London Borough of Haringey v O'Brien

A later Employment Tribunal claim may be a Henderson v Henderson abuse where the matters could and should have been advanced, including by amendment, before the merits hearing in earlier proceedings. The inquiry requires a broad, merits-based assessment of all circumstances, including prejudice and the claimant’s reasons.

Under Equality Act 2010, section 15 requires both identification of something arising from disability and a causal link between that matter and the unfavourable treatment. Harassment requires unwanted conduct related to disability, although the connection is broad. A failure to make reasonable adjustments is an omission whose date must be determined for limitation purposes.

The claimant, a teacher disabled by chronic fatigue syndrome, brought a second Employment Tribunal claim alleging disability discrimination, harassment, failures to make reasonable adjustments and unfair dismissal. An earlier claim had concerned her entitlement to full sick pay and certain discrimination complaints.

The Watford Employment Tribunal upheld parts of the second claim. It treated claims concerning events before the first claim was lodged as a Henderson abuse, but upheld claims concerning a July 2011 meeting, recovery of sick pay and dismissal.

The employer appealed and the claimant cross-appealed. The central issues included abuse of process, the statutory tests under sections 15, 20, 21 and 26 of the Equality Act 2010, time limits, and the fairness of the capability dismissal.

1. Appeal allowed in part; cross-appeal dismissed. The Employment Tribunal was entitled to find that claims concerning matters before 30 March 2011 were a Henderson v Henderson abuse. It had made the required broad, merits-based assessment and was entitled to consider the claimant’s advisers’ conduct, the additional hearing time, and the employer’s inability later to call the head teacher as a witness.

2. The Tribunal erred in treating the date of presentation of the first claim as the cut-off. There is no rule preventing a Henderson abuse where a party could have amended the first proceedings to include matters arising after presentation but before the merits hearing. The reasonable-adjustments full-pay complaint and the July 2011 meeting complaint could and should have been included in the first proceedings. The first was also inconsistent with the Tribunal’s finding that the equivalent section 15 complaint was abusive.

3. For section 15 of the Equality Act 2010, the Tribunal had to identify both the matter arising from disability and whether it caused or significantly influenced the unfavourable treatment. It had identified contextual links only, and had not addressed the required causal link. The appeal succeeded on that point in relation to the overpayment deductions; observations concerning the meetings were unnecessary because those claims were abusive.

4. Harassment under section 26 does not require causation, but the unwanted conduct must be related to disability. Although that is a broad inquiry, the Tribunal’s reasons did not show that it had addressed it. The appeal was upheld concerning the overpayment harassment complaint.

5. A failure to make reasonable adjustments is an omission. The Tribunal had to determine when the employer decided not to pay full salary, or when it reasonably should have corrected the position, rather than merely treating the non-payment as continuing. That point did not require a formal ruling because the claim was abusive.

6. The unfair-dismissal appeal failed. The Tribunal permissibly found that the employer had summarily denied an appeal hearing contrary to its own policy and that this fell outside the range of reasonable responses. Its conclusion was not impermissible substitution merely because a fair appeal would probably have delayed dismissal by only four weeks.

• Employment Appeal Tribunal: Allowed the employer’s appeal in part and dismissed the claimant’s cross-appeal.
• Watford Employment Tribunal: By a judgment sent on 4 September 2015, upheld specified claims under sections 15, 21 and 26 of the Equality Act 2010 and unfair dismissal, while rejecting other claims as abusive or out of time.