Secretary of State for The Department for Environment, Food and Rural Affairs v James

Where a tribunal has found that there is no evidential basis for a factual connection between an employee’s disability and the alleged impairment or disadvantage, disability discrimination, reasonable-adjustment and harassment claims founded on that connection may properly be struck out under Rule 37. The general caution against striking out discrimination claims does not permit an internally inconsistent result after the tribunal has concluded that the claims have no reasonable prospect of success.

A refusal to strike out an unfair-dismissal claim is erroneous if it materially relies on disability claims which should have been struck out. The unfair-dismissal issue must then be reconsidered independently under the Rule 37 test.

The claimant, a Senior Veterinary Inspector, had been subject to performance management from 2015. He was diagnosed with prostate cancer on 8 February 2016, informed the employer the next day, and was dismissed on 17 February 2016.

He alleged that raised PSA levels before diagnosis impaired his mental functioning and caused his underperformance. He brought claims under the Equality Act 2010 for discrimination arising from disability, reasonable adjustments and harassment, together with unfair dismissal.

The Employment Judge found insufficient medical evidence of a causal connection, but struck out the disability claims only before 9 February 2016. The employer appealed the refusal to strike out the remaining disability claims and the unfair-dismissal claim.

1. Appeal allowed. The Employment Judge’s refusal to strike out the three disability claims after 9 February 2016 was perverse because it was inconsistent with his own findings.

2. For discrimination arising from disability under section 15, the tribunal had to identify the reason for the unfavourable treatment and determine objectively whether that reason arose in consequence of the disability. A reasonable-adjustment claim under section 20(3) required a factual connection between the disability and the substantial disadvantage. Harassment related to disability did not require causation, but it still required a factual connection between the unwanted conduct and the protected characteristic.

3. The Employment Judge had found that the claimant had been given a full opportunity to provide evidence, that no medical opinion supported his hypothesis, and that the evidence was insufficient to establish that impaired mental functioning arose from prostate cancer. He had also held that the relevant aspect of the disability claims had no reasonable prospect of success. Those findings applied equally after the employer acquired knowledge of the diagnosis. Knowledge could not supply the missing factual link.

4. The caution applicable to striking out discrimination claims, particularly where facts remain in issue, did not alter that conclusion. On the findings made, there was no realistic evidential route by which the required connection could be established. An order striking out all three disability claims was substituted.

5. The unfair-dismissal claim was not itself struck out. The Employment Judge had treated the surviving disability claims as a factor against strike-out. Since that was an irrelevant consideration, the refusal to strike out unfair dismissal was set aside. The claim was remitted to the same Employment Judge, if available, to decide afresh whether it had no reasonable prospect of success under Rule 37.

• Employment Appeal Tribunal: allowed the employer’s appeal, substituted strike-out of the three disability claims, and remitted the unfair-dismissal strike-out issue.
• Employment Tribunal: struck out the disability claims before 9 February 2016, but declined to strike out those claims thereafter and declined to strike out unfair dismissal.