Practice and Procedure – The claimant appealed a deposit order made in respect of his claim for direct and indirect disability discrimination. He has a stammer and was assumed to be a disabled person at this stage of the proceedings. His claim concerned the respondent’s advertisement for telephone researchers. He alleged that a stated requirement for applicants to have ‘a clear voice’ and a question that asked whether applicants were ‘in good health’ were discriminatory and he claimed that in consequence he was deterred from applying for the position. The Employment Tribunal (‘ET’) considered that the claim had little reasonable prospect of success. As regards direct discrimination, the claimant was unable to identify why non-disabled candidates with comparable abilities would not have been equally put off from applying. Additionally, he would not be able to show that he was genuinely interested in applying for the role. As regards the alleged indirect discrimination claim, the tribunal concluded that it was very likely that the respondent would be able to make out a justification defence in relation to the clear voice PCP given the nature of the role; and that the claimant would not be able to show individual or group disadvantage in relation to the (assumed) PCP for applicants to be in good health.
The appeal was dismissed. The ET had correctly identified the comparator for the purposes of the direct discrimination claim as non-disabled potential applicants with the same abilities as the claimant (Stockton on Tees Borough Council v Aylott [2010] ICR 1278 CA; High Quality Lifestyles Ltd v Watts [2006] IRLR 850 EAT). Additionally, the ET was right to treat both the direct and indirect discrimination claims as requiring the claimant to show he was genuinely interested in the position (Keane v Investigo UKEAT/0389/09; Berry v Recruitment Revolution and Ors. UKEAT/0190/10/LA).
When assessing whether a claim or allegation had little reasonable prospect of success, a tribunal was entitled to assess the likelihood of factual issues being established at the full hearing provided that a proper basis for doing so was identified, as the ET had done in this case. The tribunal’s assessment of the justification defence was based on the self-evident nature of the advertised role, not on a premature resolution of disputed factual evidence. Similarly, its evaluation of the prospects of the claimant showing group disadvantage in respect of the ‘in good health’ question was based on the evident difficulty in establishing that other potential applicants with stammers would have considered that they had to answer this in the negative. Finally, the conclusion that the claimant would not be able to show he was genuinely interested in the position was legitimately based on the objective factors that the ET identified (including his current residence in London and the need to relocate to Huddersfield; his current work as a legal adviser; and the rate of pay at just above the minimum wage); in circumstances where, despite being given the opportunity to do so, the claimant had been unable to identify any positive attraction for why he would have applied for the position.
Citations:
[2022] EAT 19
Links:
Jurisdiction:
England and Wales
Employment
Updated: 09 July 2022; Ref: scu.678568
