Backhouse v , Solicitor Bowen Fluid Engineering Limited — 2024

The tribunal first allowed the claimant’s amendment and then dealt only with the respondent’s applications to strike out, or alternatively for a deposit order, in relation to the amended complaint of failure to make reasonable adjustments prior to 25 July 2024. The claimant had brought complaints of direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment, but the preliminary hearing concerned only the reasonable adjustments complaint. The respondent accepted the claimant’s disability status and knowledge of it, and no witness gave oral evidence at the hearing.

The tribunal recorded the claimant’s pleaded case as being that the respondent required him to attend site before he would be given work or paid, that the workplace lacked wheelchair access and welfare facilities, and that he also needed voice-activated computer software because of paralysis of his left arm. The claimant’s case was that reasonable adjustments should have been made from 6 January 2024, after expiry of the last fit note provided before the claim was lodged, and that he had in any event indicated that he was fit to return with adjustments. The documentary record included fit notes certifying him unfit to work to 5 June 2024, no fit notes for 6 June to 24 July 2024, and a 25 July 2024 fit note stating that he may be fit for work taking account of advice.

Applying the strike-out authorities it had set out, the tribunal held that the claimant’s case was not totally and inexplicably inconsistent with the contemporaneous documents. It relied in particular on the 10 January 2024 occupational therapist email referring to discussion of reasonable adjustments and a likely phased return, the 9 May 2024 GP report referring to fitness to return with reasonable adjustments, and the July 2024 occupational therapist note stating that it was strongly advisable to discuss reasonable adjustments to enable a return to work. The tribunal said the fit notes were evidence but were not conclusive of the issue, and that whether the claimant was fit for work with adjustments, or had sufficiently indicated a return, raised disputed facts that should be resolved at a full hearing.

For the same reasons, the tribunal refused the deposit application. It held that the claimant’s prospects were not merely fanciful and that there was no reasonable basis to doubt that the material facts necessary to support the allegation would be established. The judgment therefore records only that the reasonable adjustments complaint was allowed to proceed; it does not determine the substantive merits of that complaint or award any remedy.