Mr R Stackhouse v TNT UK Ltd and others: 1306541/2019 and 1300172/2020

EMPLOYMENT TRIBUNALS
Case No 1306541/2019, 1300172/2020
Between
Mr Ryan StackhouseClaimantTNT UK Ltd (1), Garry Barber (2), Colin Gibson (3), Dean Woolley (4), Nick Link (5), Paul Roberts (6), Fedex Limited (7). RECORD OF A PRELIMINARY HEARING INRespondent
Before
Employment Judge FloodIn person for claimantMr C Adjei (instructed by counsel) for respondentDate 27 February 2023
[1]Claim 1 in so far as it is pursued against the fifth respondent (Nick Link) is struck out.[2]Claim 2 in so far as it is pursued against the seventh respondent (Fedex Limited) is struck out.[3]The complaint of breach of contract in Claim 1 is struck out.[4]The following complaints in Claim 1 have little reasonable prospects of success:a. The complaint of direct race discrimination in so far as it is made against the second respondent (Gary Barber);b. The complaint of victimisation in so far as it is made against the third respondent (Colin Gibson); and should be made subject to a deposit order. The amount of any such deposit that the claimant should be ordered to pay if he wishes to continue with such complaints will be determined following any representations from the parties after a period of 28 days. Case Numbers: 1306541/2019 & 1300172/2020 2 of 21[5]The respondent’s application for a strike out or deposit order to be made in respect of the claimant’s complaint that the first respondent is in breach of regulation 12 of the Working Time Regulations 1998 (‘WTR’) is refused.[6]The claimant is permitted to amend Claim 1 to add the following allegations of less favourable treatment to his complaints of direct race discrimination (which are set out at paragraphs (ii)a. to c. of Appendix 1 to this Order): a. Failing to attach as much weight to the claimant’s version of events as Steve Brown’s version of events.b. Having a notetaker present during the claimant’s investigation interview when one was not present during Steve Brown’s investigation interview.c. Not believing the claimant’s version of events and instead believing Steve Brown.[7]The claimant is permitted to amend his complaint of victimisation in Claim 1 to rely on an additional protected act (which are set out at paragraphs (xii) b. of Appendix 1 to this Order), namely: b. Formally raising a grievance around 26 November 2018 by way of letter sent by recorded delivery and addressed to Dean Woolley. and to add the additional detriments (which are set out at paragraphs (xiii)a. to h. and also k. of Appendix 1 to this Order), namely: a. Lynn Ingram and/or Gary Barker failed to forward the claimant’s grievance, which he had sent around 26 November, to Dean Wooley.b. In a meeting on 29 November 2018 Dean Wooley misinformed the claimant about the CCTV evidence by telling him it could not be viewed in the room they were in.c. No notes of the meeting on 29 November 2018 were provided to the claimant despite Lynn Ingram taking notes during the meeting and the claimant asking for a copy via his union representative.d. The claimant’s grievance was heard by Gary Barber’s manager Colin Gibson which was outside of procedure as it should have been hear by the claimant’s own line manager or supervisor.e. Dean Woolley informed Gary Barber about the grievance on 29 November 2018 which was outside of procedure as it should have been kept confidential.f. Colin Gibson had a meeting about the claimant’s grievance with Gary Barber on or around 10 December 2018 prior to meeting the claimant to discuss his grievance.g. Colin Gibson was hostile towards the claimant in correspondence prior to meeting him, in particular Colin Gibson in a letter of 10 December 2018 casted doubt on the claimant’s assertion that he had not received a previous letter.h. In a meeting on 17 December 2018 Colin Gibson was irate towards the claimant, and in particular he said:
“We will deal with this in the way I want and if you don’t like it, I will deal with it less sociably”
. Case Numbers: 1306541/2019 & 1300172/2020 3 of 21 and k. At the end of the meeting on 17 December 2018 Colin Gibson ended the discussion abruptly and held the door open for the claimant and told him he would escort him off the premises.[8]The claimant’s application to add the following allegations as complaints of direct race discrimination is refused, namely:
“Has Paul Roberts subjected the claimant to the following treatment: a. Refusing to remove himself from the disciplinary process (despite the claimant’s request that he do so on the ground he was not neutral in an email sent on or around 5 June 2019).”
[9]The claimant is permitted to add the following allegations as complaints of harassment related to race (which are set out at paragraph (viii) a. and c. of Appendix 1 to this[10]The claimant’s application to add a complaint of detrimental treatment on the grounds of having made a protected disclosure is allowed in part. The claimant is permitted to rely on those disclosures which are alleged to have taken place on or after 14 November 2018 i.e during the investigation and disciplinary process and which are set out at paragraphs (xv) h. to r. in Appendix 1 to this Case Numbers: 1306541/2019 & 1300172/2020 4 of 21 Order. The claimant is permitted to rely on the acts of alleged detrimental treatment set out at paragraphs (xvi) e., g. to i., p. to z. and aa. to bb. in Appendix 1 to this Order. The claimant’s application to amend his claim to add the alleged disclosures set out at paragraphs a. to g. and the alleged detriments set out at paragraphs a. to d., f. and j. to o. is refused. CASE SUMMARY AND REASONS[1]The claimant presented his first claim form which was allocated case number 1306541/2019 (‘Claim 1’) on 9 August 2019, following a period of early conciliation between 11 June and 10 July 2019. He then presented a second claim form which was allocated case number 1300172/2020 on 14 January 2020 (‘Claim 2’). The respondent defended those claims with responses submitted on 3 October 2019 and 14 February 2020 respectively. The claims relate to the respondent’s treatment of the claimant following an incident at work on 22 August 2018 and his subsequent dismissal[2]This was the fourth preliminary hearing in these proceedings. The first two had been before Employment Judge Meichen on 22 January and 17 March 2020 during which time a significant amount of time was spent identifying and recording the issues. This was recorded in two case management orders, the first being sent to the parties on 30 January 2020 (‘1st CMO’) shown at pages 113-117 of the bundle prepared for today’s hearing (‘PH Bundle’) and the second being sent on 7 April 2020 (‘2nd CMO’) shown at pages 120-129 PH Bundle. This process was not quite completed so directions were made for the respondent to make a focused request for further information. The respondent’s position at this time was that as not all claims identified had been pleaded, an amendment application would be needed. The matter was then listed for a further preliminary hearing to consider whether permission was needed to amend and if it should be granted, whether any part of the claim should be struck out and to carry on identifying and recording the issues in Claim 1 and to carry out that process in Claim 2. There had been a further preliminary hearing before me on 4 June 2020 but that was adjourned because the claimant was unable to effectively participate in that remote hearing due to technical problems with his phone signal.The draft List of Issues that the parties had identified to date (including those issues on which an amendment determination was required) was included in to the order sent to the parties following the third preliminary hearing (‘3rd CMO’).[3]At the last hearing, the claim was listed for an Open Preliminary Hearing on 18 September 2020 in person with a time estimate of 1 day to consider:3.1 Whether the claimant needs permission to amend to proceed with any of his claims, and if so, should permission be granted.3.2 Whether any part of the claim should be struck out.3.3 Identification of the issues in the second claim and case management. Case Numbers: 1306541/2019 & 1300172/2020 5 of 21[4]That hearing was postponed as solicitors previously representing the claimant had come off record and as it was to take place remotely (and the claimant had difficulties accessing on previous occasions) it was rescheduled to take place in person. It was relisted for 21 October 2020. That was postponed due to the unavailability of the respondent’s counsel. The parties were asked to provide dates when they were unavailable to attend a rescheduled hearing on 15 October 2020. These were provided but due to delays in the administration as a result of the Covid 19 pandemic, this information was not picked up until September 2021 almost a year later. The Tribunal once again apologises for the delay in dealing with this matter.[5]At the outset of the hearing, I decided that as the process of identifying the complaints and recording these had not been completed, it would be better to do that first before going on to consider issues of amendment and to hear any applications to strike out.[6]We firstly discussed the complaint for protected disclosure detriment. The detriments the claimant sought to rely on were contained in the further information he provided on 19 February 2020 (pages 154-156 PH Bundle). The claimant was ordered by Employment Judge Meichen to also provide details of the e mails he says were sent which contained protected disclosures which the claimant did on 24 March 2020 (pages 159-166). We spent time discussing and recording the remainder of the claimant’s complaints made under the Working Time Regulations 1998 (‘WTR’); for breach of contract, unlawful deduction of wages, failure to provide itemised pay statements and unfair dismissal. To the extent permitted to go ahead as a result of the remaining applications made, the issues as far as I understand them to be on all such complaints are set out at Appendix 1 to this Order. Amendment Application[7]The parties went on to make submissions on amendment. Mr Adjei stated that the claimant was required to seek permission to amend his claim to include the following complaints:7.1 The complaints of direct race discrimination set out at paragraph 12 (ii) to (iv) of the 1st CMO (shown at page 113 of the PH Bundle). The respondent contends that the allegation of less favourable treatment at d. of “Attempting to make the claimant change his version of events during the investigation” is in Claim 1, but the matters alleged at a, b and c, namely:a. Failing to attach as much weight to the claimant’s version of events as Steve Brown’s version of events.b. Having a notetaker present during the claimant’s investigation interview when one was not present during Steve Brown’s investigation interview.c. Not believing the claimant’s version of events and instead believing Steve Brown. Case Numbers: 1306541/2019 & 1300172/2020 6 of 21 were not pleaded. It is submitted that the only allegation at para 23 of Claim 1 (page 16) is general in nature and that when the claimant complains about Gary Barber’s conduct in the investigation at para 5 of Claim 1 (page 14) these matters are not mentioned at all. It is submitted that the claimant does not explain why these matters were not originally pleaded and that Mr Barber faces extreme hardship dealing with new allegations dating back to 2018.7.2 The complaint of victimisation set out at para (v) and (vi) of the 1st CMO (shown at page 114 PH Bundle). It is submitted that the protected act at relied upon set out at b (raising a grievance around 26 November 2018) and the detriments pleaded at a through to h and also k, namely: l. Lynn Ingram and/or Gary Barker failed to forward the claimant’s grievance, which he had sent around 26 November, to Dean Wooley. m. In a meeting on 29 November 2018 Dean Wooley misinformed the claimant about the CCTV evidence by telling him it could not be viewed in the room they were in. n. No notes of the meeting on 29 November 2018 were provided to the claimant despite Lynn Ingram taking notes during the meeting and the claimant asking for a copy via his union representative. o. The claimant’s grievance was heard by Gary Barber’s manager Colin Gibson which was outside of procedure as it should have been hear by the claimant’s own line manager or supervisor. p. Dean Woolley informed Gary Barber about the grievance on 29 November 2018 which was outside of procedure as it should have been kept confidential. q. Colin Gibson had a meeting about the claimant’s grievance with Gary Barber on or around 10 December 2018 prior to meeting the claimant to discuss his grievance. r. Colin Gibson was hostile towards the claimant in correspondence prior to meeting him, in particular Colin Gibson in a letter of 10 December 2018 casted doubt on the claimant’s assertion that he had not received a previous letter. s. In a meeting on 17 December 2018 Colin Gibson was irate towards the claimant, and in particular[8]The claimant submitted that he is not legally qualified and when he submitted Claim 1 he was going through the most stressful time of his life. He said that he made general allegations and thought and expected that he would be able to provide detail at a hearing. He said that as a litigant in person he provided further details about his claim when he was required to do so. On the specific points raised above, he denies that the respondent will be at a disadvantage dealing with the matters complained about at paras 7.1 to 7.4 above, as they were already aware of the nature of his complaints and the basis of his complaints as being direct discrimination and harassment related to the respondent’s perception of his race had been made clear to the respondent. In relation to 7.5 above, he acknowledges that the original complaint in his claim form about whistleblowing detriment related to what took place during the processes he was undergoing following the incident on 22 August 2018. However he states that when asked to provide further particulars he realised that he had more complaints than he originally thought. He suggests that this information is important to show a background of the respondent not complying with its obligations. He submitted that it is in the interests of justice for all the matters to be heard.[9]I reserved my decision on this application. After the hearing, I considered the guidance of the relevant authorities in particular Selkent Bus Co. Ltd v Moore [1996] ICR 836; Vaughan v Modality Partnership UKEAT/0147/20/BA(V) (9 November 2020) and Galilee v Commissioner of Police of the Metropolis 2018 ICR 634. I noted that the key issue is the balance of prejudice, injustice and hardship that would be occasioned by granting or refusing the amendment and that time limits must be taken into account in the balancing exercise. Other important factors may be whether the claim has apparent merit and whether the respondent has lost the ability to deal with it evidentially. The fact that the new complaint is brought out of time does not automatically mean that the application must fail. In particular where there is a question as to whether Case Numbers: 1306541/2019 & 1300172/2020 9 of 21 events earlier than the usual scope of the time limit amounted to elements of an act extending over a period, or whether it would be just and equitable to extend time, in cases under the Equality Act 2010, the potential of a time limits defence can be left for determination at the final hearing by granting the amendment subject to time limits considerations. I made the following decisions: 9.1 I decided to allow the claimant’s application to add the following allegations as complaints of direct race discrimination:a. Failing to attach as much weight to the claimant’s version of events as Steve Brown’s version of events.b. Having a notetaker present during the claimant’s investigation interview when one was not present during Steve Brown’s investigation interview.c. Not believing the claimant’s version of events and instead believing Steve Brown. Considering the nature of the amendment and the timing/manner of application, I noted that the application to amend was made at the first preliminary hearing in January 2020. The claimant had already brought a race discrimination complaint so it is not an entirely new cause of action. These are “entirely new factual allegations which change the basis of the existing claim” as identified in the Selkent case mentioned above. The facts behind this allegation must presumably have been known to the claimant at the time of presenting Claim Form 1 and were not included. However this was raised with the Tribunal at the first reasonable opportunity for this to take place i.e at the first case management preliminary hearing. The claimant is a litigant in person. In the context of the overall litigation I do not consider this to be a particularly late application to amend. As to the applicability of time limits, it may be that this allegation is potentially out of time, but there is still the question (at least in respect of the claim against the first respondent) whether this is part of conduct extending over a period ending with a complaint brought in time. There is also the Tribunal’s just and equitable discretion. Therefore my view[10]The allegations which the claimant has permission to add to his claims are shown in the draft List of Issues in Appendix 1 to this Order and are shown in underlined text and the allegations that the claimant is not permitted to add to his claims are shown in strikethrough text. Strike out Application[11]The respondent also made applications for the following claims and parts of claims to be struck out on the basis that they had no reasonable prospects of success (with an application for a deposit order on the basis of little reasonable prospects of success made in the alternative):11.1 The claims made against the third, fourth, fifth and sixth respondents in their entirety. This is on the basis that although they were named as respondents, no complaints of discrimination, victimisation or harassment were detailed against any of them in Claim 1. Whilst each features in the narrative in respect of the investigatory and dismissal process, it is submitted there is no allegation that what was done by them amounted to direct race discrimination, victimisation or harassment. Mr Adjei stated that allegations of direct race discrimination and race related harassment are only made in respect of the second respondent and the allegation of victimisation is too general in nature. The claimant resisted this application on the basis that although the first respondent was responsible for the actions, these were the individuals who carried out the acts and had to take responsibility individually for their own actions.11.2 The claim of direct race discrimination made against the second respondent. This is made on the basis that the only allegation of direct race discrimination against the second respondent in that which is set out at paragraph 23 of Claim 1 complains about an investigatory meeting which took place on 6 November 2018. It is also submitted that the last involvement at all of the second respondent was on 28 November 2018. Therefore even if this was the last possible act of discrimination, the claimant would have needed to commence early conciliation at the latest by 25 February 2019 for his complaint to possibly be in time. The claimant commenced early conciliation on 11 June 2019 so on that basis this claim against the second respondent it is submitted is 7 months out of time. I was referred to the authority of Aziz v First Division Association [2010] EWCA Civ 304 and it was suggested that as different individuals were involved in the alleged incidents of discrimination over the period and where there is a break in contact of several months this may not be a continuing act. The claimant Case Numbers: 1306541/2019 & 1300172/2020 15 of 21 submitted that the actions of the various individuals amounted to a continuing act with each individual who acted after the second respondent, carrying on the same discriminatory treatment.11.3 The complaint of victimisation set out at paragraphs 25-27 of Claim 1 against the third respondent. This is made on the basis that there was no reference to the third respondent being responsible for any victimisation and similarly his last involvement was at a grievance meeting on 17 December 2018 (para 10 of Claim 14). On this basis as early conciliation was not commenced by 17 March 2019 (and not until 11 June, almost 3[12]I again reserved my decision on this application due to insufficient time. After the hearing, I considered the following relevant legal provisions: 12.1 The power to either strike-out complaints or to make a deposit orders and the tests be applied to each application are set out in Rule 37 (Strike Out) and Rule 39 (Deposit Orders) of the Rules. The relevant part of Rule 37 states:
“At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success;… The relevant part of Rule 39 states: “Where a tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success it may make an order requiring a party, the paying party, to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.”
These powers are discretionary. When deciding whether or not to exercise its discretion, the tribunal must have regard to the overriding objective in Rule 2 of the Rules. The overriding objective is to enable tribunals “to deal with cases fairly and justly”. “Dealing with a case fairly and justly includes, so far as is practicable: (a) Ensuring that the parties are on an equal footing; (b) Dealing with cases in ways that are proportionate to the complexity and importance of the issues; (c) Avoiding unnecessary formality and seeking flexibility in the proceedings; (d) Avoiding delay, so far as compatible with proper consideration of the issues; and (e) Saving expense.” 12.2 I also took guidance from the relevant authorities on strike out applications in particular recent EAT guidance on the duties of a Tribunal when considering strike-out against litigants in person in Cox v Adecco and ors 2021 ICR 1307, that a strike out where prospects of success turns on factual issues in dispute was unlikely to be appropriate. It stated that there must be a reasonable attempt to identify the claim and the issues before considering strike out or making a deposit order. In Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL, the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases as they are generally fact-sensitive. In Ezsias v North Glamorgan Case Numbers: 1306541/2019 & 1300172/2020 17 of 21 NHS Trust 2007 ICR 1126, CA, the Court of Appeal held that the same or a similar approach to striking out discrimination claims should generally be taken in protected disclosure cases and that it would only be in exceptional cases that a claim will be struck out as having no reasonable prospect of success when the central facts are in dispute. Balls v Downham Market High School and College 2011 IRLR 217, EAT, noted that it was not a question of assessing whether a claim was likely to fail or whether its failure was[13]My decisions on each of the applications are as follows:13.1 Claim 1 in so far as it is pursued against the fifth respondent is struck out. Although the fifth respondent is named as respondent, no complaints of discrimination, victimisation or harassment or indeed unlawful detriment on the grounds of having made a protected disclosure were detailed against the fifth respondent in Claim 1 and no Case Numbers: 1306541/2019 & 1300172/2020 18 of 21 amendments to Claim 1 were sought or permitted allowing any such complaints to proceed. The other complaints in Claim 1 are not complaints that can be pursued against individual employees but rather are complaints made against the claimant’s employer. i.e the first respondent. Whilst the fifth respondent is involved in the narrative and may be someone who is called as a witness in the claims made by against the other respondents, there is no reasonable prospect of success in any possible complaint against him as no such complaint has been made in these proceedings. For the same reasons, the complaints of direct race discrimination and race related harassment contained in Claim 1 as against the third, fourth, fifth and sixth respondent are also struck out and the complaint of victimisation as against the sixth respondent is struck out. No such complaints are pursued against those respondents in Claim 1 and the only application to amend to include such a complaint against the sixth respondent has been refused – see above. Complaints of victimisation are now pursued as against the third and fourth respondents either originally included within Claim 1 or permitted to be pursued as a result of the claimant’s application to amend.13.2 The complaint of direct race discrimination in so far as it is made against the second respondent has little reasonable prospects of success. This is because the only allegation of direct race discrimination against the second respondent set out at paragraph 23 of Claim 1 relates to an investigatory meeting which took place on 6 November 2018. As the claimant commenced early conciliation on 11 June 2019, this claim against the second respondent is on its face presented 7 months out of time. The claimant’s contentions that the actions of the various individuals amounted to a continuing act with each individual who acted after the second respondent, carrying on the same discriminatory treatment is only a possible argument in relation to the claim brought as against the same respondent. Although different individuals may have been involved, if one of the alleged acts was presented in time, it may be regarded as being conduct by the first respondent (albeit by different employees) extending over a period ending with an in time complaint. None of the complaints for direct race discrimination as against the second respondent are on their face in time. The claimant may be able to persuade the Tribunal to exercise its discretion to allow such complaints because is it just and equitable i[14]There will be a further case management hearing on 2 August 2023 to be held by CVP video hearing starting at 10.00 a.m. This hearing will be before me or Employment Judge Meichen, if possible, in private and will be for case management: to finish identifying the issues, make any Orders needed to progress the claim and to list for final hearing.[15]It has been given a time allocation of 2 hours. If you feel that this is insufficient, please inform us in writing within 7 days. Amendment[16]The claimant is permitted to amend his claim as set out above. Claims and Issues[17]The claims and issues, as discussed at this preliminary hearing and following the decisions made above, are listed in the Case Summary below. If you think the list is wrong or incomplete, you must write to the Tribunal and the other side by 10 March 2023. If you do not, the list will be treated as final unless the Tribunal decides otherwise. Further information[18]Within 28 days of the date that this Order is sent to the parties, the claimant must send to the Tribunal and the respondent any evidence he wishes to rely on (and make any submissions in writing he wishes to make) as to his ability to pay any deposit order that may be made in accordance with rule 39 (2) of the Employment Tribunal Rules of Procedure (‘ET Rules’). This may include a statement containing a schedule of his current household income and outgoings; assets (to include all businesses and properties in which he has any interest) and liabilities.[19]Within 14 days of the date that any such evidence is sent to the respondent, the respondent is permitted (although not required) to make further brief submissions on the claimant’s ability to pay any deposit that may be ordered.[20]Within 28 days of the date that this Order is sent to the parties, the respondent is permitted to file an amended response. Writing to the Tribunal[21]Whenever they write to the Tribunal, the claimant and the respondent must copy their correspondence to each other. Case Numbers: 1306541/2019 & 1300172/2020 21 of 21 Useful information[22]All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents.[23]There is information about Employment Tribunal procedures, including case management and preparation, compensation for injury to feelings, and pension loss, here: https://www.judiciary.uk/publications/employment-rules-and-legislation-practicedirections/[24]The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunal-procedurerules[25]You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal Employment Judge Flood 27 February 2023

Order

a. Gary Barber ignored evidence that was in his possession before the investigation meeting took place on 6 November 2018, namely the CCTV footage of the incident and the witness statements from John Stokes, Mohammed Malik and Adharna Tennowo, and said that even though there was no evidence to support the accusations of racist comments put forward by Mr Brown, the claimant could well have made the comments. The claimant believes this was related to race as it was due to Mr Barber’s perception that the claimant was white. and c. Gary Barber invited the claimant to further investigatory meetings on 9, 13 and 16 November 2018. The claimant says this was done in order to make further allegations against him as Mr Barber realised the allegations of racism would have to be withdrawn due to his perception of the claimant’s race being mistaken. The claimant believes this was related to race as there would have been no need for further meetings if Gary Barber had not made assumptions based on his perception of the claimant’s race in the meeting on 6 November. The claimant believes this was related to race as it was due to Mr Barber’s perception that the claimant was white.