Appeal No. UKEAT/0418/12/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At
the Tribunal
On 6 February 2013
Before
THE
HONOURABLE MR JUSTICE MITTING
(SITTING ALONE)
MR
H PATEL APPELLANT
LLOYDS PHARMACY LTD RESPONDENT
Transcript of Proceedings
JUDGMENT
SUMMARY
DISABILITY DISCRIMINATION – Direct disability discrimination
PRACTICE AND PROCEDURE – Striking-out/dismissal
Whether or not
the Employment Tribunal right to strike out direct disability claim as having
no reasonable prospect of success - test to be applied - ET right to strike out
claim where there was not evidence that interviewers and decision makers who
decided to refuse to offer employment to the Claimant knew of his disability.
THE HONOURABLE MR JUSTICE MITTING
1.
This is an appeal against the decision of Judge Kearsley, handed
down on 18 November 2011 to strike out the Appellant’s disability
discrimination claim. He had two issues to deal with. One was whether or not
it was brought in time. He decided to extend time to permit it to be brought;
the second was whether or not the claim should be dismissed under rule 18(7)(b)
of the Employment Tribunal Procedure Rules, fundamentally, on the ground that
the claim has no reasonable prospect of success.
2.
The claim arises out of an application made by the Claimant to the
Respondent for a job as either a pharmaceutical manager or a pharmacist in the Birmingham area. As far as the Claimant was concerned, he did not mind which type of job
he might be offered. The Respondent’s case was that they were only attempting
to fill the post of Pharmaceutical Manager. The dispute, amongst many factual
issues that arise in this case, is immaterial.
3.
Judge Kearsley concluded that the Claimant had no reasonable
prospect of success for the simple reason that, first, that was not how the
Claimant originally put his case - that he had been discriminated against on
grounds of disability - and secondly, that there was no evidence, or as he put
it, nothing to indicate, that those who interviewed him for the post had any
knowledge about his disability. His disability was bipolar disorder. I am
pleased to say that although he was the subject of temporary restrictions on
his registration as a pharmacist, those restrictions have now been relaxed and
he can practise freely.
4.
He had worked for the Respondent before as a locum pharmacist. In 2008
a Mr Butt had approached him with a view to him becoming a permanent
employee of the Respondent. The Claimant, in his amended particulars of claim,
deals with this approach. For present purposes I accept that what the Claimant
says in his amended particulars of claim is true and reliable, in other words I
take his version of this conversation at its highest.
5.
He criticises the fact that the interview, such as it was, took place in
a supermarket café and was not formally minuted. He says that Mr Butt
tried to recruit him as an employee. He also says that he told Mr Butt
that he was involved in a case with the Health Committee of the Royal
Pharmaceutical Society of Great Britain and disclosed to him that the case
concerned his disability, bipolar disorder. Despite that, he says,
Mr Butt tried to recruit him for a permanent post. He refused on the
principled ground that it would be inappropriate for him to work for the
Respondents fulltime because he was already working for a rival. The most that
he could offer was his services as a self‑employed locum pharmacist. Mr Butt
accepted that offer. The Appellant says that he did a number of bookings
working in Mr Butt’s area and that was the last contact that he had with
him until 2011.
6.
When in 2011 the Appellant applied for a job with the Respondent,
Mr Butt was the first point of call. He turned him down. He sent an
email on 4 April 2011 to Anita Necker in which he said this:
“Subject: Haris Patel
Hi Anita,
Just a little bit of background info:
Haris Patel is a locum pharmacist who I interviewed about 5
years ago. After the interview, I was not 100% convinced that he would be
suitable for our business and so asked him to locum for us on a trial basis to
see how he would fair [sic]. Unfortunately my assumptions were proved correct
by the fact that he turned up to work late every single day (30 minutes or
more, citing the health of his mother), and demonstrated rude and aggressive
behaviour towards the staff and rota co-ordinator. I, personally, also found
him very aggressive and confrontational. I therefore decided no longer to use
his services.”
7.
The Appellant disputes the opening words of that account, describing the
interview as no more than an informal approach and asserting that, contrary to
Mr Butt’s assertion that he had reservations about him, it was he,
Mr Butt, who was trying to recruit him. I accept, as Mr Grant for
the Respondent concedes that I should, that for present purposes I must take
the Appellant’s account of the interview as reliable insofar as it differs from
that given by Mr Butt.
8.
Mr Butt’s decision not to offer an interview to the Appellant was
overridden and an interview was arranged. Before it Mr Patel completed an
application form which contained a page headed “Equal Opportunities Monitoring
Form”. On that page he was asked, at question four, whether he had any
conditions that were covered by the Disability Discrimination Act; he
ticked the box yes and gave his details: “Bipolar Disorder Type 2”. In answer
to the next question, whether he had any need for reasonable adjustments to be
made in his employment, he ticked the box no. Mr Grant tells me, and
there is no material whatever to call what he says into doubt, that, as a
matter of routine, that page of the form was removed from it before it was
given to interviewers. That was, no doubt, to ensure compliance with s.60 of
the Equality Act 2010, which prohibits questions of people making an
application for work about their health.
9.
The interview was conducted by Mr Madahar and Mr Mullins, both
qualified pharmacists. It was based upon a standard scoring system. The
Appellant scored very low. According to the interviewers his score was 8 only
against a minimum of 29 for newly‑qualified pharmacist and a higher score
required for a pharmacist or a pharmaceutical manager. Accordingly, they did
not recommend him for employment.
10.
Mr Patel, in his ET1, made extensive and vigorous criticisms of the
interviewing technique used. I need not repeat them for present purposes, save
to observe that they appeared to be the principal focus of his grounds of the
claim in the form. Only at the end did he mention his interaction with
Mr Butt and referred to an email of 21 April 2011, after he had
been not offered the job, to contend that the reason that that was
discrimination against him on the grounds of his bipolar disorder.
11.
It is clear from the notes on the email that Mr Patel obtained a
copy of it, pursuant to a Data Protection Act request. He received
oddly two copies. The email is from Mr Butt to Mr Madahar, one of
the interviewers, one with a sentence redacted and one with the sentence
unredacted. In unredacted form the email reads as follows:
“Hi Haj,
Thank you once again for conducting the interview with Haris.
Thank you also for agreeing to contact him to inform him of the outcome and any
feedback he may require. If you could ring him on Tuesday 26th April, that
would be great. If you could also document the conversation in terms of his response
to your phonecall and then have this e‑mailed back to me, it would be
much appreciated. His number is 07984894287.
A rejection letter will be sent to him on Wednesday/Thursday
next week.
PS. May be this could be returning the favour for Tayo???? But I
will still buy you a pint!
Kind Regards.”
In its redacted form the sentence that appears after “PS.” is
blanked out.
12.
Drawing the inferences most favourable to the Appellant that I can from
the terms of that email, it demonstrates that Mr Butt and Mr Madahar
were colleagues on first‑name terms, that they socialised together and
that it is at least possible that Mr Butt spoke to Mr Madahar before
the interview occurred. The last and, in the redacted form, deleted sentence
could lead, someone with a suspicious mind, to draw an inference adverse to
Mr Butt and possibly Mr Madahar, that in one way Mr Madahar was
returning a favour to Mr Butt for something that he, Mr Butt, had
done possibly in relation to another individual earlier.
13.
The Appellant also draws attention to an email from Mr Madahar to
Mr Butt. It reads:
“Hi Kash,
I phoned Haris Patel to give him feedback on the outcome of the
interview.
The outcome was:
Haris firstly wanted to know why I had made the decision and not
Barbara Sutherland or Niki Coppard - I took him through the process
of scoring competencies and stated the decision lay with me because I hold the
role of area manager.
He queried we I had not aired any concerns in the interview - I
reminded him that I did state I had concerns over his managerial experience and
that normal procedure is to reflect on the answers given after the interview,
score the candidate and then make the decision of an offer or not.
He then suggested I had not interviewed him correctly as I had
asked him to give a personal example to a question - e.g. conflict resolution.
I pointed out to Haris that I had suggested he could do that if he could not
think of an example related directly to his work as a pharmacist or pharmacy
manager.
Haris then said that Tony Mullins stated that there were
vacancies for a pharmacist. Tony did not state that, we stated that
lloydspharmacy employs pharmacists and pharmacy managers and that he was being
interviewed for a pharmacy manager role and I knew of no opportunities for a
pharmacist position.
He questioned why I was giving him feedback and who put me up to
this - I replied that I had not been coerced by the centre.
I believe he wishes to take the matter further.
Regards
Haj”
Despite the fact that the Appellant has referred to that email as
part of his grounds for contending that he was refused appointment because of
his disability, even taken at its highest, I cannot read anything adverse to
the writer of that email into its terms.
14.
Taking the Appellant’s case at its highest, it seems to me that the
following, on the material now available, could be established. He was
interviewed by Mr Butt in 2008. He told him of his disability. Nevertheless,
Mr Butt took him on as a locum pharmacist. Mr Butt was dissatisfied
with his performance of that task. Mr Butt communicated his
dissatisfaction in some way to the interviewers before the interview. That
would not have predisposed the interviewers to taking a favourable view of the
Appellant or to overlooking or allowing for any difficulties that he might have
in answering questions based upon his experience as a pharmacist.
15.
It is not, however, possible to draw a reasonable inference from that
material that the interviewers knew that the Appellant did suffer from bipolar
disorder. It is also not possible to draw from that material the inference
that Mr Butt believed that he was unsuitable as a locum pharmacist because
of bipolar disorder, or that that in any way contributed to Mr Butt’s
dissatisfaction with him in that role.
16.
On the material so far available it, therefore, seems to me that even
taking the Appellant’s case at its highest, it could not reasonably succeed. I
agree with Judge Kearsley’s reasons in paragraph 21 for striking out
this claim that there was nothing to indicate that those who interviewed the
Appellant had any knowledge, or could be imputed with knowledge, of his
disability. I have analysed the claim and the material deployed to support it
in greater detail than did Judge Kearsley, possibly because he had less
time than I have had, but I reach the same conclusions as him for the reasons
which I have given.
17.
I turn, therefore, to a final question. This is a disability
discrimination case. All such cases are fact‑sensitive. Striking them
out is a draconian step, which should only be exceptionally deployed.
Judge Kearsley had this in mind. He referred to the headnote in Anyanwu v South Bank Students’ Union and South Bank University
[2001] IRLR 305 and reminded himself that:
“Discrimination claims should not be struck out as an abuse of
process except in the most obvious and plainest cases.”
The test then was different and modestly higher from that which
is now to be applied. Nevertheless, it remains a high one.
18.
In Ezsias v North Glamorgan NHS Trust
[2007] ICR 1126 Maurice Kay LJ, giving the leading Judgment of the
Court of Appeal, allowing an appeal from the Employment Appeal Tribunal,
observed that:
“It would only be in an exceptional case that an application to
an Employment Tribunal will be struck out as having no reasonable prospect of
success when the central facts are in dispute. An example might be where the
facts sought to be established by the applicant were totally and inexplicably
inconsistent with the undisputed contemporaneous documentation.”
19.
Neither Anyanwu nor Maurice Key LJ’s
observations, however, require an Employment Judge to refrain from striking out
a hopeless case merely because there are unresolved factual issues within it.
In such a case I believe that the correct approach is that which I have
adopted, namely to take the Claimant’s case at its reasonable highest and then
to decide whether it can succeed. There is a further possibility that
discrimination case are, by their nature, so sensitive and for the individuals
concerned and for society as a whole, so important, that they should be allowed
to proceed simply because on the Micawber principle something might turn
up. This was an issue canvassed in ABN Amro Management Services Limited
v Royal Bank of Scotland UKEAT/0266/09/DM. A submission was made by counsel
for the employer that it was wrong in principle to allow an apparently hopeless
case to proceed to trial in the hope that “something may turn up” during cross‑examination.
No clear answer to that proposition was given by Underhill J because it
was unnecessary, because, as he observed, there was no basis for supposing the
cross‑examination could advance the claimant’s case.
20.
In my judgment, the proposition made by counsel for the respondent in
that case is right. In a case that otherwise has no reasonable prospect of
success, it cannot be right to allow it to proceed simply on the basis that
“something may turn up”. That is the position here. It is theoretically
possible that in response to skilled cross‑examination, the two
interviewers, or Mr Butt, or any of their senior managers might fall over
themselves and admit to discrimination for an inadmissible reason. If there is
a proposition that such a possibility requires a case to proceed then every
disability discrimination case that turns to any extent upon the oral evidence,
in response to cross‑examination, of employer’s witnesses must be allowed
to proceed. I do not believe that there is such a principle.
21.
In a clear case, which this is, where there is no reasonable prospect of
success, nothing in the case law prohibits the Tribunal from taking the proper
step of striking out a claim that has no reasonable prospect of success.
Accordingly, for reasons that I regret to say are rather longer than those given
by Judge Kearsley, I dismiss this appeal.
