Mr A Tanase v Suncream Dairies Ltd: 1302533/2018
JUDGMENT
The claimant’s claims of race discrimination were presented out of time and are dismissed.REASONS
[1]The claimant originally brought claims of unfair dismissal and race discrimination.[2]The unfair dismissal claim was struck out by EJ Butler on 5 December 2018 because the claimant did not have qualifying service. The claimant suggested that he did not recall previously agreeing the dates of his employment. It appeared that he was attempting to reopen that issue, suggesting that EJ Butler should be required to prove that he had made such a concession, yet stopping short of denying that he did. This approach was sadly repeated a number of times during the hearing.[3]The claimant was unable to offer any alternative dates and the dates relied on were those from his own claim form. In any event, the unfair dismissal claim was struck out over 2 months ago and that decision was not challenged at the time.[4]In relation to the race discrimination claims the claimant confirmed that he was not suggesting that he believed every allegation in his claim form was related to race.[5]He further confirmed that he did not raise any formal allegations of race discrimination whilst employed by the respondent. Indeed, he confirmed that he did not perceive the issues as related to his race at the time.[6]Moreover, he did not pursue most of his allegations at the time because he wanted to forgive. He said he wanted to keep silent and things often improved before something else would happen. He accepted that when he did raise issues about his boots and his car they were investigated as was an allegation of racism made against him.[7]He did, however, confirm that the first allegation of race discrimination relied on was an alleged whispered conversation on 11 June 2017 when he claimed he was referred to as a “pathetic migrant”. He acknowledged that this was the only allegation that directly referenced race.[8]The claimant maintained that he believed that some of the subsequent acts about which he complained were also related to his race as he said he was the only “migrant”. I explained that he would generally need to be able to evidence something more to establish discrimination. He was unable to point to any such evidence but, nonetheless, said that he believed, with hindsight, that the allegations formed part of a continuing course of conduct up to his last allegation of discrimination.[9]The respondent disputed this but, it seems to me that, if the claimant were allowed to proceed, this would have to be a matter for the full tribunal.[10]The claimant confirmed that the final act of alleged race discrimination on which he relied was that of 23 January 2018 detailed in his claim form. He expressly reaffirmed on more than one occasion that he was not suggesting that his dismissal was an act of discrimination.[11]Indeed, as an aside, in relation to his dismissal he sought to suggest that it may not have been his car doing donuts in the snow in the carpark and he may not have been driving. Further, he suggested that he may not have admitted the allegations, at least in part, and that the CCTV stills may not have been accurate. Again, when I asked whether he was denying the allegations he unhelpfully said that he would not commit perjury but that it was for the respondent to prove. He suggested that the footage and notes could have been forged but stopped short of making such an allegation. I note that initially the claimant seemed to be suggesting that he only inhabited the body of the person accused of gross misconduct.[12]The claimant acknowledged that he first sought advice from the CAB in, he believed, late 2017. He said he spoke to them again whilst still employed and again about a week after his dismissal.[13]He said that in the first meeting he was advised to raise a grievance although he decided not to.[14]He initially said that it was on his second visit that he was advised about claims, time limits, ACAS etc although he subsequently suggested that this advice may not have been given until the third meeting.[15]The claimant had also sought legal advice from a solicitor but ultimately concluded that this was prohibitively expensive. In addition he acknowledged doing considerable research online.[16]When asked why he hadn’t put in his claim sooner the claimant said that, initially, he didn’t intend to pursue a claim. However, he changed his mind after being dismissed.[17]He acknowledged that he was aware of the claims that he could bring and how to do so. He further acknowledged that he was aware of the time limits. He said that the delay in approaching ACAS after his dismissal was down to the time that it took him to put together his lengthy statement of case.[18]It was clear that the claimant had considerable difficulty remembering dates and details of a number relevant matters which was understandable. He acknowledged that it may be difficult for the respondent’s witnesses to respond to some of his allegations well over a year later for similar reasons. The respondent suggested that some had already left their employment.[19]The claimant also referenced the alleged verbal contracts that he said he made with certain managers and which were detailed in his particulars of claim where he suggested that he had been promised many hundreds of thousands of pounds. This seemed, at best, extremely unlikely.[20]The claimant attended without a witness statement addressing the time limit issue or any supporting evidence, relying instead on his previous witness statement and supporting documentation. The issues and the law[21]The respondent made applications for the discrimination claims to be struck out on the basis that they were presented out of time and / or because they had no reasonable prospect of success. In the alternative they asked for deposit orders in relation to claims that they said had little reasonable prospect of success.[22]In relation to time limits I considered the provisions of s123 Equality Act 2010. For the purposes of the hearing today only I was prepared to treat the claimant’s allegations as amounting to conduct extending over a period, ending with the last allegation relied on, being that of 23 January 2018.[23]The issue was whether it was “just and equitable” for me to extend time. The exercise of the discretion is the exception rather than the rule and it is for the claimant to justify an extension.[24]In that regard I am to consider the length of, and reasons for, the delay. I can also have regard to the potential prejudice to each of the parties which includes, therefore, some preliminary assessment of the strength of the claims.[25]If allowed to proceed I would then have to consider the provisions of rules 37 and 39 Employment Tribunals Rules of Procedure 2013 in relation to the respondent’s contentions on strike out and deposit.[26]The claimant acknowledged that, in relation to his race claims, he entered Early Conciliation about a month late.[27]He further acknowledged that he was aware of the right to claim and the relevant time limits well in advance of the deadline.[28]The only reason offered for the delay was that he was drafting his very lengthy statement of case although he did not suggest that this could not have been produced sooner.[29]In those circumstances there was no good reason for the delay.[30]The delay was only around 1 month. However, I am mindful that, having not followed advice some months earlier to raise a grievance, the claimant was putting the respondent in an invidious position. The respondent would find it increasingly difficult to respond to the allegations many months after the events in question, especially as some potential witnesses were no longer employed by them.[31]There was, therefore, significant potential prejudice to the respondent if required to defend the proceedings late. That said, there is clearly always potential prejudice to claimants in not being allowed to progress their claims.[32]In this case, however, the claimant’s claims did not appear particularly strong.[33]Only his first allegation had any obvious link to his race and, as a standalone claim, was presented many months late.[34]Some of his other allegations were fanciful, such as those where he asserted that managers had entered into verbal contracts to pay him hundreds of thousands of pounds. I would have had little hesitation in striking those out as having no reasonable prospect of success. They also give rise to significant credibility issues with regard to the claimant’s other claims as, indeed, did his bizarre assertions in relation to his dismissal.[35]For all of those reasons, therefore, it seems to me that it would not be just and equitable to extend time in this case and the claimant’s claims should all be dismissed.