Compliance failure puts trainee’s discrimination claim in doubt

Tribunal: Unless order

A former trainee solicitor has been given a last chance to take forward a disability discrimination claim against international firm Reed Smith, where illness meant his training contract expired.

An employment tribunal in London issued an unless order against the claimant, named as Mr A DiAngelo, after his failure to comply with a previous order delayed the proceedings.

Mr DiAngelo began his training contract on 20 August 2013. According to Employment Judge Goodman, “the contract was first extended after he hurt his back in a car accident, and thereafter because other health conditions led to him taking so much time off work sick that he could not gain the required experience. The training contract finally expired on 12 February 2020”.

In July 2020, he started a claim for race and disability discrimination and victimisation, with the conditions causing disability listed as ulcerative colitis, sleep apnoea, non-rem parasomnia, depression, migraine, restless legs syndrome, and rheumatic pains.

He is seeking £45,000 injury to feelings, up to £1.4m for loss of earnings and £870,000 for care.

The disability claim covers issues such as access to toilet facilities, what was said to be “a requirement to work long hours” – even though Reed Smith said it had changed his hours to 10.30am-4.30pm four days a week – and a report to the Solicitors Regulation Authority that he had dishonestly represented being at work one week in January 2020 when he had not been.

The judge recorded that progress in the case has been slow, with the claimant saying at various points that he was unable to attend hearings for health reasons.

In January, he reported that, due to a flood, the fuse box at his home had been damaged, meaning he had no access to electricity and could not charge his phone or computer.

Judge Goodman struck out the race claim by reason of issue estoppel, as it covered the same ground as a tribunal claim Mr DiAngelo brought in 2016, which was itself struck out.

He has failed to comply with orders to provide Reed Smith with medical records and a witness statement about his disability, and the judge said his reasons for this were “not convincing”.

“The tribunal accepts that the claimant has been ill in recent weeks, though there is no fit note to cover the period 28 March to 21 April. It is less easy to understand the lack of access to electricity to use his laptop…

“It is hard to understand how someone with such a disability has managed, without electricity, to heat water to wash, or to cook food or light his home all these months.

“Even if he is managing on Calor gas and candles, the recent opening up of non-essential shops will have enabled him to use his laptop at a café, as so many people do, or he might have been able to use it at a friend or family member’s place. He has somehow managed to write a submission at short notice for this hearing.”

It was also “very hard to understand” why the claimant had not been able to ask his GP for his records.

Reed Smith asked the judge to strike out the claim, but she declined to take such a “draconian” step; the “just solution” was to make an unless order in respect of the claims that rely on the claimant being disabled.

Judge Goodman gave him three weeks to comply, failing which that element of the claim would be struck out.

If he complied, there would then be a hearing on 7 July to decide whether Mr DiAngelo was disabled for the purposes of his claim.

Otherwise, what would be left was a claim relating to underpayment of statutory sick pay, the substance of which the judge said was not clear. She ordered the claimant to provide a more detailed breakdown of the claim so it too could be tried on 7 July.

The victimisation claim would also remain, but the judge said: “At face value it is unlikely that an employer who had been able to extend the training contract and adjust working hours to a four day week with a short working day for disability should then at the end of 2019 discourage the claimant from continuing with his applications for posts just because he had brought a claim and a grievance in 2016, over three years earlier.

“The reasons for the conversations given in the response are plausible. Similarly it seems unlikely that the investigation as to his whereabouts in January 2020 was prompted by his 2016 grievance and claim when, if the respondent is believed, they had cause.”

Judge Goodman said she would consider at next month’s hearing whether to order Mr DiAngelo to pay a deposit to continue the victimisation claim, given that it appeared to have “little reasonable prospect of success”.

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