Mr I Uddin v Sodexo Ltd and Royal Devon University Healthcare NHS Foundation Trust: 1400551/2024
[1]The Claimant in this case was employed by the First Respondent from 1 June 2011 to 12 January 2023. On behalf of the First Respondent the Claimant provided cleaning services to the Second Respondent.[2]This hearing was listed to consider the Second Respondent’s applications to strike out the Claimant’s claims against it, whether because of failure to comply fully with the early conciliation requirement or because the Claimant’s claims had no reasonable prospects of success.[3]In respect of the early conciliation requirements, the background to the application is as follows: a) The Claimant contacted ACAS on 20 December 2023 in respect of the first respondent. The Claimant contacted ACAS again on the 8th of January 2024 in respect of a potential claim against the Second Respondent, who he referred to as North Devon District Hospital. The Claimant made a third approach to ACAS on the 1st of February 2024 this time identifying the Second Respondent as the Royal Devon University Healthcare NHS Foundation Trust. ACAS certificates Case No: 1400551/2024 were issued in respect of each notification. b) By the time the Claimant filed his claim on 4 March 2024, the Claimant had the benefit of legal advice. His legal advisers correctly identified the legal entity that is the Second Respondent and referred to the Second Respondent by its correct legal name in the Claim Form. ACAS certificate number R102513 was referred to as being the certificate relied upon in bringing a claim against the Second Respondent. Certificate number R116564 was also referred to, essentially in the alternative. Both certificates that referenced the Second Respondent were therefore identified on the face of the Claim Form.[4]At the preliminary hearing listed to consider the Second Respondent’s application, I had before me an agreed bundle of documents, a skeleton argument from the Claimant’s counsel and from the Second Respondent’s counsel, a supplemental bundle from each of the Claimant and the Second Respondent, and a list of issues prepared by the Claimant. I did not have the Second Respondent’s supplemental Bundle or skeleton prior to the start of the hearing, but these were sent to me direct and I read them before continuing to hear oral submissions from both sides, having read the other documents and Claimant’s skeleton prior to the hearing.[5]I was helpfully assisted by Counsel for the Claimant and Counsel for the Second Respondent, both by their written submissions and in oral submissions.[6]I was invited to either dismiss the Claimant’s claim under rule 27 or strike it out under rule 37 of the Employment Tribunals Rules. The content of those Rules is not in dispute. Neither was the law surrounding strike-outs.[7]Dealing with the jurisdictional application first:[8]Both the Claimant and the Second Respondent referred me to rule 12 of the Employment Tribunals Rules, relating to rejection of claim for substantive defects. In this case the alleged substantive defect was that the Claimant had named the Second Respondent by its correct legal name in the Claim Form but had used the name of the hospital run by the Second Respondent as the name on the early conciliation certificate. Accordingly, the Second Respondent invited me to find that there was a substantial defect under rule 12(da) and /or 12(f).[9]The Claim having been accepted by the Employment Tribunal, the route open to the Second Respondent is to apply for a strike out of the Claim. The Second Respondent sought a strike out or dismissal on the basis of failure to comply with a procedural requirement.[10]The Claimant’s counsel referred me to a number of authorities that have considered issues such as this.[11]I reminded myself that the Employment Tribunal Amendment Regulations 2020 gave Employment Judges a greater discretion to accept claims in the sorts of circumstances described here.[12]The legislative purpose of section 18A of the Employment Tribunals Act 1996 (ETA 1996) requires Claimants (unless exempt) to undertake early conciliation (“EC”), and to have an EC certificate, before presenting a Tribunal claim. The EC certificate enables them to prove, if necessary, that they have undertaken EC. I was referred to the case of Mist v Derby Community Health Services NHS Trust (among other cases) in which the EAT held that the employment tribunal was not bound to reject a claim because the name given on the Claim Form was not the same as that on the EC certificate. In that case, the claimant named a respondent for EC purposes as Case No: 1400551/2024 ‘Newholme Hospital’ when its legal name was ‘Derby Community Health Services NHS Trust’. The case is very similar to the case that was before me and the subject of this application, save that the name of the hospital in the Mist case is less similar than the name of the relevant Trust than the hospital and Trust names are in the case before me. In the Mist case, the EAT reasoned that the EC requirement was designed to ensure ACAS is provided with sufficient information to be able to make contact with the prospective respondent (if the claimant agreed) and did not set any higher bar.[13]I reminded myself that I must have in mind the interests of justice, and whether striking out the Claim in the circumstances would result in an injustice.[14]In this case, I accepted the Claimant’s submission that the EC requirement was complied with, that the Claim against the Second Respondent was accepted on that basis. I noted that the name referred to in the first EC certificate is included as part of the address for Second Respondent in the Claim Form. All parties were aware as to who the Claim was against, and as the Second Respondent has pointed out, if the Second Respondent had been named incorrectly on the Claim Form (using the same name as on the EC certificate) it would have simply applied for its name to be corrected. In all of the circumstances it would be unjust and disproportionate to dismiss or strike out the Claimant’s claim and given that the EC process was followed, I conclude that there is jurisdiction to hear this claim (subject of course to any time points raised as part of the substantive hearing).[15]In relation to the application to strike out on the basis of the claim against the Second Respondent having no reasonable prospects of success:[16]Both parties accepted that the Claimant’s case must be taken at its highest in considering whether to strike out the claim.[17]The requirement that there be no reasonable prospect of success does not mean, at one extreme, that there is absolutely no possible chance of success, nor at the other, that the claim is more likely to fail than to succeed. It involves the Tribunal assessing whether the claim has no reasonable prospect of success, taking the pleaded claim at its highest, and generally assuming that any disputes of fact will be resolved in the Claimant’s favour. If the Tribunal finds that there is no reasonable prospect of success, striking out does not follow automatically. The Tribunal has a discretion (which must be exercised judicially) which allows it to strike out the claim if appropriate.[18]The two allegations levied at the Second Respondent are: a) that the three employees who made complaints about the Claimant were motivated by race discrimination; and b) that the Second Respondent failed to properly investigate. The Second Respondent accepts that complaints were made, but denies failing to investigate.[19]I was taken to a number of documents by both parties, including a spider diagram allegedly showing links between the makers of Facebook posts, a letter from an employee of the police relating to a complaint by the Claimant, and CCTV evidence. It was argued on behalf of the Claimant that a group comprising employees of the First Respondent and of the Second Respondent held stereotypical and racist views in relation to the Claimant as an Asian male. In this context the Claimant says that the interaction of employees against whom allegations are raised and former employees or other contacts are important, particularly if they point towards a discriminatory mindset. Case No: 1400551/2024[20]The Claimant has set out matters which he says invite the tribunal to draw inferences of discrimination. This is a matter for final hearing and was put before me only to consider whether there are reasonable prospects of the case succeeding. On the limited evidence before me, there does appear to be good prospects of the Claimant establishing that mistruths were communicated about him in the form of allegations of misconduct. If the Claimant’s case is taken at its highest, there would be a finding of inconsistencies in evidence before the Second Respondent. Whether the matter was properly investigated, and if not why not, is a matter for evidence.[21]In my determination, it would not be appropriate to strike out the Claimant’s claims against the Second Respondent without a proper analysis of the evidence, which can only be done at final hearing. The evidence that I was taken to was supportive of factual account given by the Claimant. The conscious and sub-conscious motives of those involved therefore need to be considered, which is a matter for the final hearing. This will involve a proper analysis of the evidence in the case, including CCTV without the blurring out of faces.[22]In any event, I would decline to exercise discretion to strike out the Claimant’s claim, given the factual disputes and issues to be determined. Employment Judge Youngs 20 December 2024 SENT TO THE PARTIES ON 20 January 2025 FOR THE TRIBUNAL OFFICE Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a case.