Mr S Zeko v Steven West and Others: 1403339/2019 and others
EMPLOYMENT TRIBUNALS
Case No 1403339/2019
Between
Mr S ZekoClaimantSteven West and OthersRespondent
Before
Employment Judge ChristensenIn person for claimantMr Sendall (instructed by Counsel) for respondentrepresented by Mr Sendall (instructed by Counsel) for respondentDate 30 May 2023
JUDGMENT
[1]The claimant’s application for interim relief under S128 Employment Rights Act 1996 did not succeed and was refused. _____________________________________ Employment Judge Christensen 16 August 2019[2]JUDGMENT SENT TO THE PARTIES ON FOR THE TRIBUNAL OFFICE Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.[3]Case No: 1403339/19 1 EMPLOYMENT TRIBUNALS Claimant: Mr Simwinji Zeko Respondent: Steve West & 5 others Heard at: Bristol On: 14 August 2019 Before:
REASONS
[1]The claimant has made an application for interim relief on the grounds that he alleges that he was automatically unfairly dismissed for whistleblowing under S103A Employment Rights Act.[2]The relevant law is to be found at S43B ERA, S128 ERA, S129 ERA. Rule 95 of the Employment Tribunal Rules of Procedure is also relevant. That states that I should not hear oral evidence unless I direct otherwise. I have not heard oral evidence but did consider the contents of a draft statement as set out below.[3]S129 ERA provides that, where on hearing an employee’s application for interim relief, it appears to me that it is likely that on determining the complaint the tribunal will find that the reason, or principal reason, is that he has made a protected disclosure.[4]The application is opposed on the basis that there is no basis for concluding that it is likely that at the full merits hearing the Employment Tribunal will find that the reason or the principal reason for the dismissal was that the Claimant made one or more protected disclosures.[5]Both parties brought me a bundle and I confirmed that I would consider any documents that they wished to refer me to in those bundles.[6]I was also given a copy of the respondents’ ET3 which had been filed with the tribunal the evening before but had not yet found its way to my file. Case No: 1403339/19 2[7]The claimant worked as a support worker at the University of the West of England to support an academic member of staff who had a disability, namely Young Onset Parkinson’s Disease. He had worked on a number of fixed term contracts and there is an issue which will fall to be determined at the final hearing as to whether by virtue of the extension of those fixed term contracts, the claimant had become a permanent employee of the University.[8]He was dismissed by letter of 31 July by letter from the then Acting Head of HR, following a process of consultation with the University in which it was exploring with the claimant how to continue the claimant’s role as a support worker.[9]The letter dismissing the claimant states this “Further to your letter to Sally Moyle, by email, dated 29 July 2019, in which you rejected the offer of a TSU/Zero hours contract. Please be aware that in view of this rejection the offer is now not capable of acceptance and your employment will end today 31 July 2019 at midnight, by reason of expiry, without renewal, of your fixed-term contract. Whilst we do not accept your contention that your are employed on a permanent contract, for the reasons set out in our defense to your ET claim, namely that we consider your fixed-term employment to be objectively justified by reference to the external, fixed-term, funding on which it has been based, without prejudice to that position we are serving you with notice of summary dismissal….we consider, in that event, that the reason for the termination of your employment is ‘some other substantial reason’ for dismissal i.e. an irretrievable breakdown in working relationships and that in the circumstances we have carried out all reasonable steps to avert your dismissal”[10]The respondents have presented a skeleton written argument and a draft Witness Statement from Ms Catherine Parker Acting Head of HR Services at the University of Bristol.[11]The claimant objected to my consideration of the draft witness statement. The respondents submitted that I should consider it on the basis that it provided an efficient route through which the respondents were able to present information that would otherwise have to form part of their submissions. They submitted that Ms Parker’s statement helps me understand what the evidence is likely to be at a substantive hearing as it explains the chronology of events.[12]I confirmed that I considered it proper to consider the witness statement for the reasons set out by the respondent.[13]The witness statement sets out the chronology of the claimant’s letters to UWE in 2017, that he relies upon as disclosures qualifying for protection. It also sets out something of the history of the claimant’s fixed term contracts and explains something about the reasons behind the review in 2019 of the review of terms of employment for support workers.[14]The relevant case law is all set out in the respondent’s skeleton argument and I do not recite the law in these reasons.[15]I should undertake an expeditious assessment as to how matters appear on the material available doing the best that I can with the untested evidence advance by each party. My role is not to make findings of fact but to perform a broad assessment so that I may make a prediction about what is likely to happened at the eventual hearing. When considering the likelihood of the claimant succeeding case law confirms that I should consider whether the claimant has a ‘pretty good chance of success’.[16]The correct test is not whether the claimant has a reasonable prospect of success.[17]The claimant has submitted that he will argue that the principal reason for his dismissal on 31 July 2019 is because of a protected disclosure that he made in November 2017. The claimant will argue that he disclosed information at that time about issues around workplace bullying, harassment, intimidation and discrimination of staff and students.[18]This refers to an email of 10 November 2017 which states “an ongoing situation by poor management practice, discrimination, victimization and other quite negative issues that have no Case No: 1403339/19 3 place in the UWE workplace have compelled and convinced me to make a claim against the University and 5 other defendants”.[19]It also refers to a letter of 6 November 2017 which is headed “Letter before Claim: Mismanagement, Abuse of Process, Victimization, Harassment, Bullying, Negligence, Dereliction of Duty, Willful/Reckless/Malicious Intent, Tortious Misconduct, Injury to Feelings, Breach of Statutory Duty and Damages” The letter runs to 6 pages and sets out incidents which the claimant will say support the descriptions in the heading and amount to disclosures qualifying for protection under S43B ERA. I went through the letter with him and he pointed out the paragraphs which he will say amounted to a protected disclosure and he explained something of the context in which he will wish to argue that.[20]These area. You decided to place my role at risk of redundancyb. Long litany of mismanagement, non-compliance, disregard, arrogance and disdain, recklessness, omissions, deception and Machiavellian tendencies that have subverted, constrained and damaged Dr van den Ankers ability to properly and effectively do her workc. This situation [short term contracts] is normally for up to 6 months as temporary measure. However this continued for 41 months up to December 2016. Inaction, foot dragging and unconscionable omissionsd. I have never had a workstation with a separate phone line provided for me as a required reasonable adjustment for Dr van den Anker. Again repeated requests for this were made with no positive outcome. This is an example of the acts of omission line mismanagement and complicity with the relevant partiese. Derogatory and inappropriate comments made by Dr Watson of me in the course of my work.f. Dr Neil….made some highly inappropriate remarks that condoned sexismg. You are ethically compromised, have a conflict of interests and lack real objectivity as far as important processes and decisions affecting Dr van den Anderh. The University….is under a duty and obligation to comply with and meet certain standards.i. The direct and indirect discrimination, mistreatment, hostility, delay, effective sidelining and oppression experienced by Dr van den Anker and me over months and yearsj. I have little or no confidence in the internal processes for remedial action[21]The claimant has submitted that he has a ‘pretty good chance’ of success in establishing causation and establishing that these protected disclosures are the principal reason for his dismissal on the basis that the ongoing situation arising from his letters in November 2017 fed into the decision to dismiss him. The claimant accepted that he had been offered a new contract but that he had not accepted because it reflected a diminution in terms. The claimant has submitted that his dismissal in July 2019 was sudden and arbitrary and without due process although the claimant has also submitted that he was invited to a meeting to discuss the new terms.[22]The respondent has argued that the passages that the claimant took me to in his letter of 6 November amount to no more than allegations regarding work place disputes and do not identify which particular obligations are being relied upon. By reference to the case of Kilraine-v-London Borough of Case No: 1403339/19 4 Wandsworth [2018] IRLR 846 the respondent submits that in order for a statement or disclosure to be a qualifying disclosure according to the language of the section, it has to have a sufficient factual content and specificity such as is capable of tending to show one of the matters listed in S43B(1). Kilraine also states that whether a disclosure satisfies the test, should be assessed in the light of the particular context in which it is made and that the meaning should be explained in the claim form and in the evidence of the claimant.[23]By reference to causation the respondent submits that even if the claimant can establish that he satisfies the statutory definition relating to disclosures qualifying for protection, that there is no proper basis for me to conclude that it is likely that a tribunal will determine that the reason, or if more than one the principle reason, is that the claimant made a protected disclosure.[24]The respondent has submitted that the dismissal was simply the consequence of the non-renewal of the claimant’ contract of employment and the operation of S95(1)(b) ERA. No one at UWE has positively decided that he should be dismissed. In fact, the respondent argues, the opposite was true because he had been offered a new contract. The contract on new terms was, according to the respondent, the result of a review of the contractual arrangements that had taken place for support workers earlier in 2019. The new terms were entirely unconnected to any protected disclosure made some 18 months previously.[25]The respondent has submitted that if the Employment Tribunal concludes that the claimant had become a permanent employee the dismissal occurred because of a breakdown in the relationship between the claimant and UWE because of the claimant’s unauthroised absence from work in the period 22 May 2019 and about 5 July 2019. During this period the claimant was in Zambia and was not contactable. On that basis the dismissal would be for some other substantial reason S98(1)(b) and entirely unconnected with his alleged protected disclosure made some 18 months previously.[26]Does the claimant have a pretty good chance of success in establishing that the principal reason for his dismissal was that he had made a protected disclosure?[27]I have concluded that he does not and have denied him the relief he seeks.[28]Dealing firstly with the question of the likelihood of establishing that what he wrote in 2017 will satisfy the statutory test. On my assessment, broadly on the basis of what I know, I think there is a chance that he will succeed in this. He makes some specific allegations and refers to some specific legal duties – he has a chance and I am satisfied that because of the specifics in the letter and taking into account the further context that the claimant will wish to give evidence about that is amounts to a pretty good chance.[29]Dealing the second question of the likelihood of the tribunal determining that the principal reason for his dismissal was the making of such protected disclosures. There are a number of factors which satisfy me that he stands a very poor chance of showing such a causative link.a. The letters that I have been shown establish that a process was underway in 2019 to review the terms upon which support workers were employed. This impacted upon the claimant.b. In that process UWE was seeking to continue, not terminate, the claimant’s employmentc. It was the claimant’s decision to reject the terms on offer.d. The dismissal letter confirms that it was the claimant’s decision in this regard that caused his dismissal. Case No: 1403339/19 5e. The claimant has presented no cogent argument to satisfy me that there is any causative link between a dismissal made 18 months after a protected disclosure. He has argued only that the ongoing situation fed into the decision to dismiss him. This is particularly in the context of their being documents that will seek to establish that an entirely unrelated issue relating to the particular terms of employment of support workers was the real cause of the dismissal.[30]These are the reasons for my judgment dismissing the claimant’s application for interim relief. _____________________________ Employment Judge Christensen Date: 23 August 2019 ……………………………………….. Case Nos.: 1400283/2018 1400615/2019 1403339/2019 EMPLOYMENT TRIBUNALS Claimant: Simwinji Zeko Respondent: The University of the West of England & Ors PRELIMINARY HEARING Heard at: Bristol On: 3rd and 4th of March 2020 Before: Employment Judge Midgley Representation Claimant: Simwinji Zeko, in person Respondent: Mr French-Williams, solicitor[31]The difficulty with the claimant’s case is that whilst there may be an obligation to reach collective agreement as to the terms of any particular type of contract, the duty does not extend to individual consultation with an individual trade union representative about the offer of a contract or the contractual terms offered to an individual employee. In addition there is on any analysis no prospect of the claimant successfully asserting that an offer of a particular type contract to him has any bearing on collective bargaining or could possibly have the sole or main purpose of achieving the prohibited result. In my judgment the respondent must be correct and even taking the claimant’s case at its highest the issues for determination in s145B simply do not arise in this case.[32]In my judgement, making every allowance for the claimant, the proposed claim is bound to fail and there is no purpose in permitting any amendment in any event, before even considering the effect of the claim being out of time has on the exercise of any discretion. Application to amend claim no. 1400283/2018 Victimisation (s27 Equality Act 2010)[33]One of the decisions made by EJ Midgely in the hearing on 3rd / 4th March 2020 was to dismiss the claimant’s claim for victimisation as having no reasonable prospects of success, on the basis that he had not on his own case done a protected act but was relying on a protected act of Dr van den Anker (Reasons paras 31-34). There was, as far as I am aware, no application for reconsideration of that decision or any appeal against. The claimant now contends that the decision is wrong and the has identified a number of protected disclosures he alleges he has made, and now applies to restore that claim by way of amendment.[34]As indicated orally in my view I have no power to restore by way of amendment a claim that has already been dismissed. The only way of varying or revoking that decision would be by way of an application for reconsideration and/or appeal (both of which would now be out of time). As an application for an amendment it is bound to be dismissed. Particulars of Personal Injury[35]As Mr Mitchell pointed out the claimant does not need permission to amend to provide further detail of the claim of the injury allegedly sustained in his for damages for personal injury in the event that any relevant claim is successful. This is correct and so the details will be accepted as further information as to that part of the claim. Case Number: 1400283/2018 1400615/2019 1403339/2019 1405457/2020 10 of 11 Application for a deposit order – claim 1400615/2019[36]In summary a part of the claimant’s claim is that he was entitled to a permanent contract of employment having been employed on a series of fixed term contracts for a period of four years or more. The respondent asserts that it was objectively justified in not doing so in that the claimant was engaged under the terms of the Access to Work Scheme which required support workers to be engaged on fixed term contracts (see EJ Midgely 3rd /4th March 2020 CMO para 16.3 – 16.5). The claimant contends that this is contradicted by an email dated 5th March 2019 from the respondent’s HR department to Dr van den Anker relating to the renewal of the claimant’s contract, in which the view was expressed that any further fixed term contract would have to be objectively justified and that ”funding” was not an objective justification.[37]In my judgment this is an insufficient basis from which to conclude that the response has little reasonable prospect of success. Firstly it depends in part by what is meant by “funding” in the email; secondly the view of the respondent’s HR department would not be binding on the tribunal which would need to analyse the justification defence for itself; and thirdly in any event the advice is given to Dr van den Anker in the context of whether to renew the agreement as a fixed term rather than a permanent contract, and claimant’s fixed term contract was not renewed. Fundamentally in my judgment it is unsafe to conclude that the response has little reasonable prospect of success on the basis of one comment in one email taken in isolation. It is certainly not sufficient to persuade me that this is an appropriate case in which to make a deposit[38]One of the original respondents to claim 1400615/2019 was Ms D England. That claim was withdrawn and dismissed by a judgment of EJ Oliver on 8th April 2019. She is also a respondent to claim 1405457/2020. That claim has been dismissed as having been presented out of time (see above) . She is therefore, no longer a respondent to these proceedings.[39]However she remains potentially a witness and she is a non-legal member of the Employment Tribunal and who sits in Bristol. This raises potential issues as to whether it is appropriate for the claims to be heard in Bristol/South West Region or whether it should be transferred, or a panel from another region being requested to hear the claim. These issues have been addressed in correspondence with the parties by REJ Pirani. The claimant replied on 29th April 2022 stating that he is alleging that Ms England is involved in a number of the factual allegations but is content for the case to be heard in Bristol. The respondent replied on 6thay 2022 repeating points made in an earlier email of 10th February 2022. Claim 1405457/2020 having been dismissed the only question is whether she is to be called as a witness which they have confirmed that they do not intend to do. In addition they assert that whilst she may have been involved in correspondence in the background of the claims she was not a decision maker in relation to any of the matters in issue. It is also content that Case Number: 1400283/2018 1400615/2019 1403339/2019 1405457/2020 11 of 11 there is no potential for conflict and that it is happy for the claim to remain as listed to be heard by a panel comprising a Bristol Judge and members.[40]The current position is, therefore, that neither party is seeking an variation of the current listing of the final hearing in Bristol in May 2023. The issue will be referred back the REJ to consider whether in those circumstances he is content for the case to remain as currently listed. Employment Judge P Cadney Date: 19 May 2022 Order sent to the parties: 14 June 2022 FOR THE TRIBUNAL OFFICE Case Number: 1400283/2018 1400615/2019 1403339/2019 10.2 Judgment - rule 61 February 2018 EMPLOYMENT TRIBUNALS Claimant: Simwinji Zeko Respondents:(1) The University of the West of England(2) Peter Clegg(3) Sean Watson(4) Steven Neill(5) Shay Dare(6) Steven West(7) Jane Harrington(8) Alison McIver(9) Sally Moyle(10) Judith Thorne Heard at: Bristol Civic Justice Centre On: 15, 16, 17, 18, 19, 22, 23, 24, 25 May 2023 Before: Employment Judge S Moore Ms Y Neves Ms G Rees Representation Claimant: In person Respondent: Mr D Mitchell, Counsel[1]The claimant’s claims for unfair dismissal contrary to s94, s103A and s104 Employment Rights Act 1996 fail and are dismissed.[2]The claimant’s claims for race, sex and associative disability related harassment contrary to s26 Equality Act 2010 fail and are dismissed.[3]The claimant’s claims for direct race, sex and associative disability discrimination contrary to s13 Equality Act 2010 fail and are dismissed. Case Number: 1400283/2018 1400615/2019 1403339/2019 10.2 Judgment - rule 61 February 2018[4]The claimant’s claims under Regulation 6 and 8 of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 fail and are dismissed.