Mr. Alastair Majury v R Russell Solicitor The Capital Markets Company Ltd — 2021

At the open preliminary hearing on 8 September 2021, the claimant, Mr Alastair Majury, was represented by Mr Russell Solicitor and the respondent, The Capital Markets Company Ltd, by Mr Campbell Counsel. The case concerned an employment offer made after interviews in late January and early February 2021, a signed offer and contract, and a later withdrawal of the offer after background and media checks. The claimant had completed a diversity and inclusion form indicating a disability, including speech impairment and mental health impairment, and the judge noted that the claimant had not yet provided the medical material relied on to support disability status under section 6 Equality Act 2010. The tribunal varied an earlier order to extend the deadline for the disability impact statement and supporting evidence to 3 November 2021.

The respondent had applied for strike out or, alternatively, a deposit order under rule 39 of the Employment Tribunals Rules of Procedure 2013. The strike out application was withdrawn shortly before the hearing, and the tribunal referred to the rule 39 test and authorities including Ezsias, Anyanwu, Balls and Dolby. No witness evidence was heard; the tribunal worked from the ET1, ET3 and documentary file. On the s13 direct disability discrimination argument, the judge accepted that the documents showed a voluntary request for broad disability information, and said the claim did not identify a comparator. The tribunal considered the direct discrimination argument had little reasonable prospect of success, but declined to order a deposit because the claimant's means were limited.

On the s19 indirect disability discrimination argument, the tribunal held that the pleaded PCP was broadly framed and that there was no evidential foundation for a general policy of refusing to employ people with disabilities of the kind disclosed by the claimant. The tribunal considered the contemporaneous documents consistent with the respondent's stated non-discriminatory reason for withdrawing the offer, and said the argument readily met the threshold for a deposit order even though it did not justify strike out. A nominal deposit of £10 was ordered for the s19 argument, payable by 6 October 2021, and the judgment states that if the deposit is not paid the specific allegation will be struck out.