MR L GARCIA v THE LEADERSHIP FACTOR LIMITED

On an application for a deposit order, an Employment Tribunal may make a summary and impressionistic assessment of whether essential facts, including facts supporting a defence, are likely to be established at a full hearing. It must identify a proper basis for that assessment and avoid a mini-trial.

For direct disability discrimination, the comparator must be a non-disabled person with the claimant’s relevant abilities. A person challenging an allegedly discriminatory job advertisement must also show a genuine interest in the advertised position. This requirement applies to both direct and indirect discrimination claims. A self-evident connection between a telephone-research role and a clear voice could properly support a provisional assessment that the requirement was justified.

The claimant, who has a stammer, did not apply for the respondent’s temporary telephone-researcher role in Huddersfield. He alleged that the requirement for a “clear voice” and a question asking whether applicants were in good health deterred him from applying and amounted to direct and indirect disability discrimination.

The Employment Tribunal made a £500 deposit order on the basis that both claims had little reasonable prospect of success. The claimant did not pay it, so the claims were struck out automatically. The appeal challenged the comparator, the assessment of justification and group disadvantage, and the finding that he was not genuinely interested in the role.

The central issue was whether the Employment Tribunal had erred in making a deposit order under rule 39 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.

1. Appeals dismissed. The Employment Tribunal made no error of law in ordering a deposit in respect of the direct and indirect disability-discrimination allegations.

2. A deposit order requires a summary assessment of whether an allegation has little reasonable prospect of success. The tribunal may assess the likelihood that disputed factual propositions, including a respondent’s defence, will be established at a merits hearing. It must have a proper basis for doing so, avoid a mini-trial and exercise its discretion in accordance with the overriding objective. The Employment Judge did not finally resolve factual disputes.

3. For direct discrimination, section 23(2)(a) of the Equality Act 2010 required comparison with a non-disabled potential applicant having the claimant’s relevant abilities. That comparator could also lack a clear voice or be in poor health. The claimant identified no basis for concluding that such a comparator would not have been equally deterred by the advertisement. The direct-discrimination allegation therefore had little reasonable prospect of success.

4. The Employment Judge had assumed in the claimant’s favour that the clear-voice requirement was a PCP which might disadvantage people with a stammer. It was nevertheless open to him to conclude, on the self-evident nature of a wholly telephone-based market-research role, that the respondent was very likely to establish justification. The assessment did not depend on prematurely resolving contested evidence.

5. The conclusion on the good-health PCP was also sustainable. A stammer did not itself establish that a person was not in good health or that potential applicants with stammers would regard themselves as required to answer the question negatively. There was a proper basis for concluding that group and individual disadvantage would not be proved.

6. Although section 39(1)(a) does not expressly use the word detriment, a claimant relying on an allegedly discriminatory advertisement must show a genuine interest in the job. Being upset by the advertisement could not substitute for that requirement. The undisputed circumstances, including the claimant’s London residence and work as a legal adviser, the temporary low-paid role in Huddersfield, and his inability to identify a positive attraction to it, properly supported the Employment Judge’s assessment that genuine interest would not be established.

• Employment Appeal Tribunal: appeal dismissed: [2022] EAT 19.
• Employment Tribunal (Leeds): on 1 May 2020, ordered the claimant to pay a £500 deposit as a condition of pursuing the direct and indirect disability-discrimination allegations. Following non-payment, those allegations were struck out on 8 June 2020 under rule 39(4) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.