Czikai v Freemantle Media Ltd & Ors

An Employment Appeal Tribunal may dismiss an appeal at a preliminary hearing where the grounds have no reasonable prospect of success. A one-off act does not become a continuing act merely because its effects remain available on the internet. A claim based on a later act must identify that act in the ET1.

For disability discrimination purposes, an audition is not an application for employment where its purpose is progression in a competition rather than selection for employment. A television producer is not an employment services provider merely because it organises auditions. The duty to make reasonable adjustments does not arise without knowledge, or constructive knowledge, of the disability and substantial disadvantage. Harassment must be for a reason related to the disability.

The appellant, a contestant in Britain’s Got Talent, brought claims under the Disability Discrimination Act 1995 concerning alleged failures to make reasonable adjustments at her audition and alleged harassment arising from publication of audition footage on the internet. An Employment Judge dismissed the claims as withdrawn, out of time, outside Part II of the Act and having no reasonable prospect of success. The Employment Judge also refused permission to amend the proceedings to add a claim under the National Minimum Wage legislation.

The appeal was heard by the Employment Appeal Tribunal at a preliminary hearing. The central issues were whether the claims involved continuing acts, whether time should be extended on a just and equitable basis, whether the respondents acted as employers, agents or employment services providers, and whether the claims had any reasonable prospect of success.

1. Appeal dismissed. None of the grounds of appeal had a reasonable prospect of success.
2. Case-management decisions, including whether to hold a case management discussion, hearing times and the evidence to receive, were matters for the Employment Judge. They could be challenged only for an error of law or perversity. No such error was shown.
3. The withdrawal of the First Claim was clear. Under rule 25 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004, withdrawal brought those proceedings to an end and they could not be revived. The Employment Judge correctly applied Khan v Heywood and Middleton Primary Care Trust [2007] ICR 204.
4. The audition was a one-off act. The Employment Judge correctly applied Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530 and held that the audition was not part of a continuing act with the later internet publication. The alleged failure to remove or link footage was also out of time. A later lifting of a geographical restriction was not a claim before the Employment Judge because it had not been pleaded in the ET1; Chapman v Simon [1994] IRLR 124 was correctly applied.
5. The Employment Judge was entitled, applying the guidance in British Coal Corporation v Keeble [1997] IRLR 336, to refuse a just and equitable extension. The delay was substantial, the respondents faced evidential prejudice, the explanations were unpersuasive and the claims appeared unmeritorious.
6. The appellant was not an employee or applicant for employment in relation to the audition. The competition’s purpose was progression in the contest, not selection for employment. The First Respondent was neither an employment services provider nor an agent of the Second Respondent. The evidence supported the conclusion that the respondents were co-producers with different responsibilities.
7. The reasonable-adjustments claim could not succeed because there was no evidence that the respondents knew, or could reasonably have been expected to know, of the disability and likely substantial disadvantage. The harassment claim also lacked a basis because there was no evidence that the impugned conduct was for a reason related to the disability.
8. Refusal to amend to add a minimum-wage claim was permissible. The proposed claim had no reasonable prospect of success, and the delay and proportionality considerations justified refusal.

• Employment Appeal Tribunal: Appeal dismissed at a preliminary hearing on 12 October 2011.
• Employment Tribunal: Employment Judge Lewzey dismissed the claims following a pre-hearing review; the judgment was entered in the Register on 1 September 2010.