United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MS I OMAMBALA (of Counsel) Instructed by: Messrs Lewis Silkin Solicitors LLP Employment Department 5 Chancery Lane Clifford Inn London EC4A 1BL


 


SUMMARY

PRACTICE AND PROCEDURE

Striking-out/dismissal

Costs

DISABILITY DISCRIMINATION

Direct disability discrimination

Strike out under Employment Tribunal Regulations 18(7)(b). Employment Tribunal correctly proceeded on basis of Counsel's pleaded case and held that claims of direct disability discrimination were misconceived. Partial costs of Respondent ordered. No error of law.


 


HIS HONOUR JUDGE PETER CLARK

1. This case has been proceeding before the Stratford Employment Tribunal. There were three separate claims by a Mr Bissember, Mr Gordon and Mr Nijjor, all employees of the Respondent, Ford Motor Company against their employer. All remain in that employment. The claims were combined for present purposes although I understand that further Forms ET1 were lodged and an issue arose as to whether those new claims should be combined with these claims. I shall return to that point later.
2. At a Pre-Hearing Review, followed by a Case Management Discussion (CMD) held on 17 July 2008, the original three claims were considered by Employment Judge Duncan; and it is relevant to note in his Case Management Discussion summary dated 29 July that, at paragraph 4, he identified the complaints of disability discrimination to be brought under s3A(5) of the Disability Discrimination Act 1995 (`DDA'), that is, claims of direct discrimination.
3. I should say that I am no longer concerned with the claims of Mr Bissember which have now fallen by the wayside.
4. Following that CMD the Respondent applied for an order striking out the relevant claims, those of Messrs Gordon and Nijjor, on the grounds that neither had any reasonable prospect of success (see Rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004); alternatively, it was contended that the Claimants should be ordered to pay a deposit as a condition of taking any further part in the proceedings. A further Pre-Hearing Review was ordered to consider, in particular, the strike out application. That hearing took place before Employment Judge Laidler sitting alone on 7 November 2008. For the purpose of that hearing both sides' representatives, Mrs Scott for the Claimants and Ms Omambala for the Respondent, lodged detailed written skeleton arguments.
5. By a Judgment with reasons promulgated on 23 December Judge Laidler struck out the relevant claims under Rule 18(7)(b) and ordered the three Claimants to each pay £1,666.66, a total of £5,000, towards the Respondent's costs, which were estimated at a little over £21,000 exclusive of VAT. It is against those decisions, with the permission of HHJ Richardson on the paper sift, that the appeals of Mr Gordon and Mr Nijjor now come before me for a full hearing.

Background Facts

6. As the Court of Appeal made absolutely clear in N. Glamorgan NHS Trust & Ezsias [2007] IRLR 603, applying the well-known observations of Lords Steyn and Hope in Anyanwu v South Bank Students Union [2001] IRLR 305, paragraphs 24 and 37 respectively, set out at paragraph 31 of the judgment of Maurice Kay LJ, where there is a crucial core of disputed facts, particularly in a discrimination claim, a hearing of the evidence and resolution of factual issues is required. In such circumstances a strike out order will rarely be appropriate on the basis that the claim has no reasonable prospect of success.
7. It is, therefore, important to identify the facts relied on by the appellant Claimants in this case in support of their claims of direct disability discrimination.
8. First, it is now common ground that each is disabled within the meaning of sl, DDA. Mr Gordon suffers from chronic arthritis and Mr Nijjor from ulcerative colitis. Both are long-serving employees of the Respondent at its Dagenham plant. Mr Gordon commenced his employment on 19 June 1989 and Mr Nijjor on 5 December 1988.
9. Each, with the assistance of Mrs Scott, lodged Form ET1s in similar terms. At paragraph 6.1 each complained of disability discrimination. I shall take the particulars of complaint at paragraph 6.2 from the Form ET1 of Mr Gordon:

"1. I am a restricted worker, i.e. I have a disability, which I believe qualifies under the Disability Discrimination Act 1995.

2. My disability does not prevent me from working, but does qualify me for restricted worker status.

3. I believe that I am entitled to reasonable adjustments under the Disability Discrimination Act and that I should also not suffer detriment in comparison with any non disabled worker(s).

4. I was told to go to the Puma assembly with my medical restriction on a double day shift pattern. I was then told that the company wanted to put me on a day shift pattern because I have this same medical condition.

5. There has not been a deterioration in my medical condition which justifies this change, or requires any new or different reasonable adjustments to be made, therefore, there is no advantage to me as far as my medical condition is concerned; instead, I am suffering a detriment by the imposition of a lower rate of pay for the reduced hours.

6. I am not the only worker who has been subjected to the change to my terms and conditions about which I am complaining, but (with the exception of a minority black worker, Mr J. Bissember) the workers affected are also restricted workers. With the exception of Mr Bissember, workers who are not disabled have been subjected to the same or a similar detriment.

7. I believe that I, in particular, and my restricted worker colleagues, as a group, have been singled out to suffer detriments not imposed on non-disabled workers and that there is a causative link between my restricted worker status and those detriments.

8. I believe that the way the company has brushed aside my complaints further represents victimisation against me.

I believe I have suffered direct disability discrimination and also victimisation contrary to the Disability Discrimination Act."

10. The particulars in Mr Nijjor's complaint are in similar terms. Thus, for the purposes of their claims of direct disability discrimination contrary to section 3A(5) the Claimants complain of a detriment in terms of reduced pay as a result of their being moved from a double day shift pattern to a day shift pattern, in common with each other and other restricted workers, some of whom are disabled and some of whom are not. In Further Particulars supplied at the request of the Respondent, the Claimants complained that only restricted workers were treated in this way; non-restricted workers were not.

The Employment Judge's Decision

11. Before Judge Laidler it was accepted on behalf of the Respondent that other restricted workers were not necessarily disabled within the meaning of sl, DDA (see paragraph 29); however, it was submitted (paragraph 33) that the Claimants could not show any difference in treatment between themselves and other restricted workers on their shift who were not disabled or suffered from different disabilities and that was fatal to their claims of direct disability discrimination.
12. Mrs Scott apparently relied on the House of Lords' decision in London Borough of Lewisham v Malcolm [2008] UKHL 43. The Judge could not see the relevance of that case (see paragraph 35); neither can 1. Malcolm is relevant by extension (see my judgment in Child Support Agency v Truman [2009] ICR 576) to claims of disability-related discrimination under s3A(l) DDA, not direct discrimination under s3A(5). I note^, that in her written skeleton argument below Mrs Scott also referred to reasonable adjustments, although again, whilst they may be relevant to disability-related discrimination (see section 3A(6)) that has no bearing on direct discrimination under s3A(5).
13. Judge Laidler accepted the Respondent's submission and ordered that the relevant claims be struck out under Rule 18(7)(b). Her core reasoning is at paragraph 38 where she said:

"As the Claimants' representative accepts that the restricted group includes those who were not disabled within the Disability Discrimination Act, the two Claimants who have been found to be disabled cannot establish less favourable treatment under s.3A(5). There is no need to look to a hypothetical comparator there are actual comparators and it is known that those non-disabled employees were also transferred to the single day shift. These Claimants cannot therefore establish any difference in treatment between themselves and other workers on the shift who were disabled by [sic] but suffered from different impairments with similar effects. All employees who worked on the double day shift were required to work a single day shift pattern. Further, they cannot establish that it was their particular disability that was the operative cause of the less favourable treatment complained of."

14. I remind myself that section 3A(5) provides:

"A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats, or would treat, a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."

15. That provision was considered by the EAT, HHJ McMullen QC presiding, in High Quality Lifestyles Limited v Watts [2006] IRLR 850. That division held that in a claim under s3A(5) it was not enough for the Claimant to show that the detrimental treatment complained of was on grounds of his disability. He must show, at the first stage, that the treatment afforded to him was less favourable than the treatment which would be afforded to a hypothetical comparator whose circumstances were not materially different from his. In the present case, on the facts advanced by the Claimants, they were treated the same as other restricted workers on their shift who either were not disabled or had different disabilities.
16. On the Respondent's application for costs, the Judge expressed the view that the claims were wholly misconceived. The Respondent's total costs were estimated at £21,092 excluding VAT. They claimed costs only from the point at which it became clear on the face of the Claimants' pleadings that they were misconceived.
17. The Judge found that the Claimants' representative had not properly considered the relevant legal provisions (see paragraph 46); that the Respondents had warned that a costs application would be made in correspondence and that given the claims were bound to fail in the view of the Judge, they were nevertheless continued. In these circumstances she assessed costs at £5,000, divided equally between the Claimants, having taken into account their means.

The Appeal

18. Mrs Scott describes herself in the Form ET1 as a consultant and in the Notice of Appeal as representative under the style Employment Law Service. Judge Richardson directed that there should be an exchange of skeleton arguments and that those skeleton arguments should be lodged with this Tribunal not less than 14 days before the date fixed for the hearing, that is today, and added this particular direction:

"he skeleton argument for the Appellants must in addition to setting out arguments in relation to the appeal, set out precisely and succinctly how the case for each Appellant was put, identifying the type of discrimination relied on (ie section 5.3 [sic]A(1), (2) and/or (5) and the facts relied on in each case."

19. Mrs Scott did not comply with those directions, although I have had the advantage of a skeleton argument lodged in good time by Ms Omambala for the Respondent. That necessarily places the Appellants at a disadvantage. She was pursued on the matter by the case handler, Ms Tahir, who wrote, I see, on 1 June, pointing out that the Appellants' skeleton argument was overdue and requiring that it be supplied forthwith. Nothing was done or said by Mrs Scott or anyone on her behalf and I have a note that on 8 June Ms Tahir left a voice mail message for the Appellant on her mobile telephone to say that her skeleton argument should now be lodged without delay. I interpose that Ms Omambala tells me the last contact which her solicitors have had with Mrs Scott was on 21 May.
20. That appears to have evoked some response because, at 9.02am today, an email was received at the EAT from somebody called Natasha Warren, apparently on behalf of Mrs Scott. The email said this:

"We apologise that Mrs Scott has not provided separate skeleton arguments. The reason for that is that there is no variation from the grounds of appeal. The Judge at the Employment Tribunal accepted the Respondent's case precedent, which predated the House of Lords'

decision relied on by Mrs Scott, and clearly states this in her decision. The Respondent's arguments that closure of the night shift on the Strip Loop was not disability discrimination has no relevance because neither Appellant was placed there, apart from a two-week period whilst Mr Gordon was being moved around. Had the judge allowed the evidence, the Appellants would also have denied the night shift was closed, in any event. We would argue that at a PHR the Appellants' case should be taken at its highest."

21. That gobbledegook, it seems to me, has no bearing on the grounds of appeal but taking the email at face value I have heard submissions from Ms Omambala on those grounds of appeal. Needless to say, Mrs Scott has not deigned to attend this hearing today to advance her clients' case, nor has she given any explanation for her non-appearance, nor has she answered inquiries left on her mobile telephone voicemail from a member of the court staff.
22. In these circumstances I see no reason why the Respondent should be put to the inconvenience and expense of an adjournment of this hearing and I have proceeded to consider the appeal on its merits.
23. Turning then to the grounds of appeal.
24. The first complaint made at paragraph 6 is that the Tribunal ought to have heard evidence from the Claimants. Ms Omambala, who was present, tells me and I accept, that at the PHR there was no application on behalf of the Claimants for them to give evidence; but their evidence would have been immaterial. The question, as I indicated by reference to Ezsias, is whether on the face of the Claimants' pleaded case there was no reasonable prospect of it succeeding. That was the basis on which the Respondent made the application to strike out and I am quite satisfied the basis on which Judge Laidler decided that application.
25. So far as the particulars in relation to this part of the appeal is concerned, I read paragraph 6(h) of the Notice of Appeal;

"Whether the Tribunal erred law in considering whether the Appellants' particular disabilities were the cause of the less favourable treatment as opposed to the significant disadvantage to each of the Appellants on the ground of their particular disability caused by the same treatment that was afforded to their comparators."

26. That makes no sense to me at all except that it highlights Mrs Scott's total inability to distinguish between the three causes of action raised in section 3A, DDA: disability related discrimination, with which the case of Malcolm is concerned indirectly; failure to make reasonable adjustments under sub-section (2); or direct discrimination, with which this case is concerned as a result of Judge Duncan's order, under section 3A(5).
27. Next, it is said at ground (i):

"Whether two employees with qualifying disabilities under the Disability Discrimination Act can claim disability discrimination where they have suffered different significant disadvantages flowing from treatment that has been afforded to themselves and others who are not disabled."

28. Again, I do not begin to follow that contention. However, I have I think sufficiently indicated the difficulty which the Claimants had in pursuing a claim of direct discrimination in the light of their acceptance that the detriment, that is moving from a double day to a single day shift, was visited on all members of the relevant group, some of whom were disabled within the meaning of the Act and some who were not. What is absolutely clear is that the treatment afforded by the company was afforded indiscriminately to these Claimants and their potential comparators.
29. Next, a point is made as to evidence to be given at the PHR and I need not revisit that.
30. Turning then to the award of costs, Ms Omambala has taken me to the relevant provisions in Rule 40 of the Employment Tribunal Rules. I am quite satisfied, for the reasons given by the Employment Judge that first the claims were misconceived; secondly they were conducted unreasonably by their representative, and that in these circumstances the discretion to order costs was triggered. It is plain that the Judge considered whether or not to exercise her discretion and in doing so took into account the conduct of the proceedings. She also took into account, although not strictly mandated to, the Claimants' means and reached a conclusion which cannot be impugned. No arguable point of law is raised in relation to those orders against Mr Gordon and Mr Nijjor and, as Ms Omambala points out, that part of Mr Bissember's appeal was rejected by Judge Richardson on the paper sift under Rule 3(7) of the Employment Appeal Tribunal Rules.
31. That leaves one final matter. There is a point taken in the appeal that the Tribunal did not consolidate the further Forms ET1 with those the subject of this strike out application before striking out these particular claims. I cannot see that it makes the slightest difference whether the claims had been combined before the strike out or the strike out application was simply heard whereafter there was no need to combine them. The simple fact is that these claims were properly struck out; costs were properly awarded.
32. These appeals fail and are dismissed.