Crossland v OCS Group UK Ltd & Anor

For a reasonable-adjustments claim, the claimant must identify the provision, criterion or practice said to cause a substantial disadvantage in comparison with non-disabled persons. The comparison must address the disadvantage caused by that PCP, not simply the general effects of the disability. A claimant who accepts that the relevant working arrangement does not increase the risk of the disabling event, and who relies only on a different aspect of the work, may fail to show a substantial comparative disadvantage. At a deposit stage, the tribunal makes a preliminary evaluative assessment of the claim’s prospects. If it applies the correct legal test, its decision is challengeable only for an error of law or on perversity or irrationality grounds.

The claimant, a diabetic security guard, brought disability-discrimination claims against his employer and the company at whose premises he worked. At a pre-hearing review, the Employment Tribunal required him to pay a deposit under rule 20 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 before continuing his Equality Act 2010 claim. The tribunal treated the pleaded PCP as the requirement to carry out lone external patrols, rather than lone working generally, and concluded that the claim had little reasonable prospect of success. The Employment Appeal Tribunal, Underhill J, dismissed the appeal. The claimant appealed, arguing that the tribunal had used the wrong comparator and had reached a definitive conclusion without expert evidence. The central issue was whether the tribunal had erred in applying the comparative exercise required by section 20(3) of the Equality Act 2010.

1. Appeal dismissed. The court was concerned with the correctness of the Employment Tribunal’s case-management decision. Because the tribunal was assessing whether the claim had little reasonable prospect of success, its evaluative decision could not be challenged merely because another view was possible.
2. The tribunal correctly identified the statutory comparison under section 20 as one between the disabled claimant’s position and that of a non-disabled person. The claimant had accepted that working alone, and in particular working alone in the office, did not increase the risk of a hypoglycaemic episode. His pleaded case treated external patrols as the only PCP requiring adjustment.
3. The tribunal was entitled to conclude that the claimed disadvantage arose, if at all, from lone working. Since lone working was not the PCP relied on, and the risk of an episode was the same inside and outside, the requirement to undertake external patrols did not place the claimant at a substantial comparative disadvantage. The apparent comparison between patrol work and office work was not a false comparison: in substance, the tribunal compared the claimant’s position with that of a non-disabled person.
4. The claimant’s later emphasis on the potentially more serious consequences of an episode occurring outside did not establish an error of law. That point had received little emphasis before the tribunal, and the Employment Appeal Tribunal had given cogent reasons why the difference in risk was unlikely to be substantial.
5. Lord Justice Rimer concluded that the Employment Appeal Tribunal was right to dismiss the appeal, and Lord Justices Sullivan and Kitchin agreed. The appeal to the Court of Appeal was dismissed.

• Court of Appeal (Civil Division): The court dismissed the appeal and upheld the Employment Appeal Tribunal’s order.
• Employment Appeal Tribunal: Underhill J dismissed the claimant’s appeal by order dated 17 January 2013 in UKEAT/0340/12/SM.
• Employment Tribunal: At a pre-hearing review on 18 January 2012, Employment Judge Cadney ordered a £250 deposit under rule 20 of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The claimant did not pay it, and his Equality Act 2010 claims were struck out under rule 18(7)(e).