S Abalesei v Bylor EDF Energy and others: 1401304/2022

EMPLOYMENT TRIBUNALS

Case No 1401304/2022

Between

S AbaleseiClaimant

Bylor EDF Energy and othersRespondent

Before

Employment Judge Housego

In person for claimant

Date 7 February 2023

JUDGMENT

[1]The Claims against the 1st and 2nd Respondents are struck out.

[2]The identity of the 3rd Respondent is changed to “Minstrell Recruitment Ltd.”

[3]All the claims against the 3rd Respondent are dismissed save the monetary claim.

REASONS

[1]This hearing was listed at the request of the 2nd and 3rd Respondents to seek strike out orders in respect of claims for unfair dismissal and age and race discrimination made by the Claimant.

[2]I started the hearing by discussing with the Claimant, at length, his claims, so as to be clear exactly what he was saying, and my record of proceedings records what he said, and the submissions which followed. The essence of the Claimant’s statement of position is set out in my reasons below.

[3]As a general principle, discrimination cases should not be struck out, save in the clearest circumstances. The Claimant’s case is to be taken at its highest. There are sound public interest reasons for the test being a high threshold. Ahir v British Airways Plc

[2017] EWCA Civ 1392

provides clear guidance to be applied in applications such as this. I have read and considered that guidance in coming to my conclusions. I have concluded that the race and age discrimination cases meet the high threshold applicable to such applications to strike out discrimination cases and are exceptional.

[4]In these reasons I commence with the parties. There was no representation from the 1st Respondent. This is because there is no such legal identity.

[5]The Claimant worked as a site engineer at the site of construction of the Hinckley C nuclear power station. This is a joint project involving EDF and is known as “Bylor JV”. The exact nature of this entity is not relevant, for there is no allegation of discrimination made by the Claimant against them. He has never said that he was employed by them. The money claims could not be said (and were not said by the Claimant) to be against Bylor JV. Therefore, I struck out all the claims against the 1st Respondent.

[6]The proper 2nd Respondent would be Bylor Services Ltd., which is a limited company of which Laing O’Rourke is a shareholder, apparently with Bouygues Travaux Public SA (which is building the power station for EDF). As I struck all the claims that could be made against Bylor Services Ltd I did not amend the name of the 2nd Respondent.

[7]The 3rd Respondent is a principal of an employment agency, Minstrell Recruitment Ltd. As I struck out the claims of discrimination he should not be a party to the remaining claim for unpaid money earned, as he was not contractually liable for it, the Claimant agreeing that his contract was with Minstrell Recruitment Ltd.

[8]The Claimant obtained an Acas early conciliation certificate in relation to Minstrell Recruitment Ltd. In his claim form he put the name of Paul Moran and in the next line the name “Minstrell Recruitment Ltd” before setting out the address. The text of the Particulars of Claim starts “After being employed by Minstrell Recruitment Agency…” No one has been misled. The claim for money has obviously always been aimed at that company and not against Paul Moran personally. Accordingly, I amend the name of the 3rd Respondent to “Minstrell Recruitment Ltd.” (This company is now the sole Respondent to the claim.)

[9]The Claimant claimed unfair dismissal. He accepted that he had always been an agency worker, with a contract only with Minstrell Recruitment Ltd. He also accepted that he had been employed for only four months so could not claim unfair dismissal unless one of the provisions enabling such claims to be made was applicable. There was a suggestion in the Particulars of Claim of a health and safety reason or that there was a connection with public interest disclosures. Having listened to the Claimant for nearly 30 minutes and discussing his claims with him, it was clear that his only criticism was of the clocking in and out mechanisms and about how deductions were calculated. There was no health and safety issue raised and no public interest disclosure. Therefore, and with the consent of the Claimant, I struck out the claims for unfair dismissal made against both remaining Respondents.

[10]Counsel for the 2nd Respondent asked that the claims against them be struck out because as a shareholder they could not be liable for discrimination or money unpaid. Because I struck out the discrimination claims as having no reasonable prospect of success I did not consider this argument. The Claimant having accepted that there was no contractual nexus between himself and Laing O’Rourke or Bylor Services Ltd I also struck out the remainder of the Claimant’s claims against the 2nd Respondent.

[11]This leaves the claims for age and race discrimination, and for money earned but not paid, against the Minstrell Recruitment Ltd (which I now call “the Respondent”.) He had reported this to the Employment Agency Standards Inspectorate, but the report of the inspector had not found evidence that he had been underpaid.

[12]The Claimant is 33 and Romanian. He says that he was subject to a number of detriments: 12.1. If he clocked on 1 minute late he was docked a quarter of an hour. 12.2. Likewise, if he clocked out a minute early he was docked a quarter of an hour. 12.3. He was docked time for lunchtimes that was excessive. 12.4. Those deductions were made from overtime pay (one third more) and not from his ordinary pay. 12.5. The clocks often did not work. They were computerised and based on Windows. If they were updating, he could not clock out and that impacted his pay. 12.6. He was not allowed to use the more effective clocking out machine in the office until 2 weeks before he left. 12.7. The paper forms used when he could not clock in or out were not processed or were lost. 12.8. He thought people laughed at him.

[13]He said that he thought many people were affected by the way 15 minutes was lost by clocking in a minute late or out a minute early. He had spoken to between 10 and 20 people about it. He thought it affected all 4,000 or more people who worked at Hinckley C. Of the 10, 2 were Albanian, 4 (including him) were Romanian and 4 British. The four British workers said only that it was always like this, and they did not see it as a problem.

[14]It follows that this was a site wide practice. Whether it was fair or not is not relevant. It applied to everyone whatever their age, race or nationality. If the comparator is a British worker, they were treated just the same as the Claimant. There was no less favourable treatment. The British workers did not see it as a problem, and so it is far from clear that it is a detriment at all. If it was everyone had the same problem whatever their age or race/nationality. It cannot found a claim for unlawful discrimination.

[15]The Claimant says that he was not allowed to use the office clocking machine until two weeks before leaving. He attributed this to being Romanian, but when asked said that it might have been because he was an agency worker and not an employee, or because he was not a manager with access to the office, or because he was new. Being new is not an indicator of age. There was nothing the Claimant said that indicated any link between this and his nationality/race of Romanian.

[16]Asked to be more specific about being laughed at, the Claimant said that it seemed to be because he was new (the “new kid on the block” was his phrase) and did not know how things worked. That is unconnected with age or race/nationality.

[17]The money claim, arising from lost or unprocessed paper forms gave rise to the Claimant’s money claim, but he did not attribute this either to his age or race/nationality.

[18]The Claimant needed to show less favourable treatment and a connection with age or race/nationality. He has not suggested any reason that could conceivably amount to either race/nationality or age discrimination in respect of any of the matters of which he complains, and so I strike out the discrimination claims as having no reasonable prospect of success.

[19]The Claimant accepts that he was an agency worker. He does not fall within S13 of the Employment Rights Act 1996. His claim is for breach of contract for failure to pay money earned as an agency worker, which he says is due to him from the agency, Minstrell Recruitment Ltd. Their response is likely to be that they are only liable to pay to him money paid to them by their client based on the Claimant’s records of time worked, and that they have done so. They are likely to say that if the Claimant did not comply with reporting conditions, then he is not due the money he claims, and that is the case.

[20]The Claimant says that he was underpaid for his normal working hours, because he was on site working and the clocking in and out machines failed him. He says that the paper forms he submitted were not processed, and so he lost out. He says that his presence on site could have been easily established from cctv or other records and that he has lost out by about £4,000 on basic pay. He says that when deductions were made it was from overtime pay, not basic pay. He says that overtime pay was one third more than basic pay, so that the manner of deduction has caused him a loss of another £1,800. He has so far not quantified this claim, and I made directions to enable the Respondent to respond to the claim, and consequential directions.