Mr C Johnson v Transport for London: 2305160/2021
| Jurisdiction | England & Wales |
| Judgment Date | 14 June 2023 |
| Citation | 2305160/2021 |
| Date | 14 June 2023 |
| Published date | 07 September 2023 |
| Court | Employment Tribunal |
| Subject Matter | Disability Discrimination |
1
Case Number: 2305160/2021
EMPLOYMENT TRIBUNALS
Claimant: Mr C Johnson
Respondent: Transport for London
Heard at: London South
On: 30 May 2023, 31 May 2023 (evidence)
1 June 2023, 14 June 2023 (Chambers)
Before: Employment Judge Sekhon
Mr C Mardner
Mr P Morcom
Representation
Claimant: Mr Toms, Counsel
Respondent: Ms Crew, Counsel
RESERVED JUDGMENT
The unanimous Judgment of the Tribunal is that:
1. The claims of direct disability discrimination contrary to section 13 Equality Act
2010, harassment contrary to section 26 Equality Act 2010, and victimisation
contrary to section 27 Equality Act 2010 are dismissed upon withdrawal by the
claimant.
2. The claim of failure to comply with the duty to make reasonable adjustments
contrary to section 20/21 Equality Act 2010 is not well founded and dismissed.
REASONS
Background of the claim and this hearing
1. This is the reserved judgment with reasons following the hearing on 30, 31 May 2023 and
the subsequent day in Chambers on 1 June 2023 and 14 June 2023.
2. The claimant, Mr Johnson, commenced working as a taxi driver in April 2014 and is self-
employed. The respondent, Transport for London, has statutory authority to grant licences to
taxi drivers in London.
3. By a claim form issued on 14 October 2201, the claimant makes complaints of disability
discrimination, specifically direct discrimination (section 13 Equality Act 2010), failure to
make reasonable adjustments (section 20/21 Equality Act 2010), victimisation (section 27
Equality Act 2010) and harassment (section 26 Equality Act 2010). At the outset of the
2
hearing, the claimant confirmed that he withdrew the complaints relating to direct disability
discrimination, victimisation, and harassment.
4. The claimant was diagnosed with Spondylosis and Schmorl's Nodes (arthritis in the discs of
his spine) following a road traffic accident on 6 May 2019. It is accepted by the respondent
by letter dated 5 April 2023 that the claimant is a disabled person by reason of his medical
condition of “Spondylosis and Schmorl’s Nodes and degenerative disc disease” at times
material to this claim.
5. In the ET3, the respondent denies that the claimant has been discriminated against or treated
detrimentally as alleged and they sought further information on the substantial disadvantage
that the claimant has suffered. The respondent asserted that the Tribunal did not have
jurisdiction to hear any discrimination claims as it denied that it is a qualifications body within
the meaning of section 54 of the Equality Act 2010. At the outset of the hearing, the
respondent conceded that they are a qualifications body within the meaning of section 54.
6. Further clarification was provided by the claimant on 18 November 2022 which stated that
the claimant faces a substantial disadvantage because he cannot assist wheelchair users
who require physical assistance due to his disability. Further particulars were provided on
20 December 2022 in relation to the financial assistance that the claimant avers the
respondent could have provided as a reasonable adjustment.
7. Early conciliation commenced on 25 August 2021 and the ACAS certificate is dated 9
September 2021.
8. The Tribunal were provided with the following: -
(a) Mr Johnson’s witness statement (undated and unsigned) and a witness statement on
behalf of the respondent from Mr Robinson (General Manager of the Taxis and Private
Hire department part of the Licensing and Regulation directorate at the respondent)
which was also undated and unsigned. The Tribunal clarified with both parties, that the
witness statements were exchanged on 19 May 2023 and accepted oral evidence oral
evidence from each party that the statement was true to their best knowledge.
(b) An agreed evidence Bundle – indexed with 625 pages.
(c) Respondent and claimant’s Chronology.
(d) Respondent’s cast list.
(e) Respondent and claimant’s draft List of Issues.
9. A preliminary hearing took place before Employment Judge Smith on 28 November 2022 by
CVP and the respondent’s application to strike out the claimant’s reasonable adjustments
claim under Rule 37(1)(a) on grounds that it has no reasonable prospect of success was
dismissed.
10. As no Case Management hearing had taken place, at the outset of the hearing the Tribunal
discussed any adjustments that the parties needed for this hearing. To assist the claimant in
managing the impact of his disability at this hearing, it was agreed that the Tribunal would
arrange a break every 45 minutes for 5-10 minutes to enable him to stretch and help relieve
any pain. The claimant was made aware that he could request further breaks if required and
stand up during the hearing if needed. The respondent confirmed that their witness, Mr
Robinson, had epilepsy and that he may require a break if he experiences symptoms, and
the Tribunal would be alert to signs if this should occur. These measures were
accommodated throughout the hearing.
3
11. This claim was listed for a three-day in person final hearing to deal with liability. Based on
the discussions with the parties, the Tribunal informed the parties that it was not possible to
hear submissions on remedy within the time allotted to the Tribunal. It was also clear that the
Tribunal did not have sufficient time to deliberate and to deliver a judgment. The Tribunal
therefore informed the parties that they would reserve the decision.
The complaints and the issues
12. At the outset of the hearing, the parties provided the Tribunal with an agreed List of Issues,
and after some discussion this was amended to reflect the parties’ positions. This is referred
to below. The Tribunal confirmed that these were the only issues that they would determine.
13. The Tribunal heard oral submissions from both Counsel. Both Counsel provided the Tribunal
with their final written submissions and the Tribunal are very grateful for the assistance we
received. We shall not set out the entirety of the parties’ submissions but took them into
account in reaching the decisions set out below. We have dealt with the parts of the
submissions that seem to us to be the most important within our discussions and conclusions.
Relevant Law
Equality Act 2010 claims – general law and Statutory Code of Practice
14. The power of the Equality and Human Rights Commission to issue a code of practice (“the
Code”) to ensure or facilitate compliance with the Equality Act 2010 is afforded by Section 14
of the Equality Act 2006. Paragraph 1.13 of the Code explains that:
“The Code does not impose legal obligations. Nor is it an authoritative statement of the law;
only the tribunals and the courts can provide such authority. However, the Code can be used
in evidence in legal proceedings brought under the Act. Tribunals and courts must take into
account any part of the Code that appears to them relevant to any questions arising in
proceedings.”
Paragraph 6.2 of that Code describes the duty to make reasonable adjustments as follows:
“The duty to make reasonable adjustments is a cornerstone of the Act and requires employers
to take positive steps to ensure that disabled people can access and progress in employment.
This goes beyond simply avoiding treating disabled workers, job applicants and potential job
applicants unfavourably and means taking additional steps to which non-disabled workers
and applicants are not entitled.”
15. The Tribunal also note the following paragraphs of the Code:
a. Paragraph 6.14, which provides the purpose of the comparison with people who are not
disabled is to establish whether it is because of disability that a particular PCP or physical
feature or the absence of an auxiliary aid disadvantages the disabled person in question.
b. Paragraph 6.24, which provides that there is no onus upon a disabled person to suggest
what adjustments should be made; however, where the disabled person does so, the
employer should assess whether this is reasonable in avoiding the substantial disadvantage.
c. Paragraphs 6.32 and 17.80, which state that it is good practice for an employer to ask a
disabled employee about possible adjustments and agree any proposed adjustments in
advance.
d. Paragraph 6.30, which provides that the act does not allow an employer to justify a failure to
make a reasonable adjustment. Where the duty applies, the question is whether or not the
adjustment is objectively reasonable. If it is, then the failure to make the adjustment is
unlawful discrimination.
To continue reading
Request your trial