The claimant was a Local Authority member and chair of the leisure committee. She was at all material times a person with a disability within the meaning of section 6 of the EqA by reason of a mental impairment, namely a depressive illness. In March 2011, social services conducted an investigation into her mental health in her capacity as a resident. It was alleged her mental health placed her son at risk of harm but it was concluded that she was no risk to anyone including her son. The investigation affected her badly and in May 2011 she was asked by the leader to take a period of leave from her role as chairman of leisure. She agreed to do so. In October 2011 she sought to return to work and continue her duties. However, she was not reinstated. Her responsibility allowance, which had been withdrawn during her absence, was not restored, and ultimately she was sidelined in her role. In February 2012 she had a meeting with her line manager, when she said that reinstating her or giving her back some of her responsibilities would restore the leader's confidence in her and ease the stigma of her situation.  She was told that her colleagues would not support a reinstatement and that she could not be offered responsibilities now or in the future. The following day the claimant formally resigned. Her claim of disability discrimination, which was submitted in May 2012, was struck out by the ET at a PHR on the basis that there was no continuing act in circumstances where there was a five month hiatus in 2011 during which no acts were alleged to have been done by the respondents, and that any subsequent acts involved failures to appoint, and a failure to appoint could not amount to a detriment under section 58(4) of the Equality Act 2010. The claimant appealed.

The EAT dismissed the appeal. They dismissed one ground of appeal, which was that the Tribunal had erred in accepting the respondents' version of the events without hearing evidence, where there were disputes as to core facts, rendering it perverse to accept one account of the facts over another. The Tribunal did not err in the way that it approached the facts of the case. There were no central facts in dispute between the parties. The other ground of appeal, in which her ET1 set out facts from which a prima facie case of disability discrimination under section 58 of the EqA could be established and, accordingly, the Tribunal erred in concluding that the claimant had no reasonable prospect of success, also failed. The Tribunal had to decide the case on the pleaded basis. It was clear that, on her pleaded case before the Tribunal, her complaint was about her removal from her post as chairman of the scrutiny committee in May 2011 and the refusal to reinstate her to her post in October 2011. She then said in her skeleton argument that between May and October 2011 she was in fact only absent from a single meeting and that throughout this time she continued her role as a local authority member. However, in her ET1 there was no reference to her doing any work during that five-month period. The Tribunal was entitled to proceed on the basis of her claim as put forward in her ET1.

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Appeal No. UKEAT/0049/13/JOJ

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 11 July 2013

Before

THE HONOURABLE MR JUSTICE SUPPERSTONE

(SITTING ALONE)

MS ALLAN (APPELLANT)

WANDSWORTH BOROUGH COUNCIL & OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
Written Submissions

For the Respondents
MR AKHLAQ CHOUDHURY (of Counsel)
Instructed by:
Sharpe Pritchard Solicitors
Elizabeth House
Fulwood Place
London
WC1V 6HG

PRACTICE AND PROCEDURE – Striking-out/dismissal

DISABILITY DISCRIMINATION – Discrimination by other bodies

Local Authority member and chair of a committee, removal as chair – section 58(1) and (4) of the Equality Act 2010.

1. Ms Allan, whom I shall refer to as the Claimant, appeals against the Judgment of an Employment Tribunal, Employment Judge Hall-Smith sitting alone, at London South and sent to the parties on 11 June 2012, striking out her claim on the basis that it has no reasonable prospect of success. The Claimant does not attend this appeal, nor is she represented. She wrote to the Tribunal stating that she would not be able to attend in person today and asking for the skeleton argument that she prepared and submitted to be considered at this appeal hearing. Mr Akhlaq Choudhury appears for the Respondent; he also appeared at the hearing before the Employment Tribunal. At that hearing the Claimant appeared in person. I have read the Claimant's skeleton argument, and I have had regard to its contents. During the course of his submissions Mr Choudhury addressed the points made in it by the Claimant.

1. The Claimant was a councillor of Wandsworth Borough Council from May 2006 to February 2012. In paragraph 1 of her ET1 she states that this was her main occupation, and she was promoted to senior roles. In early 2011 the Claimant was an active member of the council, and she was chairman of the environment, culture and community safety overview and scrutiny committee, otherwise referred to by her and in the decision as "the leisure committee".

1. The claim with which this appeal is concerned was made under section 58 of the Equality Act 2010 (EqA). The material parts of section 58 state, under the heading "Official business of members":

"(1) A local authority must not discriminate against a member of the authority in relation to the member's carrying out of official business—

[…] (b) by subjecting the member to any other detriment. […]

(4) A member of a local authority is not subjected to a detriment for the purposes of subsection (1)(b) or (3)(b) only because the member is—

(a) not appointed or elected to an office of the authority;

(b) not appointed or elected to, or to an office of, a committee or sub-committee of the authority."

1. At section 59 is the interpretation clause, and at 59(4) a reference to the carrying-out of official business by a person who is a member of a local authority is a reference to the doing of anything by the person:

"(a) as a member of the authority;

(b) as a member of a body to which the person is appointed by, or appointed following nomination by, the authority or a group of bodies including the authority; or

(c) as a member of any other public body."

1. For the purposes of the Pre-Hearing Review, the Respondents conceded that the Claimant was at all material times a person with a disability within the meaning of section 6 of the EqA by reason of a mental impairment, namely a depressive illness. The factual basis on which the claim is presented is set out at paragraphs 3-23 of the ET1. In summary, what the Claimant says is that from 7 March 2011 social services conducted an investigation into her mental health in her capacity as a resident. It was alleged her mental health placed her son at risk of harm. An independent NHS psychiatrist concluded that she was no risk to anyone, including her son, and that her depression could be managed by her GP. However, unknown to her, social services instructed a private psychiatrist to make an assessment of her.

1. Paragraphs 7 and 8 of the ET1 set out the essence of her case. They read:

"7. As the investigation progressed, the matter became increasingly distressing. Medical data and inaccurate allegations about the Claimant's mental state were shared with others, including Mr Robinson [a senior member of the executive team with responsibility for the welfare of young people and children], but not shared with the claimant.

8. As the Claimant became aware of the full extent of the allegations and the way her medical records had been distributed, she was distraught. The email trail shows her reaction. The relationship between Mr Robinson and Claimant broke down."

1. On 14 May 2011 the leader asked the Claimant to take a period of leave from her role as chairman of leisure. She agreed to do so. In October 2011 she sought to return to work and continue her duties. However, she was not reinstated. Her responsibility allowance, which had been withdrawn during her absence, was not restored, and ultimately she was sidelined in her role. On 6 February 2012 she had a meeting with her line manager, when she said that reinstating her or giving her back some of her responsibilities would restore the leader's confidence in her and ease the stigma of her situation. She was told that her colleagues would not support a reinstatement and that she could not be offered responsibilities now or in the future. The following day, 7 February 2012, the Claimant formally resigned. That is a summary of the factual basis of the claim as set out at paragraphs 3-23 of her ET1.

1. The critical reasoning of the Tribunal for its decision is at paragraphs 20-22 of its Reasons:

"20. It is the Claimant's claim form which gives rise to the Tribunal's jurisdiction. In my judgment the Claimant's Tribunal complaints are in relation to her removal from her appointed role in May 2011 as Chairman of Leisure which the Claimant agreed to do, as she alleged in paragraph 15 of her claim form quoted above.

21. After the Claimant ceased her appointed role in May 2011 the Claimant did not return to work until October 2011. Accordingly there was a five-month gap.

22. As submitted by Mr Choudhury, the Claimant ceased her role on 14 May 2012 [sic] but her Tribunal claim form was not presented to the Tribunal until over a year later on 28 May 2012 [sic]. I accepted the submission of Mr Choudhury on behalf of the Respondents that there was no basis for a contention that there was a continuing act in circumstances where there was a five month hiatus in 2011 during which no acts are alleged to have been done by the Respondents, and that any subsequent acts involved failures to appoint, and a failure to appoint cannot amount to a detriment under section 58(4) of the Equality Act 2010."

1. The Claimant advances three grounds of appeal. As summarised by Mr Choudhury, they are: first, that her ET1 sets out facts from which a prima facie case of disability discrimination under section 58 of the EqA could be established and, accordingly, the Tribunal erred in concluding that the Claimant had no reasonable prospect of success; second, the Tribunal erred in accepting the Respondents' version of the events without hearing evidence; and third, there were disputes as to core facts, rendering it perverse to accept one account of the facts over another.

1. Grounds 2 and 3 can, in my view, be considered together. At paragraphs 2 and 3 of her skeleton argument the Claimant states:

"2. The ET1 […] sets out facts from which a prima facie disability discrimination claim under s58 of the Equality Act can be made out.

3. At PHR the Respondent disputed these facts, putting forward an alternative account. The alternative account was accepted by the judge, although no evidence was produced nor witnesses called."

1. Mr Choudhury reminds me that in discrimination cases the power to strike out is to exercised in only the clearest of cases. In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 Maurice Kay LJ, in a Judgment with which the other two members of the Court of Appeal agreed, said at paragraph 29:

"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."

1. In my view, the problem with the Claimant's principal submission on this appeal is that the Tribunal did not prefer the Respondents' version of the facts. The Tribunal made no findings of fact as such. The Claimant takes issue with the facts as set out in paragraph 7 of the Tribunal's decision. It is perhaps unfortunate that in writing paragraph 7, as Mr Choudhury acknowledges, the Tribunal to a certain extent adopted the background section in the Respondents' skeleton argument and may have given the impression that they were making findings of fact. However, in paragraph 7, as the Tribunal state, they were merely providing a summary of the background to the Claimant's complaint. At paragraphs 8-10 of the Reasons the Tribunal set out the Claimant's case in respect of harassment and the detriments she says she suffered. At paragraph 15 the Tribunal states the Claimant's case that she had been relegated to the backbenches. At paragraph 19 the Tribunal refers to the Claimant's particulars of complaint, and at paragraph 20, which I have quoted, the Tribunal states that it is the Claimant's claim form that gives rise to the Tribunal's jurisdiction.

1. In my judgment, the Tribunal did not err in the way that it approached the facts of the case. There were no central facts in dispute between the parties.

1. I turn then to consider the Claimant's first ground of appeal and the Tribunal's conclusions as to prospect of success. It is important to consider how the Claimant put her case before the Tribunal. In addition to the ET1 the Claimant submitted written representations in which she said, from paragraph 26:

"26. Both parties agree that the conduct of a Local Authority investigation into whether the Claimant's mental health was placing her son at risk, is not relevant to this claim. Reference to it by either party is for background information only.

27. The Respondents state that the Claimant has concerns relating to the conduct of this investigation. Both parties agree these concerns are not a matter for this Tribunal. That investigation took place in the Claimant's capacity as a resident, whereas the claim before the Tribunal relates to the Claimant's role as a Local Authority Member."

1. And at paragraph 33:

"The Claimant accepts that it is difficult for any Local Authority to conduct an investigation relating to mental health concerns about one of its members, without creating significant difficulties for that member in their working environment."

1. The Claimant now in her skeleton argument in this appeal appears to be adopting a contrary position. She says in her skeleton argument from paragraph 20:

"20. Absent the disability, there would have been no investigation. What the Local Authority investigated was the impact of the Appellant's disability on her parenting, not an incident of harm to the child, nor an allegation of harm to the child.

21. The enquiry found the child was safe and well and not at risk. A child protection enquiry that finds a child to be safe and well and not at risk of harm cannot be the cause of detriment. It was the unresolved allegations of mental illness that led the Appellant to be treated less favourably in her work place, not an enquiry that found the child safe and well."

1. However, as Mr Choudhury observes, section 58 is solely concerned with discrimination in relation to the carrying-out of official business. The alleged act of discrimination must therefore relate to the carrying-out of official business; it is not enough that an alleged act of discrimination unrelated to the carrying-out of official business might have some consequential effect for the member. In my judgment, the Tribunal cannot be faulted in its finding that the Respondent was required to exercise its powers under section 47 of the Children Act in circumstances where the Claimant's GP had referred her son to social services. I accept Mr Choudhury's submission that the disclosure that was made by the Respondent was, as the Tribunal concluded, in connection with or as a consequence of the section 47 investigation. Even if, as the Claimant asserts, such disclosure had been unnecessary or inappropriate, it would not have amounted to disclosure in relation to the carrying-out of official duties.

1. In paragraph 5 of her grounds of appeal the first detriment the Claimant says she suffered was that she was prevented from continuing in a paid position of responsibility after a period of absence that her manager had asked her to take. The Tribunal's conclusions in this regard are set out at paragraphs 20-22 of the Reasons, which I have already quoted. At paragraph 20 it is noted that the Claimant' complaints are in relation to her removal from her appointed role in May 2011 as chairman of leisure. At paragraph 22 it is noted that her complaint in respect of that cessation was out of time. It is further noted that any subsequent acts, for example any failure to reinstate, were failures to appoint which were excluded from the ambit of section 58 of the Act.

1. In my judgment, the Tribunal was entitled on the basis of the Claimant's pleaded case as set out in her ET1 to make the findings that it did. At paragraphs 17, 20 and 21 of her ET1 the Claimant complains about not being reinstated in the role that she left in May 2011 after she sought to return to work and continue her duties in October 2011. At paragraph 23 the Claimant states that she resigned on 7 February 2012. The ET1 was presented on 21 March 2012. In her written representations before the Tribunal, the Claimant also referred to her removal from a paid position of responsibility (see paragraph 41). That can only be a reference to what happened in May 2011. In her skeleton argument for this appeal at paragraph 9 she now presents this as relinquishing her responsibilities as scrutiny committee chairman "on a temporary basis". However, the Tribunal had to decide this case on the pleaded basis.

1. In her skeleton argument, in particular at paragraphs 26-33, the Claimant submits that the claim was brought promptly and timeously once she was told that she could not return to the chairman role. She says that the act of discrimination about which she complains occurred in February 2012. If that were so, the claim would be in time. However, it is clear that on her pleaded case before the Tribunal, for the reasons I have stated, her complaint was about her removal from her post as chairman of the scrutiny committee in May 2011 and the refusal to reinstate her to her post in October 2011. She now says in her skeleton argument that between May and October 2011 she was in fact only absent from a single meeting and that throughout this time she continued her role as a local authority member. However, in her ET1 there is no reference to her doing any work during that five-month period. In my view, the Tribunal was entitled to proceed on the basis of her claim as put forward in her ET1.

1. In any event, on her pleaded case she was removed from her post as chairman, and her complaint that she was not reinstated must, in my view, be viewed as a complaint that she was not reappointed; as such, it falls within section 58(4) of the Act. Section 58(4) excludes appointments to an office; that must include reappointment if the appointment ceases. Failure to appoint cannot amount to a detriment, as the Tribunal, in my view, correctly found.

1. For the reasons I have given, this appeal has no reasonable prospects of success, and accordingly this appeal fails.