Mr Z Mahmood v Vision Security Group Ltd: 1305586/2018
EMPLOYMENT TRIBUNALS
Case No 1305586/2018
Between
Mr Z MahmoodClaimantVision Security Group LtdRespondent
Before
Employment Judge ButlerUnrepresented for claimantRepresented by Mr S. Liberadzke (instructed by Counsel) for respondentDate 16 August 2019
JUDGMENT
[1]The claims of unfair dismissal and breach of contract have been struck out. This does not affect any remaining claims.[1]The complaint that the claimant was unfairly dismissed is struck out.[2]The claimant’s complaint of breach of contract is struck out.[3]The claim of race discrimination is not affected by this judgment.[4]The claim of victimisation is not affected by this judgment.
REASONS
[5]The claimant brought complaints of unfair dismissal, breach of contract, race discrimination and victimisation. These were brought by an ET1 that was received by the Tribunal on 24/11/2018.[6]The hearing on 19/07/2019 considered whether the complaints of unfair dismissal and breach of contract ought to be struck out, either because the tribunal did not have jurisdiction to deal with these claims, or as having no reasonable prospects of success, pursuant to rule 37(1) of the ET’s (Constitution and Rules of Procedure) Regulations 2013.[7]For the Employment Tribunal to have jurisdiction to hear the claims of unfair dismissal and/or breach of contract, there is a need for the claimant to have been subjected to a dismissal. Dismissal is defined in s.95 of the Employment Rights Act 1996, as being either: where the contract under which the employee is employed is terminated with or without notice, the expiration of a limited term contract without it being renewed, or where the employee terminates the contract (with or without notice) in circumstances where the employee is entitled to do so by reason of the employer’s conduct.[8]I heard evidence from the claimant, who was cross examined on his witness statement. I read a witness statement of Nazaqit Ishaque, who was not in attendance, but whose evidence did not deal with the issue of dismissal. I read a witness statement of Lynda Ward who was the Contract Manager for the respondent but was unable to attend the hearing due to illness. In addition, there was a bundle that ran to page 132, although not all of this was relevant to the issue of dismissal.[9]I heard submissions from both Mr Liberadzke on behalf of the respondent, and I heard submissions from the claimant himself.[10]The question for the tribunal to determine was whether the claimant had at any point during his employment with the respondent been dismissed.[11]The claimant’s case was that he received a letter dated 30/08/2018 that stated that he was dismissed from 03/09/2018. This letter was produced in the bundle where it was stated that; ‘As yet we have not received your written resignation. I am therefore confirming the termination of your employment as the 3rd September, 2018. If I have misunderstood your intention to resign, please contact me by 31st august 2018.’[12]The respondent’s case was that the claimant had never been dismissed, but had been transferred from what was his principal centre of work, namely the Swan Shopping Centre in Birmingham, who is a client of the respondent, to another client centre, namely 55 Colmore Row in Birmingham. This move was following a request from the Swan Shopping Centre that the claimant no longer be sent to work there following several matters of concern to them.[13]The bundle contains numerous communications between the claimant and the respondent. But instructive in this case include, but is not limited to, the following:a. The claimant ticked the box at 5.1 of the ET1 that his employment was continuing, and left blank the box concerning the date on which he says his employment had ended.b. Emails sent on 30/08/2018 between the claimant and Lynda Ward at page 40 of the bundle. Lynda Ward appears to be seeking to clarify whether the claimant was seeking to resign. The claimant on 30/08/2018 replied that ‘I did not resign, all I was interested in was keeping VSG as flexi contract due to family commitments’.c. Page 40A of the bundle, Lynda Ward replied to the claimant by email on 31/08/2018, which starts with ‘Your position is still available…’d. A letter dated 17/09/2018, at page 59 of the bundle, entitled ‘Potential Dismissal Due to Client Instruction and Invite to disciplinary Meeting’.e. An email from Lynda Ward on 17/09/2018 to the claimant, at page 61 of the bundle, stating that ‘your employment has not been terminated’.f. A letter dated 27/09/2018, at page 73 of the bundle, explaining the outcome of the meeting referred to at (c) above. This explained that the claimant had been put on notice of termination, however, that: ‘We will continue to search for alternatives during the whole of this period. If we are unable to secure you another role, the date of your dismissal will be 6th November 2018.’g. Email dated 03/10/2018, at page 75 of the bundle, of work being offered to the claimant at B&Q Coventry. This is a client company of the respondent.h. Letter dated 17/10/2018, found at page 79 of the bundle, where the claimant has been offered a permanent role at another of the respondent’s client sites, namely 55 Colmore Row. This is a client of the respondent. This letter also expresses that his continuous service with the company remains 24th January 2015[14]Under cross examination, the claimant accepted that the respondent does transfer workers to alternative sites where it has good reason to do so. The claimant accepted that he had himself been transferred from what was his original working site, which was a B&Q site, in or around June 2015, to work at another site.
Conclusions
[15]The claimant continues to work for the respondent. There has been no break in his continuous service. There has been no dismissal. The claimant was simply transferred to another site by the respondent, in circumstances where there was good reason to do so, namely a request by one of the respondent’s clients following a number of matters that caused them concern.[16]The contract of employment was not terminated by either party at any point of the employment relationship. There has been no dismissal, as defined under section 95 of the Employment Rights Act 1996.[17]Accordingly, the complaints of unfair dismissal and breach of contract are struck out.[18]For the purposes of clarity, the claimant’s other complaints of race discrimination and victimisation are not affected by this judgment. Signed by: JUDGMENT having been sent to the parties on 18 October 2019 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
Conclusions
[1]The issues I had to determine in this hearing were as follows:a. to strike out all parts of the claims of race discrimination because they have no reasonable prospect of success; or, if I do not:b. whether to order the claimant to pay a deposit (not exceeding £1000) if it is deemed that any such contentions put forward had little reasonable prospect of success.[2]In addition, the respondent indicated that it wished to pursue costs if it was found the claim had no reasonable grounds of success under Rule 76(1)(b).[3]The respondent provides security officers to various clients. The claimant was a security officer. By a claim form presented in 24 November 2018 following early conciliation from 24 September 2018 to 24 October 2018, the claimant brought claims of race discrimination, victimisation, and unfair dismissal. His complaint of unfair dismissal was struck out at an Open Preliminary Hearing before Employment Judge Butler on 27 July 2019.[4]The claimant’s claim of race discrimination is essentially about whether, in moving the claimant to work from one client to another, the respondent had discriminated against the claimant on the grounds of race, and/or subjected him to victimisation because he had made a complaint of race discrimination.[5]The respondent denies the claims and says the reason the claimant was moved was because the client required him to be moved and that in no way related to his race. The claim of victimisation is denied and the respondent says there was no protected act which could form the basis of a victimisation claim.
The law
[6]The claims which the claimant brings are:a. Under section 13 of EqA : that a person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. This involves the following elements: i. That the claimant was subjected to “less favourable treatment”, i.e. the respondent treated the claimant less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances ii. In assessing less favourable treatment the claimant must explain who his comparator is. The claimant can rely on a hypothetical comparator but here he relies on a fellow employee, Daniel Neary. iii. If less favourable treatment occurred, it will be unlawful if it was because of the claimant’s race and/or because of the protected characteristic of race more generally.b. In a claim for victimisation under section 27 of the EqA the essential elements are: i. That the claimant did a protected act or the respondent believed that the claimant had done or might do a protected act; and ii. That the respondent subjected the claimant to a detriment in consequence.c. In order to be a “protected act”, the claimant does not need to refer expressly to the Equality Act. However, the asserted facts must, if verified, be capable of amounting to a breach of the legislation. In Beneviste v Kingston University EAT 0393/05, the EAT clarified that a claim does not identify a protected act in the true legal sense ‘merely by making a reference to a criticism, grievance or complaint without suggesting that the criticism, grievance or complaint was in some sense an allegation of discrimination or otherwise a contravention of the legislation’.[7]The Tribunal’s powers to either strike out complaints or to make deposit orders and the test to be applied to each application are set out in rule 37 (strike out) and rule 39 (deposit orders) of the Rules.[8]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 ….that it is scandalous or vexatious or has no reasonable prospect of success”;[9]The relevant part of rule 39 states: “Where a tribunal considers that any allegation or argument in the claim or response has little reasonable prospect of success it may make an order requiring a party, the paying party, to pay deposit not exceeding £1000 as a condition to advance that allegation or argument.”[10]The principles of how these Rules should be applied in discrimination cases are set out in case law, principally by the House of Lords in Anyanwu v South Bank Students Union [2001] ICR 391, and I have also taken into account the guidance of Lady Smith in the Employment Appeal Tribunal in Balls v Downham Market High School and College [2011] IRLR 217. In cases of discrimination claims, a strike out on the basis of no reasonable prospects of success should only arise in an exceptional case when central facts are not in dispute, and the claimant’s case should be taken at its highest. I recognise that I must be especially careful given that the claimant is a litigant in person.[11]However, it is possible in exceptional cases to strike out a claim. In Shestak v Royal College of Nursing and ors (EAT 0270/08) the claimant appealed against the decision to strike out a number of claims arising out of the termination of her training placement. Upholding the tribunal’s decision, the EAT held that undisputed documentary evidence did not support the claimant’s interpretation of events, even taken at their highest, and this justified a departure from the usual approach that discrimination claims should not be struck out at a preliminary stage. The hearing on 30 September 2019[12]I heard brief sworn oral evidence from the claimant and he produced a witness statement (I have marked as C1). The respondent had prepared and presented a bundle of documents I have marked as R1.[13]I was mindful of course that in a case of a possible strike out, it is not appropriate to make findings in relation to disputed findings of fact, and if there are any disputes at all about relevant matters the case should be considered at a full hearing. However, the evidence from the claimant was useful to understand what his claim is, which I have taken at its highest, given the brief detail set out in the claim form and I have only considered it in that context.[14]In bringing his claim of discrimination the claimant relies on Mr Neary as his comparator. However, he accepts that the client, Savills, did not ask for Mr Neary to be moved. What the claimant says is that Mr Neary lied in relation to the incident which led to the request to move him. It is the claimant’s case that misleading information was provided to Savills about an incident when a car crashed into the barrier at the car park. He has other complaints about Mr Neary. He says that that Savills’ instruction that he should be moved should have been challenged by the respondent.[15]There is a key document in the bundle of documents. That is the email from Savills to the respondent in relation to the move request (p42). The email raises various matters and broadly can be summarised as follows. The claimant has previously refused to work with a fellow officer, Mr Ali, because the claimant considered him to be liar. Mr Ali is of Pakistani origin like the claimant. He had a disagreement with Mr Neary and accused Mr Neary of being a liar. He had indicated his wish to resign and had then changed his mind. Savills complain that the claimant’s attitude has affected the morale of other members of the security team and this is given as the reason for the request that the claimant is removed with immediate effect. The claimant accepts the incidents referred to in Savills email did happen but he rejects the criticism of him and objects to the fact that that same email refers to Mr Neary as being “exemplary”. The claimant objects to that because of the dishonest conduct he has alleged against Mr Neary.[16]Significantly the claimant does not suggest that the respondent has challenged decisions by clients that other employees should be moved and that he was treated differently because this did not happen in his case. Rather his allegation of discrimination is based on the fact that all the decision makers in his case were white.[17]In terms of his victimisation claim, the claimant relies on the transcript of the meeting on 25 September 2019 as his protected act. At that meeting he said “managers so they protect officers’ equality right and argue with the client if there is no justification to remove someone, in my case a matter of favouritism being clearly shown and no justification”. Submissions[18]I heard oral submissions from both parties. Mr Liberadzke for the respondent acknowledged that it is rare to strike out a discrimination claim, and it would be exceptional to do so if there are disputed facts which are central to the claim. Here he points to the lack of detail in the claim form, and the fact that the claimant’s chosen comparator, Mr Neary, was never the subject to a request to move and therefore the claimant appears to offer no basis for a finding of less favourable treatment at all. He points out that the respondent had a specific policy to deal with a request from a client to move an employee, that policy has been applied to other employees and it was that policy which was applied in this case. He points out that even taking the claimant’s claim at its highest, he offers no evidence or reason for asserting discrimination. His only basis for saying there was discrimination is the fact the key decision makers are white. Mr Liberadzke relies upon the case Ahir v British Airways [2017] EWCA Civ 1392 in this regard.[19]In relation to the claim for victimisation, the respondent says the protected act relied upon is simply too vague and does not contain any allegation of discrimination sufficient to meet the requirements of s27(2)(d) of the Eq A.[20]The claimant maintains that he was improperly treated. In his brief submissions he said that Mr Neary had lied and was trying to “save himself” and that Mr Neary had also walked off when the claimant had raised legitimate concerns about individuals he thought were carrying knives. The claimant said that the criticism of him was therefore inappropriate and unfair. The claimant feels that the comment he made in the meeting was clear. My conclusions and reasons[21]I am concerned here with the reasons why the claimant was moved from the shopping centre where his services were being provided to Savills. I find it highly likely that a tribunal hearing this case would conclude that there was any reason for moving the claimant except that a request had been made by the client and the claimant cannot point to any material which supports his assertion of discrimination. He is aggrieved in that he feels the client’s decision was unfair, but his reason for feeling that is based on what he perceives Mr Neary had done and, in essence, had “got away with”, not on the basis that he and Mr Neary were in the same circumstances and were differently treated by the respondent because of race. In that context his claim is misconceived. There was no request to move Mr Neary and that is a crucial flaw in the claimant’s case.[22]The claimant has not chosen a comparator who is in similar circumstances to him. Even if I consider a possible hypothetical comparator, that is someone who is white with a similar recent career history to the claimant, is there any reason to believe that a tribunal would find that such a person would not have been moved if requested by Savills, the respondent’s client? The claimant says he would not, but his only evidence for that is that the decision-makers at the respondent, Mrs Ward, Mr Barnes and Mr Sinclair, are white. That is not enough to support such an assertion. Most employers do not have a policy enabling them to move employees. However, employers in the situation of the respondent, to a large extent, have no choice but to do what their clients tell them to, and that is why this respondent has such a policy. The claimant does not suggest that the policy is a sham or that employees have not, in fact, been moved in the past. Whilst I appreciate that the claimant thinks the terms of the email from Savills requiring his removal were unfair and he says that the supervisor had provided incorrect information to the client; he has not suggested to me why, if he was white, Savills would have not made the same request for him to be moved or why he asserts that his employer would have reacted differently.[23]It seems to me that if this case proceeded to a full hearing, the claimant would be unable to establish facts from which a tribunal could conclude, on the balance of probabilities, absent any explanation, that the alleged discrimination had occurred. He accepts that the client made a request for him to be moved and that request had been prompted by him having a difficult relationship with fellow employees who both shared his ethnic background and did not. The claimant may perceive that his criticism of his colleagues was well founded but that is not the point. He accepts that the Savills email was the reason why he was moved but there is nothing in that email and the respondent’s response to it to suggest a taint of discrimination even when I take the claimant’s case at it absolute highest. Even if the claimant persuaded a tribunal that there were facts which would result in a reversal of the burden of proof, a tribunal will find that the respondent’s action in moving him were not tainted by race.[24]I have taken into account the guidance of the Court of Appeal in the Ahir case. In a case of this kind, where there was on the face of it a straightforward and well-documented innocent explanation for what occurred, a case cannot be allowed to proceed on the basis of a mere assertion that that explanation was not the true explanation without the claimant being able to advance some basis, even if not yet provable, for that being so.[25]Turning to victimisation, the key issue is whether the claimant did a protected act. If there is no protected act s27 of the Equality Act is not engaged. The claimant points to his comment in the meeting of 25 September 2018 when he said “managers do they protect officers equality right and argue with the client if there is no justification to remove someone, in my case a matter of favouritism been clearly shown and no justification”. I have taken into account the Beneviste guidance I have referred to above. The claimant refers only to “equality” and links that to “favourtism”. That is not the same as an allegation of discrimination. In relation to this claim I am unable to find in the claimant’s comment any reference to a breach of legislation or an allegation of discrimination. It is an allegation of unfair treatment and no more, and therefore cannot be a prohibited act. Accordingly, that claim too has no reasonable prospect of success and must be struck out. Costs[26]The respondent made an application for costs against the claimant. In any event under Rule 76 a Tribunal “shall consider whether to do so [make a costs order or a preparation time order] where it considers that … (b) any claim or response had no reasonable prospect of success”. The amount of the costs which may be awarded is to be determined in accordance with Rule 78 and, in addition, under Rule 84 “in deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay”.[27]If the tribunal has to consider an application for a costs order, then it has to undertake a two-stage process. Firstly, the tribunal must be satisfied that the claim has been conducted in a manner falling within rule 76 (a) and/or (b). If it is so satisfied, then at the second stage the tribunal has to consider whether to make the order and in doing so may proceed to make the order if it thinks it is appropriate. The purpose of a "no costs" regime in the Employment Tribunal is regarded as providing a more level playing field between employers who may be prosperous and employees who are less likely to be so in comparison. For that balance to be observed it seems to be the case that, for example, false or unwinnable claims are discouraged. However I have a further discretion, as I may have regard to the paying party's ability to pay even if costs would otherwise be justified.[28]This is a case where a costs order may have been appropriate. The claim brought has no reasonable prospects of success. However the claimant had brought some limited information about means which, although not complete, showed a family facing difficult financial circumstances. In simple terms they already have more going out than coming in and if I make any order for costs this could risk causing very considerable hardship, not only for the claimant, but also for his wife and young children. I have also taken into the following factors. This case has been struck out at a relatively early stage. The claimant is a litigant in person. I accept that he has a genuine sense of grievance about his treatment and although he has not shown treatment that can be said to be discriminatory, I do not believe that he has not sought to abuse the tribunal system. Discrimination law is complex and a difficult area for litigants in person to navigate. The general presumption that the tribunals should not apply the same approach to costs that is found in other courts reflects in part an acknowledgement that it is difficult for individuals to get access to legal advice on the merits of their claims and must do the best they can. In the circumstances, and in particular in light of the claimant’s ability to pay, I do not find it appropriate to make any award for costs.