Clyde & Co successfully defend a dental practice in another novel claim under the Equality Act 2010

Clyde & Co were instructed by a dental practice to represent them in a claim brought by the Claimant who was an NHS patient of the practice. At its heart, the Claimant’s claim was one of alleged unlawful disability discrimination, specifically a purported failure to make reasonable adjustments (s.20 Equality Act 2010).

It was alleged that the Defendant unlawfully discriminated against the Claimant by: failing to accommodate their mobility needs by failing to ensure all of their appointments took place in the downstairs clinic; failing to accommodate their communication needs by failing to communicate by email (their preferred method of communication); and failing to accommodate their difficulties with organisation by operating a late cancellation policy.

The law

In order to succeed in a claim under s.20 of the Equality Act 2010, the claimant must identify i) the PCP (provision, criterion or practice) which ii) placed them at a substantial disadvantage compared to a non-disabled person, and iii) the nature and extent of that substantial disadvantage: see Environment Agency v Rowan [2008] ICR 218. If these features are identified and proven, consideration turns to reasonableness of the proposed adjustment in order to prevent the PCP putting the claimant at a substantial disadvantage.

Outcome of our application for summary judgment

The Judge held that the Claimant’s complaints in respect of the alleged delay or failure to respond to emails, to re-arrange appointments and failing to arrange them in a downstairs clinic were errors on behalf of the Defendant that were no more than administrative failings or one off events that do not amount to a policy / cannot be identified as a PCP. The Claimant failed to get over the first hurdle ((i) above). Human error and lack of competence is not a PCP. 

In respect of the Defendant’s late cancellation policy, no action was taken by the Defendant as a result of the Claimant’s late cancellations and therefore there is no disadvantage to the Claimant in that policy. Consequently, any argument would be speculative and even if that isn’t correct, what reasonable adjustment could one put in place? The Judge could not see how the claim could succeed.

The Claimant alleged during the hearing that their claim actually concerned primarily with the policy of phone calls taking precedence over emails. The Judge held that that is not a policy but rather just inherent in the nature of the technology itself. The use of telephone is instantaneous whereas text communication is inherently delayed. Complaining that text based communication is slower than direct verbal communication is like the argument that ‘’water is too wet’’. The Judge held that such a claim is speculative, difficult to prove and was not contained within the evidence bundle. Further, it is not a PCP and the Claimant failed to identify any reasonable adjustment. To require all communication be done by email is not a reasonable adjustment.

The Judge held that the claim had no prospects of success and allowing the claim to continue is fanciful and has no reality. The Judge dismissed the claim and ordered Summary Judgment for the Defendant.

Case comment

Cases under the Equality Act 2010 are increasingly common, and like this one, are often made wholly without merit. This successful defence is just one example of Clyde & Co’s significant experience in supporting the healthcare provider throughout these difficult cases and achieving a discontinuance/dismissal. In fact, Clyde & Co continue to have a 100% success rate in rebutting these novel claims brought under the Act arising out of clinical care.

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