Kenny Johnston v Giving.Com Limited

For the purposes of discrimination under Part 3 of the Equality Act 2010, a service provided solely to a charitable company is not a service provided to the individual who deals with the provider on the company’s behalf. The individual’s status as employee, chief executive officer or trustee does not alter that conclusion. A fact-specific exception under section 31(5) requires materially similar circumstances. Awareness of an individual’s disability, without the provision of services to that individual, does not establish a discrimination claim or a common law duty of care. Permission to appeal requires arguable merit or another compelling reason of general public importance.

The claimant, who was the chief executive officer, trustee and sole employee of a charitable company, brought claims against an online charitable-giving platform for discrimination under the Equality Act 2010 and negligence. The claims arose from the defendant’s dealings with the charitable company and the claimant’s complaints about those dealings.

Following a trial of preliminary issues, HHJ Melissa Clarke dismissed the claims, finding that the services were supplied to the company rather than the claimant personally, that the County Court lacked jurisdiction under section 114 of the Equality Act 2010, and that no duty of care arose. The claimant renewed his application for permission to appeal.

1. Renewed application refused. None of the grounds disclosed arguable merit, and no compelling reason existed for an appeal to be heard.
2. The trial judge was entitled to find, on the evidence, that the defendant had provided services to the charitable company only. The claimant’s evidence included an express concession that he had never personally received services from the defendant. The judge had assessed the witnesses and gave adequate reasons. Those factual conclusions were not arguably perverse or wrong.
3. Section 29(1) of the Equality Act 2010 applies to a service provided to the public or a section of the public and concerns a person requiring that service. Acting as the voice or representative of a charitable company does not make the claimant the public or a section of the public. His roles as employee, chief executive officer and trustee did not change the analysis.
4. The fact-specific exception in section 31(5) of the Equality Act 2010 did not assist the claimant. The circumstances contemplated by that provision bore no similarity to the findings made at trial.
5. The judge’s analysis of the common law duty of care was sound. In particular, the consideration of Caparo Industries PLC v Dickman [1990] ALL ER 568 and Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 disclosed no arguable error. The defendant’s awareness of the claimant’s mental health disability did not, in these circumstances, create a duty of care to him personally.
6. The proposed wider question concerning employees dealing with service providers did not constitute an important point of principle or practice of general public importance. The evidence established that the defendant’s services were solely for the charitable company’s benefit, and the claimant had received no service himself.

County Court: Following a trial of preliminary issues, HHJ Melissa Clarke dismissed the discrimination and negligence claims on 20 May 2022 and subsequently refused permission to appeal.

High Court (King’s Bench Division): The renewed application for permission to appeal was refused.