Conway v Community Options Ltd

A strike-out for having no reasonable prospect of success is exceptional, particularly in discrimination claims where central facts are disputed. It may nevertheless be justified where the material facts and medical evidence are undisputed.

A reasonable-adjustments claim cannot proceed where unchallenged medical evidence shows that no adjustment could enable the disabled employee to return to work. An ill-health capability dismissal may also have no reasonable prospect of being unfair where the employer has obtained and discussed medical advice, the employee cannot give a return date, and a lengthy absence has already occurred.

The claimant, a support worker disabled by depression and anxiety, had been absent from work for about 15 months when he was dismissed on ill-health capability grounds. Occupational-health evidence stated that neither a phased return nor adjusted duties would enable a return in the near or medium term.

At a pre-hearing review, Employment Judge Kurrein struck out claims for unfair dismissal, failure to make reasonable adjustments, and disability-related discrimination under the ET Rules of Procedure 2004. The claimant appealed the strike-out of the first two claims only.

The central issue was whether, despite the exceptional nature of strike-out in discrimination cases, the undisputed evidence entitled the Employment Judge to conclude that those claims had no reasonable prospect of success.

1. Appeal dismissed. This was an exceptional case in which the material facts were not in dispute. A full Employment Tribunal hearing was therefore unnecessary to resolve the matters for which factual investigation is ordinarily required in discrimination claims.

2. The reasonable-adjustments claim was properly struck out. Section 20(3) of the Equality Act 2010 requires reasonable steps to avoid a substantial disadvantage caused by a PCP. The preliminary matters include identifying the PCP, the non-disabled comparators, and the nature and extent of the disadvantage, following Environment Agency v Rowan, [2008] ICR 218.

   Even assuming that the claimant could establish a relevant PCP and disadvantage, his claim failed on the adjustment issue. The unchallenged medical evidence showed that he was unfit for his former role or any alternative role, and that neither adjusted duties nor a phased return would facilitate a return to work. There was consequently no adjustment which the employer could reasonably have been expected to make.

3. The unfair-dismissal claim was also properly struck out. Applying the factors identified in East Lindsey DC v Daubney, [1977] ICR 566, the Employment Judge was entitled to find that the employer had obtained and shared medical advice, consulted the claimant, and received no contrary medical evidence or proposed timescale for return. After 15 months’ absence, the employer could not reasonably be expected to wait longer.

4. The Employment Judge made no error of law in striking out the challenged claims under rule 18(7)(b). The appeal was dismissed.

• Employment Appeal Tribunal: dismissed the claimant’s appeal in [2012] UKEAT 0034_12_0607.
• Employment Tribunal: Employment Judge Kurrein, at a pre-hearing review on 9 September 2011, struck out the unfair-dismissal, reasonable-adjustments, and disability-related-discrimination claims. Reasons were promulgated on 5 October 2011.