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Constructive knowledge of Neurodiversity – a reminder of the correct test to be applied

The EAT handed down its judgment in the case of Godfrey v Natwest Markets plc [2024] EAT 81 on 24 May 2024.   The EAT found that the ET had erred in applying a higher test when considering the employer’s constructive knowledge of a former employee’s disability.   The employee’s appeal was nevertheless dismissed in circumstances where the ET had gone on to consider the counterfactual. The ET had been entitled to find that the employee would have refused any investigations and, in turn, the employer could not reasonably have been expected to have knowledge of the employee’s disability.   Background:   The Claimant, Mr Godfrey was employed by the Respondent, Royal Bank of Scotland plc (subsequently NatWest Market plc) from August 2006 until his resignation in January 2011.   Between 2017 and 2019, he applied for a number of vacancies within the Respondent’s ‘Super Sovereign and Agency (SSA) Team’ and was unsuccessful.   He was formally diagnosed with Asperger's syndrome in 2018, although he contended that those who had worked with him would have been fully aware of his communication and social interaction difficulties and thus the Respondent had been aware of the relevant facts of his disability.   He brought claims of direct disability discrimination and discrimination arising from disability arising from the Respondent’s alleged failures to consider him for the relevant vacancies.   The Claimant was found to be a person with a disability by reason of his Asperger’s Syndrome, an autism spectrum condition, following a preliminary hearing in August 2020.   At a further preliminary hearing in February 2021, for the purposes of his s.15 claim, the Claimant asserted that the “something arising” in consequence of his disability was that he ‘needed quiet and space and would not engage in conversation or social interactions in the same way as others.’   The Respondent denied the claim asserting, amongst other grounds, that it had no knowledge of the Claimant’s disability.   A Ltd v Z<a href="#_ftn1" id="_ftnref1">[1]</a>:   Her Honour Judge Eady QC had explained, at paragraph 38 and 39 of A Ltd v Z that:   ‘38. A Respondent will avoid the liability that would have otherwise arise under section 15 EqA if it can show that it did not know, and could not reasonably have been expected to know, of the complainant’s disability. A finding that the Respondent does not have actual knowledge of the disability is thus not the end of the ET’s task; it must then go on to consider whether the Respondent had what (for shorthand) is commonly called “constructive knowledge”; that is whether it could – applying a test of reasonableness – have been expected to know, not necessarily the Claimant’s actual diagnosis, but of the facts that would demonstrate that she had a disability – that she was suffering a physical or mental impairment that had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.   39. As to what a Respondent could reasonably have been expected to know, that is a question for the ET to determine. The burden of proof is on the Respondent but the expectation is to be assessed in terms of what was reasonable; that, in turn, will depend on all the circumstances of the case.’   In Godfrey, it was common ground that the legal principles that should inform the ET’s approach to the determination of constructive knowledge were as summarised at paragraph 23 of A Ltd v Z:   (1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see York City Council v Grosset [2018] ICR 1492 CA at paragraph 39.   (2)  The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of section 15(2) ; it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long- term effect, see Donelien v Liberata UK Ltd UKEAT/0297/14 at paragraph 5, per Langstaff P, and also see Pnaiser v NHS England & Anor [2016] IRLR 170 EAT at paragraph 69 per Simler J.   (3)  The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd [2018] IRLR 535 CA at paragraph 27; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.   (4)  When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council [2017] ICR 610 , per His Honour Judge Richardson, citing J v DLA Piper UK LLP [2010] ICR 1052 ), and (ii) because, without knowing the likely cause of a given impairment, " it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so] ", per Langstaff P in Donelien EAT at paragraph 31.   (5)  The approach adopted to answering the question thus posed by section 15(2) is to be informed by the Code , which (relevantly) provides as follows:   "5.14  It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'.   5.15  An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially."   (6)  It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v TC Group [1998] IRLR 628; SoS for Work and Pensions v Alam [2010] ICR 665 ).   (7)  Reasonableness, for the purposes of section 15(2) , must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code .   ET decision:   The ET observed that it had limited evidence of the Claimant’s impairment whilst working for the Respondent:   It noted that the Claimant, in his particulars of claim “describes being confronted with severe challenges when interacting with and communicating with others, particularly where he feels overwhelmed or perceives a hostile environment” (ET paragraph 18).   However, he gave no detail of any such challenges in the workplace whilst employed by the Respondent.   Similarly, the ET noted that in his witness statement, he suggested that he “might be less fun on the desk, at times need space and quiet (especially when considering [his] portfolio) and often took breaks from [his] desk to do so, and would not engage in conservation or social interactions in the same way as others.” (ibid)   Again, however, no detail was added.   The ET observed that ‘While, according to the Code and the principles in A Limited, it is for the Respondent to show that it did not have knowledge rather than for the Claimant to show that it did, the Respondent clearly could not have called everyone who worked with the Claimant between 2006 and 2011. The Claimant needed to give some context for the Respondent to know where to start.’ (ET paragraph 20)   In his claim form, the Claimant had made reference to a manager who had commented that there was a perceived issue with the Claimant’s ability to socially integrate and another manager who had told him that that year’s bonus would have been double if he was easier to converse with. (ET paragraph 21)   He had also referred to an executive assistant who had told him he needed somebody to look after him and that he was strange and further, two peers from the 2006 graduate programme, one of whom had said “the way your brain operates is very strange” and the other had told the Claimant “you are (very) weird.” (ET paragraph 22)   The Claimant had not elaborated on this in his statement, had not named the individuals referred to nor did he put the comments in context.   In his claim form he stated that, although he had only become aware of the impact of his condition since the diagnosis, those who sat around him in the workplace would have been aware of the daily communication and social interaction problem. However, he did not name any of these colleagues.   Whilst, in his oral evidence, the Claimant did name names, he had not referred to these individuals in his witness statement and he had not sought to call them to give evidence.   In his statement, he had stated that the condition led to some colleagues describing him as ‘psychotic’, ‘very strange<a>’</a>, ‘mad’, ‘bizarre’ and ‘extremely odd’ but he had not ascribed these comments to any one person or persons.   The ET did attempt, during the Claimant’s evidence, to elicit some context from him in respect of the specific comments he had referred to in his statement, however the Claimant was only able to provide two examples.   In terms of witness evidence, the Claimant relied on a short, signed witness statement from one of his former managers at the Respondent (having intended to call him). The statement contained no specifics regarding the impairments noted or adjustments made whilst working with the Claimant.   The ET also heard from two witnesses for the Claimant; one a university friend and one a former employee of the Respondent who had not worked with the Claimant whilst they were both employed by the Respondent but had worked with the Claimant subsequently at another company.   Having heard the evidence, the ET considered that the working hours and pressures that the Claimant was subject to at this company were much greater than those at the Respondent and as such it could not be concluded that his behaviour would have been replicated at his earlier employment with the Respondent.   The Respondent’s only witness had worked on the same trading desk as Mr Godfrey between 2008 and 2011 and it was his evidence that the Claimant did not stand out.   The ET also had regard to the documentary evidence that was available from the time of the Claimant’s employment with the Respondent.   The ET found, unanimously, that the Respondent had no actual knowledge of the Claimant’s disability.   In respect of constructive knowledge, the ET found by majority decision that the Respondent could not reasonably have known of the Claimant’s disability.   The ET did, importantly, and in line with A Ltd v Z, go on to ask itself:   ‘52. . . . what the outcome might have been if management or HR personnel at the Respondent had observed the Claimant’s differences, taken more account of them and realised that they might be the result of a mental impairment or autistic spectrum disorder . . ..’   And found, by a majority decision that:   ‘54. . . . there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. It would be unreasonable to expect an employer without such training to do so, given that Mr Hammacher, who has known the Claimant for many years and observed him in social situations where his behaviours manifested themselves, and who is medically qualified, not to have done so.’   And   ‘74. . . . There was no ‘trigger event’ while the Claimant worked at the Respondent that would have caused its managers to make the referral, which the majority considers the Claimant would have resisted. The authorities confirm that it is not incumbent on an employer to make every enquiry when there is little or no basis to do so.’   EAT Decision:   Following a rule 3(10) hearing, the Claimant’s appeal proceeded on the single ground that the ET had failed to apply the correct legal test; focusing on the particular diagnosis of his disability rather than the question of the Respondent’s knowledge (actual or constructive) of the relevant factual features of that disability.   For the Claimant, it was argued that the ET had focused on whether the Respondent had knowledge of the Claimant’s diagnosis and not on the salient ingredients of s.6 EqA and had thus applied the wrong test throughout, citing the ET’s references to the diagnosis of the Claimant’s disability within its reasoning:   <ul> <li>ET paragraph 44: ‘. . .this would not be sufficiently unusual, . . . to alert an employer to the fact that an employee is a person with Asperger’s or to make enquiries about an autistic spectrum disorder.’</li>   <li>ET paragraph 45: ‘we do not find that an employee being sensitive would lead an employer to consider that they had Asperger’s . . . it does not lead us to the conclusion that Mr Muscatt found or should have considered the Claimant’s behaviour to be consistent with Asperger’s.’</li>   <li>ET paragraph 54: ‘. . . the majority of the panel concluded that there was no factor that would have caused anyone at the Respondent without in-depth training in autistic spectrum disorders to have reached such a conclusion. . ..’</li>   <li>ET paragraph 66: ‘. . . There is also evidence that Mr Balax really listened to or took in what the Claimant was telling him about his diagnosis. . ..’</li>   <li>ET paragraph 68: ‘. . . On the . . . balance of probabilities however the majority finds that they were not aware of his Asperger’s and nor would it have been reasonable to expect them to be.’</li> </ul>   For the Respondent, it was argued that the ET had reminded itself of the correct test as laid down in A Ltd v Zand had applied it when considering the Claimant’s behaviours and all the evidence that might assist in determining how matters might have appeared to the Respondent.   It was acknowledged that the wording of the ET’s reasoning went ‘a little further than it ought’ (an example being ET paragraph 54 as set out above) but this didn’t detract from the reasoned consideration given elsewhere which focused on knowledge of the factual features rather than knowledge of the disability itself.   Counsel for the Respondent contended that ‘it was of note that there was no evidence before the ET that went to knowledge of impact on day-to-day activities, or long-term nature, or of any impairment being more than merely transient’ (EAT paragraph 44).   It was argued for the Respondent that references to the Claimant’s diagnosis was plainly just a convenient shorthand.   Having noted that the ET had reminded itself of the correct legal test, the Honourable Mrs Justice Eady DBE (P) also noted that:   ‘49. ...Consistent with the legal test it was required to apply, the ET carried out a detailed assessment of all the evidence available to see what would (or should) have been known by the respondent about how the claimant might have been affected by his disability. That its analysis reached back to 2006, notwithstanding that the claimant had no diagnosis of his condition until 2018, supports the view that the ET understood that it was concerned with the respondent’s knowledge (actual of constructive) of the facts constituting the claimant’s disability rather than the particular label that was to be attached to that disability upon its eventual diagnosis’. [additional emphasis added].   Thus Mrs Justice Eady found it tempting to adopt the Respondent’s approach to the passages relied upon by the Claimant ‘. . . as effectively using the diagnosis of the claimant’s disability as a shorthand for a finding that the requisite constituent facts – the existence of a mental impairment, with a non-trivial and long-term impact on the claimant’s ability to carry out normal day-to-day tasks – were not, and could not reasonably have been, known to the respondent. . . . the scope of the enquiry was certainly consistent with a focus on the manifestation (is any) or an impairment . . .’ (EAT paragraph 54).   However, Mrs Justice Eady, went on to find that ‘. . . the reasoning at no stage expressly answers the specific questions the ET was required to determine; namely: whether the respondent had demonstrated that it did not know, and could not reasonably have known, that the claimant suffered a mental impairment, with a non-trivial and long-term impact on the claimant’s ability to carry out normal day-to-day tasks’ (EAT paragraph 55).   ‘the difficulty, however, is that the language used in the majority’s reasoning suggested that it reached that decision by imposing a requirement that the respondent had been put on notice that the claimant might have suffered from an autistic spectrum disorder. Contrary to the legal test it had earlier referenced, the ET majority’s reasoning at (for example) paragraphs 44 and 54 of the decision is focused on whether the respondent might reasonably have been put on notice of the particular medical diagnosis, rather than the question whether it might reasonably have been alerted to the need to make further enquiry about, more generally, the possible effects of some mental impairment.’ (EAT paragraph 59)   Accordingly, and notwithstanding the Respondent’s argument that this was just convenient shorthand, the EAT could not be satisfied, from the language used, that the ET in fact applied to the correct legal test.   However, as the ET had nevertheless gone on to consider the counterfactual; namely, what would have happened if the respondent had attempted to further investigate the cause of the Claimant’s behaviours and had found, on the evidence, that the Claimant would have resisted such attempts, (a finding against which there had been no challenge), the ET was entitled to find that the Respondent could not reasonably have been expected to have knowledge of the Claimant’s disability.   The Claimant’s appeal was therefore dismissed.   Suggested takeaways and practical considerations:   <ul> <li>This decision is, of course, fact sensitive concerning an employee whose interpersonal skills were not considered to fall short of what his employee expected and thus there was no need for it to attempt further investigations into his mental health. Nonetheless, employers need to be alert to the possibility of cases where an employee’s disability is not self-evident and may only become evident in certain situations or in relation to certain duties. Employers need also to be particularly alive to the possibility of cases where the employee themselves is not fully aware of their disability or perhaps may not consider themselves to be ‘disabled.’</li>   <li>The decision should not be read as meaning employers shouldn’t consider their employees behaviours and consider whether further investigations or referrals should be explored.</li>   <li>Whilst, in Godfrey the ET did not go on to consider further the reasons why the Respondent did not invite the Claimant to interview, they observed that its recruitment process was contrary to the Code of Practice and the lack of documented procedures and transparent competencies would likely lead some to believe that it is a protected characteristic which has led to their not being progressed and as such invite claims which may be challenging to defend.</li>   <li>These observations serve as a warning to ensure that recruitment processes, from advertisement to selection for interview, are transparent and clearly documented.</li> </ul>     <hr class="wp-block-separator has-alpha-channel-opacity"/>   <a href="#_ftnref1" id="_ftn1">[1]</a> UKEAT/0273/18/BA

At a glance: How will the general election impact employment law?

We now have the key party manifestos, with varying priority given to proposals on employment law reform and detail to prepare employers. Regardless of which party gains power from 4th July, there are likely to be plenty of changes to look out for.   Labour   Emphasising that it is time for change, in May 2024 the Labour Party published ‘Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People’, promising new legislation within 100 days of entering government.<a href="#_ftn1" id="_ftnref1">[1]</a>   The most significant proposed reforms are:   <ul> <li>Extend the current time limit for raising a claim from three to six months for all claims</li>   <li>Ensure the minimum wage is a real living wage, removing age bands and ensuring the Single Enforcement Body and HMRC can enforce non-compliance</li>   <li>Strengthen statutory sick pay, removing the lower earnings limit</li>   <li>End “one-sided flexibility” by banning ‘zero-hour’ contracts, introducing rights to regular hours based on hours worked on a 12-week reference period</li>   <li>Ending ‘fire and rehire’ practices by reforming the law to provide effective remedies against abuse</li>   <li>Increase day 1 employment rights for all workers, including protection against unfair dismissal, parental leave and sick pay</li>   <li>Create a single status of a worker and a simpler two-part framework for employment status</li>   <li>Strengthen redundancy rights and protections and those for workers subject to TUPE processes</li>   <li>Strengthen protection for whistleblowers, including by updating protection for women who report sexual harassment at work</li>   <li>Strengthen rights and protections for self-employed people</li>   <li>Have a baseline set of family-friendly rights including flexible working and parental rights</li>   <li>Make it unlawful to dismiss a woman who is pregnant for six months after her return, except in specific circumstances</li>   <li>Review the new legislation for unpaid carers’ leave which was introduced in April 2024 and examine the benefits of introducing paid carers’ leave</li>   <li>Introduce the right to bereavement leave for all workers</li>   <li>Bring in the ‘right to switch off’ – following similar models for working from home as are in place in Ireland and Belgium</li>   <li>Regulate AI, introducing surveillance technologies at a minimum to consult with trade unions or elected staff representatives</li>   <li>Implement the ability of employees to lodge collective grievances through ACAS</li>   <li>Introduce Fair Pay Agreements and repeal many anti-strike laws.</li> </ul>   Conservatives   Devoid of a specific section for employment law in the Conservative Party Manifesto, there are a few relevant proposals for new areas of reform:<a href="#_ftn2" id="_ftnref2">[2]</a>   <ul> <li>A bid to protect female-only spaces and competitiveness in sport by changing the definition of ‘sex’ in The Equality Act 2010 to ‘biological sex’</li>   <li>Cut employees’ national insurance to 6% by April 2027</li>   <li>Limit the impact of industrial action by implementing Minimum Service Levels legislation</li>   <li>Overhaul the ‘fit note’ process by moving the responsibility from GPs towards specialist work and health professionals</li>   <li>Abolish national insurance for self-employed people entirely</li>   <li>Retain the two-year qualifying period for unfair dismissal</li>   <li>Reintroduce tribunal fees</li>   <li>Cap the duration of non-compete clauses in employment contracts</li>   <li>Implement the Workers (Predictable Terms and Conditions) Act 2023</li>   <li>Restrict transfer rights under TUPE to employees only.</li> </ul>   Liberal Democrats   In the Liberal Democrats Manifesto ‘For a Fair Deal’, they promise to modernise employment rights to make them fit for the age of the ‘gig economy’, including:<a href="#_ftn3" id="_ftnref3">[3]</a>   <ul> <li>Introduce ‘Adjustment Passports’ to record the adjustments, modifications and equipment disabled people have received, and ensure that Access to Work support and equipment stays with the person if they change job</li>   <li>Increase the minimum wage for people on zero-hour contracts by 20%</li>   <li>A right to request a fixed-hours contract after 12 months for ‘zero-hour’ and agency workers</li>   <li>Shift the burden of proof in employment tribunals regarding employment status from individual to employer</li>   <li>Establish a new ‘dependent contractor’ employment status in between employment and self-employment – with entitlement to basic rights like sick pay, holiday entitlement and minimum earnings levels</li>   <li>Make parental leave and pay, day-one rights</li>   <li>Introduce a new protected characteristic of ‘caring’ under the Equality Act</li>   <li>Require large employers to monitor and publish data on gender, ethnicity, disability, and LGBT+ employment levels, pay gaps and progression and publish five-year aspirational diversity targets</li>   <li>Extend the use of name-blind recruitment processes</li>   <li>Introduce SSP from day one</li>   <li>Remove the lower earnings limit</li> </ul>   to name a few…   Reform UK   Marketed as a ‘Contract’ rather than a party manifesto, Reform UK have set out their proposals for the first 100 days following the general election and thereafter.<a href="#_ftn4" id="_ftnref4">[4]</a> Despite various economic and benefits reforms, there are very few notable employment law proposals and each is broad and lacking in detail:   <ul> <li>Replace the Equality Act 2010</li>   <li>Scrap EU Regulations</li>   <li>Scrap thousands of laws that hold back British business and damage productivity, including employment laws that make it riskier to hire people</li>   <li>Abolish IR35.</li> </ul>   Green Party   In a pledge for ‘Real Hope. Real Change’, the Green Party have pledged a number of significant employment reforms:<a href="#_ftn5" id="_ftnref5">[5]</a>   <ul> <li>Pay-gap protections to be extended to all protected characteristics</li>   <li>Repeal “anti-union” legislation and replace it with a Charter of Workers’ Rights – including a legal obligation for employers to recognise trade unions</li>   <li>£15 per hour national minimum wage for all ages, offsetting costs to small businesses by increasing the Employment Allowance to £10,000</li>   <li>Four-day working week</li>   <li>Day one rights for all – including those on ‘zero-hour’ contracts and working in the ‘gig economy’</li>   <li>Fund the enforcement of rights</li>   <li>Maximum 10:1 pay ratios for all private and public-sector organisations</li>   <li>Equal pay audits for all large and medium-sized companies</li>   <li>Campaign for safe sick pay.</li> </ul>   Although details of the practicality of proposals are absent from the manifestos at this stage, we now have a flavour of what the future of employment law could look like. Current polls suggest Labour will form our new government. Labour’s proposals set out an ambitious agenda to implement significant change at great speed. If Labour manages to achieve its objectives, particularly with respect to the extension of time limits to present a claim and the introduction of day-one rights, this is likely to place even greater pressure on the Employment Tribunal backlog. Whether this is matched by funding for the tribunal system remains to be seen…   <hr class="wp-block-separator has-alpha-channel-opacity"/>   <a href="#_ftnref1" id="_ftn1">[1]</a> <a href="https://labour.org.uk/updates/stories/a-new-deal-for-working-people/#:~:text=Labour's%20plan%20to%20make%20work%20pay%20will%20ensure%20more%20people,resilience%20and%20conditions%20for%20innovation">Labour Party Employment Law Plan</a>   <a href="#_ftnref2" id="_ftn2">[2]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Conservative%20Party%20Manifesto">Conservative Party Manifesto</a>   <a href="#_ftnref3" id="_ftn3">[3]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Liberal%20Democrats%20Manifesto">Liberal Democrats Manifesto</a>   <a href="#_ftnref4" id="_ftn4">[4]</a><a href="file:///Users/isabellabrunton/Documents/PLP/Reform's%20'Contract%20with%20you'">Reform's 'Contract with you'</a>   <a href="#_ftnref5" id="_ftn5">[5]</a> <a href="file:///Users/isabellabrunton/Documents/PLP/Green%20Party%20Manifesto">Green Party Manifesto</a>

The Perils of Lists of Issues in the Employment Tribunal

The EAT handed down its latest judgment in the case of Z v Y [2024] EAT 63 on 26 April 2024.   ET Decision:   Z (“the claimant”) brought claims of unfair dismissal and disability discrimination against Y (“the respondent”).   In her particulars of claim the claimant materially stated:   <blockquote class="wp-block-quote"> The failure ... to make reasonable adjustments ... is a breach of the Equality Act 2010.  The continuing state of affairs, refusing to allow me to return to work and to seek alternative employment, led to me ... resigning my post... I was Constructively Dismissed ... on 1st June 2018 – the last act of discrimination. </blockquote>     The ET directed the respondent to prepare a draft list of issues ahead of a preliminary hearing on case management. The respondent produced a generic list, leaving it to the claimant to identify which allegations were said to amount to each species of claim.   At the preliminary hearing, the claimant was directed to complete ‘all of the detail required in relation to each head of claim in the respondent’s draft list of issues’.   The claimant went on to provide further information and the respondent thereafter redrafted the list of issues.   The redrafted list of issues was discussed at the start of the final hearing and, ostensibly, agreed.   After the hearing, the ET gave its judgment in the following terms:   <ol> <li>The claimant was not dismissed contrary to section 95(1)(c) Employment Rights Act 1996 ('ERA') and her claim of constructive dismissal must fail and is dismissed. </li>   <li>The tribunal does not have jurisdiction to determine the complaints of disability discrimination as they were submitted outside the statutory time period laid down in section 123 Equality Act 2010 ('EA') and it is not just and equitable to extend time. </li>   <li>If the tribunal had found the claims in time all disability discrimination claims would have been dismissed as not well founded save for the following:  <ol> <li>That the claimant was treated unfavourably because of something arising in consequence of her disability contrary to section 15 EA and the respondent has not shown the treatment to be a proportionate means of achieving a legitimate aim when W on 31 January 2018 informed the claimant that he would no longer allow the possibility of her returning to her role under any circumstances. </li>   <li>That the respondent failed to make reasonable adjustments contrary to section 20 EA when W enforced a practice that all members of the team need to be co-located at a specific desk location in E H for operational reasons.</li> </ol> </li> </ol>   In its written reasons, the ET materially stated:   128. … that it was discrimination arising from disability to advise the claimant on 31 January that she could not return to her role. That and the failure to make reasonable adjustments … [ by W failing to allow a period of time within the phased return to work of the claimant sitting elsewhere] must therefore amount to a breach of the implied term of trust and confidence.   The First EAT Appeal and Remission:   At the first appeal against the reject of her claim, the claimant was successful.  The EAT (John Bowers KC) directed that the matter be remitted to the ET to determine the following questions:   <ol> <li>Accepting that, at least in part, the claimant had resigned in response to the respondent's fundamental breach of contract (as found by the ET at paragraph 128), did she waive the breach of the contract or affirm the contract notwithstanding the breach? </li>   <li>Having failed to address the question whether any of the claimant's allegations amounted to a continuing act (a matter that had been expressly identified in the list of issues): whether or not there were continuing acts in respect of the breaches identified at paragraphs 3.1 and 3.2 of the ET's decision?</li> </ol>   Having thereafter heard further evidence and submissions on these points, on remission the ET held that:   <ol> <li>The claimant was constructively unfairly dismissed by the respondent. </li>   <li>There was no continuing act in relation to the Equality Act claims which were submitted out of time. The tribunal having no jurisdiction to determine them they are dismissed.</li> </ol>   Whereas it had been argued that the ET should consider whether the constructive dismissal was itself discriminatory, the ET stated:   22. … it was never one of the tribunal's issues that this was a discriminatory constructive dismissal.   The Second EAT Appeal:   One of the grounds in the second appeal was that it was perverse for the ET to find that the claim did not include a case of discriminatory dismissal, and thus to exclude that matter when considering the question of continuing act for the purpose of determining whether the Equality Act 2010 claims had been brought out of time.   As summarised by The Honourable Mrs Justice Eady DBE (P) in her judgment at paragraph 29:   ...[T]he claimant says the conclusion that discriminatory constructive dismissal was not an issue before the ET was perverse given its earlier finding that acts of disability discrimination upheld by the ET "must therefore amount to a breach of the implied term of trust and confidence", and the finding, on remission, of constructive dismissal, in circumstances in which the claimant's resignation being a "final act of discrimination" was pleaded in the ET1 in two places. As for whether this was envisaged in the list of issues, the claimant observes that the respondent's draft list referred to sections 13, 15 and 20 EqA; there was no suggestion that it was necessary to expressly refer to section 39. In any event, the ET was not required to "stick slavishly to the list of issues agreed where to do so would impair the discharge of its core duty to hear and determine the case in accordance with the law and the evidence", Parekh v Brent LBC [2012], EWCA Civ 1630, as applied in Mervyn v BW Controls Ltd [2020] EWCA Civ 393.   As to this ground, the respondent contended that the ET:   "… gave the Claimant every opportunity to confirm that she was alleging a discriminatory dismissal. She did not do so."   And that the ET had followed the guidance of HHJ Auerbach in McLeary v One Housing Ltd UKEAT/0124/18 and had sought meticulous clarification of the claimant’s claims at the outset of the final hearing.   Giving her judgment on the above ground, Mrs Justice Eady stated:   <ol start="54"> <li>...First, as part of her pleaded case, the claimant had made clear that her claims of disability discrimination ...included a complaint of discriminatory constructive dismissal, relied on as "the last act of discrimination" and "the final act of discrimination … due to my mental health disability". Second, although the claimant was directed to provide further clarification of how her case was put, that was in relation to the various forms of prohibited conduct on which she relied; at no stage was she asked to clarify the particular cause of action engaged under section 39 EqA. Third, in responding to the respondent's draft list of issues, the claimant had included the various matters she relied on as giving rise to the constructive dismissal; thus, the particulars provided under the heading "Unfair Constructive Dismissal" had included allegations that were also relied on as acts of disability discrimination under the various headings for the different forms of prohibited conduct that were said to be in play. Fourth, although the claimant had not then repeated her complaint of constructive dismissal under each of the different prohibited conduct headings, at no stage was she asked whether she had withdrawn that claim, which had been made plain (one might say (per Mervyn and McLeary) "shouted out") from the case she had originally pleaded.</li> </ol>   <ol start="55"> <li>In his carefully balanced submissions for the respondent, Mr Hodge contended that, notwithstanding the apparent failure to clarify with the claimant whether she had in fact intended to withdraw her pleaded claim of discriminatory constructive dismissal, the ET was entitled to proceed on the basis that, had this remained a live cause of action, the claimant could reasonably have been expected to have identified the act of constructive dismissal under each relevant prohibited conduct heading. In my judgement, however, this would be to elevate the list of issues to the status of a pleading. Instead of being a useful tool of case management, it would become a formal replacement for the claim; that is neither its function nor its purpose. As the Court of Appeal made plain in Parekh, an ET should not stick slavishly to the agreed list of issues where to do so would impair its core duty to hear and determine the case before it. In the present proceedings, that case had included a claim of discriminatory constructive dismissal, which had never been withdrawn. Moreover, the fact that this claim had been missed from the list of issues was entirely explicable from the focus on the different forms of prohibited conduct and the apparent failure to also ask the claimant to clarify (to the extent that that would have been considered necessary) the specific way/s she was putting her case under section 39. Whether the ET's failure to recognise that this was an issue in the case is characterised as "perverse", or as a straightforward error of law in failing to address a claim that it was required to determine, I am satisfied that it was wrong in law for the ET to decline to determine the claim of constructive discriminatory dismissal that was before it...</li> </ol>   Suggested Takeaways:   <ul> <li>If a claim is clearly pleaded but is not included in a list of issues, seek a dismissal upon withdrawal.</li> </ul>   <ul> <li>If a pleading is ambiguous as to whether a matter is intended to amount to a claim, ventilate the issue at the earliest opportunity before the ET and seek confirmation either way (then ask the ET to record the answer).</li> </ul>   <ul> <li>Invite the ET to direct the parties to notify them within a short period if there is any disagreement about the content of the list of issues agreed during the course of preliminary case management.</li> </ul>

Pregnancy and Maternity Discrimination in the Workplace – Changes in 2024

2024 has already brought some significant changes to pregnancy and maternity discrimination law.   But what are they? A re-hash of what was already there? A step too far? Or a great rebirth of maternity protection?   This article seeks to reflect those key developments, and what they might mean for women, employers, and practitioners alike.   (1) An Extension of Redundancy Protections   Until 6th April 2024, Regulation 10 of the Maternity and Parental Leave Regulations 1999 (“MPL”) offered some women positive discrimination, rarely seen outside disability discrimination law.   If it was not practicable by reason of redundancy, to continue to employ someone during their maternity leave, that person obtained priority status for any suitable alternative employment. If a role was suitable, they had to get it. Otherwise, it is Automatic Unfair Dismissal.   From 6th April 2024, it has been substantially widened. That priority now also extends to:   <ul> <li>‘The Protected Period’, being from when the employer is informed of a pregnancy, until either Statutory Maternity Leave (“SML”) starts, or 2 weeks after the pregnancy (if there is no SML);</li> </ul>   <ul> <li>‘The Additional Protected Period’. This starts after SML, and ends 18 months after the expected week of childbirth (see exact wording for the specific day);</li> </ul>   This could triple the protection women have. It extends this positive discrimination from not only the period of maternity leave, but to potentially around nine months beforehand, and potentially nine months or so afterwards.   Employers must be aware of this when conducting any redundancy exercise. No longer must they only consider those women on maternity leave for any suitable alternative role. Now, they must consider anyone whom they have been told is pregnant, or whom has recently returned from maternity leave. This will likely encapsulate many more persons.   (2) Widening of Section 18 EQA 2010   Section 18 EQA 2010 offers protection from unfavourable treatment because of the protected characteristic of pregnancy and maternity. However, it has had its drawbacks.   Before this year, it only applied during the ‘protected period’, which was the duration of any pregnancy and maternity leave. This was the specific impact of S.18(5) EQA 2010. Perhaps that sounds sensible?   However, what about the woman returning from maternity leave, whom finds their role has been changed, their office occupied, and themselves isolated in the workplace, all because she had been pregnant?   That is unfavourable treatment due to maternity, but they seemingly had no claim under S.18. They would have had to rely on S.13 EQA 2010, and (potentially) the difficult comparative exercise which that can entail. Even then though, would a man returning after one year have been treated any differently? Perhaps not.   From 1st January 2024, the position is different. The EQA 2010 (Amendment) Regulations 2023 have amended S.18(2) EQA 2010, and removed S.18(5) EQA 2010. This means that if treatment was due to pregnancy, but occurred after the protected period, S.18 claim still exists. This seeks to reflect the ECJ decision in Brown v Rentokil [1998 ICR 790]. S.18 also offers protection if a person has ‘exercised’ the right to maternity leave.   This is a further protection for women, particularly when no indirect discrimination or harassment claims can be brought on the grounds of pregnancy/maternity (See S.19 and S.26). It is arguable that EU Law may well have offered this protection in any event through Brown, but having it codified in S.18 is certainly helpful, particularly post-Brexit.   (3) Direct Discrimination   Again, until this year, S.13(7) EQA 2010 prevented women claiming that less favourable treatment due to breastfeeding, was direct sex discrimination in the workplace. Again, this was in conflict with EU Law, such as the ECJ decision in Otero Ramos v Servicio Galego de Saude [2018 ICR 965].   This caused an issue. If you were dismissed due to breastfeeding in the workplace, (unless you could rely on EU Law) the statute prevented a S.13 Direct Discrimination Claim ‘because of sex’. A S.18 EQA 2010 claim might have been closed too, for the reasons above. This was unsatisfactory.   From 1st January 2024, Section 13(7) is no more. This means that less favourable treatment due to breastfeeding can now be direct sex discrimination.   Recent case law has assisted in this area too. Cases such as Commissioner of the City of London Police v Geldart [2021 ICR 1329], suggest that a woman who has been treated unfavourably on the ground of pregnancy or maternity, would not need to compare herself to a man to establish direct sex discrimination. If the ‘reason why’ question suggests pregnancy/maternity was the reason for the treatment, a direct sex discrimination claim will likely succeed.   What is gained by this, is a good question.   Section 18(7) prevents a S.13 direct sex discrimination claim being brought, if a S.18 claim can be brought on the same facts. Given the widening of S.18, as described above, this could arguably make some of the benefits of the widening of S.13 redundant. In reality, the key benefit is likely to concern less favourable treatment due to breastfeeding, which will now certainly succeed as a S.13 Direct Sex Discrimination claim, if not under the new widened S.18.   A final option might be a Section 13 EQA 2010 claim, for direct discrimination ‘because of pregnancy or maternity’. It is again questionable what the benefit in it might be. Such a person has S.18, which does not need a comparator. However, given the specific wording of S.18(7) EQA 2010, it seems that S.18 does not prevent such a claim of S.13 direct pregnancy/maternity discrimination, even if a S.18 claim could succeed on the same facts.   (4) The Paternity Leave (Amendment) Regulations 2024   And to close, one for the fathers. If the expected week of childbirth is after 6th April 2024, there is now greater flexibility in when paternity leave can be taken. It can now be taken any time within the first year of birth, and can be taken in 2 x 1-week blocks, rather than only in 2-week blocks.   Conclusion   Some of these changes are codification of ECJ caselaw. Yet, their codification in the EQA 2010 is of real assistance for litigants, employers and practitioners alike.   The impact of the changes to the EQA 2010 are notable. Unfavourable Treatment by an employer because of pregnancy/maternity is now more likely to lead to a successful claim, either under S.13 or S.18. Employers may now lose the technical arguments about ‘protected periods’, which may have allowed them to defend many a claim.   But some changes have far more weight. The impact of the changes to the MPL regarding redundancy is clear, and employers must be alive to them. They offer a significant widening of the protection to women, potentially giving them priority treatment in redundancy situations for over two years of their working life. It is the making of reasonable adjustments on a vast scale indeed.

A reminder from the EAT that Employment Tribunals must have regard to disabilities of litigants in person during case management stages

Mr B King v Gemalto Thales UK Ltd 2024 EAT 34 (8 March 2024)   The Background   Mr King (“the Claimant”) started working for Thales (“the Respondent”) in December 1999. The Claimant is vulnerable with mental health conditions. He brought an unfair dismissal claim to the Employment Tribunal which was dismissed due to it being submitted out of time. The Claimant brought a further separate claim alleging sex discrimination. A Preliminary Hearing was held to consider whether the second claim also included a claim of disability discrimination and whether the claim of sex discrimination was an abuse of process.   At first instance an Employment Judge concluded that the first claim did not include a claim of disability discrimination. Nonetheless, they upheld the Respondent’s abuse of process argument which resulted in the dismissal of the sex discrimination claim and refusal of the application to amend the second claim to add disability discrimination.   The Law   The EAT, presided by His Honour Judge James Tayler, considered several legal principles as part of the appeal. For the purposes of this article, it is pertinent to note paragraph 58 of the Judgment as follows:   “58. An Employment Tribunal may have to take account of learning difficulties and mental health issues that make a witness vulnerable in two principle ways:   58.1.  the Employment Tribunal may have to adjust its procedures to permit a witness to give his or her best evidence. A failure to make an adjustment could possibly be so serious as to render the hearing unfair   58.2.  it may be necessary for the Employment Tribunal to take vulnerability into account when assessing the evidence of a witness. A failure to do so could possibly:   58.2.1.  be so serious that the hearing is unfair   58.2.2. involve a failure of the Employment Tribunal to direct itself to the relevant law   58.2.3. undermine the Employment Tribunal’s analysis of the evidence to such an extent that a decision might be perverse, even taking account of the high threshold of showing perversity – this might be in connection with any other errors of analysis of the evidence or application of the appropriate legal tests”   Furthermore, the EAT recorded:    “Although the legal duty to make reasonable adjustments pursuant to the Equality Act 2010 does not apply to the employment tribunal, it is well established that the tribunal should make such adjustments as are necessary to ensure a fair hearing: Heal v University of Oxford [2020] ICR 1294, at paragraph 18.”   Finding   The EAT found that in undertaking the broad, merits-based assessment, including the analysis of the Claimant’s evidence, the first instance Judge was required to take account of The Claimant’s vulnerability. Emphasising that “proper allowance should have been given to Mr King’s vulnerability when assessing his evidence” at paragraph 87. The EAT remitted the matter to a new tribunal for a fresh assessment, tasking it with considering all relevant factors, including the precise nature of the Claimant’s claims, the reasons for not bringing those claims earlier, the impact of his mental health conditions, and the possible prejudice to the Respondent.   Comment   This case acts as a helpful reminder of the importance in having regard to disabilities of litigants in person during case management stages.   Employment Tribunals are obliged to ensure substantive fairness, allowing parties to effectively participate throughout all stages of the process. In utilising judicial discretion, the Tribunals must weigh in the balance of fairness and access to justice for all parties including vulnerabilities of individuals. It follows that at a final hearing witnesses should also be afforded the opportunity to provide reliable evidence.   Helpful resources for Tribunal users:   <ul> <li><a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf" target="_blank" rel="noreferrer noopener">Presidential Guidance: Vulnerable parties and witnesses in Employment Tribunal proceedings.</a></li>   <li><a href="https://www.theadvocatesgateway.org/toolkits-1-1-1" target="_blank" rel="noreferrer noopener">The Advocate’s Gateway Toolkits</a></li>   <li><a href="https://www.judiciary.uk/about-the-judiciary/diversity/equal-treatment-bench-book/" target="_blank" rel="noreferrer noopener">Equal Treatment Bench Book</a></li> </ul>

Parklane Plowden welcomes new pupil

Chambers is delighted to welcome Isabella Brunton, who is commencing her specialist civil law pupillage under the supervision of Claire Millns.   Isabella achieved first-class honours at the University of York in Law and was awarded the Citizenship Award for her role as Mistress of the Moots of the Mooting and Bar Society. She was awarded the HHJ Paul Clark Scholarship and Blackstone Entrance Exhibition Award by Middle Temple, and the Excellence and Career Commitment Scholarships by BPP. She went on to achieve a Distinction in her BTC LLM.

Parklane Plowden Podcast – A missed opportunity for workplace sexual harassment law

Listen to Parklane Plowden’s latest PLP Podcast – A missed opportunity for workplace sexual harassment law.   In October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 comes into force, making changes to the remedy provisions in the Equality Act in relation to sexual harassment at work.   Parklane Plowden employment barristers <a href="https://www.parklaneplowden.co.uk/our-barristers/roger-quickfall/">Roger Quickfall</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> explore the current protections for employees suffering sexual harassment and the journey behind the legislative change.   They discuss why an opportunity was missed with the upcoming legislation in relation to protecting employees from third party sexual harassment such as that by clients of their employer and how employers and practitioners can prepare for when the new legislation comes into force.   Helpful resources and further reading:   <ol> <li><a href="https://www.legislation.gov.uk/ukpga/2023/51/contents">Worker Protection (Amendment of Equality Act 2010) Act 2023</a></li>   <li><a href="https://bills.parliament.uk/bills/3205">History of the progress of the Bill where the debates can also be found</a></li>   <li><a href="https://metoomvmt.org/">Me too </a></li> </ol>   Listen to the podcast below:

Rule 50 in the spotlight: privacy in the Employment Tribunal – a recent case and some practical tips

The key provisions in brief   Rule 50   Under r50:   “(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.   (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.”   R50(3) contains a list of illustrative orders the Tribunal may make. That includes:   <ul> <li>R50(3)(a) – An order that a hearing, or part of a hearing be held in private.</li>   <li>R50(3)(b) – Anonymisation orders applying to parties, witnesses, or other people referred to in proceedings. Anonymisation can relate to the course of the hearing, in the list, and/or any documents forming part of the public record, such as the judgment or reasons.</li>   <li>R50(3)(c) – An order for measures preventing witnesses at a public hearing being identifiable by members of the public, such as screens.</li>   <li>R50(3)(d) – A restricted reporting order (“RRO”) within the terms of s11 or 12 of the Employment Tribunals Act 1996 (“ETA”). Respectively, these sections relate to sexual misconduct/offences and disability (see below).</li> </ul>   Under r50(5), an RRO must meet certain requirements:   “(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;   (b) it shall specify the duration of the order;   (c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and   (d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.”   S10 ETA   The Tribunal can be invited to sit in private to hear evidence which is likely to consist of information which:   <ul> <li>Has been communicated or received in confidence.</li>   <li>Would cause substantial injury to the Respondent.</li> </ul>   S11 ETA   In cases involving allegations of the commission of sexual offences, s11 ETA (read with r50) enables the Tribunal to grant anonymity to those affected by or making an allegation of the commission of sexual offences.   In cases involving allegations of sexual misconduct, it enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.   Sexual misconduct means “the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed”.   Sexual offence means any offence to which certain statutory provisions, including SO(A)A apply.   The RRO should prevent the reporting of any matter likely to lead members of the public to identify the person affected by (i.e. the alleged perpetrator), or the person making (i.e. the complainant), the allegation.   S12 ETA   In a “complaint which relates to disability in which evidence of a personal nature is likely to be heard”, s12 ETA (read with r50) enables the Tribunal to make an RRO having effect until promulgation of its decision, unless it is revoked earlier.   Evidence of a personal nature means “any evidence of a medical, or other intimate, nature which might reasonably be assumed to be likely to cause significant embarrassment to the complainant if reported”.   Sexual Offences (Amendment) Act 1992 (“SO(A)A”)   S1 grants lifelong anonymity to those alleging commission of sexual offences:   “(1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.   (2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (“the complainant”) shall during the complainant’s lifetime be included in any publication.”   Accused means charged with an offence.   No such protection is extended to alleged perpetrators, by virtue of their status alone. However, cases of ‘jigsaw identification’ – where revealing the identity of the perpetrator would be likely to lead to identify the person making the allegation – may necessitate an order being sought in relation to the alleged perpetrator under s1.   Z v Commerzbank AG [2024] EAT 11   Facts   The Claimant made discrimination allegations and alleged that a female colleague, Q, had sexually harassed and sexually assaulted him. After he was dismissed by Commerzbank, he brought a claim against it and other Respondents, including Q.   First instance   On application, restricted reporting and anonymity orders were made in respect of the Claimant and Q.   In relation to the Claimant, the Judge found that he was protected for life by operation of s1 of the SO(A)A. In respect of the anonymity order, she decided to make the same order in the interests of justice under r50(3)(b) to give effect to the SO(A)A. She also made a restricted reporting order (“RRO”) of indefinite duration under r50(3)(d). She considered freedom of expression under art 10 but held that it was proportionate to protect the Claimant’s art 8 right to privacy because “the test of strict necessity [in r50] is satisfied in the case of a victim of an alleged sexual offence”.   In relation to Q (and her husband), who did not enjoy the protection of SO(A)A, similar orders were made, but of limited duration until the promulgation of the liability judgment. The Judge referred to art 10 but found it was outweighed by Q’s art 8 rights. She held that post-promulgation restrictions fall outside the statutory exception in s11 ETA.   At the liability hearing, the Tribunal concluded that the Claimant’s account was false and made up. It dismissed all his claims.   The Respondents applied to lift the anonymity order and RRO (“the privacy orders”) in respect of the Claimant, and to extend them in relation to Q.   In respect of Q, the privacy orders were varied to have indefinite effect. Whilst not the subject of any appeal, Mr Justice Kerr expressed discomfort that the orders had no sunset or lapsing provision requiring a conscious decision to extend the duration of the order periodically.   In respect of the Claimant, the Tribunal revoked the privacy orders, subject to a temporary stay for any appeal. It referred to Mr Justice Soole’s decision in A v X UKEAT/0113/18, noting that there appears to be no direct authority on whether and if so how the Tribunal should give effect to the SO(A)(A).   The Tribunal concluded that there had been a material change of circumstances sufficient to enable the Tribunal to consider revoking the privacy orders:   “The exceedingly serious allegations on which the Claimant based his application for anonymity have been considered, comprehensively dismissed and found to be false and, in large part, made up. The foundation on which EJ Brown necessarily approached the application, namely that the Claimant was relying on sincere allegations advanced in good faith, has been exploded.”   The power to make the order lay under r50, not SO(A)A, and the power to revoke it under r29. The correct approach was to exercise its case management powers under r29 “in keeping with the spirit and intention” of SO(A)A. That involved recognising that protection under the SO(A)A is automatic and in principle permanent. The rationale being to avoid discouraging victims from making complaints for fear of distressing publicity. However, the Employment Tribunals Rules of Procedure enable the Tribunal to remove or relax that protection in special circumstances:   “We simply cannot accept that the law is powerless to separate the Claimant from a protection to which, as is now apparent, he was never entitled. It is to us unthinkable that our procedural law, founded on the overriding objective of deciding cases justly, could contemplate such a bizarre and unjust result.”   It went on to consider the balancing exercise of competing interests and concluded that art 10 clearly outweighed art 8:   “His is a most unusual story and we can well see why it would be of considerable interest to the press and the public. His identity would be a matter of legitimate interest given the Tribunal's findings, in the way that Q's would not. Against the interests of open justice and freedom of interest, we see no countervailing argument based on the Claimant's Convention rights. If, as we have held, he did not have a sustainable right to litigate anonymously, it cannot be said that his right to respect for his private life would be violated as a consequence of the anonymity being lost.”   Appeal   The Claimant appealed the revocation of the anonymity order and RRO.   Mr Justice Kerr identified four strands of authority: the common law; art 8; SO(A)A and ETA read together with r50. He described this as a “complex interaction”.   There was no dispute between the parties regarding the principle of open justice and derogations from it applying the common law or art 8, balanced against art 10. There are many authorities dealing with this balancing exercise.   He noted that:   <ul> <li>The protection of s1 SO(A)A is statutory an therefore automatic – there is no need for the trial court to make an order mirroring it.</li>   <li>By s1(4), the section does not prohibit publication of a report of a subsequent trial of the complainant for perjury or perverting the course of justice.</li>   <li>There are provisions to allow removal or relaxation of the s1 protection, but these must not be given by reason only of the outcome of the trial.</li> </ul>   Mr Justice Soole reviewed several authorities where it had been assumed that s1 SO(A)A applied to a Claimant making an allegation in the Tribunal.   He held that the words “an allegation has been made” in s1(1) SO(A)A “refer to the making of an allegation in circumstances which raise, or are intended to raise, a real possibility that a criminal charge will follow.”   Such an allegation need not be made by the alleged victim. For example, a complaint by a parent to police that their child has been sexually assaulted would trigger anonymity for the child.   He stated:   "the accurate formulation is that "allegation" in section 1(1) refers to a formal allegation made in the context of potential criminal proceedings, where a criminal charge may be brought. The paradigm case is a complaint to police. Other complaints made seriously and intended to or likely to be acted upon might be to a prosecuting authority, a safeguarding body, a social worker or social services department or other person with professional responsibility for taking the complaint further through the criminal justice system.   It follows that I do not think an ""allegation"" in section 1(1) includes, without more, an allegation made in civil, family or tribunal proceedings of conduct that, if committed, would be one of the sexual offences covered by the 1992 Act.“   The Claimant nor anyone else had made such an allegation against Q and the Judge at first instance was wrong to conclude he was entitled to the protection of the SO(A)A.   However, Mr Justice Soole commented, obiter, there will be a difficulty in other cases where the requirement in s1(1) is satisfied, for example where a serious complaint of a sexual offence has been made to police by the time the allegation of the same conduct is made in the Tribunal. In those circumstances, the only means of removing the protection of SO(A)A is in accordance with its provisions, for example if there is a subsequent trial for perjury or if a Justice of the Peace of a Crown Court Judge decides to relax the restriction.   He noted the cross reference to SO(A)A in s11(6) ETA as suggesting that parliament had in mind the possibility that the protection of SO(A)A could apply in cases where the same conduct is alleged as a criminal matter and in the Tribunal. In such cases, a privacy order would be made under r50.   The lacuna, however, is that an Employment Judge does not have the corresponding power given to a Justice of the Peace of a Crown Court Judge to remove the restriction in circumstances where the Tribunal decides a complaint is false. The solution may here lie with Parliament.   Albeit for slightly different reasons, the Tribunal at first instance was therefore correct to revoke the privacy orders in respect of the Claimant. It was “difficult to think of a more striking change of circumstances” and the art 10/art 8 balance had been struck correctly.   Some practical tips   <ul> <li>Privacy orders should be considered in any sex-related or sexual harassment claim</li>   <li>In disability-related cases they are rarer</li>   <li>The parties cannot agree to a departure from open justice – the Tribunal will not merely approve an agreed order, but will need to consider whether a derogation from open justice is necessary</li>   <li>The interests of justice and protection of a person’s Convention rights are two distinct but often overlapping grounds upon which derogation from open justice can be sought</li>   <li>The party seeking the privacy order has the burden of proving it is necessary to deviate from the principle of open justice</li>   <li>Evidence should therefore be adduced in support of such an application e.g. medical evidence if an assertion is made of risk of damage to health, evidence of any complaint to police</li>   <li>The Tribunal may need to hear witness evidence e.g. to determine whether revealing certain information could lead to jigsaw identification of a complainant</li>   <li>A draft order should be prepared to accompany the application, with thought being given to precisely what is sought e.g. Anonymity? Of whom? An RRO? For how long?</li>   <li>Applications should ideally be made at a preliminary hearing in advance of the final hearing</li>   <li>There may be consequential impacts of a privacy order on case preparation e.g. redaction, labelling of individuals by letters, preparation of one bundle for the parties and a redacted bundle for the public</li> </ul>   For a fuller discussion of this topic, join <a href="https://www.parklaneplowden.co.uk/our-barristers/bryony-clayton/">Bryony Clayton</a> at <a href="https://www.parklaneplowden.co.uk/20-march-2024-employment-grandstand-seminar-newcastle/">Parklane Plowden’s Employment Grandstand on 20 March</a> for her talk: The Limits of Open Justice: Anonymity and Privacy Issues in the Tribunal.

Reasonable Adjustments and Recording Tribunal Proceedings: Bella v Barclays Execution Services Ltd & Ors [2024] EAT 16 (23 February 2024)

The Background   The Claimant/Appellant applied to the Employment Tribunal to be allowed to record a three-day preliminary hearing. The Employment Judge declined to grant the application as he was not satisfied with the evidence in support or that there was any significant disadvantage to the Appellant. In reaching his decision, the Judge did not refer to the guidance provided on this question in Heal v University of Oxford [2020] ICR 1294. Although the guidance in Heal is not mandatory, is in important in considering an application to record proceedings and by not referring to it, the Judge then failed to take into account factors material to the assessment of the Appellant's application. The Judge should therefore have granted the application and it was right to make a declaration that the decision not to do so was unlawful.   The Law   The Employment Tribunal is under a duty to make reasonable adjustments in appropriate circumstances. Whilst the language of reasonable adjustments appears in s. 20 of the Equality Act 2010, that section does not provide the source of the relevant duty as was made clear by Underhill LJ in J v K [2019] ICR 815, albeit in the context of an application for an extension of time for the presentation of a complaint to the employment tribunal:   "...judicial decisions are excluded from the scope of the Act: see paragraph 3 of Schedule 3 to the Act. But as a matter of general law the exercise of a judicial discretion must take into account all relevant considerations, and in such a case the party's mental condition or other disability would plainly be a relevant consideration." [33]   Langstaff J in Rackham v NHS Professionals Ltd UKEAT/0110/15/LA said as to the level of review to which and Employment Tribunal's decision on reasonable adjustments could be subject to scrutiny at the EAT level:   "In this case, though we are attracted to the proportionality analysis that Miss Joffe proposed and that Mr Horan in reply adopted, we do not think that the decision actually depends upon the approach we take, though we would observe that we would be very hesitant before suggesting that a pure Wednesbury approach was appropriate in any case in which it appeared to the reviewing court that it would have been reasonable to have to make an adjustment if that adjustment appeared necessary to obtain proper equality of arms for someone with a relevant disability."[46]   In addition, the court observed as follows:   “In many cases, if not most, a person suffering from a disability will be the person best able to describe to a court or to others the effects of that disability on them and what might be done in a particular situation to alleviate it." [50]   The particular issue of whether a reasonable adjustment might be granted in the form of permission to record proceedings was considered by Choudhury J in the Employment Appeal Tribunal in Heal v The Chancellor, Master and Scholars of the University of Oxford & Ors [2020] ICR 1294.   “a. Tribunals are under a duty to make reasonable adjustments to alleviate any substantial disadvantage related to disability in a party's ability to participate in proceedings.   b. Where a disability is declared and adjustments to the Tribunal's procedures are requested in the ET1 form, there is no automatic entitlement for those adjustments to be made. Whether or not the adjustments are made will be a matter of case management for the Tribunal to determine having regard to all relevant factors (including, where applicable, any information provided by or requested from a party) and giving effect to the overriding objective.   c. The Tribunal may consider whether to make a case management order setting out reasonable adjustments either on its own initiative or in response to an application made by a party.   d. If an application is made for reasonable adjustments, the Tribunal may deal with such an application in writing, or order that it be dealt with at a preliminary or final hearing: see Rule 30 of the ET Rules.   e. Where the adjustment sought is for permission for a party to record proceedings or parts thereof because of a disability-related inability to take contemporaneous notes or follow proceedings, the Tribunal may take account of the following matters, which are not exhaustive, in determining whether to grant permission:   i. The extent of the inability and any medical or other evidence in support;   ii. Whether the disadvantage in question can be alleviated by other means, such as assistance from another person, the provision of additional time or additional breaks in proceedings;   iii. The extent to which the recording of proceedings will alleviate the disadvantage in question;   iv. The risk that the recording will be used for prohibited purposes, such as to publish recorded material, or extracts therefrom;   v. The views of the other party or parties involved, and, in particular, whether the knowledge that a recording is being made by one party would worry or distract witnesses;   vi. Whether there should be any specific directions or limitations as to the use to which any recorded material may be put;   vii. The means of recording and whether this is likely to cause unreasonable disruption or delay to proceedings.   f. Where an adjustment is made to permit the recording of proceedings, parties ought to be reminded of the express prohibition under s.9(1)(b) of the 1981 Act on publishing such recording or playing it in the hearing of the public or any section of the public. This prohibition is likely to extend to any upload of the recording (or part thereof) on to any publicly accessible website or social media or any other information sharing platform."   Comment   Given the facts of the case, that there was evidence from a psychotherapist support the application, the application was not opposed by the Respondent, the Claimant was a litigant in person, the PH in question was to last 3 days, and the Claimant had previously been given permission to record hearings with no concerns over his use of those recordings, the outcome of the case is hardly surprising.   Considering the frequency with which disabled Claimants, or witnesses more generally, come before the ET, it is surprising how regularly reasonable adjustments are not considered at case management stage. When adjustments are considered and ordered, they are often conservative in nature. One reason for this conservatism may be an over-reliance on expecting Claimants to identify the adjustments they need, and the corresponding obvious difficulty for Claimants, not familiar with the ET process, to imagine what measures may alleviate disadvantages.   It would be short-sighted for a Respondent representative, seeing no reasonable adjustments requested by a disabled Claimant, to fail to raise the matter. Of course primary duties are to the Tribunal, and Respondents must always bear in mind the Overriding Objective, and as such it would be sensible to always raise the matter of adjustments proactively at case management stage. In most circumstances, it is far better for a Respondent to have an effective final hearing with adjustments, albeit perhaps slightly longer, than a disrupted hearing, or worse, an appeal.   Representatives will find useful guidance on reasonable adjustments in the context of vulnerable parties and witnesses in the <a href="https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Presidential-Guidance-on-Vulnerable-Parties-and-Witnesses-22-April-2020.pdf">Presidential Guidance</a>. The Presidential Guidance refers to <a href="https://www.theadvocatesgateway.org/toolkits-1-1-1">The Advocate’s Gateway Toolkits</a> which cover a range of topics including cross examining witnesses with autism, dyslexia, ADHD, and deaf witnesses. For those representing Claimants with disabilities, the toolkits may be a helpful prompt to inform requests for meaningful reasonable adjustments.

REPLAY: Remedy Arguments and Calculations | 22 February 2024

<iframe width="560" height="315" src="https://www.youtube.com/embed/ASNJ2JMpLlU" title="YouTube video player" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen=""></iframe>     Parklane Plowden's 'Law with Lunch' webinars bring you the latest law updates.   Employment specialists <a href="https://www.parklaneplowden.co.uk/our-barristers/sarah-brewis/">Sarah Brewis</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/bethan-davies/">Bethan Davies</a> discuss remedy arguments and calculations.   Click on the above video to watch the webinar recording.

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