Win in the Employment Appeal Tribunal -Mr Pipe v Coventry University
MR SIMON PIPE v COVENTRY UNIVERSITY HIGHER EDUCATION CORPORATION
Case No: EA-2022-000234-BA
Cole Khan Solicitors, instructing Joshua Jackson of Cloisters Chambers, win in the Employment Appeal Tribunal on claims of Disability discrimination and Age discrimination.
In a Judgment handed down on 18 May 2023 Emilie Cole, Partner at Cole Khan Solicitors, instructed by Mr Simon Pipe on behalf of University College Union has succeeded in the Employment Appeal Tribunal on multiple grounds in relation to claims of failure to make reasonable adjustments, indirect disability and age discrimination against the University of Coventry.
Summary of our claim
Mr Pipe was employed by Coventry University as an assistant lecturer in Journalism after a successful career where he rose to the position of a senior broadcast correspondent at the BBC. He is disabled by way of ADHD and a sleeping disorder, which have significant impacts on his executive functioning.
In 2017, the University implemented a new Academic Progression Process (“the Framework”), which expressly required applicants to demonstrate excellence in multiple areas such as research and, in all but exceptional cases, to have attained a PhD.
Mr Pipe made applications and/or requests for promotion to be a grade 7 lecturer in journalism in 2017, 2018, 2019 and 2020. Despite his experience, skills and exemplary record as a teacher, all were rejected. Central reasons given in each year included that Mr Pipe had not demonstrated sufficient research excellence and was not on a trajectory to attaining a PhD.
These repeated rejections seriously impacted Mr Pipe’s mental health and ultimately led to his resignation and departure from academia.
In a nutshell, our case was that the impairments in Mr Pipe’s executive functioning made it substantially more difficult for him to satisfy the research and PhD requirements of the Framework, and made it more difficult for him to achieve promotion compared to applicants without ADHD. We argued this amounted to substantial and particular disadvantage under the Equality Act 2010. This could and should have been avoided had adjustments been made to how Mr Pipe was assessed in order to reflect his true abilities.
The Respondent had plenty of opportunities but failed to do so, resulting in Mr Pipe’s potential going unappreciated and lost. Our case was that those failures and the rejections of Mr Pipe’s applications amounted to a failure to make reasonable adjustments, indirect disability discrimination, and discrimination arising from disability under the Equality Act.
An additional aspect of our case was that Mr Pipe, as an older candidate in his late 50s, was at a particular disadvantage compared to younger applicants who would have less opportunity to pursue or obtain a PhD due to their proximity to retirement, and that this amounted to indirect age discrimination.
The Employment Tribunal (“ET”) rejected the claims. The ET found against Mr Pipe on almost every element of all of his claims. We appealed.
Given the nature of the ET judgment, we had to succeed on multiple grounds in the EAT to be successful.
Findings of the EAT
Mrs Justice Eady DBE, President of the EAT, found in our favour on multiple grounds. In particular, Eady J held that:
1) In relation to the failure to make reasonable adjustments claim, the ET erred finding that the respondent could not reasonably have known of the disadvantage suffered by Mr Pipe by the time of his 2018 application.
2) In relation to the failure to make reasonable adjustments and the indirect discrimination claims, the ET erred in its approach to the identification of the provision, criterion or practice (‘PCP’) in this case by failing to adopt the broad approach required. In short, where it was agreed that a provision or criterion (i.e. the Framework) existed and had been applied, a difference in view on how this applied in practice did not negate the existence of the PCP.
3) In relation to the indirect age discrimination claim, the ET erred in its reasoning that there was no particular disadvantage. In particular, by focusing on how the claimant, and others in the same age cohort, might obtain progression by alternative routes, the ET failed to consider the potential disadvantage arising from the greater range of options available to those in younger cohorts.
4) The ET erred in failing to specifically address Mr Pipe’s indirect age and disability discrimination claims relating to events in 2020.
For those reasons, the indirect discrimination claims in relation to 2020 are to be remitted to the Employment Tribunal for determination.
Shifting the focus on neurodiversity and promotion
Recent studies estimate that around 15% of the UK population are neurodivergent and, with increased diagnostic rates and social awareness of neurodiversity, this claim and judgment address an important issue that will resonate with lots of people with neurodivergent conditions who are standing up against discrimination in the workplace.
This case addresses how neurodiverse employees should be given support to progress their careers, rather than being held back by rigid systems that restrict rather than promote their abilities and potential. It is high time that employers recognise that a one-size-fits-all approach should not be the default path to progression. Considering candidates holistically, in light of the Equality Act, should be common practice by all employers.
Attention must shift from employers focusing on what an individual cannot do, to establishing systems and procedures that emphasise what individuals can do. Employers and employees alike will ultimately benefit when systems recognise and promote the value that neurodiverse people can bring to the workplace.
Link to full judgment below:
Mr Simon Pipe v Coventry University Higher Education Corporation: [2023] EAT 73
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