Ukegheson v London Borough of Haringey (Rev 1)

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's decision to allow strike-out of certain discrimination claims. The court emphasised that the ET1 and case management directions define the pleaded case for the purposes of a strike-out application and that a claimant cannot rely on a different formulation of the case without seeking and obtaining an amendment.

The court held that the pleaded disability claim was a complaint of a failure to consider reasonable adjustments rather than a pleaded failure to make reasonable adjustments; because there was no pleaded substantial disadvantage linked to the claimant's cancer the claim had no reasonable prospect of success. The religious discrimination claim likewise did not properly allege that the adverse treatment was because of religion: the conduct may have taken account of religion but was not shown to be on the ground of religion.

Key legal provisions and principles applied included the Equality Act 2010 (notably the duty to make reasonable adjustments), the requirement to plead substantial disadvantage for reasonable-adjustment claims, and the Employment Tribunals Rules of Procedure 2013 rules on the role of the ET1 in defining the claim and on strike-out.

Background and parties: The appellant, a deputy manager at a family support centre who suffered from thyroid cancer, resigned in January 2013 and brought multiple employment law claims against his employer, the London Borough of Haringey. The pleaded claims included constructive unfair dismissal, race, sex and religious discrimination, harassment, victimisation and claims under the Equality Act 2010 for reasonable adjustments.

Procedural history:

• At a case management discussion on 24 June 2013 Employment Judge Smail identified the reasonable-adjustments issues as a failure to consider reasonable adjustments and specified four sub-issues (flexi-hours, leave in January, redeployment and facilitation of church attendance).
• At a pre-hearing review on 25 September 2013 Employment Judge Manley struck out all claims; that order was the subject of an appeal to the EAT.
• Langstaff P sitting in the EAT on 21 May and 3 July 2015 set aside EJ Manley's order except in relation to the claims for religious and disability discrimination (and victimisation in the original order) and remitted the remainder to the Employment Tribunal. The appellant appealed to the Court of Appeal on the limited issue of whether the excluded claims should also have been remitted.

Issues before the Court of Appeal:

• Whether the EAT was wrong to treat the religious and disability discrimination claims as having no reasonable prospect of success and therefore rightly excluded from remittal.
• Whether the pleaded case in the ET1 and the case management directions supported a claim of failure to make reasonable adjustments rather than only a failure to consider such adjustments.
• Whether there was a sufficient pleaded connection between the appellant's disability (thyroid cancer) and the requested adjustments (notably facilitation of church attendance and a later start time).

Court's reasoning and conclusion: The court reiterated that the ET1 (and the case management process) defines the claim and that strike-out must be based on the pleaded case. The pleaded reasonable-adjustments allegation, as recorded by EJ Smail, was a failure to consider reasonable adjustments; the appellant had not obtained or pursued an amendment to plead a distinct failure to make reasonable adjustments. The appellant had also not pleaded substantial disadvantage linked to his disability; his objection to a 9am start was shown on the pleadings to be linked to childcare and family reasons rather than to his cancer. The religious discrimination claim was not shown on the pleaded material to be because of religion: at best religion had been taken into account but not shown to be the reason. The Court of Appeal therefore dismissed the appeals relating to the excluded claims.

Appeal dismissed. The Court held that the EAT was correct to treat the religious discrimination and certain disability discrimination claims as having no reasonable prospect of success because (i) the pleaded case, as defined by the ET1 and the case management directions, alleged a failure to consider reasonable adjustments rather than a failure to make reasonable adjustments and was not amended to plead otherwise; (ii) the claimant had not pleaded the necessary substantial disadvantage linked to his disability in respect of the adjustments sought; and (iii) the religious discrimination allegations did not show that the conduct was because of religion.

The appeal reached the Court of Appeal from the Employment Appeal Tribunal (Langstaff P) decisions dated 21 May and 3 July 2015 (EAT reference UKEAT/0312/14). The proceedings originate from the Employment Tribunal (Employment Judge Manley order of 21 October 2013 which was in part set aside by the EAT). The Court of Appeal gave its judgment on 27 July 2017 ([2017] EWCA Civ 1140).