The claimant, who suffered from bipolar disorder, applied for a job with the respondent but was unsuccessful following an interview. He claimed direct disability discrimination at the ET but the claim was struck out as it had no reasonable prospect of success. The ET found that there was no evidence that the interviewers and decision makers who decided to refuse to offer him the job knew of his disability. The claimant appealed.

The EAT dismissed the appeal. In a clear case, which this was, where there was no reasonable prospect of success, nothing in the case law prohibited the Tribunal from taking the proper step of striking out a claim that had no reasonable prospect of success.  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.
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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)

PATEL (APPELLANT)

LLOYDS PHARMACY LTD (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR PATEL (The Appellant in Person)

For the Respondent
MR M GRANT (of Counsel)

Instructed by:
Gateley LLP
Ship Canal House
98 King Street
Manchester
M2 4WU

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.

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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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: [the claimant]

Hi Anita,

Just a little bit of background info:

[The claimant] 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."

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 [the claimant]. 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.

1. 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.

1. The Appellant also draws attention to an email from Mr Madahar to Mr Butt. It reads:

"Hi Kash,

I phoned [the claimant] Patel to give him feedback on the outcome of the interview.

The outcome was:

[The claimant] 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 [the claimant] 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.

[The claimant] 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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."

1. 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 Hogben 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.

1. 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.

1. 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.