Mr G Uzoma v The Supply Register Ltd: 1300272/2024
EMPLOYMENT TRIBUNALS
Case No 1300272/2024
Between
Mr G UzomaClaimantThe Supply Register LtdRespondent
Before
Employment Judge G. KingIn person for claimantMr B. Williams - counsel for respondentDate 21 February 2025
JUDGMENT
[1]The Claimant’s claim of direct discrimination on the grounds of age has no reasonable prospect of success and is struck out.[2]The Claimant’s claim of direct discrimination on the grounds of religion has no reasonable prospect of success and is struck out.[3]The Claimant’s claim of direct discrimination on the grounds of sexual orientation has no reasonable prospect of success and is struck out.[4]The Claimant’s claim of direct discrimination on the grounds of race has no reasonable prospect of success and is struck out.[5]The Claimant’s claim of direct discrimination on the grounds of disability has no reasonable prospect of success and is struck out.
REASONS
[1]The Respondent is an employment business providing workers in the education sector. The Claimant applied to the Respondent and was going through their screening and training processes. The Claimant initially applied in 2022, but did not follow through with his application for reasons are not relevant to this hearing. He applied again to the respondent in April 2023 having seen a job advertised on Total Jobs for a supply teaching assistant. The Respondent was the agency that would place the successful candidate in the role.[2]In his claim form dated 15 January 2024, the Claimant brings claims of direct discrimination on the grounds of age, race, religion, sexual orientation and disability against the Respondent.[3]The hearing was listed for a preliminary hearing for the purposes of hearing the Claimant’s application to amend his claim (see separate Order) and hearing the Respondent’s application for strike out / deposit order in relation to the Claimant’s claims. This hearing was listed following a case management hearing in front of EJ Broughton on 11 September 2024.[4]The Tribunal was provided with a bundle of documents of 432 pages. Where pages from that bundle are referred to this Judgment, they are noted in square brackets, e.g. [1].[5]The majority of pages from [305] onwards are screenshots from the Claimant’s email inbox. It is not clear why these documents are necessary and none of them were referred to during the hearing. It is also not clear why so many screenshots are needed and why the email change in question could not be provided as a printed PDF document.[6]One further piece of late evidence was admitted to the Tribunal. This was the original job advertisement for the position that the Respondent was recruiting for and for which the Claimant applied.[7]In relation to the application for strike out / deposit order, the Tribunal heard submissions from the Respondent first and then from the Claimant. Both parties were then given an opportunity to reply to anything the other party had said.
The Law
[8]A Tribunal is required when addressing such applications as the present to have regard to the “overriding objective”, which is found at Rule 3 of the Employment Tribunal Procedure Rules 2024, and which states as follows: 3. Overriding Objective(1) The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly.(2) Dealing with a case fairly and justly includes, so far as practicable – (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense.(3) The Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules, or (b)interprets any rule or practice direction.(4) The parties and their representatives must— (a) assist the Tribunal to further the overriding objective, and (b) co-operate generally with each other and with the Tribunal. Strike Out[9]Rule 38 of the Employment Tribunal Procedure Rules 2024 provides as follows: 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds—(a) that 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, response or reply (or the part to be struck out).[10]The EAT held that the striking out process requires a two-stage test in HM Prison Service v Dolby [2003] IRLR 694, and in Hassan v Tesco Stores Ltd UKEAT/0098/16. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the Tribunal to decide, as a matter of discretion, whether to strike out the claim. In Hassan, Lady Wise stated that the second stage is important as it is, “a fundamental crosscheck to avoid the bringing to an end prematurely of a claim that may yet have merit’’ (paragraph 19).[11]As a general principle, discrimination cases should not be struck out, except in the very clearest circumstances. In Anyanwu v Southbank Students’ Union [2001] IRLR 305, a race discrimination case heard in the House of Lords, Lord Steyn stated at paragraph 24: “For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. 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”.[12]Lord Hope of Craighead stated at paragraph 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.”[13]In Ukegheson v Haringey London Borough Council [2015] ICR 1285, it was clarified that there are no formal categories where striking out is not permitted at all. It is therefore competent to strike out a claim or a response, such as the present, although in that case the Tribunal striking out of discrimination claims was reversed on appeal.[14]That it is competent to strike out a discrimination claim was made clear also in Ahir v British Airways Pkz [2017] EWCA Civ1392, in which Lord Justice Elias stated that: “Employment Tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.”[15]If it is not possible for the claim to succeed on the legal basis put forward, it may be struck out - Romanowska v Aspiration Care Ltd UKEAT/001 5/14.[16]In Mechkarov v Citi Bank NA [2016] ICR 1121, the EAT summarised the law as follows:- “(a) only in the clearest case should a discrimination claim be struck out; (b) where there were core issues of fact that turned on oral evidence, they should not be decided without hearing oral evidence; (c) the Claimant’s case must ordinarily be taken at its highest; (d) if the Claimant’s case was “conclusively disproved by” or was “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it could be struck out; (e) a Tribunal should not conduct an impromptu mini-trial of oral evidence to resolve core disputed facts.”[17]A further summary of the law as to strike out was provided by the EAT in Cox v decco & Others [2021] ILEAT/0339/19. It referred to the level of care needed before a claim was struck out., with commentary also on the difficulties faced by a litigant in person. Deposit Order[18]Rule 40 provides as follows: 40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”). (2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order. (4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates. (5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). (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. The EAT has considered the issue of deposit orders in Wright v Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14, Hemdan v Ishmail [2017] ICR 486 and Tree v South East Coastal Services Ambulance NHS Trust UKEAT/0043/17. In Tree, the EAT summarised the law at paragraphs 19- 23. Direct Discrimination[19]The Claimant brings claims of direct discrimination, pursuant to s.13 of the Equality Act 2010, which provides: Section 13. (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Deliberation[20]As well as hearing the Respondents strikeout/bullet order application, the Tribunal spent some time with the Claimant to understand exactly how he is putting his claims. Discrimination on grounds of religion[21]The Claimant’s case is that his first name – Godwill – means that it is likely that the Respondent would have assumed that he was a Christian, or that he might have sympathies with that faith, due to the first syllable being “God”. He further stated that because of his facial hair – a large beard – it is likely that the Respondent would consider that he was of Muslim faith, or that he might have sympathies with that faith. The Respondent suggested that a man of Jewish faith might also have a large beard and would refer to “God”, to that there was no good reason for the Respondent, or indeed anyone, to think that the Claimant’s name and appearance meant that he was either distinctly Christian or Muslim. In his submissions, the Claimant rejected this, saying he felt it was unlikely, and the presence of a beard is more likely to make someone think of Islam.[22]The Claimant at no point explained what his actual religion, if any, is. His case is based on the Respondent making an assumption about his religion.[23]The Tribunal is not convinced that the Respondent would think along the lines that the Claimant has suggested. It is pure speculation on the Claimant’s part that the Respondent entertained any such preconceptions of the Claimant’s religion. The Claimant has failed to set out first instance facts from which discrimination could be inferred. That is not sufficient to shift the burden of proof to the Respondent. For that reason, the Tribunal is satisfied that the Claimant’s claim of discrimination on the grounds of religion (which in this case is perceived religion) has no reasonable prospects of success and is therefore struck out. Discrimination on grounds of sexual orientation[24]The Claimant’s claim of discrimination due to sexual orientation is unclear. There is no reference to any specific sexual orientation in the Claimant’s ET1. The Claimant said he did not know what view the Respondent might have taken about his sexual orientation, but it is nonetheless his case that the Respondent did take a view and then acted in a discriminatory manner because of that view. The Claimant eventually said that he assumed the Respondent had thought he was “un-flexible in his sexuality” and so therefore the Respondent would think that he was either “very straight” or “very gay” and that the Respondent must have concluded that he was “not being bi enough”.[25]This is, again, pure speculation by the Claimant. The Claimant was not even able to say what it was about him that he feels would cause the Respondent to adopt this view. He has not put forward any comparator or any allegations that non-bisexual people are treated less favourably by the Respondent. The Claimant has failed to set out first instance facts from which discrimination could be inferred. That is not sufficient to shift the burden of proof to the Respondent. For that reason, the Tribunal is satisfied that the Claimant’s claim of discrimination on the grounds of sexual orientation (which in this case is perceived sexual orientation) has no reasonable prospects of success and is therefore struck out. Discrimination on grounds of age[26]When the Claimant was asked about his claim of discrimination on the grounds of age, he spoke about previous employment where he had felt that he was “in the middle” of the age range of the members of staff at schools. In relation to his claim against Respondent, the Claimant’s age would have been known to the Respondent as he had submitted his passport as part of his education process. The Claimant said he felt the Respondent would rather have younger candidates. He said that “maybe” age “could have been a factor”. This again is pure speculation on the Claimant part. It is not sufficient for the Claimant merely to prove a difference in protected characteristic and a difference in treatment. Something more is required: Madarassy v Nomura International Plc [2007] EWCA Civ 33. At this stage in its deliberation, the Tribunal is satisfied that the Claimant’s claim of discrimination related to age has no more than little reasonable prospect of success. Discrimination on grounds of race[27]The Claimant said he relies on both being a German national and being of mixed heritage (white and African) in respect of his claim for discrimination on the grounds of race. His German nationality would be known to the Respondent as he had provided his passport to them, and he said his mixed-heritage status would be known from the picture they had of him and from the online video meeting he held with the Respondent. He said that it was “possible” that the Respondent did not like mixed-heritage Germans. He argued that the number of mixed-heritage Germans applying to the Respondent would be statistically low, and therefore it would be possible for the Respondent to get away with discrimination against such applicants. The Claimant is, again, speculating on what may one possible interpretation, but he was unable to say why this was a likely set of circumstances. There were no facts on which he relied to support his hypothesis. At this stage in its deliberation, the Tribunal is satisfied that the Claimant’s claim of discrimination related to race has no more than little reasonable prospect of success. Discrimination on grounds of disability[28]In respect of his claim for discrimination on the grounds of disability, the Claimant relies on his double disc hernia. The Tribunal noted that disability is still disputed by the Respondent, but in determining any application for strike out or deposit order, the Tribunal must consider the Claimant’s case taken at its highest. The Tribunal therefore proceeded on the basis, the purposes of this application only, that the Claimant is a disabled person as per the definition in the Equality Act.[29]There is also question as to whether the Respondent would have known of the Claimant’s disability. The Claimant describes his double disc hernia in Q11 of the Supply Worker Health Declaration Form [269], stating that it was diagnosed in 2016. He also states at Q24 [272] that “due to my double disc hernia, I would be required to engage in sedentary activities as little as possible during my employment”. This could have alerted the Respondent to the fact that the Claimant may be disabled, and there may be a need for reasonable adjustments. It is noted, however, that in the Equal Opportunities Questionnaire dated 29 September 2022 [233], the Claimant was asked if he considered himself to be disabled and answered “no”. The Tribunal has proceeded taking the Claimant’s case at its highest and therefore assuming, for the purposes of this hearing, that the Respondent would aware that the Claimant may be disabled. It is the Claimant’s case that, because of this knowledge, the Respondent might have been motivated to act in a discriminatory way. This is again speculation on part of the Claimant.[30]In order to consider whether a claim has little or no reasonable prospects of success, the Tribunal must consider the claim in its entirety. The Claimant’s claim is for direct discrimination on the grounds of age, race, religion, sexual orientation and disability. For his claim to succeed, he must have been subject to less favourable treatment, and that less favourable treatment must be because of a protected characteristic.[31]EJ Broughton, at paragraph 3(k) of his case management order dated 30 September 2024, identified the less favourable treatment as:a. Moving the goal posts in relation to reference requirements once he had complied with the Respondent’s initial requests on or around April 2023b. Failing to appoint him to a placement on, or before, the start of the autumn term in September 2023.[32]The phrase “moving the goalposts” was the wording used by EJ Broughton, but the Claimant has also used it a lot himself, both in his written documents and in his submissions to the Tribunal at the hearing. The Claimant was asked to explain exactly what he meant by “moving the goalposts”. The Claimant explained this was in relation to the Respondent continuously changing the requirements for references that the Claimant needed to provide. The Claimant said he was required to provide “exactly two” workrelated references from within a two-year period, with any gaps in employment being covered by a character reference.[33]The Claimant said the requirement that he only had to provide two references was contained in the original job advertisement. He agreed that the initial requirement for references was also the same as in the Respondent email of 27 September 2022 at [227]. This email states the requirement reference, asking: “Can you provide contact details for referees to cover the last 2 years. (Name and email address). If providing a character reference, they need to have known you for 5+ years and have a business email address to return the reference from.”[34]The Claimant also agreed that the initial requirement was as explained by the Respondent in the Respondent email of 14 April 2023 [245]. This email states: “References- we will need to cover April 2021- present with references from employment, studies or voluntary work. Any gaps in employment would need to be covered by a character referee who has known you for a minimum of 5 years and has a professional email address”[35]The Tribunal had the benefit of seeing the initial job advertisement. This says it is a requirement that the candidate: “Must be able to provide a minimum of 2 references and cover the last 2 years of employment”[36]All the instructions regarding references state these must cover the last two years of employment. The job advertisement itself contains the phrase “minimum of 2 references” – i.e. there must be no fewer than two, but it could be many more references that are required in order to cover two years of employment history. The Claimant has either misinterpreted or misunderstood this requirement. Based on these undisputed contemporaneous documents, the Tribunal is satisfied that there was never any requirement that the Claimant had to provide only two or exactly two references to the Respondent.[37]From this, it is clear to the Tribunal that the Respondent had not been “moving the goalposts”. The Respondent was adhering to the reference requirements as set out in the initial job advertisement and in its emails to the Claimant. There was never any change in this requirement. It was always a requirement that the Claimant would have to provide two or more references, if two references were insufficient to cover two years of employment. The alleged less favourable treatment of “moving the goalposts” therefore did not happen. Any claims alleging this less favourable treatment therefore have no reasonable prospect of success.[38]The second allegation of less favourable treatment is “Failing to appoint [the Claimant] to a placement on, or before, the start of the autumn term in September 2023”. In considering at whether this allegation has little or no reasonable prospects of success, the Tribunal must consider the relative strengths of the arguments that will be put forward by both sides.[39]The Claimant’s case is that he had completed the full induction and ‘onboarding’ process with the Respondent, but was not appointed to a placement on or before the start of the autumn term in September 2023 due to direct discrimination on the grounds of age, race, religion, sexual orientation and/or disability. The inherent weaknesses of those allegations have been explained above. The Respondent’s argument is that the Claimant was not appointed to a placement on or before the start of the autumn term in September 2023 as he had not yet provided the necessary references. All the references provided were available to the Tribunal at the hearing. Both parties agreed that these were all the references that have been provided (seven in total).[40]The Respondent required the Claimant to provide references covering the period from April 2021 to April 2023. The Tribunal took time to look at the references that the Claimant provided to the Respondent.a. The reference from Dolce Schools Catering [284] covered the period from 5 November 2019 to 20 December 2019. This was outside the period asked for.b. The reference from Laguna Hotel [281] is unclear as it specifies “17/2017 – 02/2018”. In any event, this was outside the period asked for.c. The reference from Hot Cats Recruitment Ltd covers the period December 2018 to September 2019. Again, this was outside the period asked for.d. A personal reference from Alexander Gnech [255] covered the period from December 2019 to April 2022, confirming that the Claimant had been out of work during that time.e. The reference from FJB Hotels (trading as Chine Hotel) [287] covered the period from 18 March 2018 to 8 April 2022. This seems to contradict the reference given by Mr Gnech, although that is not important here.f. The reference from CH & Co. Catering Ltd [260] covered the periods 1 April 2022 to 3 May 2022, and 18 July 2022 to 31 March 2023. The Tribunal notes and accepts that the Claimant says he did not actually work for CH & Co. Catering Ltd for this second period. Unfortunately for the Claimant, this does not assist him, as that means that this period is unaccounted for by any reference.g. The reference from Mitchells & Bulter [247] covered the period from 18 November 2022 to 18 December 2022.[41]From the undisputed contemporaneous documents available to the Tribunal, there are unaccounted for gaps in the Claimant’s employment history between April 2021 to April 2023. There is no reference covering May 2022 to November 2022, nor is there any explanation for reference for the gap from December 2022 to April 2023. Providing references for the entirety of a two-year period was a condition that the Claimant had to meet before he would be offered a placement. The Claimant had not therefore completed the requirements necessary for him to be appointed to a placement on or before the start of the autumn term in September 2023.[42]The Claimant’s argument (namely that he had completed the full induction and ‘onboarding’ process with the Respondent, but was not appointed to a placement on or before the start of the autumn term in September 2023 due to direct discrimination on the grounds of age, race, religion, sexual orientation and/or disability), was assessed against the Respondent’s argument that the Claimant was not appointed to a placement because he had not yet supplied the necessary references. The Tribunal was satisfied that the Claimant’s argument would have no reasonable prospect of success at a final hearing, given the very strong argument of the Respondent which is borne out by contemporary documents available to this Tribunal.[43]The Tribunal was further satisfied that the Claimant’s case is conclusively disproved by, and is totally and inexplicably inconsistent with, the undisputed contemporaneous documents.[44]The Tribunal therefore concluded that the claims of direct discrimination on the grounds of age, race, religion, sexual orientation and/or disability have no reasonable prospect of success. As per Hassan v Tesco Stores Ltd UKEAT/0098/16, the Tribunal considered the question of whether to exercise discretion and strike the claims out.[45]In Mbuisa v Cygnet Healthcare Ltd EAT 119/18 the Employment Appeal Tribunal held that strike out is a draconian step and should only be taken in exceptional circumstances. This may include circumstances when the facts of the case are demonstrably untrue.[46]The Tribunal also had regard to the words of Honour Judge James Taylor in Cox v Adecco Group Uk & Ireland and ors 2021 ICR 1307, EAT: “No-one gains by truly hopeless cases being pursued to a hearing”; and to those of Lord Hope of Craighead in Anyanwu v South Bank Student Union [2001] ICR 391: “The time and resources of the Employment Tribunals ought not to taken up by having to hear evidence in cases that are bound to fail”.[47]In respect of the alleged less favourable treatment that the Respondent was “moving the goalposts”, the Tribunal is satisfied that this is demonstrably untrue, and it is appropriate to strike the claim out.[48]In respect of the alleged less favourable treatment that the Respondent did not appoint the Claimant to a placement on or before the start of the autumn term in September 2023 because of direct discrimination on the grounds of age, race, religion, sexual orientation and/or disability, the Tribunal is satisfied that these claims are bound to fail, and it is appropriate to strike the claim out.[49]The Tribunal was further satisfied that it was appropriate to exercise its discretion to strike the claims out, given that the Claimant’s claims were inherently implausible and inconsistent with contemporaneous documents. Tribunal time is precious, and it is in accordance with the Overriding Objective for this Tribunal to exercise its discretion and strike out claims which have no reasonable prospect of success. The claims are therefore struck out.