Mr N Seshadri v Cwm Taf Morgannwg University Local Health Board: 1600954/2020
JUDGMENT
The Judgment of the Tribunal is that the claim of the Claimant for unfair dismissal pursuant to Section 94 of the Employment Rights Act 1996 is dismissed because as at the effective date of termination of his employment the Claimant did not have the necessary qualifying period of service of 2 years. The Claimant’s claims of breach of contract pursuant to the Employment Tribunal’s Extension of Jurisdiction Order 1994, a claim of unfair dismissal pursuant to Section 103 of the Employment Right Act 1996 (Protected Disclosures) and claims of detriment arising from protected disclosures pursuant to Section 47B of the Employment Rights Act 1996 are dismissed on the grounds that all these claims were presented out of time and it was reasonably practicable for the Claimant to have submitted those claims within the relevant 3 month time limit.REASONS
[1]The Tribunal was presented with a bundle of documents of in excess of 400 pages. The Preliminary Hearing however which took place today was only to determine whether the claims of the Claimant were presented out of time and the majority of those documents were not relevant to the issue which was to be determined. Where appropriate reference is made to documents which were contained in the bundle and which were considered by the Tribunal.[2]The Claimant gave evidence on oath by reference to a written witness statement which was read and considered by the Tribunal. The Respondents did not call any witnesses and did not present any witness evidence themselves.[3]The time limit which was applicable to claims pursuant to Section 103, Section 47B and the 1994 Order are identical. The relevant time limits appear at Section 111 and Section 48 of the Employment Rights Act 1996 and at clause 7 of the 1994 Order. The wording of these Sections is that a complaint may be presented to an Employment Tribunal against an employer but that an Employment Tribunal “shall not consider a complaint unless it is presented to the Tribunal before the end of 3 months beginning with the effective date of termination or before the end of the period of 3 months beginning with the date of the act of failure to act which the complaint relates to.”[4]It was agreed that the effective date of termination of the contract of employment of the Claimant was 25 October 2019. Furthermore it was agreed that the Claimant lodged his Early Conciliation form with ACAS e minute past midnight (00:01am) on 25th of January 2020 and it was also agreed that the Claimant submitted his claim form to the Employment Tribunal on 24 March 2020. The claim form was therefore submitted 2 months after the expiry of the relevant 3 month time limit.[5]It was agreed that the Claimant did not benefit from any extension of time for “stopping the clock” as a result of making a reference to ACAS for Early Conciliation. The 3 month deadline for making a reference to ACAS expired at midnight on 24 January 2020 and the Claimant did not make a reference to ACAS until 00:01 on 25 January 2020.[6]Considering the wording of the relevant statutory clauses, the Claimant agreed therefore that his claims had been presented outside the time limit and that was not an issue which needed to be determined by the Tribunal. The issue to be determined therefore was whether or not it was reasonably practicable for the Claimant to have submitted his claims within the relevant 3 month time limit. If the Tribunal were to decide that it was not reasonably practicable then the Tribunal would have to consider a third stage of the test included in the statutory provisions referred to above relating to time limits.[7]As a preliminary issue however the Claimant argued that some of his claims were in time because the last of the issues that he complained about insofar as detriment claims under Section 43B of the Employment Rights Act 1996 were concerned was an act on the part of the Respondents which occurred on 30 October 2019 Counsel for the Respondents acknowledged and accepted that all the 21 separate detriment claims brought by the Claimant would have been presented to the Tribunal in time.if the Tribunal were to accept that the last claim of detriment lodged was indeed related to the 30th of October. However Counsel argued that the detriment alleged in respect of 30 October was not a detriment which the Claimant had included in his original claim form. The Claimant argued that it had been included in his claim form. This preliminary issue therefore needed to be determined by the Tribunal but only insofar as the Claimant’s claims of detriment pursuant to Section 43B were concerned. This argument did not affect the claims of s103 unfair dismissal and/or damages for breach of contract which the Claimant properly acknowledged were out of time.[8]After considering the content of the claim form and the words which had been used by the Claimant, the conclusion of the Tribunal was that no reasonable person could possibly ascertain from paragraph 7 of the Particulars of Claim that had been submitted by the Claimant that the Claimant was raising any concerns about one sentence in an email dated to 30 October 2019. A Claimant is required to state sufficient facts to set out a legal action and those facts need to be sufficient to enable the Tribunal and the Respondent to understand what has been done which the Claimant is complaining about. The conclusion of the Tribunal is that it could not in any way see how paragraph 7 alerted anyone in any way to the content of an email on 30 October. The Tribunal was of the view that no reasonable person could have come to that conclusion.[9]The details of that allegation which the Claimant had numbered 21 on page 53 of the bundle alleged that in an email dated 30 October that a representative of the Respondents had used inappropriate language, had demonstrated vindictive behaviour, had failed to maintain professional standards and had shown themselves to be dismissive of conscientious staff. None of these allegations or words or suggestions were in any way raised by the Claimant in paragraph 7 of his claim form.[10]The email in question appeared at page 251 in the bundle. It was very short. The words that the Claimant complained about were “feedback to his RO about the noise created”. The Claimant said that he learnt of the existence of this email and the words set out above when he received a chain of emails on 19 November 2019. However in paragraph 7 of his Particulars of Claim the Claimant made no reference to the email of 30 October and no reference to the date of 30 October. Furthermore he made no reference to the author of that email a Mr Lyons. He made no reference to any of the words used which are quoted above and he made no reference or suggestion whatsoever as to why those words allegedly amounted to a detriment. The email chain was considered in detail by the Tribunal. It incorporated a whole series of different emails and attachments and only today when giving evidence in answer to questions from Mr Walters did the Claimant actually say that the email in question was not one of the emails which had been sent to him as part of the “chain” of emails but actually was one of the attachments which had been contained in that exchange. In order to read the attachment the Claimant had had to take a separate step of opening it. None of this had been set out or included in paragraph 7 of his Particulars of Claim at all. In summary therefore the Claimant was complaining about one line of words in an email which had been hidden in an email chain as an attachment which the Claimant had had to open.[11]The conclusion of the Tribunal therefore was that claim number 21 of the 21 alleged detriment claims pursued by the Claimant was not a claim which the Claimant had presented in his claim form. . The chain of detriments therefore about which the Claimant complained terminated on 25 October with the dismissal of the Claimant. On that basis the detriment claims which were brought by the Claimant were presented out of time and the issue for the Tribunal was whether or not it had been reasonably practicable for the Claimant to have presented his detriment claims within the relevant 3 month time limit.[12]The Tribunal properly took into account that the primary time limit of 3 months expired at midnight on 24 January 2020. The claim form was not presented until 24 March and was therefore almost exactly 2 months out of time. The Claimant would of course have been entitled to the extensions of time associated with Early Conciliation if the Claimant had engaged with ACAS within the primary 3 month limit. It was agreed by the Claimant that he did not do so. That 3 month limit expired at midnight on 24 January but it was acknowledged that the Claimant had submitted an electronic Early Conciliation notification to ACAS which was received by them one minute after midnight, on 25 January. The Tribunal therefore, when considering whether or not it was reasonably practicable for the Claimant to have submitted his claim form within the primary 3 month limit, took into account the events of the 24th and into the first few minutes of 25 January when the Claimant had indicated that he was in a position to engage with the process of Early Conciliation. The conclusion of the Tribunal was that it had been reasonably practicable for the Claimant to have submitted all his claims within the primary 3 month limit and that would have simply involved the Claimant in engaging with ACAS through Early Conciliation within that 3 month time limit.[13]The Tribunal took into account that the Claimant was an intelligent and well-educated man and that he was therefore under an obligation to investigate his legal rights and his obligations in respect of the time limits which apply to claims in an Employment Tribunal. The 3 month time limit has been unchanged since Tribunal legislation was introduced in 1972.[14]In his witness statement the Claimant had said that he believed that his dismissal on 25 October was “shocking” and that he had felt” humiliated and discriminated against badly”. In the opinion of the Tribunal it must have been obvious to the Claimant that there was a system to enforce equality and to prevent discrimination and that when it happened there was a system to punish discrimination. The Claimant was therefore under an obligation to seek advice or to make proper enquiries about how to enforce those rights and to ask what he could do about what he clearly described as being something which had significantly affected him.[15]The Claimant told the Tribunal that he was unaware of the existence of Tribunals until late January 2020 but the Claimant clearly had every reasonable opportunity to ask about how to enforce his rights and to make enquiries and perhaps most importantly every opportunity to search the internet as to what his legal rights were and how he could pursue those in an Employment Tribunal. In any event the Claimant confirmed in his witness statement that he had carried out those searches and that by 19 January, some 7 days before the primary time limit of 3 months expired, the Claimant was well aware of the existence of Employment Tribunals.[16]The Tribunal accepted what it was told by the Claimant namely that he was genuinely shocked by his dismissal and that he then had concerns about how he might be treated by his former employer if he then took steps to enforce his rights in whatever way he could. It was also the case that his employer was carrying out an internal enquiry into the conduct of the Claimant following his dismissal and that was something which understandably the Claimant was concerned about as he described. The Claimant described these concerns as being a “fear” but the Tribunal unable to accept that as a word which was appropriate in all the circumstances. The Tribunal could accept that the Claimant might have been concerned. The Tribunal could accept that the Claimant may have been apprehensive but the Tribunal was unable to accept that the Claimant could properly describe his circumstances as generating fear.[17]By 28 November, one month after his dismissal, the Claimant had had significant opportunity to reflect on his circumstances and then he chose to consult Medical Defence Shield, an organisation akin to a Trade Union and was freely able to describe his concerns with them. He told the Tribunal that at no stage did they discuss with him the ability to bring claims to an Employment Tribunal and at no time did they discuss with him any applicable time limits. However if that is the case the Claimant had been advised inadequately but the Claimant is then personally saddled with those potential inadequacies in connection with the advice which he received. In the opinion of the Tribunal any professional advisor offering employment advice to any potential Claimant would be obliged to discuss the applicable time limits as a matter of utmost priority.[18]Having spoken to MDS, the Claimant also spoke to a mentor on 7 December. This gentleman had been the Claimant’s mentor since 2011 and was therefore very well known to the Claimant. He told the mentor that he still believed that he had been “treated harshly and disproportionately”.[19]The Claimant also went on to have a further one hour discussion with MDS on 13 December. In paragraph 14 of his witness statement he was able to continue to take active steps to find locum work as an Opthalmologist and indeed since his dismissal had actively been able to work even as soon as the weekend of 9 and 10 November following his dismissal on 25 October.[20]An event of particular significance occurred on 3 January 2020. The Claimant was told by MDS that any internal inquiry on the part of the Respondent had been closed down and concluded. In the opinion of the Tribunal therefore the Claimant no longer had any proper grounds for feeling apprehensive about pursuing his legal rights in an Employment Tribunal.[21]On 19 January the Claimant confirmed that he had read about Employment Tribunals on the internet and that he had read about ACAS and the need for Early Conciliation.[22]Furthermore on the 21 January the Claimant was able to make a data subject access request and he told the Tribunal that this required him to read a number of websites in order to understand how to do this. He told the Tribunal that he had been required to carry out quite a lot of reading in order to enable him to understand how to submit a proper request. He also told the Tribunal that on the same date he had been reading about a number of doctors who pursued claims against their employer. The Claimant had clearly devoted a great deal of time and energy to his enquiries on 21 January about making a data subject access request and this had included, as already indicated, a substantial amount of reading and consideration of a number of different websites. The Claimant therefore chose to devote that substantial time to pursue a data subject access request instead of using that time to clearly understand the time limits relating to an Employment Tribunal and the process which was required to engage with ACAS in Early Conciliation.[23]Despite the events of the 21 January the Claimant told the Tribunal that he did not then begin to make detailed enquiries about the process relating to ACAS until the afternoon of 23 January some 2 days later. He told the Tribunal he was unable to find an email address to be able to contact ACAS but the conclusion of the Tribunal is that the Claimant did not read the information freely and readily available on the ACAS website sufficiently carefully. Applying the standards of a reasonable person, the Tribunal concluded that the Claimant did not apply the reasonable care and attention of a reasonable person when considering ACAS. Indeed because the Claimant apparently was unable to find a contact detail that he was sufficiently satisfied with he raised a complaint to ACAS about that. However in the afternoon of 23 January the Claimant described a detailed telephone conversation with the ACAS Helpline. He conceded that they were very clear indeed about the time limits. By 23 January ACAS had now sent to him the links to enable him to complete an Early Conciliation notification form. The Claimant took no steps whatsoever to fill in that form on 23 January but instead described himself as being tired and went to bed. The Tribunal was not given any information as to why the Claimant could not get up earlier the following morning to complete the Early Conciliation form.[24]On 24 January the Claimant finished work at 6.45. He then began to look again at the links which ACAS had sent to him. The Claimant then came to the conclusion which no reasonable person could possibly have come to namely that ACAS may well be biased in favour of his employer simply because ACAS was based in Cardiff as was his employer and because he believed that representatives of ACAS spoke Welsh as indeed did representatives of the Respondent. On that basis the Claimant concluded that he had significant doubts about notifying ACAS of the name of the representative of the Respondent that ACAS should contact in connection with Early Conciliation. Pondering on these unreasonable doubts, the Claimant therefore delayed the completion and submission of his claim form but when he finally submitted it it was submitted 1 minute past midnight on 25 January when it had to be submitted by no later than midnight on 24 January.[25]The Claimant was well aware from his discussions with ACAS of the importance of the time limits and of the expiry of the time limit on 24 January.[26]The Tribunal therefore had to consider, as it has said above, whether or not it was reasonably practicable for the Claimant to have submitted his claim form within 3 months of 25 October 2019? The very clear conclusion of the Tribunal was that it was perfectly practicable and reasonable for the Claimant to have submitted his claim form within 3 months. After all he only needed to have engaged with ACAS 2 minutes earlier than he did engage with them. If he had engaged with them by 11.59 on 24 January then all subsequent processes used by the Claimant would have been in time, including the submission of his claim form. The only conclusion therefore that the Tribunal could come to was that it had been perfectly possible for the Claimant to have submitted his claim form within the relevant period of 3 months. He had engaged in discussions with a number of different individuals and a number of different bodies. He had had every opportunity to discuss his feelings with them and to research his rights and obtain advice. The Claimant had very significant opportunities to make searches of the internet in the same way that he did about his data subject access request. The Tribunal has said above that a reasonable person would have engaged in the process within the 3 month time limit and would have informed themselves of the process and procedures which needed to be followed including complying with any relevant time limits.[27]The conclusion of the Tribunal therefore was that the claims of the Claimant had not been submitted within the 3 month time limit and that it had been reasonably practicable for the Claimant to have complied with and submitted his claim form within that 3 month period. The Tribunal found that the delay, in particular the delay on the evening of 24 January was irrational and unreasonable and certainly did not accord or match reasonable thoughts and procedures which would have been adopted by a reasonable person, in particular one like the Claimant was clearly a welleducated professional man.[1]The Claimant applied for his personal details to be omitted from any future records relating to his claim against the Respondents.[2]In his written application the only grounds on which the Claimant made his application were that the Claimant was suffering from stress, anxiety and depression and was being treated by his GP with generic medication. The Claimant did not make any reference to any other form of medical treatment that he was receiving. More importantly the Claimant made no reference whatsoever to what the possible effect of a lack of anonymity would have on him and why therefore it was allegedly necessary in the interests of justice or necessary to protect his Convention rights to prevent public disclosure of his personal details in any future documents relating to these proceedings.[3]The Claimant in his application made reference to Section 10A, Section 11 and Section 12 of the Employment Tribunals Act 1996 but he gave no reasons or details as to how any of those sections were relevant to his personal circumstances. It was clear even on the most cursory of examinations that none of these sections had any relevance to the circumstances of the Claimant. As already indicated, the sole basis on which the Claimant requested an Order under Rule 50 related to his mental health conditions of stress, anxiety and depression being addressed by his GP.[4]The Claimant confirmed to the Tribunal today that he had not considered any of the legal principles which a Tribunal would have to apply when considering his application. The Tribunal told the Claimant that the Tribunal was required to give “full weight to the principle of open justice”. The Tribunal reminded the Claimant that any Order made must be one which was “necessary in the interests of justice”. The Tribunal told the Claimant that it did not have a simple discretion as to whether or not to make an Order. The Order must be necessary in the interests of justice. The Tribunal told the Claimant that there was a strong presumption against making an Order and that Orders were uncommon which reflected the wording of Rule 50 and the application of the relevant legal principles set out above.[5]The Claimant did not indicate how, if at all, his Convention rights would allegedly be breached if public disclosure of his personal details was made. There was no suggestion by the Claimant that he would be unable to have a fair or public hearing. The Claimant made no other reference to any other Articles under the Convention which the Claimant said would be breached to the extent that public disclosure should be prevented.[6]The Tribunal reminded itself that it had to consider carefully the reasons for the request whilst at the same time balancing those reasons against an obligation to give full weight to the principle of open justice.[7]The Claimant gave no reasons as to why it would be “necessary” to make an Order under Rule 50 in his favour. The Tribunal reminded itself that it must have solid evidence of likely breaches of Articles of the Convention and that mere speculation or assertion on the part of the Claimant making this application was not sufficient. The Claimant submitted no medical report in support of his application. The Claimant simply referred to advice and assistance which he was receiving from his GP and the prescription of generic medication for his mental health conditions. On the face of it therefore the Claimant was receiving medical treatment from his GP for those medical conditions but there was no indication that the Claimant was receiving any other more specialist medical treatment, for example from a Consultant Psychiatrist. However more importantly there was no medical report from any medical practitioner to indicate support for the application of the Claimant.[8]The conclusion of the Tribunal therefore was that the application of the Applicant was ill founded, poorly presented and presented no grounds or evidence to justify the making of an Order. The application of the Applicant was therefore refused.[1]The Claimant had submitted a lengthy written application and he had submitted a number of documents in support of that application. Both the written application and the attached documents were read and carefully considered by the Tribunal in connection with the application for reconsideration.[2]The Tribunal reminded itself that under Section 70 there was an obligation on the Claimant who was making the application for reconsideration to demonstrate why it was “necessary in the interests of justice, to reconsider the Judgment. Under Rule 71, an Applicant making such an application “shall set out why reconsideration of the original decision is necessary”. There is therefore a clear written obligation on the part of any Applicant to set out those particulars in writing.[3]The Claimant was clearly not asking for the original Judgment to be varied. He was asking for it to be revoked in his favour.[4]The Tribunal considered the relevant underlying principles of law. It reminded itself that reconsideration is not a method by which a disappointed party can get a second bite of the cherry. The Tribunal is also required to take into account the public interest requirement of finality of litigation. Application for reconsideration can be made in an attempt to correct errors but it is not an error on the part of the Tribunal to reach a conclusion which a disappointed party disagrees with. The only error which the Claimant suggested in his application that the Tribunal had made was to make the Judgment the Claimant disagreed with it. The Tribunal also reminded itself that it needed to consider the interests of both parties not just the obvious interests of the Claimant who was seeking to have the Judgment overturned because it had not been in his favour.[5]The Tribunal also reminded itself that it was entitled to take into account events which had occurred after the hearing on 4 December 2020. However the Claimant was not suggesting that there was anything which had happened after that date which was relevant to the events of January 2020 which were the dates which the Tribunal considered when coming to its Judgment on 4 December 2020. That Judgment had ruled certain claims of the Claimant to be out of time because the claims had been submitted in the first minutes of the 25 January 2020 and it was therefore the events leading up to midnight on 24 January which the Tribunal had put under the spotlight when coming to its Judgment on 4 December 2020. Any application for reconsideration could only relate to the reasons and circumstances which the Tribunal had considered when reaching that Judgment. The conclusion of the Tribunal was that the documents which had been submitted did not relate to any relevant events which had occurred after 4 December 2020. The Claimant’s medical history after 4 December 2020 were clearly not relevant to the events of January 2020.[6]The Claimant did not suggest that any administrative error had been made by the Tribunal which needed to be corrected.[7]The Tribunal considered whether or not the documents which the Claimant had submitted were relevant to the issues which had led to the Judgment on 4 December and concluded that they were not relevant. They were either documents which the Claimant had put forward and which were available to the Tribunal on 4 December or alternatively were documents were certainly available before 4 December. There had not been any new events or new documents which had arisen since 4 December which were relevant to the issues which had been determined by the Tribunal in reaching its Judgment on 4 December 2020.[8]The Tribunal also reminded itself that at the Preliminary Hearing on 4 December it had been presented with a bundle of some 400 pages which was a quite extraordinary number. It had been explained to the Tribunal that the reason for the number of documents was due to the insistence of the Claimant in including a substantial number of documents, the majority of which were not relevant. There could certainly not be any suggestion that the Claimant had in any way been dissuaded from including almost every possible document in the bundle which was before the Tribunal on 4 December.[9]The conclusion of the Tribunal therefore was that none of the additional documents which were submitted by the Claimant in support of this application would make any difference to the Judgment reached by the Tribunal or more importantly the reasons why the Tribunal had reached that Judgment in December 2020. Those reasons had been clearly set out in the Judgment and related in particular to the events of January 2020.[10]The Tribunal concluded that the application of the Claimant for reconsideration was in essence an application for the inaccessible “second bite of the cherry”. Perhaps understandably the Claimant wanted the Judgment to be reversed but of course, taking into account the interests of both parties, the Respondent most certainly did not. The application of the Claimant for reconsideration was almost entirely a rehash of the points which the Claimant had put to the Tribunal on 4 December and was an attempt by the Claimant to persuade the Tribunal to reach a different conclusion that the one which it had reached.[11]As indicated above the Claimant is required by Rule 71 to indicate why it is necessary in the interests of justice to revoke or change a Judgment. No such specifics were supplied by the Claimant in his lengthy application. He listed a large number of issues where he stated that the Tribunal ought to have come to a different conclusion. That is not the purpose of a reconsideration. It is in effect the Claimant attempting to say that the Judge should change his Judgment. That is not the purpose of an application for reconsideration at all. In essence what the Claimant had said out in his applications were reasons why he believed that the original Judgment should be revoked but he did not in any way indicate why it was “necessary in the interests of justice” for that revocation to be implemented. Indeed the only reason the Claimant put forward was because he disagreed with the Judgment and therefore wanted it to be changed to a Judgment in his favour. That of course ignored the requirement of the Tribunal to take account of the interests of both parties, not just the understandable dissatisfaction of the Claimant.[12]In the circumstances therefore, having considered the Claimant’s application under Rule 70/71 the Tribunal considered that there was no reasonable prospect of the original decision/Judgment made on 4 December 2020 being varied or revoked and on that basis the application of the Claimant is refused and dismissed.[13]By comparison to the particulars provided by the Claimant in support of the alleged claim at 7, the document and circumstances relating to claim 8 were clear. Although this claim had not been included in the original claim form, it was set out as the final allegation of race discrimination described by the Claimant at the foot of page 57 in the bundle considered by the Tribunal on 4 December. It was described as relating to an email from Nick Lyons on 30 October 2019. In that description on page 56 the Claimant made it clear that he was complaining that the language used by Mr Lyons was “inappropriate” and showed his vindictive nature. However the Claimant also went on to say that “this is against the MHPS Guidelines”. The Claimant indicated that these were the professional guidelines relating to his profession and that he alleged that those guidelines had been broken by the steps taken by Mr Lyons.[14]The email in question appeared at page 251 in the bundle. The specific words, towards the top of page 251 which the Claimant complains about are “feedback to his RO on the noise created”. The Claimant told the Tribunal today that a reference to the RO was a reference to the professional body that he is a member of and that it amounted to a suggestion that disciplinary proceedings might be taken by his professional body against the Claimant. The Claimant told the Tribunal today that in his opinion a number of other steps ought to have been taken first by Mr Lyons in accordance with the MHPS Guidelines before making any reference to the RO. Importantly however the Claimant had made reference to alleged breaches of those guidelines at page 56 in his Scott Schedule. The Claimant alleges that the reference to the RO was an act of less favourable treatment because if he had not been of Indian origin the Claimant alleges that that reference would never have been made. The complaint of less favourable treatment therefore is Mr Lyons sending an email at page 251 that there should be “feedback to his RO on noise created”. That reference was made because of his Indian origin. It will be for the Tribunal to ascertain the reasoning of Mr Lyons for making that suggestion in that email and it will be for the Tribunal to decide whether or not there were breaches of the MHRP Guidelines and whether or not that is relevant to any findings of fact made by the Tribunal.[15]It is therefore possible to ascertain with certainty what the complaint of the Claimant is. It clearly refers to the words used in that e mail and set out above. He indicated the relevant comparator is a hypothetical comparator who is not of Indian origin.[16]The Respondents argued that it would be of significant prejudice for this specific allegation to go ahead as an amendment. There is no doubt that it is an amendment because it was not included in the original claim form. The Tribunal however considered the balance of prejudice. The hearing of this allegation, if it went ahead, would not be until September 2021. That is over 9 months away. That would allow the Respondents more than adequate time to plan for the relatively short absence of Mr Lyons from his duties with the Respondent. Within a 4 day hearing the Tribunal is satisfied that the attendance of Mr Lyons at the Tribunal to give his evidence to be cross examined can be kept to a minimum. By contrast it is clear from the language of the Claimant that he is extremely upset by this referral and the reference to “noise created” and he believes that it is “vindictive”. On the balance of prejudice and hardship therefore the Tribunal considers that it is just and equitable for the amendment to be granted and for claim 8 to proceed to be heard at the Final Hearing in September 2021. The Tribunal reminded itself that it had a broad discretion to exercise in cases involving amendment and that it was required to take into account all the circumstances of the case. It did however fully consider a balance of injustice and hardship as set out above. It considered the delay which had occurred in the Claimant failing to enter this as a claim in his original claim form. However he had included it in his Scott Schedule and after all he had been invited by the Tribunal in that Schedule to set out what his claims of discrimination were. It is clear that the Claimant had little understanding of what was required of him in that Scott Schedule but insofar as claim 8 is concerned the Tribunal is satisfied that at page 56 he had made the claim sufficiently clear and that he had set out the requirements of Section 13 by identifying the less favourable treatment (the words in the email) and indicating that he was relying upon a hypothetical comparator. In all the circumstances therefore the Tribunal considered that it was appropriate to exercise its discretion to allow this claim to proceed to a hearing as an amendment to the claim form of the Claimant.[17]This claim related to an allegation that Mary Morris had allegedly demonstrated certain body language towards the Claimant and had effectively segregated him from his work colleagues. The Claimant alleged that these were less favourable treatment on the grounds of his Indian origin. It was important however for the Tribunal to note that this allegation had not been included in the claim form and neither had it been included in the Scott Schedule. That is despite the fact that the Claimant when setting out his Scott Schedule had been reminded that he should include in it all his claims of discrimination. Mr Walters fairly and reasonably pointed out that the allegations relating to body language and alleged segregation amounted to nothing more than an allegation which the Claimant confirmed today was an allegation that Mrs Morris had put her hands on her waist and had appeared angry. Insofar as segregation is concerned the Claimant confirmed today that that allegation amounted to nothing more than an alleged gesture of the eyes used by Mrs Morris to attempt to dismiss everyone else in the room other than the Claimant. Mr Walters fairly pointed out that if he were to now ask Mrs Morris or any other people who attended that meeting whether this took place that they were being invited to comment on a few moments in a meeting which took place on 25 October 2019 some 15 months ago. When the Claimant was asked why these two alleged actions amounted to less favourable treatment on the grounds of race the Claimant said that he believed that these were deliberate attempts by Mrs Morris to make his life miserable and that they were vindictive steps which were taken on her part. The Tribunal noted however that even in the final Schedule which the Claimant had submitted to the Tribunal after the hearing on 4 December, the Claimant had not included any particulars of segregation but only today, for the first time, was he was specifying that there was nothing more than an alleged use of her eyes, in silence, by Mrs Morris as long ago as October 2019. The Claimant was asked why he had not included it in his claim form and why he had not included it in his Scott Schedule. He said that he had been stressed out and that he simply wanted to get the Scott Schedule over and done with. After discussions with the Claimant, the Tribunal was unable to ascertain what primary evidence the Claimant would rely upon to indicate that these alleged pieces of behaviour on the part of Mrs Morris were less favourable treatment on the grounds of race. Importantly however the Tribunal considered, as it did in connection with claim 8, the balance of prejudice and hardship. The Tribunal considered that it would be almost impossible for anyone to remember something so minor and of such a short duration in respect of a meeting which took place in October 2019. The Tribunal also found it particularly surprising that if the Claimant believed that these were such significant events and that they were “vindictive” conduct on the part of Mrs Morris that he had failed to include it in his claim form and failed to include it in his Scott Schedule. Balancing therefore the potential merits of this claim and the potential hardship and prejudice to the Respondents about relatively insignificant parts of a meeting on 25 October which on any examination were of short duration, the Tribunal believed that the Respondents would be significantly prejudiced by being asked to call witnesses about a meeting as long ago as October 2019. On this occasion therefore the Tribunal, exercising its broad discretion, refused to allow this claim to go forward as an amendment and claim 9 was therefore dismissed and will not proceed to a Full Hearing.Summary
[18]In summary therefore claims numbered 1 – 6 and claim 8 will proceed to a hearing in September 2021 but claims numbered 7 and 9 are dismissed and will go no further.[19]The Tribunal has prepared a separate Schedule of the narrative of claims 1 – 6 and claim 8 and this is attached to the Summary of the Case Management part of today’s Preliminary Hearing which is being prepared and sent to the parties. It is recommended/suggested that the Tribunal in September 2021 refers to that appendix as the detail of the 7 claims of the Claimant rather than attempting to do so by reference to an inadequate claim form, an extremely complicated Scott Schedule and an at times equally complicated additional Schedule which was submitted by the Claimant to the hearing today. The Tribunal indicated to the Claimant that it was in his very best interests to concentrate on the wording of the 7 claims which are permitted to proceed in order to enable him, where possible, to establish less favourable treatment on the grounds of race as claims of direct discrimination under Section 13 of the Equality Act 2010.Summary
[1]The information now supplied by the Claimant does not address the dates or the timetable of events set out in the original and the second Judgment and provides no grounds for any change to the Judgements or the Reasons for them.[2]The information now supplied could and should have been supplied to the original Hearing if the Claimant believed it was relevant but the Tribunal does not see how in any event it would have altered either of the Judgements of the Tribunal.[3]This application-just as was the case with the 1st Rule 70/71 application - is in effect an appeal against the earlier conclusions of the Tribunal. It is appreciated that the Claimant does not agree with the conclusions of the Tribunal but the Claimant cannot simply purport to make applications Case Number: 1600954/2020 under Rule 70/71 which are in effect an appeal and an obvious attempt at a second bite at the cherry.