Mr R ShergillClaimantDavies Group LimitedRespondent
Before
Employment Judge FloodIn person for claimantMr Grundy (instructed by Counsel) for respondentDate 5 February 2025
REASONS
[1]The claimant was employed by the respondent as a Customer Service Advisor from 6 March until 3 August 2023.[2]The claimant commenced a period of ACAS early conciliation (‘EC’) on 13 July 2023 which ended on 17 July 2023. He presented a claim form on 17 July 2023 making complaints of unfair dismissal, race discrimination, discrimination on the grounds of religion and belief, a redundancy payment, notice pay and unpaid holiday pay.[3]The claimant commenced a period of ACAS early conciliation (‘EC’) on 13 July 2023 which ended on 17 July 2023. He presented a claim form on 17 July 2023 making complaints of unfair dismissal, race discrimination, discrimination on the grounds of religion and belief, a redundancy payment, notice pay and unpaid holiday pay. The claim form set out a narrative of events making a number of allegations arising out of meetings and discussions following the death of the claimant’s grandmother.[4]The claim form was served on the respondent on 17 January 2024 and it defended the claim by a response submitted on 13 February 2024. This stated that the claimant had failed to provide sufficient information to make out a discrimination complaint, suggesting it should have been rejected and should be struck out. The matter was listed for preliminary hearing in September 2024.[5]In an e mail sent to the Tribunal on 27 August 2024 he confirmed that he was withdrawing his complaints for notice pay, holiday pay and redundancy pay. A preliminary hearing in private for case management was held before Employment Judge Codd on 19 September 2024. at which attempts were made to clarify the complaints. The case management order sent after this hearing on 8 October 2024 (“EJ Codd CMO’) recorded that the claimant had applied to amend his claim but that the current application was insufficiently detailed. The EJ Codd CMO stated that the claimant required an amendment for direct discrimination. A draft list of issues was included but recorded as being ‘not finalised’ but rather the best efforts of the Tribunal to distil the case.[6]The claimant was ordered to send a further amendment application and updated grounds of claim together with a “supporting statement” setting out what elements of his claim he sought to amend, the reason for the amendment, why he had not previously applied to amend or included these matters in the claim form and why it would be just and equitable to allow the amendment. The respondent had indicated that it was going to apply for the claim to be struck out on the basis of prospects of success and was ordered to provide an updated grounds of response and strike out application (and supporting arguments). The claim was listed for a preliminary hearing in public to deal with the amendment and strike out application, to finalise the list of issues and for further case management.[7]On 18 October 2024 the claimant submitted to the Tribunal and the respondent, his amendment application, updated grounds of claim together with a supporting statement (‘the 18 October Amendment Application’). This set out complaints of direct religious belief discrimination; harassment on the grounds of religious belief and victimisation.[8]The first matter to be noted is that in the 18 October Amendment Application the claimant makes no mention and does not complain that any of the acts relied upon are acts of race discrimination. I asked the claimant whether he still wanted to pursue complaints of race discrimination or whether his only complaints were actually about religious belief. He told the Tribunal that he no longer wanted to pursue complaints of race discrimination and that these were being withdrawn. Therefore the complaint of direct race discrimination was dismissed upon such withdrawal, alongside the complaints for a redundancy payment, notice pay and unpaid holiday pay that were withdrawn on 28 August 2024 – see separate judgment also issued today.[9]For the purposes of the hearing, I had before a Bundle of Documents for Preliminary Hearing (‘Bundle’). This included a written witness statement prepared by the claimant but as this was more a statement of reasons why he should be permitted to amend his claim, the claimant was not sworn in to give that evidence or subject to cross examination. I have taken full account of what the claimant says in that statement as part of his submissions on the applications.[10]I heard submissions on the claimant’s application to amend and the respondent’s applications for a strike out or deposit order to be made and the claimant’s objections to these.[11]I adjourned the hearing for a reserved decision to be made on the applications. This judgment and reasons deals with the decision on the application to strike out and a separate order also of today’s date deals with any orders to pay a deposit and the claimant’s application to amend his claim.
The Issues
[12]The issues I had to determine for the strike out application were as follows: a) Whether to strike out all or parts of the claims because they have no reasonable prospect of success. The relevant law 2. The Tribunal’s power to make a strike out order are set out in rule 38 of the ET Rules 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).” 3. 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. It is 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. 4. In Cox v Adecco Group UK & Ireland and ors 2021 ICR 1307, EAT, 28. Guidance was given as to how a Tribunal should approach an application to strike out on the basis of no reasonable prospects of success confirming that strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate, particularly if this turns on factual issues that are disputed The claimant's case must ordinarily be taken at its highest and it is necessary to consider, in reasonable detail, what the claims and issues are, “Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.” A fair assessment of the claim(s) and issues should be carried out on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim. Malik v Birmingham City Council and anor EAT 0027/19 the obligation to take the claimant’s case at its highest for the purposes of a strike-out application was emphasised, particularly where a litigant in person is involved, Conclusion 5. I considered whether any of the complaints should be struck out on the basis that they had no reasonable prospect of success. I started with the complaint of unfair dismissal. There is no dispute that the claimant was employed by the respondent for just under six months in total. Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years’ service to make an unfair dismissal complaint except in certain specific circumstances which did not appear to apply, so it appears that the the claimant is not entitled to bring such a complaint. During the hearing I asked the claimant whether he had anything to further to say on this matter but he did not. The claimant therefore has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out. Accordingly, the complaint of unfair dismissal is struck out as it has no reasonable prospect of succeeding. 6. I then considered the complaints of direct religious belief discrimination and religious belief related harassment as those stand after the claimant’s application to amend was decided. Those complaints are now as set out in the Schedule to this judgment. The respondent submits that these complaints arise out of a relatively simple set of facts which arose around the time of the death of the claimant’s grandmother and the associate funeral arrangements. It is not disputed that the claimant was permitted to take time off around the time of the death and the funeral. The complaints are about the claimant being contacted on the day of the funeral and how that time off was treated on the respondent’s leave system. They also relate to meetings held with the claimant on 27 May 2023 and comments contained in an outcome letter to the claimant’s grievance. The respondent says that the contact on the day of the funeral was simply a mistake and the allocation of this leave as holiday on its system was to ensure that the claimant was paid for the time off (as no paid time off to attend the funeral of a grandparent is provided to employees). It states that the matters arising out of the return to work meeting are related to an inappropriate MS Teams status of the claimant criticising a client and the way he spoke to his managers when this was raised. 7. The respondent submits that the claimant makes no credible link to his religious beliefs as a Sikh and what subsequently occurred. It points out that it is unlikely that the respondent’s manager deliberately chose not to inform colleagues that the claimant was at a funeral so that he would be deliberately contacted and that this was done for a reason in some related to his religious beliefs. It suggests that the fact that the respondent permitted the claimant to take emergency leave, additional time off and to change his shifts to attend the funeral and associate family religious observance events contradicts this assertion. It suggests that the claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with (as referred to in the Cox v Adecco case referenced above) undisputed facts explaining the treatment, namely the claimant’s own conduct 8. There is considerable force in what the respondent says and I too have significant concerns about how the claimant will be able to prove his claim. However taking the claimant’s case at its highest on each of these complaints, and given that there is a dispute of facts upon which evidence has not been heard 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 both 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.