In person For the v Respondent — 2020

This was a public preliminary hearing about the claimant's single section 15 disability discrimination claim arising from the respondent's withdrawal, on 22 May 2019, of a conditional offer of employment as a single point of access call advisor. The offer had been made after interview on 24 April 2019 and was subject to references and a DBS check. By 3 March 2020 the respondent had conceded that the claimant was disabled by bipolar disorder and that it knew, or ought reasonably to have known, of that disability. The DBS material referred to 27 court appearances and convictions between 2000 and 18 December 2015, including assaults on police constables, section 47 assaults, public order offences and drink-driving offences, and the respondent said this showed a pattern of behaviour not commensurate with Trust values.

At the hearing, the respondent sought to amend its response to plead for the first time that the offer had been withdrawn because the nature and number of the convictions, and the related alcohol dependency and/or tendency to physical abuse, fell within the exclusions in regulations 3 and 4 of the Equality Act 2010 (Disability) Regulations 2010, rather than being a consequence of bipolar disorder. Applying the Selkent principles, the judge allowed the amendment, treating it as a relabelling of factual matters already in issue. The judge noted that the claimant would have the opportunity at the full hearing to challenge the assertions about addiction or a tendency to abuse at the material time.

The respondent's strike-out application was refused because there were factual issues for the tribunal to determine. However, under rule 39 the judge made a deposit order of £50, stating that the claimant had little reasonable prospect of success, in particular because the rehabilitation period had not ended when he applied for the job. The substantive section 15 claim was not finally determined at this hearing and remained listed for the later full hearing.