Employment Tribunals

Case No. 1402964/2022 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mr R Duque AND JD Wetherspoon Plc JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT Bodmin ON 25 March 2024 EMPLOYMENT JUDGE N J Roper Representation For the Claimant: In person, assisted by his mother Mrs G Lenehan For the Respondent: Ms B Balmelli of Counsel JUDGMENT The judgment of the tribunal is that: 1. The claimant was a disabled person by reason of Autism Spectrum Disorder at all times material to this claim; and 2. The claimant’s claim has little reasonable prospect of success and it is now subject to the attached deposit order. REASONS 1. This is the judgment following a preliminary hearing to determine whether the claimant’s claim should be struck out on the grounds that it has no reasonable prospect of success, or whether the claimant should be ordered to pay a deposit as a condition of continuing with the claim because it has little reasonable prospect of success. 2. In this case the claimant Mr Roger Duque, who suffers from autism, has brought a claim alleging discrimination arising from his disability. The claims are denied by the respondent. 3. I have considered the grounds of application and the response submitted by the parties. I have considered the oral and documentary evidence which it is proposed will be adduced at the main hearing. I have also listened to the factual and legal submissions made by and on behalf of the respective parties. I have not heard any oral evidence, and I do not make findings of fact as such, but my conclusions based on my consideration of the above are as follows. 4. The Background: 5. This is a case in which the background facts are not in dispute. The respondent is the wellknown national chain of pubs and hotels throughout the UK. The claimant commenced employment with the respondent as a Bar Associate at a pub in Truro on 13 May 2022. Case No. 1402964/2022 2 The claimant’s employment was conditional on his disclosing any criminal conviction which was not spent under the Rehabilitation of Offenders Act 1974. In addition, there were disciplinary rules and procedures in place which applied to the claimant’s employment. The definitions of gross misconduct which would ordinarily give rise to summary dismissal included failing to disclose unspent criminal convictions or charges brought before or during employment, and dishonesty generally. 6. The respondent also has a neuro diversity policy which is designed to accompany a neuro diversity support plan. When the claimant informed the respondent that he had Autism Spectrum Disorder, the respondent engaged with the claimant to discuss his well-being and the need for support and/or adjustments. A neuro diversity support plan was completed with the claimant on the commencement of his employment on 13 May 2022. No adjustments were requested by the claimant. 7. Unfortunately, the claimant did have a criminal conviction from March 2022 which was not spent under the Rehabilitation of Offenders Act and which he failed to disclose to the respondent. The claimant has explained that the conviction related to the vandalism of cars which he asserts is linked to his autism. 8. When the respondent discovered that the claimant had this unspent criminal conviction, it commenced disciplinary proceedings against the claimant for gross misconduct, and he was dismissed on 8 August 2022. The respondent concluded that the claimant had committed two acts of gross misconduct: the first was his failure to disclose the unspent conviction; the second was dishonesty in that the claimant originally denied that he had committed any criminal offences as alleged. The claimant appealed the decision to dismiss him but his appeal was also rejected. 9. At no stage during the disciplinary or appeal hearings did the claimant deny the allegations against him. The claimant admitted that he had withheld information during the application process in order to obtain employment with the respondent by failing to disclose the unspent criminal conviction. He also admitted that he had lied during the investigation process. The respondent concluded that the claimant knew that he had an obligation to disclose his criminal convictions but had simply decided not to do so. This is consistent with a subsequent email to the tribunal office from the claimant dated 13 February 2023 in which he stated: “I was fearful of declaring my criminal convictions because I thought I wouldn’t get the job.” 10. The claimant commenced the Early Conciliation process with ACAS on 8 September 2022, and ACAS issued the Early Conciliation Certificate on 12 September 2022. The claimant presented these proceedings on 13 September 2022 alleging disability discrimination. There was then a case management preliminary hearing on 2 June 2023 before Regional Employment Judge Pirani, and his case management order of that day was sent to the parties on 4 June 2023 (“the Order”). 11. Under the terms of the Order the claimant was directed to provide further information as to his disability, and it was confirmed that the claimant was pursuing one claim only, namely a claim for discrimination arising from disability under section 15 EqA. The unfavourable treatment relied upon by the claimant was (i) his dismissal; (ii) failing to uphold his appeal; and (iii) deciding that he was dishonest. REJ Pirani then identified in the Order that the issue before the tribunal will be whether or not his failure to disclose his convictions was something arising from his disability, in other words caused by his autism, and not dishonesty. REJ Pirani also then listed this hearing to determine whether the claimant’s claim should be struck out under Rule 37 as having no reasonable prospect of success, or alternatively be subject to a deposit order under Rule 39 as having little reasonable prospect of success. 12. The claimant originally failed to comply with the terms of the Order with regard to the provision of an Impact Statement relating to his disability, and any supporting documents, because at that stage the respondent had not conceded that the claimant was a disabled person. The claimant has now provided a Disability Impact Statement, and he has also adduced an Autistic Spectrum Disorder Report dated 15 July 2022 (“the Report”). The authors of the Report are Dr A van Hoorn, a consultant psychiatrist, and Caroline Finlayson an Advanced Speech and Language Therapist. The summary of the Report reads as Case No. 1402964/2022 3 follows: “Based on multidisciplinary assessment including direct observation and developmental history, Roger Duque meets the criteria for Autism Spectrum Disorder (ASD) according to the Diagnostic and Statistical Manual of Mental Disorders (fifth edition) due to evidence of persistent deficits in social communication and social interaction AND restricted repetitive patterns of behaviour, interests and activities present in the early developmental period and which cause significant impairment in social and occupational functioning.” 13. This hearing was not listed as a preliminary hearing in person to determine whether or not the claimant was a disabled person at the material times. Nonetheless in my judgment it seems clear that this was the case. It is clear from the Report that the claimant suffers from the mental impairment of autism, and has done so for many years, and that this has had a substantial adverse effect on his normal day-to-day activities including “persistent deficits in social communication and social interaction” and which cause “significant impairment in social and occupational functioning”. They must be substantial in the sense that there are more than minor or trivial. 14. The respondent has now received the claimant’s Disability Impact Statement, and the Report, and it now concedes that the claimant was a disabled person by reason of Autism Spectrum Disorder at all times material to this claim. I agree with that concession, and accordingly I make a finding that the claimant was a disabled person with that impairment at all times material to this claim. 15. Although the background facts are not in dispute, one aspect does appear to be in dispute, which is critical to the claimant’s claim. This is whether or not the dishonesty for which he was dismissed can be said to be something which arose in consequence of the claimant’s disability. 16. The claimant’s Disability Impact Statement was prepared with the assistance of the CAB. It includes the following comment: “I withheld information about my conviction which was due to my condition and not an act of malice or deliberate dishonesty.” The claimant has conceded that he does not fully understand his own disability. The respondent asserts that this comment was included by the CAB in his Disability Impact Statement, with the adviser presumably having read the Order, to seek to create an unjustified link between the claimant’s dishonesty and his autism, in respect of which there is no medical evidence in support. 17. Having given the above background, I now apply the law. 18. The Law: 19. The Employment Tribunal Rules of Procedure 2013 are in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 and are referred to in this judgment as “the Rules”. 20. Rule 37(1) provides that at any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on the grounds: (a) it is scandalous, or vexatious, or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). 21. Rule 39 provides that where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party ("the paying party") to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. Under Rule 39(2) the Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. 22. The claimant alleges discrimination because of his disability under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has Case No. 1402964/2022 4 contravened a provision of part 5 (work) of the EqA. The claimant alleges discrimination arising from a disability contrary to s15 EqA. 23. The protected characteristic relied upon is disability, as set out in section 6 and schedule 1 of the EqA. A person P has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a longterm effect is one that has lasted or is likely to last for at least 12 months, or is likely to last the rest of the life of the person. 24. As for the claim for discrimination arising from disability, under section 15 (1) of the EqA a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Under section 15(2), this does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 25. The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal. 26. Under section 212(1) EqA “substantial” means more than minor or trivial. 27. With regard to s15 EqA, I have considered the cases of Pnaiser v NHS England [2016] IRLR 170 EAT; Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14; City of York Council v Grosset [2018] IRLR 746 CA; Sheikholeslami v University of Edinburgh [2018] IRLR 1090; Robinson v Department for Work and Pensions [2020] IRLR 884; Williams v Trustees of Swansea University Pension and Assurance Scheme [2019] IRLR 306 SC; 28. With regard to strike-out and Rule 37 HHJ Eady QC as she then was in Hussain v UPS Limited UKEAT/0221/17/DM gave the following guidance as to the legal principles to be applied (at paragraphs 19 to 25): 29. “[19] The power to strike out an ET claim is provided by Rule 37 of Schedule 1 of the 2013 Rules, which allows that an ET may strike out all or part of the claim on the basis that it has no reasonable prospects of success. This is, for example, to be contrasted with an ET’s power to order that an allegation or argument may only be pursued upon payment of a deposit, which requires that the ET consider that the allegation or argument in question has little reasonable prospect of success. 30. [20] In Ezsias v North Glamorgan NHS Trust v [2007] ICR 1126 CA, Lord Justice Maurice Kay stated as follows: “29 … It would only be in exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation …” 31. [21] Guidance was further provided by the EAT in Balls v Downham Market High School & College [2011] IRLR 217 at paragraph 6. [6] “Where strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success ... The tribunal must first consider whether, on a careful consideration of all of the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word “no” because it shows that the test is not whether the claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.” (Original emphasis). 32. [22] more specifically, in Tayside Public Transport Co Ltd t/a Travel Dundee v Reilly [2012] IRLR 755 CS, it was noted that in almost every case the decision in an unfair dismissal claim is fact sensitive, and it was further observed that: “30 … Where the central facts are Case No. 1402964/2022 5 in dispute, a claim should be struck out only in the most exceptional circumstances. Where there is a serious dispute on the crucial facts, it is not for the tribunal to conduct an impromptu trial of the facts …” 33. [23] And further, where there is a dispute as to the reason for dismissal, it has been stated that it would be very rare indeed that the dispute could be resolved without hearing from the party or parties who actually made the decision (per Langstaff J in Romanowska v Aspirations Care Ltd UKEAT/0015/14 at paragraph 15). 34. [24] As for discrimination cases, it has been recognised that involving, as they do, an investigation as to why an employer took a particular step, they will generally (allowing for the exceptional case) dictate that the evidence needs to be heard and no summary decision taken as to the merits; see Anyanwu v South Bank Students’ Union [2001] ICR 391 HL. In that case, which involved a complaint of race discrimination, Lord Steyn identified what might be described as the public policy reasons why discrimination claims should not be struck out: “24 … Discrimination cases are generally fact sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest …” Similarly, Lord Hope of Craighead stated: “37 … Discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence …” 35. [25] whilst, therefore, the ET retains the power to strike out discrimination claims or claims of constructive unfair dismissal, the case law makes clear that in such cases that power shall be exercised with far greater caution than in other less fact sensitive types of claim.” 36. That said, nonetheless Anyanwu confirms that in a case where the core of facts is undisputed, or in a “plain and obvious case”, the Tribunal may properly strike out a claim. And in addition, Anyanwu is not of itself to be taken as a fetter on the tribunal’s discretion. In Jaffrey v Department of the Environment, Transport and the Regions [2002 ]IRLR 688 EAT Mr Recorder Langstaff QC as he then was stated: “Although the power to strike out a claim is one which should be exercised sparingly, and although full regard must be had to the words of Lord Steyn in Anyanwu v South Bank Students’ Union [2001] UKHL 14 at paragraph 24, that there is a high public interest which should bias a tribunal in favour of a claim being examined on the merits or demerits of its particular facts, if a tribunal reached a tenable view that the case cannot succeed, then it had a discretion to strike out a claim …” 37. This is one of those unusual discrimination cases where the core facts are simply not in dispute. Effectively the only issue to be determined by the Tribunal is whether or not the two acts of dishonesty for which the claimant was dismissed amounted to something which arose in consequence of the claimant’s disability. If not, that is the end of the claimant’s case. If so, the tribunal would then go on to consider whether less favourable treatment complained of was justified in the sense that it was a proportionate means of achieving a legitimate aim. 38. In my judgment the claimant knew that he had an obligation to disclose his criminal convictions, but he chose not to do so, in order not to jeopardise the prospect of his employment with the respondent. When challenged he subsequently lied about whether he had that conviction. He did so because, in his own words: “I was fearful of declaring my criminal convictions because I thought I wouldn’t get the job.” I do not accept that these decisions which he made were something which arose in consequence of his disability. The claimant has adduced no evidence to suggest that his decisions were made because of his autism, nor that they arose in consequence of his autism. In my judgment he chose not to disclose his conviction, and then lied about having it, in the hope of securing and then maintaining his employment with the respondent. That may have been understandable in the circumstances, but in my judgment, it was not something which arose in consequence of the claimant’s disability. Case No. 1402964/2022 6 39. Nonetheless the claimant’s Disability Impact Statement does suggest that he withheld the information about his conviction as a result of his condition, not because of dishonesty. Although I consider that to be highly improbable, and not supported by any medical evidence, it is something which in my judgment needs to be examined on hearing evidence. I cannot say at this stage that the causative link between the autism and the dishonesty is impossible to prove. I cannot therefore say that this claim has no reasonable prospect of success. 40. Nonetheless for the reasons set out above I do not think that the claimant will be able to establish any causative link between his dishonesty and his autism, and in my judgment this claim has little reasonable prospect of success. I have therefore decided to make the attached Deposit Order under Rule 39. 41. The claimant was able give information as to his means. He is impecunious and he does not own any assets. He receives Universal Credit and a personal Independence Payment, and after rent and other deductions he receives slightly less than £700 per month. I decided to set the level of the Deposit Order at £100 bearing in mind such information as I have regarding the claimant’s means. 42. To the extent only that the claimant meets the terms of the Deposit Order, then the claim will be listed for a further case management preliminary hearing to clarify any defence of justification which might be pursued by the respondent, and to list the matter for its full main hearing. ________________________ Employment Judge N J Roper Dated 25 March 2024 Judgment sent to Parties on 04 April 2024 By Mr J McCormick For the Tribunal Office Public access to employment tribunal decisions Judgments (apart from judgments under rule 52) and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/ Case No: 1402964/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr R Duque Respondent: J D Wetherspoon PLC Heard at: Bodmin Employment Tribunal On: 24 and 25 April 2025 Before: Employment Judge Volkmer Representation Claimant: in person (day 1) / did not attend (day 2) Respondent: Ms Balmelli, counsel JUDGMENT The complaint of discrimination arising from disability is not well-founded and is dismissed. Approved by Employment Judge Volkmer on 25 April 2025 SENT TO THE PARTIES ON 07 May 2025 By Mr J McCormick FOR THE TRIBUNAL OFFICE Case No: 1402964/2022 2 Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case. Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ Case No: 1402964/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr R Duque Respondent: J D Wetherspoon PLC Heard at: Bodmin Employment Tribunal On: 24 and 25 April 2025 Before: Employment Judge Volkmer Representation Claimant: in person Respondent: Ms Balmelli, counsel JUDGMENT having been sent to the parties on 7 May 2025 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided. REASONS - LIABILITY 1. The Claimant notified ACAS on 8 September 2022 and the certificate was issued on 12 September 2022. The claim was presented on 13 September 2022. The Claimant brings a complaint of discrimination arising from disability. 2. The Tribunal heard witness evidence from the Claimant and the following witnesses for the Respondent: Mr Ryan Wilce and Mr Lee Gregory. 3. I also considered the Hearing Bundle of 214 pages. References to page numbers in this judgment refer to the Hearing Bundle. Case No: 1402964/2022 2 Background and Hearing 4. A first preliminary hearing for case management took place on 2 June 2023 before Regional Employment Judge Pirani. He listed the claim for a further hearing to consider strike out or a deposit order (page 51). 5. A public preliminary hearing then took place before Employment Judge Roper on 25 March 2024. Judge Roper determined that the Claimant was disabled by reason of Autism Spectrum Disorder (“ASD”) at the relevant time and made a deposit order in the sum of £100. The Claimant paid the deposit. 6. The case then came before Employment Judge Cadney on 11 September 2024. He listed the final hearing, which was to take place before a judge sitting with panel members. 7. On 16 April 2025, the Tribunal wrote to the parties saying that there was a risk of the hearing being postponed due to lack of judicial resources and asked for their views regarding the hearing being before a judge sitting alone and/or being conducted by video rather than in person. The Respondent did not object, but the Claimant stated that he objected to both. On 22 April 2025 Regional Employment Judge Pirani ordered that the case be heard before a judge sitting alone. The hearing took place in person. 8. At the beginning of the hearing, the Claimant said that he objected to the hearing being before a judge sitting alone and intended to appeal. 9. I talked through the timetable (page 90) with the parties. The Claimant said that he was struggling and asked if the judge could help him. I explained that the judge’s role was to be neutral and so I could not help the Claimant with his case. However, if he wanted assistance with how to phrase a question, I could help with that. The Claimant said that he was autistic and would struggle. We talked about whether any adjustments were appropriate to help the Claimant. He did not request any specific adjustments but said that he would raise them as the hearing went on. He did not request any adjustments during the course of the hearing. 10. We took breaks at least every hour (sometimes more frequently) and I told the parties that anyone could ask for a break at any time if they needed it. 11. I instructed Ms Balmelli to ensure that questions were phrased with simple grammar, with no tag questions. I told the Claimant he could take additional time before answering if needed. The Claimant seemed to understand all of the questions which were put to him clearly. 12. The Claimant said that he was struggling to come up with questions for the Respondent’s witnesses and again said that he objected to the hearing being before a judge sitting alone. I explained that a Tribunal Panel would also have had a neutral role, as between the parties. It would not be any different in that sense compared to a judge sitting alone. 13. To assist the Claimant to formulate his questions, I explained that the Tribunal would need to answer the questions set out in the List of Issues, taking him to Case No: 1402964/2022 3 page 99 from paragraph 44 onwards. I also suggested that he could ask questions about things he disagreed with in the witness statements or things relevant to the List of Issus. I offered the Claimant breaks before and during his questions of the Respondent’s witnesses in order to consider what he would like to ask, but he declined, saying that all the breaks in the world would not help and that he would still struggle. I helped the Claimant turn some of his points into questions for the Respondent’s witnesses. The Issues 14. The following List of Issues was set out in the Case Management Order of Employment Judge Cadney dated 11 September 2024, as amended by the provision of further information regarding legitimate aims relied on by the Respondent. 1. Disability 1.1. Employment Judge Roper determined on 25 March 2024 that the Claimant was a disabled person as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about, by reason of Autism Spectrum Disorder. 2. Discrimination arising from disability (Equality Act 2010 section 15) 2.1. Did the Respondents treat the Claimant unfavourably by: 2.1.1. dismissing the Claimant; 2.1.2. failing to uphold the appeal; 2.1.3. deciding that the Claimant was dishonest. 2.2. Did the Claimant’s failure to disclose his convictions and/or subsequently lying about them when challenged arise in consequence of the Claimant’s disability? 2.3. Was the unfavourable treatment because of that thing? 2.4. Was the treatment a proportionate means of achieving a legitimate aim? The Respondents say that their aims were: 2.4.1. employing staff who are honest; 2.4.2. following its own policies and procedures consistently; 2.4.3. maintaining the employer relationship by having complete trust and confidence in its employees. 2.5. The Tribunal will decide in particular: (1) was the treatment an appropriate and reasonably necessary way to achieve those aims; Case No: 1402964/2022 4 (2) could something less discriminatory have been done instead; and (3) how should the needs of the Claimant and the Respondents be balanced? 2.6. Did the Respondents know or could they reasonably have been expected to know that the Claimant had the disability? From what date? 3. Remedy 3.1. What financial losses has the discrimination caused the Claimant? 3.2. Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job? 3.3. If not, for what period of loss should the Claimant be compensated? 3.4. What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that? 3.5. Is there a chance that the Claimant’s employment would have ended in any event? Should his compensation be reduced as a result? 3.6. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? 3.7. Did the Respondents unreasonably fail to comply with it by unreasonably failing to comply with it by not following any process for dismissal and dismissing summarily? 3.8. If so is it just and equitable to increase any award payable to the claimant? 3.9. By what proportion, up to 25%? 3.10. Should interest be awarded? How much? The Facts 15. The Claimant caused criminal damage to a vehicle and was given a 12 month conditional discharge in relation to the offence by Truro Magistrate’s court in 2022. At the time of making a job application to the Respondent, this conviction was not yet spent. 16. The Respondent is a well known business which runs a chain of pubs and hotels nationally across the UK. 17. The Claimant applied for a role with the Respondent online. During the application process he ticked a box stating he did not have any unspent convictions. He was then interviewed by the Respondent. He was asked again in the interview whether he had any unspent convictions and said that he did not. 18. The Claimant started working as a Bar Associate at the Try Dowr Pub in Truro Case No: 1402964/2022 5 on 13 May 2022. The Claimant signed an employment contract on the same day. The contract states at paragraph 17: “17 ARRESTS, CHARGES AND CRIMINAL CONVICTIONS Your employment is conditional on your disclosing any criminal conviction not covered by the Rehabilitation of Offenders Act 1974. Any charge or criminal conviction (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed) received subsequent to your employment must also be disclosed to the pub manager within seven days of charge or conviction. If information comes to light which you should have disclosed, the matter will be regarded as a disciplinary issue and may lead to dismissal.” (page 186) 19. The Respondent has an Arrests, Charges and Criminal Convictions Policy (page 165). The policy sets out the following. “Employees failing to disclose a criminal conviction (or arrest for potential criminal act) Failing to disclose a criminal conviction or an arrest for a potential criminal act is regarded as a gross misconduct offence. Managers must follow the investigation procedure and the disciplinary and dismissal policy and procedure if it is reported or discovered that employees have failed to disclose a criminal conviction (or an arrest for a potential criminal act). Areas for investigation and review include employees’ reasons for not disclosing the conviction or arrest and their track record at work to date; the risks which the conviction or arrest brings to the company, including potential damage to reputation, or to other employees or customers; its relevance to the job role (e.g. fraud or theft, where cash-handling is undertaken); alternatives, such as moving employees to a different or more suitable job. Dismissal is not automatic or the only possible response, particularly where there are mitigating circumstances.” (page 166) 20. The Respondent was aware that the Claimant was autistic. On the first day of employment, the Respondent discussed with the Claimant whether any support was required in relation to this. 21. On 13 July 2022 the Respondent’s head office received an anonymous complaint (page 119) which stated that the Claimant had been convicted of several crimes including damage to vehicles and saying that they would not be visiting the Respondent’s Truro premises whilst the Claimant continued to work there. On 21 July 2022, a customer approached the pub manager of the Respondent’s Truro pub and told him that the Claimant had a criminal conviction, telling the manager that they were concerned for the safety of females working with the Claimant. 22. Aaron Niles, the pub manager, was appointed to conduct an investigation. An investigation meeting was held on 26 July 2022. Mr Niles explained the complaints to the Claimant. The Claimant answered that “There is a lot of Case No: 1402964/2022 6 malicious gossip and lies, none are true and just causing a stir with my life… Obviously you can inform the police and the [sic] can clarify that this is not true. These people knew I lived in Plymouth and just using it against me for mistakes I’ve done in the past.” (page 122). The Claimant explained that he had been convicted of criminal damage to vehicles, that he had lost track of how many times this had happened. He had been sentenced to community sentences and short prison sentences of three to six months. He stated that the behaviour was part of his autism and obsessive behaviour. The Claimant told Mr Niles that there had been no convictions since 2019. 23. Mr Niles decided to suspend the Claimant and initiate a disciplinary procedure regarding the Claimant’s non-disclosure of convictions. The disciplinary meeting invitation letter enclosed the investigation meeting minutes, the complaints and a screen shot of a newspaper article referring to the Claimant being convicted of criminal damage in March 2022 (page 121). The Claimant was informed of his right to be accompanied to the meeting, which was scheduled for 8 August 2022. Mr Wilce, a pub manager, was appointed as the disciplinary manager. 24. In the disciplinary meeting, when asked about the allegation, the Claimant said: “I can only apologise for lying, and I will say that I believe whatever happens in my past, that I didn’t feel it was relevant to Wetherspoon knowing” (page 132). Mr Wilce stated that the Claimant had been asked in the investigation meeting whether he had any convictions in Cornwall, and the Claimant said “Yes, I lied about that. I’m not good at telling the truth…. For offenders, it’s very had to get a job, which is the way I saw it” (page 133). During the meeting, the Claimant referred to being autistic and asked that his disability be taken into account in the decision. The Claimant admitted that he had an unspent conviction and stated that it would not be spent until March 2023. 25. The meeting was adjourned. Following the adjournment, Mr Wilce informed the Claimant that he was being dismissed with immediate effect. In his verbal comments, Mr Wilce stated that “You have…provided me with no substance to make me believe that this will not happen again in the future” (page 136). As set out in the dismissal letter (page 139), the Claimant was dismissed for lying by not disclosing an unspent conviction during his application process, lying in the investigation meeting about criminal activity since moving to Truro and risking the business reputation after complaints from customers, saying they would not return whilst the Claimant worked there. Mr Wilce considered that the Claimant had not offered any mitigation. The Claimant was informed of his right to appeal. 26. The Claimant appealed the dismissal on the basis that the dismissing manager had no understanding of his autism, and that this should have been considered as a mitigating factor. 27. Mr Gregory was appointed as the appeal manager. The appeal meeting was held on 8 September 2022. During the meeting, Mr Gregory asked the Claimant why he had lied during the application process, and the Claimant responded that “It is a catch 22 situation, the Company may not have employed me if I had disclosed it” (page 148). When he was asked whether he had deliberately lied, that Claimant responded “Yes, I did yes. Ex-offenders still deserve an Case No: 1402964/2022 7 opportunity” (page 148). 28. When the Claimant was asked why he felt his autism had impacted his ability to be honest during the application process, the Claimant answered “I have obsessive tendencies, and that is what caused the incidents in the first place. Nothing to do with people or working in a pub. I did not see what relevance it had to working in a pub. I had caused damage to vehicles, nothing to do with a pub” (page 148). He later went on to say “I have told the truth before and that has been held against me when I have applied for jobs. I do not blame Wetherspoon for that, but I believe that I deserved a chance.” (page 148). Later when asked why he had lied to Mr Niles, the Claimant said: “I didn’t want to let him or myself down”. It was put to the Claimant that he was appealing a dismissal for lying but did not deny that he had lied. In response, the Claimant said: “Someone with autism acts and thinks differently” (page 150). 29. Mr Gregory put to the Claimant that he had lied on his application because he felt that he deserved the change, the Claimant responded saying: “I knew in the back of my mind that I had this to say, but I held it back so it did not go against me. I had that in my mind, I wanted the job, I don’t see why I should rot away on benefits when I can work” (page 150). 30. Mr Gregory did not uphold the Claimant’s appeal. In the appeal outcome letter (page 155), Mr Gregory set out that the Claimant had admitted to deliberately withholding information regarding his unspent convictions and that the Claimant thought he would not have been offered the position if he had disclosed his convictions. Mr Gregory stated that the decision to dismiss was based on the Claimant’s dishonesty. He upheld that decision. Discrimination arising from Disability 31. The provision relating to discrimination arising from disability is set out at section 15 (1) of the Equality Act 2010 (the “EqA”). A person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Under section 15(2), this does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 64. Pursuant to Trustees of Swansea University Pension and Assurance Scheme and anor v Williams 2019 ICR 230, SC, there is a relatively low threshold required to establish unfavourable treatment and engage section 15 EqA. It is an analogous to concepts of disadvantage and detriment. 65. Mr Justice Langstaff explained the approach Tribunals should take to establishing causation in Basildon and Thurrock NHS Foundation Trust v Weerasinghe 2016 ICR 305, EAT, as follows. “26. The current statute requires two steps. There are two links in the chain, both of which are causal, though the causative relationship is differently expressed in respect of each of them. The Tribunal has first to focus upon the words “because of something”, and therefore has to identify “something” — and Case No: 1402964/2022 8 second upon the fact that that “something” must be “something arising in consequence of B's disability”, which constitutes a second causative (consequential) link. These are two separate stages. In addition, the statute requires the Tribunal to conclude that it is A's treatment of B that is because of something arising, and that it is unfavourable to B. I shall return to that part of the test for completeness, though it does not directly arise before me. 27. In my view, it does not matter precisely in which order the Tribunal takes the relevant steps. It might ask first what the consequence, result or outcome of the disability is, in order to answer the question posed by “in consequence of”, and thus find out what the “something” is, and then proceed to ask if it is “because of” that that A treated B unfavourably. It might equally ask why it was that A treated B unfavourably, and having identified that, ask whether that was something that arose in consequence of B's disability. 28. The words “arising in consequence of” may give some scope for a wider causal connection than the words “because of”, though it is likely that the difference, if any, will in most cases be small; the statute seeks to know what the consequence, the result, the outcome is of the disability and what the disability has led to.” 66. Mrs Justice Simler also dealt with the question of causation in Sheikholeslami v University of Edinburgh 2018 IRLR 1090, EAT, in which she said: “this provision requires an investigation of two distinct causative issues: (i) did A treat B unfavourably because of an (identified) something? and (ii) did that something arise in consequence of B’s disability? The first issue involves an examination of the putative discriminator’s state of mind to determine what consciously or unconsciously was the reason for any unfavourable treatment found. If the “something” was a more than trivial part of the reason for unfavourable treatment then stage (i) is satisfied. The second issue is a question of objective fact for an employment tribunal to decide in light of the evidence.” 67. In the same case, Mrs Justice Simler stated that in relation to determining whether the “something” arose in consequence of the disability, “The critical question was whether on the objective facts, her refusal to return [the “something”] arose in ‘consequence of’ (rather than being caused by) her disability. This is a looser connection that might involve more than one link in the chain of consequences.” Burden of proof in relation to EqA complaints 32. The provisions relating to the burden of proof are to be found in section 136 of the EqA, which provides that if there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. However, this does not apply if A shows that A did not contravene the provision. A reference to the court includes a reference to an employment tribunal. 33. Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC, the Claimant is required to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the Tribunal could infer an unlawful act of discrimination. Case No: 1402964/2022 9 34. Igen v Wong [2005] EWCA Civ 142 remains the leading authority in relation to the application of the burden of proof set out in section 136 EqA in relation to discrimination cases. It was not sufficient for the Claimant simply to prove facts from which the tribunal could conclude that the Respondent “could have” committed an unlawful act of discrimination. It is clear that the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent did commit an unlawful act of discrimination it can. 35. In relation to a complaint of discrimination arising from disability, the Claimant has the burden of proving (i) that they were treated unfavourably; (ii) that the “something” they rely on arose as a consequence of disability. If these elements are established and there are facts from which it could be inferred that the “something” was the reason for the unfavourable treatment, the burden of proof will shift to the Respondent (Pnaiser v NHS England 2016 IRLR 170, EAT). 36. If the burden of proof has moved to the respondent, it is then for the respondent to prove that it did not commit, or as the case may be, is not to be treated as having committed, that act. To discharge that burden, it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic. That requires the Tribunal to assess not merely whether the Respondent has proven an explanation, but that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question. Discrimination arising from disability: Discussion and Conclusions 37. The Respondent concedes that it had knowledge of disability at the relevant time. 38. It is not in dispute that the Respondent dismissed the Claimant; failed to uphold his appeal against the dismissal; and decided that the Claimant had been dishonest. It is not difficult for me to conclude that these are adverse actions towards the Claimant and constitute unfavourable treatment. 39. It is also agreed between the parties that this unfavourable treatment occurred because of the Claimant’s failure to disclose his convictions and subsequently lying about them when challenged. 40. I then need to determine whether the Claimant’s failure to disclose his convictions and/or his subsequent lying about them arose in consequence of the Claimant’s disability. 41. The only medical evidence provided by the Claimant to the Tribunal is that at pages 157 to 160. This includes the front cover of an “Autism Spectrum Disorder Report” (page 157), and the summary (page 158) which states “Based on multidisciplinary assessment including direct observation and Case No: 1402964/2022 10 developmental history, Robert Duque meets the criteria for Autism Spectrum Disorder (ASD) according to the Diagnostic and Statistical Manual of Mental Disorders (fifth edition) due to evidence of persistent deficits in social communication and social interaction AND restricted repetitive patterns of behaviour, interests and activities present in the early developmental period and which cause significant impairment in social and occupational functioning. These deficits are not better explained by other disorders (especially Obsessive Compulsive Disorder) and there is no evidence of intellectual impairment”. Pages 159 and 160 are generic criteria for assessing ASD with tick boxes to mark whether they have been observed as applying to the Claimant. None of these criteria relate to difficulties with telling the truth. The Claimant refused to provide the full report to the Respondent and Tribunal despite this being requested by the Respondent. The Claimant stated in evidence that this was because it contained details in relation to his childhood which he felt were not relevant to his claim. 42. The Claimant sent an email to the Tribunal dated 13 February 2023 (page 37) in which he stated “I have a communication impairment related to my Autism. My Autism makes it difficult for me to think things through clearly. I was fearful of declaring my criminal convictions because I thought I wouldn’t get the job”. 43. The Claimant provided a disability impact statement (page 161), which he informed the Tribunal was drafted with the assistance of the Citizens Advice Bureau. This states “I withheld information about my conviction which was due to my condition and not an act of malice or deliberate dishonesty”. There are no examples given in the impact statement of other instances where the Claimant’s ASD has caused him not to be truthful. 44. In the Claimant’s witness statement, he said at paragraph 5 “before I got this job I had been unemployed for at least 2 years and during that time my Autism meant that I struggled to be accepted socially and that in turn increased my isolation and feelings of low worth. I desperately wanted to be accepted and I knew that by getting a job and having the opportunity to socialise and meet new people that would increase my quality of life. In order to achieve this I did not disclose my unspent conviction because I knew this would result in me not being considered for employment and that chance of increased quality of life being taken away from me. My Autism means I do struggle with telling the truth and I adapt my behaviour to fit in. I did not withhold this information through malice or a deliberate act of dishonesty”. No other examples are given in the statement instances where the Claimant’s disability has resulted in having difficulties telling the truth. 45. The Claimant’s oral evidence was that he had made around 50 job applications since his dismissal from the Respondent and had disclosed his unspent convictions when making those applications, he told the Tribunal that this was likely the reason he had not been successful in any of those applications. 46. I also take into account the comments made by the Claimant during the disciplinary process about why he had not disclosed the conviction and why he had not been truthful when initially challenged (as set out at paragraphs 24 to 29 above). In essence, that he had previously disclosed convictions during job Case No: 1402964/2022 11 applications and not been offered a role, so he had not disclosed the conviction in order to have a better chance of getting the role with the Respondent. 47. I find that the Claimant’s failure to disclose his conviction and his subsequent lie when challenged was not something which arose in consequence of his disability. The Claimant makes a bald assertion in evidence that his failure to disclose the conviction arises from his ASD, however there is no medical evidence at all before the Tribunal which would support this link. Further, it is not consistent with the fact that (on his own evidence) both before and after applying for the role with the Respondent, the Claimant did disclose his convictions in job applications. His previous experience was that disclosing his convictions meant he did not get the jobs he was applying for. The Claimant was keen to work and based on his experience he concluded he would stand a better chance of being successful if he did not disclose his convictions. The Claimant therefore made an active decision that he would not disclose his unspent conviction to the Respondent in order to obtain the role. There is no medical evidence before the Tribunal that the Claimant’s ASD causes him to lie. There are no factual examples provided by the Claimant. There simply is no evidence which might support the Claimant’s assertion that there is a causative link. 48. The Claimant’s disability arising from discrimination complaint is therefore not well-founded. Approved by Employment Judge Volkmer Dated: 16 May 2025 REASONS SENT TO THE PARTIES ON 31 May 2025 Jade Lobb FOR THE TRIBUNAL OFFICE Case No: 1402964/2022 1 EMPLOYMENT TRIBUNALS Claimant: Mr R Duque Respondent: J D Wetherspoon PLC Heard at: Exeter Employment Tribunal (by CVP Audio) On: 12 September 2025 Before: Employment Judge Volkmer Representation Claimant: in person Respondent: Ms Balmelli, counsel RESERVED COSTS JUDGMENT 1. The Respondent’s costs application is dismissed. 2. The deposit paid by the Claimant must be paid to the Respondent. REASONS Background 1. The Claimant notified ACAS on 8 September 2022 and the certificate was issued on 12 September 2022. The claim was presented on 13 September 2022. The Claimant brought a complaint of discrimination arising from disability. 2. A first preliminary hearing for case management took place on 2 June 2023 before Regional Employment Judge Pirani. He listed the claim for a further hearing to consider strike out or a deposit order. 3. A public preliminary hearing then took place before Employment Judge Roper on 25 March 2024. Judge Roper determined that the Claimant was disabled by reason of Autism Spectrum Disorder (“ASD”) at the relevant time and made a deposit order in the sum of £100. The Claimant paid the deposit. Case No: 1402964/2022 2 4. The final hearing took place over two days on 24 and 25 April 2025. The Claim was dismissed. The Claimant did not attend the second day of the hearing. Following judgment, the Respondent’s representative sought to make a costs application. I considered it was not appropriate to hear a costs application without the Claimant being given a reasonable opportunity to make representations. 5. In a case management order sent to the parties on 7 May 2025, the following orders were set out. 2. The Respondent agreed that any costs application pursued against the Claimant would be made in writing by 14 days after the date of this order being sent to the parties. Such application should be marked FAO EJ Volkmer. 3. If the Claimant wishes to object to the application, he should submit his objections to the Tribunal, copying the Respondent, by 28 days after the date of this order being sent to the parties. If he does not do so by this date, the Tribunal may decide whether to make a costs order based solely on the application made by the Respondent. The Claimant’s email should be marked FAO EJ Volkmer. 4. Noting that the Claimant is not represented, he is referred to Rules 72 to 82 of the Employment Tribunal Rules of Procedure 2024 which relate to costs applications and are available online (https://www.legislation.gov.uk/uksi/2024/1155/contents/made). 5. The Claimant is reminded that if he wishes the Tribunal to take into account his financial means when making a decision about the costs application: a. he can provide details about income and outgoings each month, savings, assets and debts; b. he can provide evidence in the form of bank statements, saving account statements, credit card statements etc to show income and outgoings; c. Court Form N245, which is used in the County Court is a very useful guide as to the information which it would be helpful to provide to the Employment Tribunal. This form can be found at https://assets.publishing.service.gov.uk/media/5e4cf8e686650c10e96037fe/n245-eng.pdf. Although it is not an Employment Tribunal Form, the Claimant can complete sections 1 to 10, as well as completing the amount he could pay per month in section 11, of the N245 and send it to the Employment Tribunal and it will be considered by the Employment Judge when the costs application is considered. 6. It is up to him whether he wishes to do so, but if the Claimant does not provide detailed information about his financial means by 28 days after the date of this order being sent to the parties, the Employment Tribunal will make a decision about the costs application without taking his means into account. Case No: 1402964/2022 3 6. This hearing was listed to decide the Respondent’s costs application. The Respondent provided a costs application bundle comprising 47 PDF pages, which I will refer to as the “Costs Bundle”. 7. At the beginning of the hearing, the Claimant expressed surprise that I would be hearing the costs application because I had made the determination in relation to liability. I explained to the Claimant that the normal process was that the same Tribunal would hear a costs application as had made a decision in relation to liability. Whether that was a judge sitting along or a full panel, the same individuals would normally hear the costs application. The Claimant said he did not have any other reason for referring to bias and did not wish to pursue the matter. The Costs Application, the Response and Evidence of Means 7. On 15 May 2025 the Respondent made a costs application on the following basis. “EJ Volkmer’s reasons for finding that C’s complaint of discrimination arising from disability is not well-founded are substantially the same reasons as those EJ Roper relied on when making the deposit order. As such rule 40(7) is applicable.” 8. The Respondent further sought its costs for the costs application on the basis that the Claimant should have attended the second day of the hearing where this could have been dealt with, but did not do so. The total figure submitted in the revised schedule was a total of £12.757.36 (excluding VAT). The schedule included the following: a. counsel’s brief fee for final merits hearing (excluding VAT): £7,500.00; b. counsel’s refresher fee for final merits hearing (excluding VAT): £2,000.00; c. travel and accommodation expenses – Respondent’s counsel (train travel and hotel): £478.98; d. travel and accommodation expenses – Respondent’s HR representative (train travel and hotel): £378.38; e. counsel’s fee for drafting the cost application (excluding VAT) – 2 hours: £400.00; and f. counsel’s brief fee for attending the cost hearing (excluding VAT) £2,000.00. 9. The Claimant submitted objections to the costs application dated 7 May 2025, 15 May 2025 (two emails) and 17 May 2025 on the following grounds: a. that he was a litigant in person and so could not be held to the same high standards. b. that he had a current Debt Relief Order valid until June 2026 proving his severe and dire financial situation; c. he was unemployed and would never work again; d. he did not have any savings; e. HMCTS was already deducting criminal court fines from his Universal Credit which was his only income; f. the Government were planning changes to the personal independence payment which may further affect his ability to pay Case No: 1402964/2022 4 g. any further debts would put him in severe financial difficulty and hardship; h. he was not receiving financial support from his mother as suggested by the Respondent; i. the Respondent had conducted itself unreasonably by: i. the legal representative stating at the Final Hearing that the Claimant did not have Autism, when this had been accepted by the Tribunal; ii. the legal representative trying to introduce late evidence through Closing Submissions which was rejected. j. denying that he knew that he was going to lose his £100 deposit and so cause harm to others by having my say as they put it. 10. In relation to financial means the only evidence provided by the Claimant is: a. a letter dated 15 June 2020 confirming that the Claimant’s application for a Debt Relief Order was granted (page 19 of the Costs Bundle); b. a letter, at pages 20 and 21 of the Costs Bundle, in relation to the Claimant’s Universal Credit for 12 March to 11 April 2025. The payment to the Claimant being £789.97 after deductions for payments to his landlord of £381.42 for rent and fines of £19.671. The letter states that no money has been deducted because of the Claimant’s savings, saying that these are zero; c. a letter, at pages 22 and 23 of the Costs Bundle, in relation to the Claimant’s Universal Credit for 12 April to 11 May 2025. The payment to the Claimant being £803.40 after deductions for payments to his landlord of £381.42 for rent and fines of £20.01. The letter states that no money has been deducted because of the Claimant’s savings, saying that these are zero. d. a letter, at pages 43 to 46 of the Costs Bundle showing that the Claimant’s Universal Credit for 12 June to 11 July 2025, and 12 July to 11 August duplicated that set out at paragraph c above. 11. The Claimant stated in emails dated 2 June 2025 that his income from the Personal Independence Payment was £107 per month and that he did not have any evidence to support this. 12. The Tribunal had only received the documents referred to at paragraph 10.babove. In an email sent to the parties on 20 June 2025, I therefore gave the following directions. “The Claimant has not provided sufficient information for the Tribunal to take his resources into account in deciding whether to make a costs order. If the Claimant wants the Tribunal to take his means into account, he must by 4pm on 27 June 2025 provide to the Respondent and the Tribunal detailed information in relation to income and expenses as set out in the order sent to the parties on 7 May 2025. He should include evidence to support this in the form of bank statements showing the Claimant’s benefits payment going into the account and the relevant expenses going out. Case No: 1402964/2022 5 Without this information and evidence about income and outgoings, the Claimant’s financial means will not be taken into account when the Tribunal considers whether to make a costs order and how much it is for. This could result in an adverse outcome for the Claimant in relation to the costs order.” 13. The Claimant provided further evidence in the form of further universal credit letters. His oral submissions at the hearing were that he had chosen not to provide bank statements, as was his right. 14. The Claimant made oral submissions that he had continued the case despite the deposit order because of obsessional behaviour arising from his Autism. No evidence to that effect was provided to the Tribunal. The Respondent submitted that I am entitled to have regard to the Equal Treatment Bench Book, and that obsessional behaviour is not referred to in that as one of the impacts of Autism. Without witness or documentary evidence, I do not accept this. The Deposit Order and Liability Judgment 15. Employment Judge Roper’s deposit order judgment sent to the parties on 4 April 2024 stated the following. “38. In my judgment the claimant knew that he had an obligation to disclose his criminal convictions, but he chose not to do so, in order not to jeopardise the prospect of his employment with the respondent. When challenged he subsequently lied about whether he had that conviction. He did so because, in his own words: “I was fearful of declaring my criminal convictions because I thought I wouldn’t get the job.” I do not accept that these decisions which he made were something which arose in consequence of his disability. The claimant has adduced no evidence to suggest that his decisions were made because of his autism, nor that they arose in consequence of his autism. In my judgment he chose not to disclose his conviction, and then lied about having it, in the hope of securing and then maintaining his employment with the respondent. That may have been understandable in the circumstances, but in my judgment, it was not something which arose in consequence of the claimant’s disability. 39. Nonetheless the claimant’s Disability Impact Statement does suggest that he withheld the information about his conviction as a result of his condition, not because of dishonesty. Although I consider that to be highly improbable, and not supported by any medical evidence, it is something which in my judgment needs to be examined on hearing evidence. I cannot say at this stage that the causative link between the autism and the dishonesty is impossible to prove. I cannot therefore say that this claim has no reasonable prospect of success. 40. Nonetheless for the reasons set out above I do not think that the claimant will be able to establish any causative link between his dishonesty and his autism, and in my judgment this claim has little reasonable prospect of success. I have therefore decided to make the attached Deposit Order under Rule 39.” Case No: 1402964/2022 6 16. The Claimant paid the deposit and the Claim continued. 17. In the written reasons sent to the parties on 31 May 2025 I made the following findings. “I find that the Claimant’s failure to disclose his conviction and his subsequent lie when challenged [were] not something which arose in consequence of his disability. The Claimant makes a bald assertion in evidence that his failure to disclose the conviction arises from his ASD, however there is no medical evidence at all before the Tribunal which would support this link. Further, it is not consistent with the fact that (on his own evidence) both before and after applying for the role with the Respondent, the Claimant did disclose his convictions in job applications. His previous experience was that disclosing his convictions meant he did not get the jobs he was applying for. The Claimant was keen to work and based on his experience he concluded he would stand a better chance of being successful if he did not disclose his convictions. The Claimant therefore made an active decision that he would not disclose his unspent conviction to the Respondent in order to obtain the role. There is no medical evidence before the Tribunal that the Claimant’s ASD causes him to lie. There are no factual examples provided by the Claimant. There simply is no evidence which might support the Claimant’s assertion that there is a causative link.” [47] The Law 18. Rule 40 of The Employment Tribunal Procedure Rules 2024 (the “Tribunal Rules”) provides: 40(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b) the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded. (8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order. 19. Rules 73 to 76 and 82 of the Tribunal Rules deal with costs as follows: Costs orders and preparation time orders 73.— (1) A costs order is an order that the paying party make a payment to— (a) the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative or a lay representative, or (b) another party or witness in respect of expenses incurred, or to be incurred, for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing. Case No: 1402964/2022 7 When a costs order or a preparation time order may or must be made 74.— (1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing. (2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins. (3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned. Procedure 75.— (1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. (2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order). The amount of a costs order 76.— (1) A costs order may order the paying party to pay— (a) the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party; (b) the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined— (i) in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998(33), or by the Tribunal applying the same principles; (ii) in Scotland, by way of taxation carried out either by the auditor of court in accordance with the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019(34), or by the Tribunal applying the same principles; (c) another party or a witness, as appropriate, a specified amount in respect of necessary and reasonably incurred expenses for the purpose of, or in connection with, an individual’s attendance as a witness at a hearing; (d) an amount agreed between the paying party and the receiving party in respect of the receiving party’s costs. (2) Where the costs order includes an amount in respect of fees charged by a lay representative, for the purposes of the calculation of the order, the hourly rate applicable for the fees of the lay representative must not exceed the rate under rule 77(2) (the amount of a preparation time order). (3) A costs order under sub-paragraphs (b) to (d) of paragraph (1) may exceed £20,000. Case No: 1402964/2022 8 Ability to pay 82. In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay.” 20. Costs awards in Employment Tribunal proceedings are the exception rather than the rule (Gee v Shell UK Ltd [2003] IRLR 82). 21. Milan v Capsticks Solicitors LLP & Others UKEAT/0093/14/RN sets out a structured approach to be taken in relation to an application for costs where the then President of the EAT, Langstaff J, described the exercise to be undertaken by the Tribunal as a 3-stage exercise at paragraphs 52: “There are thus three stages to the process of determining upon a costs order in a particular amount. First, the tribunal must be of the opinion that the paying party has behaved in a manner referred to in [Rule 76]; but if of that opinion, does not have to make a costs order. It has still to decide whether, as a second stage, it is “appropriate” to do so. In reaching that decision it may take account of the ability of the paying party to pay. Having decided that there should be a costs order in some amount, the third stage is to determine what that amount should be. Here, covered by Rule [78], the tribunal has the option of ordering the paying party to pay an amount to be determined by way of detailed assessment in a county court.” 22. In Mr M Willis v 1) GWB Harthills LLP 2) Miss Hester Russell 3) Mrs Elizabeth Lord: [2025] EAT 79 HHJ Tayler explained the relevance of financial means when applying the relevant rules. The reference to Rule 84 is a reference to the preceding Employment Tribunal Rules and can be applied to Rule 82. “6. The application of these rules can be split into three stages: Stage 1: is there conduct that could warrant making a costs order (“threshold conduct”) Stage 2: if so, should an award of costs be made (“the discretionary decision”) – the Employment Tribunal may have regard to ability to pay at this stage Stage 3: if so, what amount of costs should be awarded (“the quantum decision”) – the Employment Tribunal may also have regard to ability to pay at this stage 7. At stage 2 a wide range of factors can be relevant, such as the party’s subjective belief in the merits of a complaint or defence, the type of complaint and whether the party had the benefit of legal advice. Rule 84 gives the Employment Tribunal the power to have regard to the paying party’s ability to pay as part of the Stage 2 discretionary decision. An Employment Tribunal might conclude where a party is guilty of threshold conduct, and there are no other factors pointing against making a costs order, that a party’s total inability to pay is such that no costs order should be made. In other cases, the Employment Tribunal might decide it is appropriate to make a costs order but take account of the party’s ability to pay in limiting the award when making the Stage 3 quantum decision.” Case No: 1402964/2022 9 Unreasonable conduct and Deposit Orders 23. Rule 40 of the Tribunal Rules provides: 40(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown . 24. In the case of Mr D Ireland v University College London [2024] EAT 68, Eady P stated that: “the finding ultimately made on a particular allegation or argument need only be “for substantially the reasons given in the deposit order” (emphasis added) to result in the party in question being deemed to have acted unreasonably” [91] Unreasonable Conduct Generally 25. The EAT decided in Dyer v Secretary of State for Employment EAT 183/83 that “unreasonable” has its ordinary English meaning and is not to be interpreted as if it means something similar to “vexatious”. It will often be the case, however, that a Tribunal will find a party’s conduct to be both vexatious and unreasonable. Whether conduct is unreasonable is a matter of fact for the Tribunal to decide. It can include pursuing an unmeritorious claim: Keskar v Governors of All Saints CofE School [1991] ICR 493. 26. In Yerrakalva v Barnsley Metropolitan Borough Council and another [2012] ICR 420, CA Lord Justice Mummery held: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and ask whether there was unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, identify the conduct, what was unreasonable about it and what effects it had.” 27. In AQ Ltd v Holden UKEAT/0021/12/CEA His Honour Judge Richardson stated that a Tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Justice requires that Tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. Tribunals must bear this in mind when assessing the threshold tests. Even if the threshold tests for an order for costs are met, the Tribunal must exercise its discretion having regard to all the circumstances and it is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help or advice. However, Judge Richardson said in paragraph 33: “This is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved Case No: 1402964/2022 10 vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity.” 28. However, in Barton v Wright Hassall LLP [2018] 1 WLR 1119 UKSC the Supreme Court made the following comments in a case concerning litigation covered by the Civil Procedure Rules: “I start with Mr Barton’s status as a litigant in person. In current circumstances any court will appreciate that litigating in person is not always a matter of choice. ... Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court…. The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.” (paragraph 18) 29. Similarly, in Vaughan v London Borough of Lewisham & Ors (No. 2) [2013] IRLR 713, the EAT declined to interfere with a substantial costs order against an unrepresented party. Underhill J observed that “the basis on which the costs threshold was crossed was not any conduct which could readily be attributed to the appellant's lack of experience as a litigant”. Taking Financial Means into Account 30. In the case of Jilley v Birmingham and Solihull Mental Health NHS Trust and ors EAT 0584/06 at paragraph 53 the following guidance was given. “The first question is whether to take ability to pay into account. The Tribunal has no absolute duty to do so. As we have seen, if it does not do so, the County Court may do so at a later stage. In many cases it will be desirable to take means into account before making an order; ability to pay may affect the exercise of an overall discretion, and this course will encourage finality and may avoid lengthy enforcement proceedings. But there may be cases where for good reason ability to pay should not be taken into account: for example, if the paying party has not attended or has given unsatisfactory evidence about means.” (emphasis added). 31. In Oni v NHS Leicester City UKEAT/0144/12/LA the EAT found that it was open to a Tribunal to decline to take financial means into account, but the Tribunal’s finding that the Claimant had means to pay an order for costs (anticipated to be very substantial in amount) could not stand in the absence Case No: 1402964/2022 11 of proper consideration of her means when the Claimant had asserted she was of limited means. Discretion 32. In Oni v UNISON 2015 ICR D17, EAT Simmler LJ set out six principles for the exercise of discretion in relation to costs applications as follows (paragraphs 16 to 20). a. Firstly, costs applications warrant appropriately detailed and reasoned consideration and conclusion. b. Secondly, costs are compensatory and not punitive. c. Thirdly, the fact that a party is unrepresented is a relevant consideration. d. Fourthly, the means of a paying party in any costs award may be considered twice: first, in considering whether to make an award of costs; secondly, if an award is to be made in deciding how much should be awarded. e. Fifthly, there is no requirement that the costs awarded must be found to have been caused by or attributable to the unreasonable conduct found though causation is not irrelevant. What is required is for the tribunal to look at the whole picture of what happened in the case and to identify the conduct; what was unreasonable about the conduct and its gravity, and what effects that unreasonable conduct had on the proceedings. f. Sixthly the broad discretion a tribunal has in making an award of costs must be exercised judicially and reasons ought to be given. 33. Calderbank v Calderbank [1975] 3 All ER 333 is a case regarding without prejudice save as to costs offers, this applies in family proceedings and not to Employment Tribunal proceedings. However, in Kopel v Safeway 2003 IRLR 753 the EAT upheld the Tribunal’s finding that the Claimant’s failure to accept the employer’s substantial offer of settlement was unreasonable conduct of the proceedings. The Tribunal is entitled (but not required) to make a finding on the facts that the rejection of a without prejudice offer is unreasonable and may take it into account in exercising its discretion in relation to costs. Costs warnings may also be taken into account. Discussion and conclusions: Deposit 34. The Claim was dismissed for substantially the same reasons as set out in the deposit order. Namely that the Claimant could not establish that the “something” was causatively linked to his pleaded disability. Pursuant to Rule 40(7)(b) the deposit must therefore be paid to the Respondent. Discussion and conclusions: Costs 35. There are three stages to be applied: a. finding whether the Claimant has behaved in a manner referred to in Rule 74; Case No: 1402964/2022 12 b. if so, considering whether I should exercise my discretion in making such an order; and c. if so, considering the amount of the award and form of the award. Whether the Claimant has behaved in a manner referred to in Rule 74 36. The Claim was dismissed for substantially the same reasons as set out in the deposit order. Namely that the Claimant could not establish that the “something” was causatively linked to his pleaded disability. Pursuant to Rule 40(7)(a) the Claimant must therefore be treated as having acted unreasonably in pursuing the Claim for the purpose of rule 74(2)(a), unless the contrary is shown. Nothing has been put before me to indicate that the contrary can be shown by the Claimant. 37. The Claimant’s reason for non-attendance on the second day of the hearing was that his coach would arrive four and a half hours before the time I had told the parties I would be delivering the judgment. The Respondent makes submissions that there were alternative transport options for the Claimant and further that the Claimant knew his case had gone badly and wished to avoid a costs order. There is no evidence to demonstrate the latter. Ostensibly the second day was for the purposes of delivering judgment, which the Claimant was aware he could obtain in writing. As such, I do not consider that the Claimant’s non-attendance on the second day was unreasonable in the context of this application. 38. The Claimant has therefore behaved in a manner referred to in Rule 74 by continuing with the Claim after the deposit order had been made. Whether I should exercise my discretion in making such an order 39. Having found that the Claimant’s conduct was unreasonable, there is no requirement for this Tribunal to award costs. There are a number of factors to consider, including the nature, gravity and effect of the unreasonable conduct, although there is no principle that costs should only be awarded where they can be shown to have been incurred by specific instances of unreasonableness. 40. The Claimant has raised the fact that he is a litigant in person, and that he is Autistic. Notwithstanding that it cannot be established that the “obsessive behaviour” referred to by him arises from Autism, or caused him to continue with the claim, the Claimant’s Autism is a relevant factor. As a vulnerable individual, this is likely to further exaggerate the difficulties normally faced by litigants in person navigating the Tribunal system. 41. The Respondent wrote to the Claimant on 6 March 2023 and offered the Claimant a “drop hands” settlement, explaining the deficiencies in his claim and stating that a costs application would be pursued if the Claimant continued with his claim. Case No: 1402964/2022 13 42. The Claimant had been warned in the form of the deposit order that his claim had little reasonable prospect of success and he was warned about the risks of continuing with the claim. 43. The Claimant continued with his claim despite the deposit order. As a result, the Respondent was put to the costs of defending the claim. The claimed costs – attendance at the hearing, making the costs application, attending the costs hearing – would not have been incurred had the Claimant not continued to pursue the Claim. 44. I have not upheld the Claimant’s assertion that he had an obsession arising from Autism. However, I do find, based on the evidence at the liability hearing, that the Claimant had, and continues to have, a strong subjective belief in the merits of his claim. 45. There is no merit in the Claimant’s assertions that the Respondent’s counsel behaved unreasonably. She did not state that the Claimant did not have Autism. I also have no record in my notes of any attempt to introduce late evidence during submissions. 46. A debt relief order applies to those qualifying debts specified in the debt relief order (pursuant to section 251H of the Insolvency Act 1986). This Tribunal is not, therefore precluded from making a costs order. Given the order was made historically, five years ago, this does not provide any useful information of the Claimant’s means. 47. In deciding whether costs should be awarded, I am permitted to take into account the Claimant’s ability to pay. I made a case management order directing the Claimant to complete the County Court form EX140, I also gave a direction in a further email which stated clearly that the Claimant should produce information about income and outgoings, and that if he did not do so his financial means would not be taken into account in determining the costs application. 48. The Claimant has actively chosen not to provide full information regarding income and outgoings. As a result of not providing the information, the terms of the order I made were that ability to pay would not be taken into account. Even without such an order, not having the relevant information would clearly make the Tribunal’s task of taking ability to pay into account very difficult. It is not possible to do a proper assessment of the Claimant’s means in the absence of full information about the Claimant’s income and expenditure. The Respondent points to the suggestion that the Claimant has financial assistance from his mother (which it is said the Claimant stated at the hearing before Judge Roper) and questions why the Claimant is unwilling to provide the relevant information/evidence about his means if he has nothing to hide. The Respondent’s submission is that I should not take financial means into account or should make an adverse inference. 49. I consider that the Respondent’s submission regarding the Claimant’s mother does not take the matter much further: it is not the Claimant’s mother’s means which are taken into account but the Claimant’s. Even if she has provided financial support to the Claimant in the past, she is not Case No: 1402964/2022 14 obliged to do so in the future and it would therefore, in my consideration, be improper to take any such support into account in deciding the costs application. For these reasons even though I do not have the ability to accurately assess the Claimant’s ability to pay, and as such “ability to pay” itself cannot be taken into account. 50. The Claimant’s primary submission is that he is a person of limited means. What is clear from the evidence which has supplied by the Claimant is that he is in receipt of benefits and those recent benefits statements set out clearly that the Claimant does not have any savings. Universal Credit is a means tested benefit, awarded based on the recipients’ income and savings. On that basis, even without knowing his expenses, it is beyond doubt that the Claimant is an individual of limited means. He has no savings and is in receipt of income-related benefits. 51. Whilst I do not take into account the Claimant’s ability to pay, I consider it is appropriate to take into account as a relevant factor that the Claimant is a person of limited means. This is a more general factor and as a result lower weight can be placed upon it than if his “ability to pay” could have been properly assessed and taken into account. 52. Taking all of these factors into account I have decided not to exercise my discretion not to make costs award. Costs are the exception rather than the rule in the Employment Tribunal. Whilst the Claimant has behaved unreasonably and thus met the threshold under Rule 74, he is a vulnerable litigant in person. He had a strong subjective belief in the merits of his claim and continued in the face of the deposit order. I cannot assess his ability to pay a costs order, but do take into account that he is of limited means. Even though the Respondent has been put to the cost of defending a claim with little reasonable prospects, I consider that looking at all the circumstances in the round, it is not appropriate to exercise my discretion to make a costs order. Approved by Employment Judge Volkmer 16 September 2025 JUDGMENT & REASONS SENT TO THE PARTIES ON 08 October 2025 FOR THE TRIBUNAL OFFICE