Title: CLAIRE KELSO v DEPARTMENT for WORK and PENSIONS (Practice and Procedure : Amendment) [2015] UKEAT 0009_15_2910 (29 October 2015)
Author: lmackay
Last saved by: Joe Ury
Company: Employment Tribunal Service

Appeal No. UKEATS/0009/15/SM

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 29 October 2015

Before
THE HONOURABLE LADY STACEY
(SITTING ALONE)

CLAIRE KELSO	APPELLANT

DEPARTMENT for WORK and PENSIONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant | Mr C Marney, advocate
For the Respondent | Ms P Keys, Anderson Strathern

SUMMARY

1.	The Employment Tribunal (ET) struck out a claim under the Equality Act 2010 section 15 as having no reasonable prospects of success. It found that there were no pleadings from which it could be found that the unfavourable act complained of, namely dismissal, amounted to the respondent treating the claimant unfavourably because of something arising in consequence of the claimant’s disability. The claimant argued that the ET erred in law in doing so. Held: the ET was entitled to reach the view that there were no relevant pleadings to instruct a case under section 15 Equality Act 2010. Appeal dismissed so far as relating to that decision. 
2.	The ET made an order for payment by claimant to respondent of expenses in the sum of £1247 on the grounds that the claimant or her representative had acted unreasonably in the conduct of the proceedings. The claimant argued that there had been no unreasonable conduct. Counsel had been ready to argue in response to the motion for strike out, but the ET had decided to adjourn. Even if the arguments which counsel wished to advance were eventually not upheld by the ET, it was not unreasonable to make the arguments. Held: there was no sufficient finding of unreasonable conduct. Appeal allowed in so far as it related to expenses. 

THE HONOURABLE LADY STACEY

1.	This is a full hearing about a decision to strike out a claim under the Equality Act 2010 (the Act).  The claimant made a claim under section 15 of the act together with a claim for unfair dismissal.  The latter claim remains to be heard.  The employment tribunal (ET) comprising Employment Judge June Cape sitting alone struck out the claim in respect of a breach of section 15 of the act; further she made an award of expenses against the claimant in respect of a hearing on 24 November 2014, having decided that the conduct of the claimant or of her representatives was unreasonable.

2.	The underlying facts are that the claimant was employed by the respondent as a Higher Executive Officer.  She was in receipt of Disability Living Allowance from 2001 having made a claim in which she stated that she suffered from Raynaud’s disease which had detrimental effect upon her.  The Fraud Investigation Service of the respondent received anonymous information which led it to set up an investigation into the claimant.  In February 2012 the respondent, as benefits agency, decided that from 30 June 2010 the claimant was not entitled to Disability Living Allowance. That resulted in a report to the Procurator Fiscal which in turn resulted in a prosecution of the claimant.  

3.	The respondent dismissed the claimant on 8 June 2012.  The claimant appealed unsuccessfully. She lodged a form ET1 on 3 September 2012 claiming disability discrimination and unfair dismissal.  The case was sisted to await the outcome of the criminal proceedings.  The claimant was tried and acquitted on 6 June 2014. The sist was recalled later that month.

4.	A closed preliminary hearing for case management was held on 11 July 2014. The claimant sought and obtained time to clarify her position because she had changed lawyers. She was given 4 weeks to do so, and on 7 August she lodged a document headed “Note of Claims” in which the claimant stated that she had been subjected to unfavourable treatment, namely dismissal, because of something arising in consequence of her disability, namely the respondent’s belief that she had obtained benefits from the state to which she was not entitled. 

5.	The respondent sought a preliminary hearing at which to make an application for strike out of the section 15 claim, on the basis that it had no reasonable prospect of success. A date was fixed for 29 August 2014. At that hearing Mr Marney appeared and outlined the claim. He told the EJ that the claimant did not dispute that the reason for dismissal was that the respondent believed that the claimant had been dishonestly claiming benefits, related to her alleged disability, to which she was not entitled. She accepted that the reason for dismissal was her alleged misconduct, not the fact of her having claimed benefits. 

6.	The EJ decided that the question of strike out in these circumstances was suitable for disposal at  a preliminary hearing, directing herself that this was a “succinct knock out point which is capable of being decided after only a relatively short hearing” as described in the case of SCA Packaging v Boyle [2009] ICR 1056 HL. She issued a note of the hearing, in which she set out the discussion and intimated her decision to hold a preliminary hearing to hear the strike out application. She stated that the claimant accepted that the reason for dismissal was the respondent’s belief that she had acted dishonestly by claiming benefits to which she was not entitled, thereby bring the respondent into disrepute. No issue was taken by parties to the terms of that note. So far as relevant it states:

“At this closed Preliminary Hearing I considered the respondent’s application for a case management order that the complaint under section 15 of the Equality Act 2010 should be listed for an open Preliminary Hearing to determine whether it should be dismissed on the grounds that it has no reasonable prospects of success.  
That was opposed by the claimant, Mr Marney arguing that the case should proceed to a full hearing….
The complaint under section 15 of the EQA is put thus. It is said the the claimant was dismissed because she claimed benefit, which was “something arising in consequence of [the claimant’s] disability.” The respondent says it dismissed the claimant because it believed she had committed an act of misconduct which brought the respondent into disrepute. The conduct complained of was an act of dishonesty/deception, they believed, the claimant claiming benefits related to her alleged disability to which she was not entitled.  The claimant does not dispute that that was the reason for dismissal. She accepts that her alleged misconduct was the respondent’s reason for dismissal, and not the claiming of benefits.”

7.	During November 2014 the respondent lodged a Minute of Amendment of its pleadings. The claimant did likewise. Neither objected to the other’s amendment, and the EJ allowed both minutes without a hearing, by order of 20 November 2014. 

8.	The respondent still sought to argue that the section 15 claim should be struck out. A preliminary hearing was held on 24 November. At the hearing, the EJ stated that both she and the respondent’s solicitor were taken by surprise when Mr Marney stated that the issues in the section 15 claim went beyond those set out in the closed preliminary hearing note, and extended to matters set out in his Minute of Amendment. There is a degree of confusion in the papers because the EJ refers to the section 15 claim as “the DDA claim” but parties explained to me that they agreed it always was a claim under section 15, and that DDA was used as short hand. The EJ decided to adjourn the preliminary hearing, and ordered that a Scott schedule, setting out the acts and omissions complained of, be lodged. She also issued a note in which she stated the following:-
‘The matters set out in the PH note [issued to parties on 9 September 2014] are to be regarded as an admission, including dismissal as the only act complained of. If the claimant seeks to amend her position in that regard then her solicitors should say so in their application and set out the proposed amendment and the grounds on which that is sought. The  application for amendment in any event should be framed with reference to Selkent Bus Ltd v Moore [1996] ICR 836 and in particular the matters to which the Tribunal should have regard, including the reason for the change of position and the late stage of that”.

9.	Mr Marney, counsel for the claimant, had been ready at that hearing to argue in response to the motion for strike out. He did not agree that any adjournment was necessary. He sought to appeal the decision to adjourn but did not pass the sift. 

10.	The claimant lodged a Scott schedule. It set out the following matters:-
(i)	Undertaking an ad hoc assessment of the claimant’s medical condition and of her mobility and care needs
(ii)	Undertaking an ad hoc assessment of the pursuer’s present and past entitlement to benefits related to her medical condition and her mobility and care needs
(iii)	Requiring the claimant to satisfy the respondent that she had mobility needs as result of her condition
(iv)	Requiring the claimant to satisfy the respondent that she had an entitlement to benefits as a consequence of her condition 
(v) Purporting to make a determination of the claimant’s medical condition and of her mobility and care needs as consequence of her condition
(vi)	Purporting to make a determination in relation to the claimant’s entitlement to benefits as a consequence of her condition. 

11.	The schedule did not give dates or context for these claims. 

12.	At the hearing on 7 May 2015 Mr Hay, advocate, appeared for the claimant. He was able to give dates for these occurrences and argued that the claimant had been required to satisfy her employer of her care and mobility needs. That was, he argued, something arising in consequence of her disability. 

13.	The EJ found that the claimant was attempting to rely on steps taken by the respondent as part of its disciplinary investigation as free standing acts which were said to be in contravention of section 15. She found that those were in addition to the act of dismissal, and were of a different character. Counsel (Mr Hay) for the claimant did not seek leave to amend. The EJ found that these matters could not be before the ET unless they were amended into the claim. She went on to say that even if leave had been sought, she would have refused it because these were new claims, coming after Mr Marney had confirmed in August 2014 that the sole claim of discrimination was the act of dismissal. Having made those decisions, she then heard the motion for strike out. 

14.	The EJ directed herself by reference to the cases of Balls v Downham Market High School [2011] IRLR 217 Eszias v North Glamorgan NHS Trust [2007] ICR 1126 and Tayside Public Transport v Reilly [2012] IRLR 755 that caution is required when considering such a motion. She understood that if there was a core of disputed fact, the claim should not be struck out. Further, she appreciated that the test was that there were no reasonable prospects of success, not that the case was likely to fail. She understood that she had discretion to refuse the motion. The EJ also directed herself that cases involving discrimination should, generally speaking, be heard, under reference to Anyanwu v South Bank Student Union [2001] UKHL 14. 

15.	The EJ records Mr Hay’s submission that the dismissal was connected to disability: ‘but for’ the disability, the claimant would not have been subject to the unfavourable treatment of dismissal. The EJ rejected that argument. She found that the ‘but for’ element was the perceived dishonesty. She accepted the submission from Ms Keys, solicitor for the respondent, that there was no factual dispute about the reason for dismissal. She found that the dispute between the parties was the reasonableness or otherwise of the respondent’s investigation and belief that the claimant had been dishonest. That dispute was covered by the unfair dismissal claim. The EJ found that there were no reasonable prospects of the claimant succeeding in showing that what had happened to her was such as to persuade an ET that in the absence of an explanation from the respondent, she was dismissed for a reason relating to her disability. She referred to s.136 of the Act in doing so. 

16.	The EJ noted the terms of section 15 at the beginning of her narration of Mr Marney’s argument at the hearing in November 2014. She did not refer to the terms of that section when narrating Mr Hay’s argument in May 2015. It is clear that she was aware of the terms of the section. She was asked to proceed on the basis that the respondent dismissed the claimant because it was thought that she had dishonestly claimed benefits. She did so and decided that the belief did not arise “because of something arising in consequence of [the claimant’s] disability”. 

17.	Mr Marney argued that the pleadings were clear from the date of his amendment, which was allowed in 24 November 2014, onwards.  The claim was under two heads, discrimination under section 15 of the act and unfair dismissal.  There was no need to amend any further to make a relevant and specific case.  There were disputed facts, most importantly the existence of disability. That being so, he argued that the ET erred in law by firstly deciding that the case was apt for decision on a strike out motion, and having so decided, by granting the motion.  He submitted that the pleadings were entirely sufficient to allow full hearing to take place.

18.	Ms Keys argued that the ET had made no error in law.  The amendment had been allowed by order and a hearing was fixed for 24 November to hear the respondent’s motion for strike out of the section 15 claim.  At the hearing the ET was taken by surprise, as was Ms Keys, by counsel who said that the amended pleadings applied to the section 15 case as well as to the unfair dismissal case.  After hearing counsel in support of that assertion, the ET decided that the amendment affected only the unfair dismissal case.  The judge therefore adjourned the hearing and in her written reasons stated that the pleadings should be amended, if so advised, by the date of the next hearing so that the motion for strike out could be made.  The adjournment was lengthy; in May 2015 Mr Hay appeared and stated that he did not seek leave to amend.  The employment judge therefore heard the opposed motion to strike out on the pleadings as they stood and granted it.

19.	The question is whether the ET erred in law in finding that the pleadings as they stood both in November and in May, no amendments having been made, were such as to show that there was no reasonable prospect of success for the claim under section 15 of the Act. That section is in the following terms: –
“15.Discrimination arising from disability	
(1)	A person (A) discriminates against a disabled person (B) if –
(a)	A treats B unfavourably because of something arising in consequence of B’s disability and
(b)	A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2)	Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

20.	There is no question of justification under s.15(1)(b) or a defence under s.15 (2) in this case. 

21.	Thus the section deals with the respondent treating the claimant unfavourably because of something arising in consequence of the claimant’s disability.  Mr Marney’s argument was that the dismissal of the claimant by the respondent came into that definition.  Ms Keys disagreed, arguing that the dismissal was caused by the respondent’s perception that the claimant had been dishonest.

22.	The claimant did not seek leave to amend her pleadings after the amendment in November 2014. Therefore the EJ had no motion to amend before her. Mr Marney argued before me that there was no need to amend. He maintained that his pleadings, taken with the note of the admission made that the unfavourable treatment was dismissal, were apt to found a case under section 15. In order to make sense of the decision in this case it is necessary to set out the pleadings for the claimant, as amended in November 2014,  in full thus:-
“1. The claimant is disabled.  She suffers from Raynaud’s Disease and Systemic Sclerosis and has suffered from this condition for many years. As a result her ability to perform normal day to day activities has been and is substantially affected long term.
2. Because she suffered/suffers from this condition, the Claimant, until very recently was in receipt of Disability Living Allowance – a state benefit the administration of which is in the hands of the Department for Works and Pensions, the Claimant’s former employer. She has been receiving it since January 2001. 
3. On 2 May 2012, the Claimant was called to a Disciplinary Hearing chaired by a Decision Maker at which she was accused of conduct bringing the DWP into disrepute and dishonesty. The Decision Maker decided to dismiss the Claimant. The decision was contained in a letter dated 8 June 2012 which stated therein that the effective date of termination was 08 June 2012. It found that the Claimant had been guilty of gross misconduct and that no notice of dismissal was required. That decision was made without any enquiry being made by the Decision Maker into the defence put forward by the Claimant. The disciplinary procedure undertaken confused and conflated historic entitlement to benefit, continuing entitlement to benefit and overpayment of benefit. It improperly took account of, and attached weight to, decisions taken by the DWP on the matter of historic and continuing entitlement. It took no proper account of the detailed explanation given by the claimant as to disability and entitlement. It wrongly placed an onus on the claimant to prove her innocence. It failed to take proper, or indeed any, account of the prescribed mechanism for determining entitlement to benefit by way of appeal procedure. It had no proper basis before it upon which it could conclude that the claimant was not entitled to benefits, or in any event that she had obtained same by dishonesty. The investigation upon which decisions were taken was wholly inadequate. The respondents were not in position to adjudicate on the matter of benefits or on the question of honesty. The material before them was exculpatory of the claimant and in any event inadequate to warrant a finding of disentitlement to benefit. The decisions taken by the respondents ignore the explanation given by the claimant in relation to the nature of her condition and how it affects her. They ignored the medical opinion of Dr Madhok. They ignored the fact that the matter of entitlement was to be adjudicated upon through established procedure. They ignored the claimant’s protestation of innocence and her intention to contest any criminal proceedings. They undertook an ad hoc assessment of her condition; of her mobility and care needs and of her entitlement to benefits on an improper basis; without having given due notice and without adequate medical information and opinion. There were no reasonable grounds upon which to conclude that there had been dishonesty. Their investigation, in the circumstances, was wholly inadequate.
4. The claimant appealed against the decision to dismiss her but the decision to dismiss was confirmed-again without further enquiry being made in to the facts of the case. Contrary to the WP rules, the decision was issued very late and not until 28 August 2012. Within the appeal process the respondents failed to properly review their decision. There was no meaningful attempt to review the decision that had been taken. They failed to recognise the defects in the decision that had been taken. They failed to recognise the patent breach of natural justice and continued to place the onus on the claimant to prove her innocence. 
5. The Claimant contends that she was unfairly dismissed and was also discriminated against. She contends that the DWP treated her unfavourably by dismissing her because of the facts set out above which arose in consequence of her disability. The respondents stated in their decision letter of June 2012 that they accepted that the claimant had ‘an underlying health condition’. They went on to state ‘However Disability Living Allowance is for people who have needs because they have an illness or a disability. It is not for the illness or disability itself.’ They purported to make findings on the claimant’s mobility needs and care needs. The findings were wholly flawed for the reasons set out above. In the circumstances, the applicant (sic) was treated unfavourably because of something arising in consequence of her disability”. 

23.	Under reference to the case of Abertawe Bro Morgannwg University Health Board v Ferguson 2013 ICR 1108 counsel submitted that the ET must take the allegations made by the claimant at their highest, and ask if she could make out her case under section 15. He submitted that where there is a core of disputed fact, especially in a discrimination case. a claim should not be struck out: Eszias v North Glamorgan NHS Trust [2007] ICR 1126, Tayside Public Transport v Reilly [2012] SLT 1191, and Anyanwu v South Bank Student Union [2001] UKHL 14. Ms Keys for the respondent did no take issue with these submissions. Mr Marney argued that the respondent had made its decision without adequate medical information and in breach of natural justice by requiring the claimant to prove her innocence. He argued that these allegations had implications for both the unfair dismissal and the section 15 claims. The unfavourable treatment was not just the loss of the job; it extended to subjecting her to an unfair process.

24.	According to counsel the core of disputed facts existed because there was disagreement about whether the claimant had a disability; that the respondent had placed the onus on the claimant; that the investigation was wholly inadequate; that the respondent had ignored the claimant’s explanation and her supportive evidence; that the respondent undertook an ad hoc assessment of the claimant’s condition and her needs without due notice and without adequate medical information and opinion; and that the decisions of the respondent were essentially wrong. 

25.	Counsel for the claimant argued that the respondent had acted because of something arising from disability in accepting the report from the Fraud Investigation Service, in requiring the claimant to prove her innocence, and in dismissing her. He argued that she had been subjected to a flawed and unfair process that had ended in her dismissal. He argued that the whole notion of falsely claiming an entitlement to benefits was bound up with falsely claiming to be sick. Thus if the respondent dismissed because it was thought that the claimant had falsely claimed benefits, it must also have been thought that she had falsely claimed to be sick. He argued that the language of section 15 is deliberately loose. It is not necessary that disability is the cause of the action; it is sufficient that disability was a significant influence.  

26.	Mr Marney argued that the pleadings were sufficient for a claim under s.15 with reference to the recent case of Hall v Chief Constable of West Yorkshire Police UKEAT 7 July 2015, which had been decided after the decision under appeal. The facts were he argued strikingly similar. The ET upheld a claim of unfair dismissal and dismissed a claim under section 15 of the Act. The unfair dismissal was described thus
(1)	“On balance, the Tribunal concludes that the respondent genuinely (albeit wrongly) believed that the Claimant might be falsely claiming she was sick. However the Tribunal is satisfied that the Respondent did not have reasonable grounds to sustain the belief.”

27.	The claim under section 15 was dismissed, as the ET was not persuaded that the events constituted disability discrimination, following a full hearing. The ET gave its view on justification under section 15(1)(b) lest it should be wrong in its first decision. It was satisfied that the unfavourable treatment was not a proportionate means of achieving a lawful aim. 

28.	The EAT judge (Elisabeth Laing J) set out the essential facts. The claimant had been employed by the respondent for 23 years before being dismissed in 2011. From 2000 she had suffered from stress necessitating time off work. In 2002 she was diagnosed with a heart condition, and referred to a cardiologist. Between 2004 and 2005 she was prescribed anti-depressants. When she stopped taking them her symptoms resumed. The claimant was referred to occupational health in 2007and again in 2009. In 2008 she was off for 73 days due to anxiety. In 2009 and 2010 the claimant made complaints about bullying. Her workload was increased. A review was carried out of the department the claimant worked in during 2010 to which she contributed. Her contribution was not used in the report produced. She complained and next day went off sick stating that she suffered from heart related stress. The respondent had reports of the claimant working elsewhere while off sick and so instructed covert surveillance. In the meantime the claimant had heart surgery. The respondent told her she had to return to work and had to have no sickness absence for a period. The claimant did not return stating that she was unfit. A disciplinary hearing was arranged at which allegations described by the ET as “vague” were heard. The claimant was dismissed. 

29.	Before the EAT counsel for the claimant argued that the necessary connection between the respondent’s treatment of the claimant and her disability was made out. Counsel for the respondent argued that it was not; it had to be not just present in the back ground, but the cause of action. He argued that the effective or proximate cause of dismissal was not disability; the motivation for dismissal was not disability but rather was the respondent’s genuine belief that the claimant was falsely claiming she was sick. 

30.	The ET had decided that the disability was a background circumstance, but was not the cause of the dismissal. It did so after directing itself on the terms of s.15, and considering both the Code of Practice on Employment 2011, and the terms of the IDS Employment Law Handbook “Discrimination at Work”,  that the unfavourable treatment had to be because of something arising in consequence of disability, and that the respondent could be consciously or unconsciously motivated by that. The ET found that the motivation for the unfavourable treatment was not disability but was the genuine, albeit wrong, belief that the claimant was taking sick leave, falsely claiming she was sick. 

31.	The EAT judge considered the legislative history of section 15, concluding that it was brought into effect to deal with the decision in the case of London Borough of Lewisham v Malcolm [2008] UKHL 43, as stated in the Explanatory Note. She decided that the purpose of the enactment was to restore the approach taken by the Court of Appeal in Clark v Novacold [1999] ICR 951. She quoted with approval the decision of the EAT (HHJ Clark) in Land Registry v Houghton UKEAT /0149/14 to the following effect:
(1)	“Having removed the need for a comparator which requirement under DDA had led the House of Lords to neutralise the protection granted by section 3A(1), it seems to me that Parliament has loosened the causative link between the disability and the unfavourable treatment complained of by the use of the deliciously vague formulation “because of something arising in consequence of the [Claimant’s] disability”, bearing in mind that in the context of discrimination law “causation  is slippery word” See Chief Constable of west Yorkshire Police v Khan [2001] ICR 10-65 paragraph 29, per Lord Nicholls.” 

32.	At paragraph 42 of her decision the EAT judge found that the ET had made three errors:

(1)	‘Firstly, it appeared to consider that it was necessary for the claimant’s disability to be the cause of the respondent’s action in order for her claim to succeed. Secondly, it made a contrast between the cause of action and a background circumstance. This leaves out of account a third logical possibility, which it seems to me, is present on the looser language of section 15 (1); i.e. a significant influence on the unfavourable treatment, or a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment. The third error, in my judgment, in the ET’s approach, as evident from paragraph 7.8 of its decision, is its reference to the motivation for the unfavourable treatment. It is clear from the authorities which I have cited at some length that to enquire into the motivation for unfavourable treatment is to ask the wrong question.’

33.	The judge found these errors to be material, and allowed the appeal. 

34.	Mr Marney relied on the decision in Hall, arguing that the facts were very similar and the reasoning persuasive. Ms Keys argued that the case could be distinguished. The claimant in Hall had had long absences from work which might well be something arising because of disability. It was not on the facts of that case a background factor. Absence from work arising from a disability was one of the examples used in the Code of Practice on Employment, 2011, as the type of situation which would be covered by section 15.  It was hardly surprising, she argued, that the EAT found there had been a material error of law. In the present case, in contrast, the disability alleged by the claimant truly was a background factor. The respondents offered to prove that they believed the claimant to be dishonest, which amounted to gross misconduct. That dishonesty related to claiming a benefit which was for disability, but that did not mean that the unfavourable treatment, the act of dismissal, was because of something arising in consequence of the claimant’s disability. The claimant had agreed at a case management hearing that the unfavourable act of which she complained was dismissal. Ms Keys argued that the EJ was correct in deciding that this issue was apt for discussion on a motion to strike out. There was no relevant core of disputed facts. Matters under dispute such as the reasonableness of the respondent’s investigation and their procedures were matters relevant to the claim for unfair dismissal. The applicability of section 15 could and should be decided on the pleadings. 
Decisions

35.	In my opinion the case pled by the claimant under section 15, which includes the admission made at the preliminary hearing, has no reasonable prospects of success. I agree with the EJ that the disability which the claimant claims to suffer is part of the background of the case. It is not on these pleadings possible to construe the unfavourable act of dismissal as “treatment [which] is because of something arising in consequence of the disabled person’s disability.”  It is necessary to construe the section by considering the words used in it. Thus there must be treatment, in this case dismissal; then there must be something arising from disability, in this case the claim for benefits. Final and vitally the treatment must be “because” of the “something.” The claimant has agreed in her pleadings that she was dismissed because her employers thought she had been dishonest. That dishonesty is not something arising from disability. 

36.	The high point of the pleadings is found in these averments:

(1)	“The decisions taken by the respondents ignore the explanation given by the claimant in relation to the nature of her condition and how it affects her. They ignored the medical opinion of Dr Madhok. They ignored the fact that the matter of entitlement was to be adjudicated upon through established procedure. They ignored the claimant’s protestation of innocence and her intention to contest any criminal proceedings. They undertook an ad hoc assessment of her condition; of her mobility and care needs and of her entitlement to benefits on an improper basis; without having given due notice and without adequate medical information and opinion. There were no reasonable grounds upon which to conclude that there had been dishonesty. Their investigation, in the circumstances, was wholly inadequate.
(2)	…
(3)	The respondents stated in their decision letter of June 2012 that they accepted that the claimant had ‘an underlying health condition’. They went on to state ‘However Disability Living Allowance is for people who have needs because they have an illness or a disability. It is not for the illness or disability itself.’ They purported to make findings on the claimant’s mobility needs and care needs. The findings were wholly flawed for the reasons set out above. In the circumstances, the applicant (sic) was treated unfavourably because of something arising in consequence of her disability.” 

37.	In these averments the claimant does say that the respondents acted in a manner she alleges is inadequate while dealing with investigation of her medical condition. It could be said that her medical condition is “something arising in consequence of [her] disability.” However, the claimant agreed at a case management hearing that the unfavourable act of which she complained was dismissal. She has not offered to prove that the respondent did anything which was unfavourable to her and would give her a free standing claim under section 15. 

38.	The case of Hall is superficially similar but does not assist. On the facts found in it, it is clear that absences which might be because of illness arising from disability were part of the rationale for dismissal. In the present case there is no offer to prove that the respondent did anything unfavourable to the claimant other than to pay heed to a report received about her dishonesty and fail to investigate that properly, leading to unfair dismissal. There is no suggestion that the failure was due to anything arising from disability. Therefore the claim is for unfair dismissal only.

39.	The EJ directed herself on her powers to allow amendment of pleadings, in my view correctly. The issue of amendment was however a red herring, as there was no motion made to amend. Counsel’s position was clear; he did not seek to amend because he did not need to. On his pleadings, he argued he had sufficient to found a case for contravention of section 15 of the Act.  Thus there is no decision about amendment under appeal. I may say that in my opinion the pleadings and Mr Marney’s arguments do not suggest to me the there is a case under section 15, which has not been pled; rather it seems to me that on the facts there is a claim for unfair dismissal, which may or may not succeed, but no case under section 15 (or any other section) of the act. My reason for so finding can be illustrated by an example. Had the claimant made a claim for travel expenses which had been paid and then investigated because the respondent thought the claim had been dishonestly made, resulting in dismissal, then there may be a case of unfair dismissal. Disability will not enter the picture. In the present case the purported dishonesty happens to relate to a benefit which relates to disability. The respondent offers to prove that it genuinely thought the claimant had been dishonest and that it had conducted a reasonable investigation. The reason for dismissal was a belief in the claimant having been dishonest. That was not something which arose because of disability.  Properly considered, disability does not enter the picture. 

40.	The EJ ordered the claimant to pay to the respondent expenses of £1247 on the grounds that the claimant or her representatives had acted unreasonably in the conduct of the proceedings. The EJ considered the terms of rule 76 of the employment Tribunal Rules 2013 which state that an ET may make such an order where it considers that a party or a party’s representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in the way that the proceedings or part of them have been conducted. The EJ reminded herself that such orders are rarely made. Under reference to McPherson v BNP Paribas [2004] ICR 1398 the EJ directed herself that the nature, gravity and effect of the unreasonable conduct are factors to be considered in deciding whether to make an award; affordability was not the sole criterion: see Vaughan v London Borough of Lewisham [2013] IRLR 713. The sum sought was not under dispute. 

41.	At paragraph 53 the EJ gave her decision. She found the claimant or her representative had acted unreasonably in their conduct of the case, causing an adjournment on 27 November 2014. She found that the claimant knew the hearing had been fixed to consider the respondent’s motion for strike out of part of her claim. She found the claimant did nothing to clarify the claim between the hearing being fixed and its taking place. At the hearing the claimant “sought to extend examination of the prospect of her disability discrimination case to matters set out in the unfair dismissal amendment.” She found that the claimant made no attempt to bring to the Tribunal or respondent’s attention that the claimant sought to extend her disability claim beyond the concession made at the August PH,  that is the concession that the unfavourable treatment complained of was dismissal. The EJ found that the claimant could have clarified her claim at the August PH or between it and November. She made the order for payment. 

42.	Mr Marney very properly stated that any conduct was his, rather than the claimant’s. He appreciated that the rules are to be construed by giving ‘unreasonably ‘ its usual meaning; it is not to be construed as being in some way vexatious or close to it. He argued that it was reasonable to proceed as he had; he was ready to answer the motion for strike out on 24 November and did not seek an adjournment. The respondent did not seek an adjournment either, but the EJ decided it was required. 

43.	I am conscious that decisions on expenses are a matter for the judge who heard the case, and that appellate courts should interfere very rarely. I have however decided that there is no proper consideration in this case of the position taken by counsel for the claimant, which was that he was ready to argue his case in response to the motion for strike out. While I have found that he would have lost that argument, and the EJ is correct in the substantive decision that there is no case made under section 15 of the act, that does not mean that counsel is unreasonable in putting a contrary view. I appreciate that the EJ made clear in this case that amendment of pleadings was necessary if any case under the act was to proceed; but counsel did not agree with her. I have an impression that the EJ adjourned to be sure that the claimant’s case was not prejudiced and that she had every opportunity to put her case before the ET. That is laudable. Counsel was of the view that all that could be put in the pleadings had been and that it was sufficient. The EJ disagreed. I do not find any unreasonable behaviour in that narration. 

44.	I will therefore refuse the appeal in relation to the motion for strike out, and allow the appeal restricted to the order for payment only.

Appeal No. UKEATS/0009/15/SM

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