Case Number: 2302474/2020

EMPLOYMENT TRIBUNALS
Claimant: JUSTIN LA HOOD

Respondents: PRICEWATERHOUSECOOPERS LLP

Heard at: London South Employment Tribunal by video

On: 26 April 2022

Before: Employment Judge L Burge

Appearances
For the Claimant: Mr D McCarthy, representative
For the Respondents: Mr C Glyn QC, Counsel

OPEN PRELIMINARY HEARING

RESERVED JUDGMENT

It is the Judgment of the Tribunal that:

1. The Claimant’s claims against Matthew Thorogood, Michael Bailey and

Jonathan Howe are dismissed upon withdrawal.

2. The following claims are dismissed upon the Claimant’s withdrawal:

2.1 Unfair dismissal;
2.2 Reinstatement;
2.3 Reputational damage; and
2.4 Breach of contract.

3. The Respondent’s application to strike out the Claimant’s claim of associative

direct discrimination fails.

REASONS
4. On 21 June 2020 the Claimant submitted his claim which centred around his
forced retirement from the Respondent and included complaints of associative

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direct discrimination and public interest disclosure detriments. He subsequently

withdrew his complaints of Unfair dismissal, reinstatement, reputational damage
and breach of contract and so they are dismissed.

5. The two hour Open Preliminary Hearing was listed to consider the Respondent’s
strike out application, brought under Schedule 1, Rule 37(1)(a) of the Employment
Tribunal (Constitution and Rules of Procedure) Regulations 2013 (the “Rules”) on
the basis that the Claimant’s claim of associative direct discrimination had “no
reasonable prospect of success”. The Respondent submitted that in the case of
Lee v Ashers Baking Company Ltd and ors 2018 IRLR 1116, the Supreme Court
rejected the contention that there is associative discrimination because a person
suffers less favourable treatment merely because of something he has to do with
a protected characteristic of another person. In Lee the Claimants failed in their
argument that those who supported gay marriage were indissociably associated
with the protected characteristic of sexual orientation. Those from all protected
characteristics support gay marriage. Of my own volition I also considered
whether a deposit order under Rule 39 would be appropriate.

Law

Strike out

6. The central question is whether the claims have a realistic as opposed to a fanciful
prospect of success: Eszias v North Glamorgan NHS Trust [2007]. Even
discrimination claims can and should be struck out where the allegations are
implausible and there are no facts indicative of unlawful discrimination. A case
that otherwise has no reasonable prospect of success cannot be saved from being
struck out on the basis that “something may turn up”: Patel v Lloyds Pharmacy Ltd
[2013] UKEAT/0418/12.

7. In Abertawe Bro Morgannwg University Health Board v Ferguson 2013 ICR 1108
the EAT remarked that:

“33. We would add this final note. Applications for strike-out may in a
proper case succeed. In a proper case they may save time, expense and
anxiety. But in a case which is always likely to be heavily fact sensitive,
such as one involving discrimination or the closely allied ground of public
interest disclosure, the circumstances in which it will be possible to strike
out a claim are likely to be rare. In general it is better to proceed to
determine a case on the evidence in light of all the facts. At the conclusion
of the evidence gathering it is likely to be much clearer whether there is
truly a point of law in issue or not…”

Deposit

8. Under Rule 39(1) of the Rules, the Tribunal has the power to make separate
deposit orders in respect of individual allegations or arguments, up to a maximum
of £1,000 per allegation or argument. Rule 39(2) obliges the Tribunal to make
“reasonable enquiries into the paying party’s ability to pay the deposit and to have
regard to any such information when deciding the amount of the deposit.” I did

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make enquiries of, and obtained information in relation to the Claimant’s ability to
pay, should I decide to Order a deposit as a condition of continuing with his claim.

9. In considering whether to make deposit orders, the Tribunal is entitled to have

regard to the likelihood of a party being able to establish facts essential to their
case and, in doing so, to reach a provisional view as to the credibility of the
assertions being put forward. In Van Rensburg v The Royal Borough of Kingston
Upon Thames [2007] UKEAT/0096/07, Elias P held:

“…the test of little prospect of success…is plainly not as rigorous as the

test that the claim has no reasonable prospect of success… It follows that
a tribunal has a greater leeway when considering whether or not to order
a deposit. Needless to say, it must have a proper basis for doubting the
likelihood of the party being able to establish the facts essential to the
claim or response”;

10. In Hemdan v Ishmail [2017] IRLR 228, Simler J described the purpose of a deposit
order as being:

“…to identify at an early stage claims with little prospect of success and to
discourage the pursuit of those claims by requiring a sum to be paid and by
creating a risk of costs ultimately if the claim fails.”

11. Simler J continued:

“Where, for example as in this case, the Preliminary Hearing to consider

whether deposit orders should be made was listed for three days, we
question how consistent that is with the overriding objective. If there is a
core factual conflict it should properly be resolved at a Full Merits Hearing
where evidence is heard and tested”

Associative Direct Discrimination

12. S. 13 of the Equality Act 2010 provides:

“Direct discrimination

(1) A person (A) discriminates against another (B) if, because of a

protected characteristic, A treats B less favourably than A treats or would
treat others…”

13. Thus S.13 refers to discrimination against another “because of a protected

characteristic”, it does not say that the person claiming needs to have that
protected characteristics themselves.

14. In Coleman v Attridge Law C-303/06 [2008] IRLR 722, [2008] ICR 1128, Ms
Coleman was treated less favourably than other employees because she was the
primary carer of a disabled child.

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15. In Lee v Ashers Baking Company Ltd and ors 2018 IRLR 1116, SC, the Supreme
Court decided that Christian bakery owners had not been guilty of associative
direct discrimination on the ground of sexual orientation when they refused to
provide a cake bearing the words "Support Gay Marriage". Their objection was to
the message on the cake, because of their religious views concerning gay
marriage, not to any particular person or persons. The Supreme Court held:

“…less favourable treatment on the grounds of the sexual orientation …

could include the situation where a person had been less favourably
treated because of another person’s sexual orientation; that, however, this
was very far from saying that, because the reason for the less favourable
treatment had something to do with the sexual orientation of some people,
the less favourable treatment was “on grounds of sexual orientation”,
within regulation 3(1)(a), and so amounted to direct discrimination; that,
in the present case, the defendants had refused to fulfil the plaintiff’s order
because of their religious objection to same-sex marriage, not because
they perceived the plaintiff to be homosexual or because he associated
with homosexuals, their objection being to the message, not the person
placing the order; that, in those circumstances, the defendants had not
treated the plaintiff less favourably “on grounds of sexual orientation..”.

16. The Equality and Human Rights Commission Statutory Code of Practice on
Employment states:

“3.20
Direct discrimination because of a protected characteristic could also
occur if a worker is treated less favourably because they campaigned to
help someone with a particular protected characteristic or refused to act
in a way that would disadvantage a person or people who have (or whom
the employer believes to have) the characteristic…”

17. The Code goes on to give an example:

“An employer does not short-list an internal applicant for a job because
the applicant – who is not disabled himself – has helped to set up an
informal staff network for disabled workers. This could amount to less
favourable treatment because of disability.”

The Claim of Associative Discrimination

18. The Claimant’s claim included a section on associative discrimination, extracts

are:

“I believe that the decision by the firm to force my retirement was a direct
result of my association with [S], who brought a grievance against the firm
for, I believe, amongst other things, discrimination…

[S] suffered from a neuro-diversity disability. I worked closely with [S] from
2014 to until approximately March 2019. During this period, I took steps to
make reasonable adjustments for [S]’s disability. My actions in doing this

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were not supported by other partners and the management of the firm,
some of who took steps to undermine the efforts I was making in this
regard.

This ultimately culminated in [S] bringing a disability related grievance

against the firm in late 2018/early 2019. I was interviewed as part of this
process. I was concerned about providing information...

Despite… assurances, it is clear from the business rationale document

(BRD) prepared by the firm to support their decision to force my retirement
that they considered my objective and truthful evidence provided in the
above process to have been ‘support’ for [S] and that my involvement in
his grievance process was the real reason for the decision to force my
retirement from the firm.

On several occasions between 2016 and early 2019, I raised my concerns

… with senior partners in my business area… [one partner] also
understood that my desire to assist [S] with ensuring the firm made
reasonable adjustments was motivated not only by my concern for [S]
personally, but also because I have [personal experience of another] with
a similar neuro-diversity disability. This did not, however, result in any
resolution to the issues.

I had raised objections to the… course of conduct against [S], which

appeared to fall on deaf ears. Following [S’s] grievance and departure
from the firm, [two partners] took steps to similarly disenfranchise me. This
included taking away the business area that I had built and established.

For all the reasons set out above, and in contrast to the official grounds
set out in the BRD and stated as part of the appeal process, I believe that
the firm's discrimination against [S] and discrimination by association
against me were the real reasons for their decision to force my retirement
from the firm.”

Submissions

19. Mr McCarthy submitted that the Claimant had filled out his claim form himself and
he had never worked as a lawyer in a law firm or in an area which gave legal
advice.

20. Mr Glyn QC submitted that in Lee the Claimants failed in their argument that those
who supported gay marriage were indissociably associated with the protected
characteristic of sexual orientation. Those from all protected characteristics
support gay marriage. This, he said, is the same for the Claimant’s claim of

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associative discrimination – all types of people, whether disabled or not, support

those with neurodiverse disabilities and their rights at work. Such manifestation of
support is not indissociable with the protected characteristic. The Claimant must
show that he was treated less favourably because of SP’s protected characteristic.
In Coleman, Ms Coleman was able to do so. She had to care for her disabled son;
she needed to work flexibly. She was not allowed to do so. She was treated less
favourably by her employers because of her disabled son.

21. Mr Glyn QC continued that, the manifestation of support by the Claimant fails to
make the link between the treatment that he alleges with SP’s disability. The
reason for the Claimant’s treatment is, on the Claimant’s case, his manifestation
of support for those with neurodiverse disabilities and not because of S’s disability.
As Lady Hale concludes at §34 the Claimant’s case is that “In a nutshell, the
objection was to the message and not to any particular person or persons.”

22. Mr McCarthy submitted that the Claimant was a close friend and close working
colleague with S and the Claimant sought to make reasonable adjustments for
him. He continued that the factual matrix needs to be ascertained and the close
association will become more clear during the course of the final hearing.

Conclusions

23. When making a decision on whether to strike out or order a deposit I must take
the Claimant’s claim at its highest. The Claimant was a litigant in person and set
out his connection with S in his claim form and described the treatment as being
because of his “association with [S]”. The claim said that the Claimant took steps
to make reasonable adjustments for [S]’s disability and that his “actions in doing
this were not supported by other partners and the management of the firm, some
of who took steps to undermine the efforts [he] was making in this regard”. The
Claimant then says he was treated badly in part because of the support he had
given to S. I therefore do not agree with the Respondent that the Claimant’s case
is that he was treated badly because of his manifestation of support for those with
neurodiverse disabilities. The Claimant does seem to be linking his treatment with
S’s disability. The Claimant seems to be saying that it was the making of
adjustments of a person with a disability, supporting him in an interview about S’s
grievance and then, the Claimant says, being treated badly because of those
actions.

24. The case is not on all fours with Lee or Coleman. However, as I have to take the
Claimant’s case at its highest, I cannot conclude that the claim has no, or little,
prospects of successfully arguing that the Claimant was treated less favourably
because of S’s protected characteristic. It is not possible, nor would it be just nor
equitable, for me to make a swift determination following a short Preliminary
Hearing on whether the Respondent’s treatment of the Claimant was because of
S’s protected characteristic, whether it was because of a more general support of
disabled people or whether it had nothing to do with S or neurodiversity at all. This
matter needs to be determined at the end of a full merits hearing and after all of
the evidence gathering when it is likely to be much clearer whether there is truly a
point of law in issue or not.

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25. For the above reasons the Respondent’s application to strike out the Claimant’s
claim of associative direct discrimination fails, and I conclude that a deposit Order
is also not appropriate as a condition of the Claimant pursuing this complaint.

Employment Judge L Burge

Dated: 20 May 2022

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