Ukegheson v London Borough of Haringey (Rev 1)

In a reasonable-adjustments claim, a claimant must plead a failure to make an adjustment and show substantial disadvantage arising from the employer’s provision, criterion or practice. A failure merely to consider adjustments is insufficient. A strike-out for no reasonable prospect of success is appropriate where the pleaded case cannot succeed in law, but a realistically arguable factual dispute should ordinarily go to trial. A claimant cannot replace an unpleaded cause of action through later submissions or on appeal. An adjustment sought for a reason unconnected with disability cannot found a disability-discrimination claim.

Mr Ukegheson appealed from orders of the Employment Appeal Tribunal concerning discrimination claims arising from his employment by the London Borough of Haringey. The EAT decision was identified as UKEAT/0312/14/. The EAT remitted most claims to the Employment Tribunal but upheld the striking out of the religious-discrimination and disability-discrimination claims relevant to these appeals.

The disability case was framed in the pleaded issues as a failure to consider reasonable adjustments. The alleged adjustments included flexible hours, leave, redeployment and facilitating church attendance. Mr Ukegheson contended on appeal that his case was instead, or also, a failure to make reasonable adjustments. The central questions were whether the pleaded claims disclosed any reasonable prospect of success and whether they could be advanced without amendment.

1. The appeals were dismissed. The Court assessed the pleaded allegations at their highest.
2. Under the reasonable-adjustments provisions of the Equality Act 2010, a failure merely to consider making adjustments is insufficient. The claimant must allege a failure to make an adjustment and show substantial disadvantage before the burden of proof passes to the employer.
3. The complaint about a 9 am start could not amount to disability discrimination on the claimant’s own case. The reason for seeking a 10 am start was to take his children to school, which had no connection with his cancer.
4. The pleaded case did not allege a failure to make reasonable adjustments. The claimant had an opportunity to amend after the case-management process but did not do so. He could not rely on later submissions to challenge the strike-out by advancing a different case. This also covered the complaints about transfer to another centre and rota changes.
5. The Court applied the cautious approach to strike-out illustrated by Ezsias v North Glamorgan NHS Trust [2007] ICR 1126: a realistically arguable factual dispute ordinarily requires a trial, but strike-out remains available where the claim cannot realistically succeed in law. The complaint about leave during the notice period could not require an adjustment to facilitate a return to work when the claimant was not attending work.

1. Court of Appeal (Civil Division): the appeals from the Employment Appeal Tribunal were dismissed. The Court upheld the EAT’s refusal to remit the excluded religious- and disability-discrimination claims to a new Employment Tribunal.
2. Employment Appeal Tribunal: Langstaff P set aside the Employment Tribunal’s order in substantial part and remitted the remaining claims, but upheld the striking out of the excluded claims. The review application was refused. Citation: UKEAT/0312/14/.
3. Employment Tribunal: Employment Judge Manley struck out the claims following a pre-hearing review.