a thyroid cancer and was therefore disabled, there had been a breach of the Equality Act 2010 in failing to make reasonable adjustments for him, that there had been discrimination against him on the grounds of his religion and belief, that what Ms Osho did towards him constituted harassment on the ground of one or other of his protected characteristics, they being race, sex, disability and religion, and that he had been victimised for making a protected disclosure.

15 It is fair to say that the claims are not very clearly set out, though, as I have indicated, the essential underlying theme is that of the relationship between himself and Ms Osho, which was (perhaps an understatement) "uncomfortable", at least.

7. On 24 June 2013, there was an important case-management conference before EJ Smail which identified the issues to be tried as regards the reasonable adjustments claims. The process and outcome is detailed by the EAT as follows:

16. The claims were considered by Employment Judge Smail at a case management discussion, held on 24 June 2013. The Claimant appeared. He was in person. The Judge ordered a Pre-Hearing Review to consider whether any of the claims should be struck-out as having no reasonable prospect of success and whether a deposit should be paid in respect of any claim which had only little reasonable prospects of success. It analysed, as best it could, what the core factual allegations were which it derived from the statement in the ET1. Having done so, it then attempted to analyse those factual allegations under the most appropriate heading of legal cause of action. It set those out at paragraph 10, in ten subparagraphs of the case management discussion and then turned to the heads of claim, which it identified as constructive unfair dismissal, race discrimination, sex discrimination, religious discrimination, disability discrimination, and victimisation.

17. The claim based on disability was described as a reasonable adjustments claim. That was a reference back to paragraph 10.8, a "failure to consider" reasonable adjustments. There were four of them: not allowing flexi-hours (that being a reference to the requirement to work at 9am rather than start at 10am); denying the Claimant leave from 8 January during his notice period; a failure to consider redeployment towards the end of his time at the Centre; and a failure to facilitate church attendance on at least three Sundays a month.

8. In other words, the reasonable adjustments claim identified by EJ Smail was as follows:

10.8 Failure to consider reasonable adjustments

10.8.1 Not allowing flexi-hours;

10.8.2 Denying claimant leave from 8 January 2013 (a period in his notice period);

10.8.3 Failure to consider redeployment towards the end of his time at the Centre;

10.8.4 Failing to facilitate church attendance on at least three Sundays a month

9. There was no appeal from the order of EJ Smail.
10. At a pre-hearing review held before EJ Manley on 25 September 2013, which Mr Ukegheson was unable to attend, EJ Manley heard an application to strike out Mr Ukegheson's claim and made an order in terms of the application in relation to all Mr Ukegheson's claims.  The EAT held that the order of EJ Manley was in error. The discretion to strike out had to be used sparingly and cautiously based on the claim form, which set out the essential facts a respondent was required to answer and which, if disputed, should not result in a case being dismissed by a strike-out on the grounds of no reasonable prospect of success.  The EAT restored the claims other than the excluded claims, which the EAT considered EJ Manley had been correct to conclude had no reasonable prospect of success. 
11. Because he could not attend the hearing on 24 September 2013, Mr Ukegheson appointed a friend, Mr John O. Komolafe (also a solicitor), to appear on his behalf. At the same time he filed written submissions. These contained a passage headed "duty to make reasonable adjustments" and explained that it was not just the failure to consider reasonable adjustments but the failure to make reasonable adjustments that was in issue. At a later stage in those submissions, he asked for permission to amend the list of issues. However, we have not seen any formulated amendment and none was sought to extend the reasonable adjustments issue to cover a failure to make reasonable adjustments.
12. Mr Ukegheson then sought permission to appeal from the order of EJ Manley to the EAT. He submitted (among other things) that his case was based on not merely a failure to consider reasonable adjustments but also on the failure to make reasonable adjustments. Slade J gave permission for this case to proceed to a full hearing.

Decision of the EAT

13. The EAT explained the importance of the ET1 as defining the claim:

7 What is less well travelled by the authorities but also clear is the basis on which a tribunal judge must assess a case if she considers that there may be appropriate grounds on which it should be struck out. They were addressed obiter in Chandhok v Tirkey itself in paras 16–19. In that it was emphasised that, in order to determine what a claim is, it is defined for the purposes of the Employment Tribunals Rules of Procedure 2013 at rule 1 as meaning "any proceedings before an employment tribunal making a complaint", a definition which is developed in the rules which relate to presenting a claim using a completed claim form, which may be rejected on certain grounds (see rule 10) and which may call for a response (see rules 15 and following), to which plainly the power in rule 37 relates. As said, therefore, in Chandhok v Tirkey the claim is something which has an element of formality about it. There at para 16 this was said:

"The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely on their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a witness statement, nor a document, but the claims made—meaning, under the Employment Tribunals Rules of Procedure 2013, the claim as set out in the ET1."

14. On religious discrimination, the EAT held:

41. …The attack, if there was an attack on [Mr Ukegheson], does not appear to be because of his religion even though it may have taken account of his religion in what was done, which is a different matter. Accordingly, as it seems to me, the decision in respect of the strike-out of the claim for religious discrimination stands.

15. On disability discrimination, the EAT rejected the appeal on two grounds. First, there was no alleged claim that Haringey failed to make reasonable adjustments ([44]). Second, the failure to facilitate church attendance was too tenuous. The EAT noted that there was no medical evidence to support it ([44]-[45]). The EAT amplified this point in the renewal judgment by citing the holding of EJ Manley:

8. In his detailed application the Claimant refers to the notes made by his Representative at the hearing (understandably, he did not have the transcript of the judgment available to him). He relies heavily on the definition of discrimination, and the burden of proof, refers to Section 15 of the Equality Act 2010 as well as Section 20 (duty to make adjustments), refers to the Council policy at paragraph 53 refers to 6 matters which were said to be reasonable adjustments. This is therefore a different claim from that which was put in the ET1. The words upon which I focussed in the judgment "failure to consider reasonable adjustments" are the words identified by Employment Judge Smail as the way in which the Claimant was putting his case when he attended a case management discussion on 24 June 2013. At paragraph 10.8, under the heading "Factual Allegations" the key factual allegation relevant to a claim in respect of reasonable adjustments was: "failure to consider reasonable adjustments". There were four sub-heads to this – "not allowing flexi hours"; "denying Claimant leave from 8 January 2013 (a period in his notice period)"; "failure to consider re-deployment towards the end of his time at the Centre"; "failing to facilitate Church attendance on at least 3 Sundays a month." These factual allegations were set out at the start of Judge Manley's decision. She dealt with the detail at paragraphs 8.14 and 8.15: "There was nothing shown to me which suggested that not allowing flexi-hours, denying leave, failure to consider re-deployment or facilitate Church attendance put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who were not disabled. The disability from which the Claimant suffered was thyroid cancer. In the absence of any material from which it could be inferred that the Claimant had a viable claim, such a claim could not succeed. The argument before me centred upon the failure to facilitate Church attendance. His case was that his attending Church helped him better to cope with the adverse effects of his cancer, and therefore should have been a reasonable adjustment made for him. Upon the facts apparent to Judge Manley he did not work on Sundays after the employer requested him to extend his Sunday working; and I agreed that there was no obvious connection between his requests for adjustment and the effects of his cancer.

Submissions

16. It is common ground that a failure to consider making reasonable adjustments is not sufficient to ground a discrimination claim: it has to be alleged that there was a failure to make reasonable adjustments. As the EAT said in Royal Bank of Scotland v Ashton [2011] ICR 632:

24 Thus, so far as reasonable adjustment is concerned, the focus of the tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not—and it is an error—for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons.

17. This Court agreed with this analysis in Newham Sixth Form College v Sandars [2014] EWCA Civ 734 at [8].
18. Mr Ukegheson has filed very full submissions in writing. A substantial set of submissions was filed shortly before the hearing of these appeals, which Haringey was unable to consider, but we have done so. Mr Ukegheson submits that this is a case about failure to make reasonable adjustments. He submits that this is a case where the burden of proof shifts to the employer: Archibald v Fife Council [2004] ICR 954. There is an issue about when the employer became aware of the disability but the judge rightly said that that was a matter to be tried, and that issue has not been appealed. He submits that Archibald is relevant because Haringey needs to show that it took reasonable adjustments.
19. He submits that his claim for religious discrimination is really part of his claim for constructive dismissal. He submits that at this stage he does not have to produce all his evidence. As to the issue of comparators, he submits that his manager, who did not go to church, is a direct comparator for discrimination purposes. There was a direct connection between church-going and his health.
20. Mr Jake Davies appears for Haringey. Mr Davies's submissions began with an overview of the relevant law, reminding us that the duty to make reasonable adjustments arises only where a disabled person is put at a substantial disadvantage by an employer's provision, criterion or practice ("PCP"). He points out that the employer has to know or ought to have known of the disability and, that the employee must be likely to be placed at a substantial disadvantage because of his disability - but those are not issues on this appeal.
21. Mr Davies submits that Mr Ukegheson did not plead a failure to make reasonable adjustments, nor did he allege substantial disadvantage or a failure to make an adjustment because of the disability. He went through the documents filed in the ET to show this. He submits that the EJ Smail gave Mr Ukegheson 14 days in which to propose any amendment under the terms of the order of the court. He made no such application. He has had the opportunity and it has gone. The application could have been made before the EAT, and on that occasion it is to be noted that he was represented by counsel.
22. Mr Davies also submits that the objection to a 9 am start time was not because of disability but because of child care issues. His skeleton at paragraph 33 states that he has to amend if his case is that it exacerbates his medical condition.
23. Mr Davies seeks to uphold the EAT's conclusion that the link between church-going and the disability was too tenuous. He submits that the word "tenuous" is used in this field to mean "fanciful": see Ezysias v North Glamorgan NHS Trust [2007] ICR 1126. Mr Ukegheson's claim based on religious discrimination had always been a claim of direct discrimination, so Mba v Merton LBC [2014] ICR 357 (justification for requiring employees to work on Sundays in a care home) is distinguishable.
24. As to redeployment, Mr Davies submits that the duty to make reasonable adjustments would continue into the notice period but it did not matter in the present case because Mr Ukegheson did not attend work. Mr Ukegheson is clearly relying, on Mr Davies' submission, on a failure to consider because he complains about the lack of a consultation meeting. As to denying leave, he was not at work and never came back.
25. In its review judgment, the EAT referred to a failure to plead substantial disadvantage. This is a point which applies to all the allegations. Reasonable adjustments are required to be made to enable someone to remain at work.
26. Mr Davies submits that, in a claim for failure to make reasonable adjustments, by contrast to a claim for discrimination, (where the burden of proof will shift to the employer where the claimant shows a prima facie case of discrimination), the burden does not pass to the employer until substantial disadvantage and grounds for holding that a reasonable adjustment are shown (Project Management Institute v Latif [2007] ICLR 579).

Discussion

27. We are primarily concerned with the pleadings, though the power to strike out as having no reasonable prospect of success can be exercised where there is a dispute of fact where the claimant cannot realistically succeed. This was the case in Ezsias v North Glamorgan NHS Trust, where the claimant's pleaded case was that he had been dismissed as a whistle-blower, whereas the employer contended that the true position was he was impossible to work with and that he unreasonably jeopardised the proper functioning of the hospital. This Court held that this dispute could not be determined on a summary application without a trial.
28. I start with the disability discrimination claims. Even on Mr Ukegheson's own case, there could be no disability discrimination because of the failure to change his hours to 10am. It is clear from the written material, and also from Mr Ukegheson's oral submissions to us, that the real reason why Mr Ukegheson wanted to start at 10am and not 9am was so that he could take his children to school first. While this reason is understandable, it bears no connection to his disability as a cancer sufferer. Therefore, the fact that he has not had the opportunity to place medical evidence about his medical condition before an ET is nothing to the point.
29. I accept Mr Davies' submission about the burden of proof. Archibald v Fife Council, relied on by Mr Ukegheson, did not deal with this point. In the present case, he had to show substantial disadvantage for the purposes of the claims in issue on these appeals, and had not articulated his case on this for the purposes of the claims in issue on these appeals. Mr Ukegheson referred to the question of Haringey's knowledge of Mr Ukegheson's disability, but that is not relevant at this stage as that is a factual issue which cannot be determined without a trial.
30. As to the nature of the pleaded case on reasonable adjustments, as already indicated, Mr Ukegheson's submissions subjected the voluminous documents in this case to intense scrutiny designed to show that he complained of a failure to make reasonable adjustments rather than simply a failure to consider making adjustments. However, that intensive scrutiny cannot hide the unfortunate fact that Mr Ukegheson was well aware that this was not his pleaded case and that his pleaded case needed to be amended. He failed to take the opportunity to make the pleadings accord with the case that he wanted to run. It is, therefore, not open to him to challenge the order properly made on the pleadings as they stood.
31. The absence of a pleaded allegation of a failure to make reasonable adjustments covers Mr Ukegheson's complaint against Haringey for failing to transfer him to another centre, however desirable that might have been, and his claim that there should have been changes to the rota, which the EAT concluded was the sole basis of his claim for religious discrimination. In any event, that issue arose during Mr Ukegheson's period of notice. Mr Ukegheson was not then attending work, and so no reasonable adjustment concerning leave was needed to facilitate his return to work.
32. Mr Ukegheson made reference to a large number of cases which I have not cited above. I have cited those which are relevant to the limited issues before this Court and I am satisfied that the remaining authorities deal with issues which are immaterial and peripheral to the grounds on which I would decide these appeals. Likewise, Mr Davies argues that there are other grounds for dismissing these appeals. I intend no disrespect to either party, but it is not necessary for this Court to set them out.
33. I would dismiss these appeals.

LADY JUSTICE SHARP

34. I agree.