Mr T LoftusClaimantJaguar Land Rover LimitedRespondent
Before
Employment Judge FloodIn person for claimantMs Ibbotson (instructed by Counsel) for respondentDate 21 October 2024
REASONS
[1]The claimant was employed by the respondent, as a Fleet Issue Management and Defect Engineer, from 20 March 2020 until 9 December 2021. Early conciliation started on 7 March 2022 and ended on 11 April 2022. The claim form was presented on 10 March 2022 and brought complaints of unfair dismissal, age and disability discrimination. The claimant had also ticked the box for ‘another type of claim’ and included the wording, “My employment with JLR was terminated on the basis of capability while an appeal against the rejection of IHER was in progress.” He went on to complain about the transfer valuation of his pension. The claim form appended a number of letters and documents relating to his ill health early retirement application.[2]The respondent’s response was that the claimant had been dismissed fairly on the grounds of capability following a lengthy period of absence from work due to ill health. The respondent acknowledged that the trustees of its occupational pension scheme rejected the claimant’s claim for ill health early retirement. However it explained that the claimant subsequently challenged this decision and the decision was overturned so that claimant would receive the benefit. However the claimant remained aggrieved and contended that he had been financially disadvantaged as a result of the original decision as the valuation of his ill health payment had reduced by the time of the appeal in February 2022. It contended also that the issue of transfer valuation was a matter for determination by the Pensions Ombudsman.[3]The respondent denied any form of age or disability discrimination and points out that the complaint is not particularised in the claim form.[4]The initial preliminary hearing for case management was postponed and the claim was stayed by an order of Employment Judge Battisby of 10 November 2022 for a period of a year until 10 November 2023 pending the outcome of the claimant’s appeal to the Pensions Ombudsman. The parties were ordered to update the Tribunal on progress every 3 months.[5]The claimant provided an update on progress on 3 February 2023 (stating that the Pensions Ombudsman had progressed the matter to investigation) and at the time also informed the Tribunal and the respondent about some issues he was having with the consultant responsible for his cancer treatment and his decision to delay further treatment until this was resolved. The claimant asked the respondent to confirm whether it or anyone representing it had been in communication with anyone responsible for his healthcare to which the respondent confirmed it had not. A further update was provided on 10 May 2023 with the claimant stating that his Pension Ombudsman claim had moved for formal adjudication.[6]The claimant had applied for the stay in proceedings to be extended for a further 6 months on 25 October 2023. The respondent opposed that application for a stay on 27 November 2023 and made an application for an order to be made to strike out the claim because it had no reasonable prospects of success or in the alternative because it had not been actively pursued or that a deposit order be made on the basis that the claim has no reasonable prospects of success.[7]The claimant has since this time sent a number of e mails providing information to the Tribunal. It was unclear in a number of cases what the claimant was seeking from the Tribunal and it was not copied to the respondent. The claimant also appears to have copied the Employment Tribunal into a number of e mails he has exchanged with the Pensions Ombudsman. He was informed in December 2023 by the Employment Tribunal that this correspondence had not been referred to an Employment Judge. He was told that unless he had been required to do so by an order of the Tribunal, or he was making an application to the Tribunal he should not copy correspondence between himself and others to the Tribunal. The claimant continued to send e mails with large volumes of information including correspondence with the Pensions Ombudsman. During this correspondence the claimant made reference to having suffered cyber attacks which was affecting his ability to respond.[8]The respondent wrote to the Tribunal on 24 January 2023 asking it again to consider its application for strike out and making reference to the correspondence being received. The claimant was asked for his comments by Legal Officer Singh on 7 February 2024. He respondent on 15 February 2024 again making reference to cyber attacks and stating that the information he had copied to the Tribunal was relevant to his case. He further replied on 4 March 2022 objecting to the application.[9]The file was referred to Employment Judge Maxwell on 14 May 2024. The Judge decided to refuse the claimant’s application for an extension of a stay and listed the matter for a one day preliminary hearing in public “to consider and determine, to the extent the Employment Judge at the hearing considers it necessary and appropriate to do so:(1) clarification of the Claimant's claims and issues arising;(2) whether the Claimant's claims should be struck out because they have no reasonable prospect of success;(3) whether the Claimant's claims should be struck out because they are not being actively pursued;(4) as an alternative to strike out for lack of merit, whether a deposit order should be made because the Claimant's claims have little reasonable prospect of success;(5) general case management.”[10]The matter came before me today. In advance of the hearing, the respondent had submitted a number of documents. This was comprised of two bundles of documents. Bundle 1 was a pdf document running to 191 pages which contained the pleadings and orders and a selection of the correspondence between the parties and the Tribunal. Bundle 2 was a pdf document running to 1339 pages which included the full extent of the e mail correspondence. At the start of the hearing, I checked whether the claimant had access to these bundles and he said he did not. The respondent does appear to have sent this to the claimant by e mail on 17 September 2024. The claimant explained that he believed that many of the documents he had been sent by the respondent and possibly the Pensions Ombudsman and the trade union had been infected with malware which had caused him significant IT problems. He felt that some of the e mails he had received from the Tribunal had a similar issue and I noted that on the file it had been recorded that the Tribunal should sent correspondence to the claimant by post only. It was unclear what documents the claimant had received but I proceeded on the basis that the claimant did not have access to the bundles prepared by the respondent and which I had in front of me. The claimant from time to time referred to other documents he had but those did were not available to the respondent or the Tribunal. This included a preliminary decision of the Pensions Ombudsman (which was able to be found with the assistance of Ms Ibbotson at page 1010 of Bundle 2).[11]The claimant also referred to a document headed “Statement of Events”. The claimant initially said it was submitted to the respondent and the Tribunal in January 2023 but then appeared to be saying it had been prepared earlier and submitted to his then trade union representative. Ms Ibbotson directed me to page 158 Bundle 1 which appeared to be an e mail from the claimant to the respondent’s solicitors sent on 15 February 2024 attaching such a document albeit the attachment was rejected as having suspicious links and could not be accessed. The claimant repeated his contentions that documents received had malware in them that had infected his computer, requiring him to reinstall software.[12]The claimant became upset at times and it is clear his domestic financial situation, his health and decisions around ongoing treatment and some issues with his family were causing him considerable distress. He took some breaks during the hearing.[13]The hearing started with me discussing with the claimant how his complaints were said to be made out. Starting with his unfair dismissal claim, it became clear that the essence of the claim is that the claimant believes that he was dismissed in order that the respondent would not have to pay out his ill health retirement pension benefit at a higher level as an active member of the scheme, but on a reduced basis as a deferred member (because he would no longer be an employee when his claim was accepted). He suggests his application for ill health early retirement as an employee was initially refused and he notified the respondent on 1 December 2021 he was planning to appeal that decision. He then suggests that the respondent moved quickly to a final capability review and terminated his employment on 9 December 2021. He seemed to accept that given his ill health the respondent had no choice but to dismiss him, but really contends that dismissal was effected in the manner it was so as to ensure he was an ex employee when his ill health retirement claim was ultimately accepted and so the respondent’s liability would be reduced. There was also a contention that being a deferred member of the scheme and in receipt of ill health early retirement benefits (rather than an active member) meant that in the event of his death, his dependants would receive nothing.[14]A complaint was ongoing relating to valuation to the Pensions Ombudsman, but the claimant said that his claims had been sent back to the Employment Tribunal pointing to a written preliminary decision of the Ombudsman sent to him on 21 September 2023 (page 1009 Bundle 2). That decision was that the claimant’s complaint should not be upheld and in its penultimate paragraph 129 at page 1032 Bundle 2 it stated: “Regarding the length of time it took JLR to complete its capability assessment, whilst this may have caused Mr S further distress and inconvenience, this is a matter of employment law and not within my jurisdiction.” The claimant suggested that this amounted to the Pensions Ombudsman sending his complaint back to the Employment Tribunal for determination.[15]He contends that his dismissal was orchestrated by Mr Roy Brown, the respondent’s UK Pension Manager (who he says was also acting as secretary to the Pension Trustees who the claimant says has a conflict of interest and was acting as a ‘gateway’ for all applications for ill health early retirement and deliberately terminated the claimant’s employment in order to reduce the respondent’s liability under the pension scheme. The claimant went on to state that he felt that the respondent did not before dismissing him take any consideration of the fact he had cancer and did not consider any modification to his role such as working from home or moving him to a well ventilated office in an area that was not ‘high traffic’.[16]I then asked the claimant about his disability discrimination complaints. This seemed a suggestion made at his final capability review that he did not have a protected characteristic and that the capability process was delayed such that his sick pay entitlement was run down and then his accrued holiday entitlement before dismissal. He also complained that there was a requirement to attend the office for work and he was unable to do this. He suggests that the respondent could have made other arrangements including not locating him in a high traffic area; having windows open and not to hold large meetings around desks near him. We tried to discuss the possible complaint of direct age or disability discrimination but the claimant seemed unclear what he was complaining about under this head. He made a comment to the effect that the respondent was trying to remove elderly employees but did not articulate anything else about this possible claim. There was also a further complaint about delay to the capability proceedings which meant that the claimant had to use up his paid sick leave and accrued holiday to remain paid.[17]I took a note of all the matter complained of and during an adjournment in the hearing I compiled these into a draft list of the issues that would need to be determined by the Tribunal which is attached as Appendix 1. This document was then e mailed to the parties and after the lunch adjournment we discussed with neither party objecting to what was captured there. I then proceeded to hear the respondent’s applications for a strike out or deposit order to be made and the claimant’s objections to these.[18]As there was then insufficient time for deliberation, I adjourned the hearing for a reserved decision to be made on that application. This judgment and reasons deals with the decision on the application to strike out and a separate deposit order also of today’s date deals with any orders to pay a deposit.
The Issues
[19]The issues I had to determine in both applications were as follows: a) Whether to strike out all or parts of the claims because they have no reasonable prospect of success. b) Whether to order the claimant to pay a deposit (not exceeding £1,000) if it seemed that any contentions put forward by her had little reasonable prospect of success, again as relevant to the allegations as follows:
The relevant law
[20]The Tribunal’s power to either strike-out complaints or to make a deposit orders and the tests be applied to each application are set out in Rule 37 (Strike Out) and Rule 39 (Deposit Orders) of the Rules.[21]The relevant part of Rule 37 states: 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 any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;[22]The relevant part of Rule 39 states: “Where a 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.”[23]In relation to strike out applications, guidance been given by the House of Lords in the case of case of Anyanwu v South Bank Students’ Union [2001] ICR 391, and the Court of Appeal in Ezsias v North Glamorgan NHS Trust [2007] ICR 1126, and by Lady Smith in the Employment Appeal Tribunal in Balls v Downham Market High School and College [2011] IRLR 217. The former two cases made the point, that in cases of discrimination and whistleblowing respectively, that a strike out on the basis of no reasonable prospect of success should only arise in an exceptional case when central facts are not in dispute. Lady Smith in the Downham Market High School case noted that it was not a question of assessing whether a claim was likely to fail or whether its failure was a possibility but that the claim had no reasonable prospect of success and that the tribunal should assess this from a careful consideration of all the available material. I am required to take the claimant’s pleaded case at its reasonable highest and it is not the role of the judge hearing a preliminary hearing to conduct a mini trial on partial evidence. The test under rule 39 is “less rigorous than under rule 37 and I am not limited to considering whether the claimant meets the threshold of having set out a prima facie case turning on real factual disputes but may go on to form a view as to whether the claimant is likely t be able to make out their case on the facts (Van Rensburg v Royal Borough of Kingston-upon-Thames [2007] All ER (D) 187 (Nov)).[24]I have also considered the case of Sharma v New College Nottingham [2011] UKEAT which was also a case which contained underlying factual disputes and where the EAT cautioned that tribunals should take the same approach in such cases where considering making a deposit order as it does when considering striking out a claim.[25]I also considered the authority of Hemdan v Ishmail [2017] IRLR 228 and the guidance that the purpose of a deposit order is "To identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs, ultimately, if the claim fails.” Further reference was made to Wright v Nipponkoa Insurance [2014] UKEAT/0113/14 namely that "When determining whether to make a deposit order an Employment Tribunal is given a broad discretion. It is not restricted to considering purely legal questions. It is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case.” Submissions[26]The respondent says that the claimant was informed of this decision on 14 October 2021. Therefore it is submitted the decision to dismiss cannot have been about trying to reduce liability, as the decision was to refuse the benefit and as at the time of dismissal, there was no liability at all. It was submitted that what the claimant was really complaining about was the timing of his dismissal or the consequences of the dismissal for pension scheme purposes, but not the reason for the dismissal itself. In terms of the fairness of the dismissal, it was submitted that the claimant is really only complaining about the delay in completing its capability review and dismissing him and the failure to consider other options. Ms Ibbotson suggested that the claimant had no reasonable prospect of succeeding at trial because it cannot be outside the range of reasonable responses for the respondent to take its time to manage the claimant before deciding to dismiss, whilst paying the claimant full sick pay until August 2021 and then accrued holiday pay. In terms of not considering other options, at the time of dismissal the occupational health advice was that there was no foreseeable return to work and the claimant had been off for over 2 years. Therefore this is not a case where any reasonable alternatives were available.[27]In terms of the disability (and age) discrimination complaints, the respondent submits that no complaint of failure to make reasonable adjustments is made in the claim form, so an amendment application would be required. It says that the claimant would now be significantly out of time and more significantly, the respondent cannot at the time have been applying a requirement for the claimant to attend work at its premises as the claimant had been signed off sick since August 2019 and there was no such requirement to attend because of his ill health and the advice that there was no foreseeable return to work in the future. It is also submitted that before the claimant was signed off from work, he was able to work from home and that during 2021 the claimant was not trying to return at all (as evidenced by his application for ill health early retirement). In terms of any direct discrimination allegation it was submitted it could not be less favourable treatment and in fact usual for an employer to permit an employee to take his or her sick pay and accrued holiday pay before dismissal was considered. She suggests that even if there was any delay in the capability review process, the claimant has not going to be able in any way to show that the reason for that was because of disability or in particular age, where he has been entirely unable to articulate any connection between age and what took place. The respondent applied for all claims to be struck out or in the alternative for a deposit order to be made on the basis that they had little reasonable prospect of succeeding.[28]The claimant’s submissions in support of his complaints largely focused on the decision making in relation to the ill health early retirement benefit. He pointed out that the same decision maker, Mr Brown, was involved in the original decision to reject and then to allow the claimant the benefit upon appeal, once he had been dismissed. The claimant suggested that the Mr Brown was aware that he was in the process of appealing the decision rejecting him for the ill health early retirement benefit and shortly after the respondent took the decision to dismiss him. He suggests that dismissal should not have occurred pending the outcome of his appeal against rejection of the ill health early retirement benefit.
Conclusion
[29]I considered whether any of the complaints should be struck out on the basis that it had no reasonable prospect of success. I started with the complaint of age discrimination. Taken at its highest, I do not see how even if any disputes are resolved in the claimant’s favour, he would be in a position to make out this complaint that any decision to delay the capability review process has any connection whatsoever with the claimant’s age. Applying the principles set out in Anyanwu v South Bank Students’ Union and Balls v Downham Market High School and College (as above) that a strike out on the basis of no reasonable prospect of success should only be made in exceptional cases where discrimination is alleged, I do believe this is such a case. The claimant’s allegations here are not articulated in the claim form and when I asked him why he thought his age had any relevance, he could only make a very general statement that the respondent was trying to get rid of older people. The claimant has not identified what age group he contends that he was treated less favourably than and I am simply unable to see any possible connection to age in anything that the claimant has told me about. I conclude that this claim has no reasonable prospects of success and should be struck out.[30]I then considered the other complaints of direct disability discrimination, failure to comply with a duty to make reasonable adjustments and unfair dismissal. I do have some concerns about the ability of the claimant to succeed in each of this complaints. However taking the claimant’s case at its reasonable highest on each of these complaints, I do not believe that it can be said that there are no reasonable prospects of it succeeding so a strike out order is not appropriate. In relation to all three complaints, I consider that these complaints have little reasonable prospect of success, and therefore a deposit has been ordered. Reasons are given in the separate deposit order. Signed by: Employment Judge Flood Signed on: 21 October 2024 Note: Although reasons for the decision were given orally at the hearing, written reasons will also be provided, as soon as conveniently possible, as a request for them was made by the respondent at the conclusion of the hearing.