ET throws out claim against law firm over “deliberate attempt to mislead”

Cricket: Claimant said he made an error about year in which he could not play 

An employment tribunal claim against national law firm Shoosmiths has been thrown out because of the claimant’s “deliberate attempt to mislead” the bench about his alleged disability.

Employment Judge Gumbiti-Zimuto said Nomahn Riaz Khan’s conduct of the proceedings was “unreasonable”, and it was “not possible to have a fair hearing”.

The exact nature of the claim was not clear from the ruling but the preliminary hearing dealt with the accuracy of Mr Khan’s disability impact statement, which he signed in June 2021.

The statement explained how his mental impairment had affected his ability to carry out normal day-to-day activities such as socialising, travelling and taking part in sporting activities, in particular cricket.

It said his condition meant he was not able to participate in cricket at all. “I have been suffering from anxiety and depression for nearly a year now and I feel like I am not improving at all,” Mr Khan said.

However, it then emerged that he had in fact played cricket during the summer of 2021.

Mr Khan said that, although the drafting of the statement was in the present tense, he was describing what had happened in 2020, and had been intended to correct what he said in oral evidence was a “simple error”.

But Judge Gumbiti-Zimuto in Watford described this as “difficult to square with the way that the impact statement was written”.

He said: “It would have been a simple thing to express the fact that this was a reference to the year before the statement was signed, rather than a reference to his position at the time that the statement was signed…

“In a disability impact statement, the point in time being described is often of the most fundamental importance to determining whether the definition of disability under the Equality Act 2010 has been met.

“The Act requires a close scrutiny of the period of time that a person is adversely affected by physical or mental impairment.”

The judge said he found the evidence that Mr Khan intended to correct the error “surprising”, given that he only did so during cross-examination, having had over a year to do it.

Further, a man who worked for Mr Khan’s solicitor – also called Mr Khan – played in the same cricket team and had reviewed his medical records before they were provided to Shoosmiths.

“I have heard no evidence from Mr Khan, although he is available to give evidence to explain what his role was or how his review of the claimant’s medical records came about or whether he considered the claimant’s impact statement before it was presented.

“In my view, it is likely he was aware of the contents of the claimant’s statement. For Mr Khan to carry out a meaningful review of the medical records to ensure that relevant matters were being presented to the respondent, he must have considered the contents of the disability impact statement.”

As a result, Judge Gumbiti-Zimuto did not accept the claimant’s explanation. “There was an error in it which was clear and blatant. There was no effort to clarify it to the respondent…

“This was not any technical point which might be misunderstood or difficult to express; it was the simple point that ‘I don’t play cricket anymore because of my disability’, and it simply was not true.”

The judge concluded that this was “a deliberate attempt to mislead in a material matter and it is a matter that infects the veracity of the claimant’s entire case because he is shown to be willing to deliberately mislead”.

There was no action that could then make it a fair hearing, so the claim had to be struck out.

“The claimant is a person who is capable of putting before the court evidence which is knowingly untruthful alternatively although he is aware of the fact that it is wrong is careless as to whether or not the court relies upon it.

“In those circumstances I do not consider that it would be proportionate and fair for the respondent to have to defend the case against a party who has behaved in that way.”

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