The Claimant was employed by the first Respondent as a licensed door supervisor. He was assigned to work at the second Respondent’s premises. On 1 August 2021, he was sent home after an incident which resulted in police involvement. He brought a range of complaints against the Respondents, one of which was of detriment due to carrying out designated health and safety activities. The Respondents applied in writing to have the complaints struck out or, in the alternative, for deposit orders. A hearing was fixed on those applications. Prior to the hearing, the Respondents lodged and intimated a skeleton argument. At the hearing, the skeleton was supplemented by oral submissions. The Claimant asked to be allowed to respond in writing to the oral submissions. He submitted that this would be a reasonable adjustment in light of his disabilities. The ET refused that request, but allowed the Claimant extra time to prepare his oral response. The ET found inter alia that the Claimant was not “designated” for the purposes of section 44 of the Employment Rights Act, 1996 and that, in any event, he had not been subjected to a detriment by being sent home. It struck out some of the complaints and made deposit orders in relation to others. The Claimant appealed.

The EAT dismissed the appeal. (1) The Claimant had not established that the refusal of the requested adjustment prevented him from making any further or different submission on a matter that was ultimately material to the Tribunal’s decision; (2) The ET was bound by the decision in Castano v London General Transport Services Limited [2020] IRLR 417 to decide that the Claimant was not “designated” for the purposes of section 44 ERA merely because he may, incidentally, have some health and safety duties as part of his normal role; and (3) Whilst the ET had erred in its approach to detriment, the error was academic because the Claimant was not protected by section 44(1) ERA.