Mr R J Bryce v Active Security Solutions Ltd and others: 1303721/2021

EMPLOYMENT TRIBUNALS

Case No 1303721/2021

Between

Mr R J BryceClaimant

(1) Active Security Solutions Limited (2) Stonegate Pub Company Limited (3) Security Industry Authority (4) Chief Constable of Staffordshire PoliceRespondent

Before

Employment Judge Edmonds

In person for claimant

Date 28 March 2023

JUDGMENT

[1]The claims against the third and fourth respondents are struck out.

[2]The claims against the first and second respondents remain listed for an open preliminary hearing via CVP on 23 January 2023 at 10am. The third and fourth respondents are no longer required to attend that hearing.

REASONS

[1]The claimant was employed by the first respondent as a licensed door supervisor, and at the time of the relevant incident which led to the issues in this case (1 August 2021) was assigned to perform his duties at the second respondent’s premises. The third respondent is a regulator of the security Case No:1303721/2021 V 6.3 Strike Out Judgment – claim – part - rule 37 industry, and the fourth respondent is the Chief Constable of Staffordshire Police.

[2]The claimant says that he is disabled by reason of Asperger’s Syndrome and dyslexia. As a result of this, we made various adjustments to the proceedings, including permitting the claimant to make further written submissions following the hearing, and giving the respondents the opportunity to reply to those (which both the third and fourth respondents did). It has been raised by the fourth respondent that the written submissions from the claimant in fact went further than what I had permitted (which was to supplement the oral submissions already given with any additional submissions which he wished to make, rather than inviting wholesale new detailed submissions). Whilst I agree that the claimant’s submissions did go beyond what had originally been envisaged, and enclosed a number of exhibits which had not been in the file used at the Preliminary Hearing, I do not believe that they went so far as to mean that I should decline to admit them given that the respondents have had the opportunity to reply should they wish to do so. I have therefore considered the points raised by the claimant when reaching my decision, although given the scale of those points I do not refer to each and every one of them in these reasons.

[3]On 1 August 2021 an incident occurred between the claimant and a member of the public who was seeking entry into the second respondent’s premises. During this incident the claimant activated a CCTV body camera and prayed a UV/Smart spray at the member of the public. The police attended the incident, and ultimately reported it to the third respondent, who then suspended the claimant’s license on 9 August 2021.

[4]The claimant has brought a number of claims in relation to the incident on 1 August 2021 and what happened subsequently, against all four respondents. The third and fourth respondents have applied for the claims against them to be struck out under Rule 37 of the Employment Tribunal Rules on the basis that the claims against those respondents have no reasonable prospects of success. Whilst the third and fourth respondents made separate submissions on these points, given the similarities between the arguments made by each of them, I deal with them collectively and only refer to an individual respondent’s assertion where it is relevant to do so. The grounds upon which the striking out of the claims were sought are as follows (although please note that I have combined certain points and changed the order of these from that provided by the parties in order to group related matters together):a. That the Tribunal does not have jurisdiction to consider the claimant’s complaints against the third and fourth respondents, and that nothing arises from section 111/112 of the Equality Act for which they could be liable;

b. That the claimant has no arguable case against the respondents, that no unfavourable treatment or harassment had been identified and that no cause of action has been identified; and

c. That the claimant is unlikely to be able to show that he is disabled within the meaning of the Equality Act, and that the evidence provided in relation to disability is inaccurate. Case No:1303721/2021 V 6.3 Strike Out Judgment – claim – part - rule 37

[5]At the start of the hearing, I indicated that, in the alternative, if I was not minded to strike out the claimant’s claims against the third and fourth respondent, I would also consider whether to require the claimant to pay a deposit under Rule 39 of the Employment Tribunal Rules to continue with his claim. I heard evidence from the claimant in relation to his financial means, and evidence of this was submitted following the hearing. I was also provided with a Bundle amounting to 218 pages.

The law

[6]Rule 37(1) of the Employment Tribunal Rules says: “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 prospects 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; ……….”

[7]It will generally not be appropriate to strike out a claim where there are disputed facts that have not yet been determined, particularly where the claimant is a litigant in person (see, for example Cox v Adecco and ors

2021 ICR 1307

[8]Claims relating to discrimination which are brought in the Employment Tribunal fall under Part 5 of the Equality Act.

[9]Section 120 of the Equality Act states that: “(1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to –(a) A contravention of Part 5 (work);

(b) A contravention of section 108, 111 or 112 that relates to Part 5”.

[10]Section 111 of the Equality Act states that: “(1) A person(a) (A) must not instruct another

(b) (B) to do in relation to a third person

(c) (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention. (3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention. (4) For the purposes of subsection (3), inducement may be direct or indirect. …… (7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.”

[11]Harvey on Industrial Relations and Employment Law (at 522) states that, in relation to section 111(7): Case No:1303721/2021 V 6.3 Strike Out Judgment – claim – part - rule 37 “This is a roundabout way of ensuring that liability for instructing, causing or inducing only applies if the person seeking to influence the other has some kind of relationship with the other from which the influence could stem”.

[12]Section 112 of the Equality Act states that:(1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3,4,5,6 or 7 or section 108(1) or

(2) or (11) a basic contravention). ……

[13]“Knowingly” in this context means that “…the party potentially liable must be shown either to have wanted the discriminatory result to follow, or to have known that the employer would treat or was contemplating treating the victim in a discriminatory way. It will not necessarily be enough if the alleged aider merely suspects that a discriminatory act will be the outcome of his own behaviour, without really wanting it to come about, far less if it can only be said that he should, as a reasonable person, have realised (but did not) that discrimination would be the result” (Hallam v Avery

[2001] IRLR 312

). As set out in Sinclair Roche & Temperley v Heard [2004] IRLR, the “aiding” cannot be unconscious.

[14]Section 29(6) of the Equality Act (which appears in Part 3 and not Part 5) states that: “A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.” Conclusions Jurisdiction

Conclusions

[15]The third and fourth respondents both submit that their actions in relation to the claimant were purely in the exercise of a public function: in the third respondent’s case, regulating the UK’s private security industry, and in the fourth respondent’s case, policing functions. As such, they argue that the proper forum for any such complaint is the county court, with such claim being framed under section 29(6) of the Equality Act and not Part V.

[16]The claimant argues that the facts of this case are such that Part V does apply, regardless of the fact that the third and fourth respondents were not his employer and he was not providing services to them. The claimant refers specifically to use of the word “relates” in section 120 of the Equality Act, and that section 111 of the Equality Act refer to “a person” and not an “employee”. He refers to the Explanatory Notes to the Equality Act in further support of this premise. He argues that the acts of the third and fourth respondents did relate to Part 5, in that the information was provided to his employer and then had an impact on his employment. He argues that, unless this were the case, then he would be left without recourse against the third and fourth respondents and that this cannot be right. He also submits that the county court is not as specialised as the employment tribunal and therefore that the Tribunal is the best jurisdiction to consider the complaint. Case No:1303721/2021 V 6.3 Strike Out Judgment – claim – part - rule 37

[17]I first wish to address the claimant’s assertion that, if he is not permitted to continue with his claims against the third and fourth respondent in the employment tribunal, then he has no redress. That is not the case. Section 29(6) does provide the claimant with another forum in which to pursue his complaints, should he wish to do so – the county court. Whilst I appreciate the claimant may feel that the employment tribunal is more specialised and would prefer it to be dealt with in this forum, that is insufficient basis for departing from the forum specified in legislation, and I would also reassure the claimant that the county court is well versed in dealing with a variety of matters.

[18]As to the claimant’s assertion that the facts of his case do occur in a work context and therefore fall within Part 5 generally, sections 39 to 60 of the Equality Act list specific categories of person who fall within the scope of Part 5. Whilst this is clearly broader than a simple employer/employee relationship, none of those categories apply to the relationship between the claimant and either the third or fourth respondents.

[19]Moving onto the claimant’s assertion that in fact sections 120 and 111 are broad enough that the alleged acts of the third and fourth respondents do fall within its scope. From his submissions, it appears that he intends to argue that the third and fourth respondents in some way instructed, caused or induced the first and second respondents to carry out discriminatory acts. In his claim form the claimant positioned the claims against the third and fourth respondents as being specifically in relation to:a. Discrimination arising from disability; and

b. Harassment. He does not specifically set out at any point that he is asserting that the third or fourth respondents instructing, caused or induced any breach. That appears to be the argument that he now puts forward, but there is nothing in his claim form or further and better particulars setting this out, despite those being detailed pleadings which refer to other specific legislative provisions. Regardless, however, it is also important to consider section 111(7) of the Equality Act: for liability to occur, the party must be in a position to commit a basic contravention. I have seen no evidence to demonstrate that there is a relationship between the first / second respondents and the third / fourth respondents that would meet this test. Whilst I accept that the claimant could apply to amend his claim through additional further and better particulars, I must look at the claim as it now stands and note that he already had the opportunity to particularise his claim at an earlier stage. In any case, there would still be the issue that the appropriate forum for any claims against the third and fourth respondents would be the county court.

[20]In relation to the claimant’s pleaded case, one issue which has come up in the course of these proceedings is the extent to which allowances should be made for the fact that the claimant is a litigant in person in relation to his pleadings. On the one hand, the claimant is indeed a litigant in person and he also asserts that he has Aspergers Syndrome and dyslexia, so it is important that we do not expect the same level of clarity from him as we would from a solicitor or counsel. However, as the fourth respondent points out, the claimant does have a law degree and it is clear from the very Case No:1303721/2021 V 6.3 Strike Out Judgment – claim – part - rule 37 detailed correspondence he has written throughout the case that he is capable of formulating legal arguments and digesting legal text. That said, I do acknowledge that, as he is not an employment law specialist, the claimant will not necessarily understand the exact formulation to be applied and I do therefore recognise that he remains a litigant in person, despite his understanding of certain points.

[21]Turning to section 112 of the Equality Act, I do not think this helps the claimant either. For any claim to succeed, he would need to demonstrate that the third and/or fourth respondents wanted the other respondents to discriminate against the claimant, or to have known that this would happen. The claimant’s pleaded case does not make such an assertion. In any event, I do not believe that this would be sufficient to bring the fourth respondent’s actions within the scope of section 120 of the Equality Act 2010: all that the third and fourth respondents did was to pass on information, and in the third respondent’s case, suspend the claimant’s licence, in accordance with their statutory duties and public functions. That falls within section 29(6) and not Part V of the Equality Act 2010.

[22]Therefore the claimant’s claims against the third and fourth respondents are struck out as the Tribunal does not have jurisdiction to hear them. In reaching my decision, I have also taken account of the principle that claims should not generally be struck out where there are disputed facts. However, in this case, the facts of the case are broadly agreed in any event. Furthermore, the basis for striking out the claim is primarily because I do not believe the Tribunal has jurisdiction to consider the claims, that would be the case regardless of what the facts are. There are no disputed facts where, if the claimant’s account of events was preferred by the Tribunal, it would bring the claimant’s claims against the third and fourth respondents within the jurisdiction of the Tribunal. That the claimant has no arguable case

[23]The third and fourth respondents submit that there is no clear basis for the claimant’s claim as pleaded and it is unclear what acts the third and fourth respondents have done which are alleged to be discriminatory. The claimant has pleaded his claim as one of discrimination arising from disability and of harassment, but has not identified the unfavourable treatment and unwanted conduct.

[24]I do not hold it against the claimant that he has not identified each individual element of his claims, as that is something that can be done as the list of issues in the case is identified, and he remains a litigant in person despite his legal background. However, in order for his claim to have any reasonable prospects of success, it must be capable of being identified.

[25]In relation to the claim for discrimination arising from disability, if the claimant’s argument is that the unfavourable treatment was the passing of information to the first and/or second respondents, then he would still need to show that the passing of information occurred because of something arising in consequence of his disability. This would require the claimant to show that the use of spray against the customer occurred because of his disability. Whilst the claimant has put forward that he has issues with Case No:1303721/2021 V 6.3 Strike Out Judgment – claim – part - rule 37 memory as a result of his condition, I do believe that the claimant will have difficulties in establishing the necessary connection to meet this test.

[26]In relation to the test for harassment, it is clear that the passing on of the information to the first and second respondents would have been unwanted. The claimant would of course also need to show that the conduct had the purpose of effect set out in section 26 of the Equality Act, and the claimant’s perception, the circumstances of the case and whether it it was reasonable for the conduct to have that effect will also be taken into account.

[27]In relation to both the discrimination arising and harassment claims, I do have concerns that the claimant may struggle to meet the relevant legal tests. However, as we have not fully explored the issues in the case, I would not be inclined to strike the claimant’s claims out purely on that basis, were it not also for the Part 5 issues identified above. Were it simply a question of whether the actions amounted to discrimination arising from disability and/or harassment, I would consider that the claimant has little, but not no, reasonable prospects of success. Had I not already determined that the claims should be struck out for other reasons, I would have considered the claimant’s financial means and whether to issue a deposit order. That is however not necessary given that I have decided to strike those claims out for other reasons. Disability

[28]The fourth respondent argues that the claim should also be struck out on the basis that the claimant is unlikely to meet the test for disability, and that his medical evidence is insufficient.

[29]Whilst I agree that the medical evidence provided to me at the hearing on 6 September was prepared many years prior to the incidents in question, and did not address any impact that the claimant’s conditions might have on him in his role as licensed door supervisor, it also became clear during the hearing that the claimant had misunderstood the information he was required to provide and agreed to provide further information following the hearing. I was told that the claimant had previously provided an impact statement in another case, but as I was not involved in that case I make no comment on that. I therefore make no findings in relation to the likelihood or otherwise or the claimant showing that he was disabled within the meaning of the Equality Act 2010 at the relevant time, and would not strike the claimant’s claims our (or issue a deposit order) on that basis. EU Law

[30]Finally, the claimant has requested through separate correspondence sent on 18 October 2022 that I consider making a reference to the Court of Justice of the European Union about whether the Tribunal has the jurisdiction to hear the complaints made by the claimant against the third and fourth respondents.

[31]Under section 6(1)(b) of the European Union (Withdrawal) Act 2018, only very limited matters may be referred to that court after 31 December 2020, none of which are applicable here. Therefore, it would not be in my power to Case No:1303721/2021 V 6.3 Strike Out Judgment – claim – part - rule 37 make a reference even if I wished to do so. However, for the avoidance of doubt, even if that were not the case, I conclude that the legal position is clear and that there is no conflict or apparent conflict with any European Directive or other relevant legislation, and therefore would decline to make a reference in any case. Employment Judge Edmonds 15 November 2022 Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017 EMPLOYMENT TRIBUNALS Claimant: Mr R J Bryce Respondents:(1) Active Security Solutions Limited

(2) Stonegate Pub Company Limited Heard at: Birmingham (via CVP) On: 23 January 2023 Before: Employment Judge Edmonds Representation Claimant: In person Respondents : First Respondent: Mr T Lang, solicitor Second Respondent: Miss G Rezaie, counsel PRELIMINARY HEARING

[32]The claimant sets out this allegation in paragraphs 6 and 10.1 of his Particulars of Claim, specifically valuing this claim at £176. He says that this relates to unpaid wages in respect of the work he did on 30 July, 31 July and 7 August 2021. The first respondent says that the claimant was paid for 16 hours, which is all that he was scheduled to work and in fact more than he did work given that he was sent home on the night of the incident. Having seen the claimant’s payslip and entry from his bank account, it is clear that the exact amount which the claimant is claiming was in fact paid Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017 to him, less deductions, and therefore I cannot see any basis on which the claimant could show that this money remains owing to him.

[33]Therefore, I strike out this element of the claimant’s claim on the basis that it has no reasonable prospect of success. Insurance deductions

[34]The claimant says that a £6 deduction was taken from his pay in respect of insurances which he never authorised. This deduction is evidenced on the payslip which was provided to me.

[35]The claimant’s contract specifically says that the first respondent will deduct £3 per week from his wages in respect of personal accident or other insurances, and that the first respondent is authorised to deduct any sums owing by the claimant from time to time. The £6 deduction on his payslip dated 30 August 2021 is in respect of this insurance, and given that he is paid fortnightly the £6 deduction would represent two £3 weekly payments as set out in the contract.

[36]If the claimant had accepted that the contract of employment in the file of documents before me was an accurate contract of employment reflecting the terms agreed between him and the first respondent, I would have had no hesitation in concluding that this claim would have no reasonable prospects of success. However, I must take the claimant’s claim at its highest at this stage and he says that he did not receive that contract. If that were the case, I cannot say that his claim would have no, or little, reasonable prospects of success.

[37]However, that is not the end of the matter. I must also consider whether this actually forms part of the claimant’s pleaded claim. Having reviewed his particulars of claim, it does not. In fact, in his further particulars which were provided at an earlier stage in these proceedings, the claimant in fact specified that he did not receive the payslip until February 2022 and that he was “now” aware of the £6 deduction. It therefore cannot have been part of the pleaded claim which was submitted months in advance of February 2022. Therefore, he would need to apply to amend his claim in order to include a claim relating to a deduction from wages.

[38]At this point, the claim would be out of time and that would be part of the assessment as to whether to allow him to amend his claim. In addition, there was a gap between 2019 and 2021 during which no deductions were made and therefore any claim for unlawful deduction from wages in respect of the period prior to 2021 would also have been potentially out of time at the point at which he brought his claim.

[39]The claimant has also brought this head of claim as a breach of contract claim. For that claim to have any prospects of succeeding, the claimant would need to show that his employment has ended. As outlined above, it is not altogether clear to me whether the claimant’s employment with the first respondent had in fact ended when he brought his claim or whether the claimant remains on a zero hours contract, albeit with no work. In the latter scenario, a claim for breach of contract would necessarily fail. Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017

[40]Factoring in all of the above, whilst I cannot say that this claim has no reasonable prospects of success, it does appear to me that the claimant has a number of difficulties with this claim and it has little reasonable prospects of success.

[41]It is therefore open to me to consider requiring a deposit order be paid in order for the claimant to continue with this aspect of his claim. In considering this I have taken into account the claimant’s ability to pay any deposit, including the fact that he is not currently working and the evidence he gave on his monthly expenditure. However, with an income of £850 approximately after rent has been paid, I am confident that the claimant has the ability to pay a deposit. The respondents have sought a deposit order of £50 to £100 per allegation. Whilst that may be an appropriate figure for some of the claimant’s claims, I have also taken account of the low value of this particular aspect of the claim and conclude that it would be disproportionate to require the claimant to pay that level of deposit for a claim that may only be worth £6 if he succeeds.

[42]Therefore, factoring in all of the above, I order that the claimant is required to pay a deposit of £5 if he wishes to continue with this aspect of his claim, failing which it will be stuck out. Holiday pay

[43]Again, this is a claim against the first respondent alone. The claimant did not work for the first respondent between the end of 2019 and July 2021 and therefore this claim can only realistically relate to the period starting on 30 July 2021, the claimant not having submitted at any point that any specific agreement was reached to enable him to carry forward unused holiday from 2019 into the 2021 holiday year.

[44]The claimant’s claim form is silent as to the nature of his claim for holiday pay, however he has since explained that his concern relates to the wording used in his contract of employment (albeit that he says that he did not see or sign this at the time his employment commenced). This is because the schedule to his employment contract stipulates that his gross wage of £10.50 per hour (as it was at the time he was first employed) was made up of £9.23 of basic wages and £1.27 of holiday pay. This appears to be a form of “rolled up holiday pay”.

[45]Rolled up holiday pay is a complex topic and I cannot say that a claim on the basis that rolled up holiday pay is unlawful in this context has no, or little, reasonable prospects of success. However, given that the claimant only worked between 30 July and 7 August, and given the lack of any right to carry forward holiday, I can say that the value of this claim is necessarily limited to the specific time period from 30 July 2021 onwards. I would also add that, for this claim to have any prospects of success, the claimant’s employment would need to have ended, given that there is no right to payment in lieu of holiday unless employment has ended.

[46]I therefore allow this claim to proceed, but only in relation to the 2021 holiday year. Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017 Failure to make reasonable adjustments

[47]At this stage, both disability and knowledge of disability remain in dispute, although the respondents have not sought to argue that the claim should be struck out on this basis.

[48]The claimant’s case for reasonable adjustments is formulated on the following grounds:a. That the respondents were under a duty to provide the following auxiliary aids to him: i. CCTV/body camera ii. Handcuffs/leg restraints iii. Smart water / UV spray

b. That the respondents had a provision, criterion or practice (“PCP”) of “working in an environment that is high risk to health and safety with multiple factors or contributors that would contribute or amplify risks”.

[49]Regarding CCTV/body camera and handcuffs/leg restraints, there is no assertion made that the incident on 1 August (or any other incident) occurred because the claimant was not provided with those items.

[50]In relation to the smart water / UV spray, the claimant did have a UV spray at the time the incident occurred: in fact the core matters in this claim surround the fact that he used that spray. The claimant cannot therefore succeed in any argument to the effect that there was a failure to make reasonable adjustments due to him not having these items.

[51]In relation to the PCP identified above, that is not in reality a PCP at all: it is just a statement of the working environment as he sees it. Having said that, I am mindful that we have not yet identified the list of issues and therefore, whilst the claimant has so far failed to identify a PCP, that can sometimes happen as the issues are discussed at a case management preliminary hearing. I therefore give the claimant the benefit of the doubt that he may just have mis-pleaded what the PCP is that he relies on.

[52]However, whether pleaded as a PCP or as an auxiliary aid, there also needs to be a substantial disadvantage suffered in the absence of the adjustment in order for a claim for reasonable adjustments to succeed. In relation to the auxiliary aids, if the claim is that the respondents failed to provide these, then he nevertheless had them in his possession and therefore there can have been no substantial disadvantage. In addition, I also think the claimant will have difficulties in showing any substantial disadvantage in comparison with non-disabled persons. The claimant says that they help with his memory and communication difficulties, however in his pleaded claim he does not rely on those factors to justify the use of his UV spray, but instead refers simply to trying to de-escalate the situation by withdrawing his spray and then using it when the individual refused to leave. There is no suggestion that his disability meant that he had to take that action whereas non-disabled persons would not. I Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017

[53]In relation to the PCP, I find it difficult again to see how this would put the claimant at a substantial disadvantage in comparison to non-disabled persons, or what steps the respondents could reasonably have taken to avoid any such disadvantage. I note also that the claimant has refused to provide any details of what adjustments he thinks the respondents should have made, despite having been asked to do so by the Tribunal, on the basis that he believes it is not for him to suggest adjustments but for the respondent to make them. Whilst the claimant is correct that the duty to make reasonable adjustments falls on the respondents, it would have been helpful for him to provide that information.

[54]In relation to the claimant’s claim for reasonable adjustments as pleaded, I would strike this claim out for having no reasonable prospects of success. However as outlined above I recognise that the PCP relied upon might be refined into something that is an actual PCP at a case management hearing. That said, given that the claimant had the equipment available to him that he says he needed, given that the claimant was sent home on full pay and not formally suspended or dismissed on the night in question, and given that the nature of the claimant’s role involved being trusted to interact with members of the public who might be aggressive or drunk on occasion, I find it highly unlikely that the respondents could be found to have failed to make a reasonable adjustment in sending the claimant home on full pay following an incident where the police were called (and, ultimately, although not known to the respondents at that time, the claimant’s SIA license was then suspended).

[55]In conclusion, I therefore find that the claimant’s claim for reasonable adjustments has little reasonable prospect of success. Again, I have considered whether it would be appropriate to issue a deposit order and I conclude that it is, for the same reasons as set out above in relation to the claimant’s income. However, whereas I reduced the amount of the deposit order in respect of the holiday pay claim because of the low value of that claim, in this case the value of the claim would be higher and therefore I see no need to reduce the proposed deposit on that basis. Taking into account the claimant’s financial means and the need to set the deposit at a level which indicates the limited prospects of the claim, I order that the claimant be required to pay a deposit of £50 to continue this claim against the first respondent, and a further £50 to continue this claim against the second respondent. If he fails to do so, then the claim will be struck out against one or both respondents as applicable. Discrimination arising from disability

[56]Again, at this stage, both disability and knowledge of disability remain in dispute, although neither respondent sought to argue that the claim should be struck out on that basis.

[57]Discrimination arising from disability occurs where:a. Something arises in consequence of the claimant’s disability;

b. The claimant is treated unfavourably by the respondent(s) because of that; and

c. The respondent(s) cannot show that the treatment is a proportionate means of achieving a legitimate aim. Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017

[58]The claimant says that the something that arose in consequence of his disability was that he used PPE equipment (specifically the UV spray). As outlined above, I think this will be diff icult for him to show. However, even if he does, he would need to show that he was treated unfavourably because he used the PPE equipment. The two elements of “unfavourable treatment” that the claimant relies upon are(a) sending him home after the incident on 1 August and

(b) the suspension of his license by the SIA. In relation to the latter, the SIA is not party to these proceedings although I note in his further particulars he refers to “aiding” the suspension of his license which could theoretically relate to the respondents.

[59]In relation to sending him home after the incident, I cannot see that this can realistically amount to “unfavourable treatment”. He was sent home on full pay, without suspension and in fact was permitted to work only the following week again, showing that this was not a permanent state of affairs. To the contrary, sending an individual home who has been in an altercation with a member of the public which has led to the police attending the incident, whether or not that member of staff was at fault in any way, seems sensible and in the interests of all concerned, including the claimant. The respondents have clear legitimate aims in order to protect the public, clients, the business and the claimant himself , and I cannot see him showing that sending someone home in this situation on full pay was anything other than a proportionate response.

[60]In relation to the suspension of his license, clearly the first and second respondents did not do that. To the extent that the claimant seeks to argue that they in some way facilitated that, this claim is also bound to fail. In circumstances where the SIA is investigating an incident, it is incumbent upon the first and second respondents to assist in that investigation. I believe the claimant says that he was permitted to wear the PPE and that it was falsely reported to the SIA that he was not, however for that claim to succeed the claimant would need to show that(a) he used the PPE because of his disability (as outlined above this is inconsistent with what his claim form says),

(b) that the respondents made a false report to the SIA because he had used his PPE, and

(c) that this was not a proportionate means of achieving a legitimate aim. In relation to point (b), I cannot see how he will be able to show that the reason for any false reporting (if indeed there was any, I understand the respondents do not accept this) was that he had used the PPE that he says he was permitted to have. The claimant’s case is also inconsistent with his claim for reasonable adjustments which is based on him not being allowed PPE, in contrast to this claim which appears to be on the basis that he was allowed the PPE.

[61]It is worth adding that, subsequent to his claim form, the claimant has also referred to events which occurred prior to 2021. For the avoidance of doubt, these are not part of his pleaded claim and I have not considered them here. They would of course also be out of time in any case.

[62]I conclude that the claimant’s claim for discrimination arising from disability has no reasonable prospects of success and I strike out that claim against both respondents. Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017 Detriment under section 44 Employment Rights Act 1996 (health and safety)

[63]I consider first whether the claimant was designated by either respondent to carry out activities in connection with preventing or reducing risks to health and safety at work. I conclude that he was not. It is certainly true that the nature of a door supervisor’s role means that from time to time they will come across situations where they have to consider health and safety when determining how to deal with those situations. That is not the same as being designated to carry out activities in connection with preventing or reducing risks to health and safety, in the same way that a health and safety representative is.

[64]The detriment on which the claimant relies is c. Being sent home early on the night of 1 August d. Being investigated by the third and fourth respondents e. A suspension of his license by the fourth respondent

[65]In his further particulars the claimant specifically states that detriments (b) and (c) above are against the 3rd and/or 4th respondents, and given that they are not party to this claim, those claims must fail.

[66]In relation to being sent home early, for all the reasons set out above, I cannot see that the claimant will be able to show that this was a detriment.

[67]Insofar as the claimant also claims that, in circumstances of danger which he reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger, again the claimant’s claim is bound to fail. He will need to show that he suffered a detriment because he took those appropriate steps. The appropriate steps he will rely on are using PPE, and again the relevant detriment relied on is being sent home (the others having fallen away given the other respondents are no longer party to the claim). As outlined above, being sent home on full pay in these circumstances is not a detriment. In any case, I would add that again there is an inconsistency in the claimant’s argument in that on the one hand he argues that the reason for having the PPE (and therefore for having to use the PPE) is because of his disability to help communication and with memory issues, and on the other hand for the purposes of this claim he argues that the use of the PPE was to protect himself and others from circumstances of danger (which is unrelated to his disability).

[68]The claimant’s claims under section 44 of the Employment Rights Act 1996 are struck out for having no reasonable prospects of success. Detriment under section 47B Employment Rights Act 1996 (protected disclosure)

[69]The claimant says that his protected disclosures were reporting a crime and/or health and safety breaches. Although he focuses heavily on reporting matters to the fourth respondent, taking his evidence at his highest he has also said that he reported it to the first and second respondents so I consider this application on the basis that this happened and proceed on the assumption that he made a protected disclosure (albeit that I make no finding as to whether he in fact did or not as this would be a matter for evidence). Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017

[70]To succeed in his claim, he would need to show that he suffered a detriment on the ground that he made that protected disclosure. Again the detriment relied on is being sent home on full pay and/or the suspension of his license / provision of information which led to the suspension of his license. In relation to the former, again I do not see that this can amount to a detriment. In addition, for both alleged detriments he would need to show that the reason for being sent home and/or a disclosure being made to the third or fourth respondent which led to his license being suspended, was on the ground of him having made a protected disclosure: it was plainly not, it was because he had sprayed someone in the face with UV spray and the police had been called.

[71]This claim against both respondents is struck out for having no reasonable prospects of success. Next steps

[72]Once it is clear which elements of the claims will proceed (depending on whether or not the claimant pays the required deposits), the Tribunal will consider whether it is necessary to list any further preliminary hearings or whether a final hearing can be listed (and if so the duration of such hearing). In addition, if the claimant does pay a deposit in order to continue with his claim for reasonable adjustments, orders will be sent requiring the claimant to provide an impact statement and/or additional information regarding his disability, however this is not required unless and until the claimant has paid a deposit in order to continue with this aspect of his claim.

[73]I was also asked to consider a document which had been redacted at page 183 of the file used at the hearing on 6 September 2022, as the respondents were concerned that the redacted section may contain relevant information. The claimant had submitted on 6 September 2022 that it was irrelevant and not related to his disability. Having reviewed that wording, I conclude that(a) it is related to his potential disability and

(b) it is relevant and should be disclosed (and should have been disclosed in full prior to the hearing on 6 September 2022). This is on the basis that it refers specifically to an example of where the author believes that the claimant appears to struggle to understand social situations and respond appropriately, which is related to his disability and also relevant to these proceedings. When sending the document to the Tribunal, the claimant indicated that he felt it was not part of his disability but perceptions, views or opinions which were out of proportion and lacking insight into the individual incidents. The claimant would be free to make those observations as part of any future hearing and the fact the claimant does not agree with the comment made in the document does not mean that it is not relevant. The claimant is therefore required to provide an unredacted copy of this page to the respondents as part of his disclosure in these proceedings (and please note that this should form part of disclosure whether or not the claimant decides to proceed with his claim for disability discrimination). Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017 Employment Judge Edmonds 7 February 2023 RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON .......................................... ........ ........ ........ ........ ........ ........ ........ ........ . .......................................... ........ ........ ........ ........ ........ ........ ........ ........ . FOR EMPLOYMENT TRIBUNALS NOTE ACCOMPANYING DEPOSIT ORDER Employment Tribunals Rules of Procedure 2013

Conclusions

[1]The Tribunal has made an order (a “deposit order”) requiring a party to pay a deposit as a condition of being permitted to continue to advance the allegations or arguments specified in the order.

[2]If that party persists in advancing that complaint or response, a Tribunal may make an award of costs or preparation time against that party. That party could then lose their deposit. What happens if you do not pay the deposit?

[3]If the deposit is not paid the complaint or response to which the order relates will be struck out on the date specified in the order. When to pay the deposit?

[4]The party against whom the deposit order has been made must pay the deposit by the date specified in the order.

[5]If the deposit is not paid within that time, the complaint or response to which the order relates will be struck out. What happens to the deposit?

[6]If the Tribunal later decides the specific allegation or argument against the par ty which paid the deposit for substantially the reasons given in the deposit order, that party shall be treated as having acted unreasonably, unless the contrary is shown, and the deposit shall be paid to the other party (or, if there is more than one, to such party or parties as the Tribunal orders). If a costs or preparation time order is made against the party which paid the deposit, the deposit will go towards the payment of that order. Otherwise, the deposit will be refunded. How to pay the deposit?

[7]Payment of the deposit must be made by cheque or postal order only, made payable to HMCTS. Payments CANNOT be made in cash.

[8]Payment should be accompanied by the tear-off slip below or should identify the Case Number and the name of the party paying the deposit.

[9]Payment must be made to the address on the tear-off slip below.

[10]An acknowledgment of payment will not be issued, unless requested. Case No: 1303721/2021 10.5 Reserved judgment with reasons – rule 62 March 2017 Enquiries

[11]Enquiries relating to the case should be made to the Tribunal office dealing with the case.

[12]Enquiries relating to the deposit should be referred to the address on the tear -off slip below or by telephone on 0117 976 3033. The PHR Administration Team will only discuss the deposit with the party that has been ordered to pay the deposit. If you are not the party that has been ordered to pay the deposit you will need to contact the Tribunal office dealing with the case. ---------------------------------------------------------------------------------------------------- DEPOSIT ORDER To: HMCTS Finance Support Centre Temple Quay House 2 The Square Bristol BS1 6DG Case Number _____________________________________ Name of party _____________________________________ I enclose a cheque/postal order (delete as appropriate) for £__________ Please write the Case Number on the back of the cheque or postal order Case No: 1303721/2021 7.6C Deposit not paid – Judgment - claimant Rule 39 EMPLOYMENT TRIBUNALS Claimant: Mr R J Bryce Respondents:(1) Active Security Solutions Limited

(2) Stonegate Pub Company Limited

[1]The claimant was ordered to pay the following deposits after a preliminary hearing held on 23 January 2023. The Order was sent to the claimant on 10 February 2023: i. £5 in respect of the claimant’s claim for unlawful deduction of wages and/or breach of contract made against the first respondent only; and ii. £100 in respect of the claimant’s claim for failure to make reasonable adjustments made against both respondents with £50 to be paid per respondent.

[2]The claimant has failed to pay these deposits. The claims as set out above are therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013.

[3]A hearing will be listed separately in respect of the claimant’s remaining claim for holiday pay against the First Respondent (there being no remaining claims against the Second Respondent).