Allan v Wandsworth Borough Council & Ors

For a claim under Equality Act 2010 section 58, the alleged discriminatory act must be in relation to the local-authority member’s carrying-out of official business. Conduct undertaken in a separate capacity does not fall within the provision merely because it has consequential effects on the member’s official role.

Section 58(4) excludes detriment consisting only of a failure to appoint a member to an office or committee position. That exclusion includes a failure to reappoint where the earlier appointment has ceased. A tribunal may strike out a discrimination claim where, on its pleaded basis, it has no reasonable prospect of success; the exceptional restraint required where central facts are disputed did not prevent strike-out where no such factual dispute was material.

The claimant, a former councillor and chair of a council scrutiny committee, alleged disability discrimination under Equality Act 2010 section 58. She contended that events arising from a social-services investigation into her mental health, her removal as committee chair, and the later refusal to restore her responsibilities were detriments.

An Employment Tribunal struck out the claim as having no reasonable prospect of success. It held that the complaint about removal from the chairmanship was out of time, there was no continuing act, and subsequent non-reinstatement amounted to a failure to appoint, which section 58(4) excluded.

The claimant appealed, alleging that the ET1 disclosed a prima facie case and that the Tribunal had wrongly accepted the respondents’ account despite disputed core facts.

1. Appeal dismissed. The Employment Tribunal had not made findings preferring the respondents’ account. Its background summary did not determine contested facts. The material issue was the claim as pleaded, and no central factual dispute prevented strike-out.

2. The court applied the caution in Ezsias v North Glamorgan NHS Trust, [2007] EWCA Civ 330, that discrimination claims should only exceptionally be struck out where central facts are disputed. That principle did not assist the claimant because no central factual dispute arose on the pleaded case.

3. Section 58 of the Equality Act 2010 concerns discrimination in relation to the carrying-out of official business. The social-services investigation and any disclosure connected with it concerned the claimant in her capacity as a resident, not as a councillor. Even an unnecessary or inappropriate disclosure would therefore not constitute discrimination in relation to official business.

4. The pleaded complaint concerning removal from the chairmanship related to May 2011 and was out of time. The later complaint that the claimant was not restored to that role was, in substance, a complaint of non-reappointment. Under section 58(4), failure to appoint to an office cannot amount to the statutory detriment; the exclusion also encompasses reappointment after the previous appointment has ended.

5. The claim therefore had no reasonable prospect of success, and the appeal failed.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the Employment Tribunal’s strike-out of the section 58 claim.
• Employment Tribunal (London South): Employment Judge Hall-Smith, sitting alone, struck out the claim as having no reasonable prospect of success in a judgment sent to the parties on 11 June 2012.