Crossland v OCS Group Ltd & Anor (Practice and Procedure : Imposition of Deposit)

A tribunal may identify the actual provision, criterion or practice relied on in a reasonable-adjustments claim. A claimant is not confined to one PCP, but must establish that each PCP relied on causes the statutory substantial disadvantage.

A PCP may create disadvantage by increasing the risk of serious injury if a disability-related event occurs, even if it does not increase the likelihood of that event. The asserted increase in risk must nevertheless be substantial on the evidence. Where a claim has little reasonable prospect of establishing that requirement, a deposit order may properly be made under the Employment Tribunals Rules.

The claimant, a diabetic night security guard employed by OCS and supplied to British Airways Interior Engineering Ltd, worked alone at night. He was removed from the assignment and disciplined after declining to undertake exterior patrols.

He brought Employment Tribunal proceedings alleging, among other matters, breach of the reasonable-adjustments duty under sections 20 and 21 of the Equality Act 2010. At a pre-hearing review, the Employment Judge made a £250 deposit order under rule 20 of the Employment Tribunals Rules, having concluded that the claim had little reasonable prospect of success. A review was refused.

The appeal concerned whether the Judge had correctly identified exterior patrols as the relevant PCP and whether that requirement placed the claimant at a substantial disadvantage as a diabetic.

1. Appeal dismissed. The Employment Judge was entitled to conclude that the reasonable-adjustments claim had little reasonable prospect of success and to make the deposit order.

2. The Judge was entitled, after careful enquiry, to identify the relevant PCP as the requirement to carry out exterior patrols rather than lone working generally. The claimant had said that he was fit and willing to work alone, and the dispute which led to the proceedings concerned exterior patrols. Although a claimant may rely on more than one PCP, there was no legal reason preventing him from doing so; the issue was what PCP he was in fact advancing in the proceedings.

3. Under section 20(3) of the Equality Act 2010, the claimant could in principle contend that exterior patrols increased the risk of serious injury if he suffered a hypoglycaemic episode, even though they did not increase the likelihood of an episode. But the material advanced did not show more than a little prospect of establishing a substantial increase in that risk. The principal risk arose from working alone. Difficulties in summoning assistance could occur indoors as well as outdoors, and the alleged additional outdoor dangers did not materially alter that conclusion.

4. The Tribunal's pre-hearing questioning did not make the hearing unfair. The claimant was being asked to articulate the legal and factual basis of his own claim, rather than to answer a matter requiring extensive preparation or research. In any event, the fuller case advanced on appeal would not have changed the conclusion.

5. The deposit order therefore remained in force.

• Employment Appeal Tribunal: appeal dismissed: [2013] UKEAT 0340_12_1701.
• Employment Tribunal, Cardiff: at a pre-hearing review on 18 January 2012, made a £250 deposit order under rule 20 of the Employment Tribunals Rules; the claimant's application for a review was refused.