Crossland v OCS Group UK Ltd & Anor

The Court of Appeal dismissed Mr Crossland's appeal against the Employment Appeal Tribunal's dismissal of his challenge to an Employment Tribunal pre-hearing review order requiring a deposit of £250. The relevant statutory framework was the duty to make reasonable adjustments in the Equality Act 2010 (notably sections 20 and 21) and the ET's power to require a deposit under rule 20 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

The judges accepted the Employment Judge's and the EAT's factual and legal approach that the claimant's pleaded provision, criterion or practice (PCP) was the requirement to carry out external patrols and that the claimant had not advanced lone working per se as the PCP before the ET. On the case actually advanced to the ET, the judge was entitled to conclude that the claim had little reasonable prospect of success and to impose a deposit condition. The Court of Appeal held there was no error of law in the comparative exercise under section 20(3) and no basis to interfere with the deposit order.

This appeal concerned a disability discrimination claim by a lone night-shift security guard, Mr Crossland, who suffered from type 1 diabetes and risked hypoglycaemic episodes. He alleged a failure to make reasonable adjustments under the Equality Act 2010 in respect of BAIE's requirement that he undertake external patrols as part of lone working. At a pre-hearing review (PHR) the Employment Judge (Judge Cadney) ordered him to pay a deposit of £250 under rule 20 of Schedule 1 to the 2004 Regulations as a condition of pursuing his Equality Act claim, concluding the claim had little reasonable prospect of success. The Employment Tribunal later struck out the claims for non-payment of the deposit.

Procedural history: Mr Crossland sought review of the PHR decision; the review was refused and an extension to pay was granted but the deposit remained unpaid. He appealed to the Employment Appeal Tribunal; Underhill J (President) dismissed the appeal by order dated 17 January 2013 (UKEAT/0340/12/SM). Permission to appeal to the Court of Appeal was granted and this appeal was heard on 5 February 2014.

Issues before the Court: (i) what PCP or PCPs the claimant had pleaded; (ii) the correct comparator and comparative exercise required by section 20(3) of the Equality Act 2010; (iii) whether the ET misapplied the law in deciding the claim had little reasonable prospect of success and so ordering a deposit; and (iv) whether the EAT erred in dismissing the appeal.

Court's reasoning: The court emphasised that a claim under section 20 requires identification of the PCP said to place the disabled person at a substantial disadvantage in comparison with persons who are not disabled. The ET had made reasonable and careful attempts to elicit the PCP and, on the material before it, the claimant had identified only the PCP of external patrols, not lone working per se. The Employment Judge's assessment compared the claimant's pleaded case with the position of non-disabled persons and found the asserted distinction between indoor lone work and lone external patrols did not give rise to a substantial comparative disadvantage on the facts pleaded. The Court of Appeal held that the ET did not misdirect itself on the statutory comparison and did not err in exercising its case-management function to require a deposit where a claim's prospects were limited. The EAT had been entitled to dismiss the appeal and the Court of Appeal dismissed this appeal as well.

Relief sought: permission to continue the discrimination claim without deposit; the ET had required payment of a deposit and later struck out claims for non-payment. The Court refused the appellant's challenge and upheld the deposit order.

The appeal is dismissed. The Court held that the Employment Judge and the Employment Appeal Tribunal had not erred in law in their comparative exercise under section 20 of the Equality Act 2010; the claimant had pleaded the PCP as the requirement to carry out external patrols (and not lone working per se) and, on that pleaded case, the Employment Judge was entitled to find the discrimination claim had little reasonable prospect of success and to impose the deposit order of £250.

Pre-hearing review by Employment Judge Cadney (PHR conducted 18 January 2012; written reasons sent 15 February 2012) ordering a deposit of £250; review refused (20 March 2012) and extension to pay until 3 April 2012; claim struck out for non-payment under rule 18(7)(e) of Schedule 1 (order dated 5 April 2012). Appeal to the Employment Appeal Tribunal (President Underhill J) dismissed (order dated 17 January 2013; UKEAT/0340/12/SM). Permission to appeal to the Court of Appeal granted; appeal dismissed [2014] EWCA Civ 576 (14 May 2014).