Mr M Morgan v Nexperia Newport Ltd: 1601480/2023
JUDGMENT
The complaint that the Claimant was unfairly dismissed is struck out.REASONS
[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]The Claimant was employed by the Respondent for less than two years.[4]Therefore the Claimant is not entitled to bring such a complaint.[5]The Claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[6]Accordingly, the complaint of unfair dismissal is struck out. The Claimant’s other complaints are not affected by this judgment. ________________________ Employment Judge S Jenkins Date: 24 October 2023Introduction:
[1]The Claimant has presented claims of direct discrimination in relation to the protected characteristics of sex, sexual orientation, and age. The Respondent has presented a response to these claims contesting each one.[2]The Claimant was employed by the Respondent from 3 April 2023 until his dismissal on 18 May 2023. The Respondent met with the Claimant on 18 May 2023 following receipt of two allegations, one from an employee of the Respondent and another from an employee of OCS who provided cleaning services to the Respondent, in relation to the Claimant’s conduct; it was specifically alleged that the Claimant had made inappropriate sexualised comments to female colleagues. Subsequent to his dismissal, further such allegations came to light. The Claimant does not deny having made the comments that are alleged. The Claimant’s case rests upon his belief that if he Case No.1601480/2023 2 had been a woman, or a gay man, or a younger person (gay or female), he would have been treated more favourably than he was.[3]This hearing was listed to consider the Respondent’s application to strike out the Claimant’s claims, or in the alternative for the making of a deposit order, on the basis, respectively, that the claims have no reasonable prospect of success or only little reasonable prospect of success.[4]I was provided with an agreed preliminary hearing bundle comprising 135 pages with a separate index, which included the application and the Claimant’s response to the application (his “Rebuttal and the Grounds to proceed to a Full Trial Hearing”). The Claimant also provided the ACAS guide to discipline and grievances at work. The Respondent provided the following authorities which were referred to by Counsel in submissions, were explained to the Claimant, and the relevant parts of which were read and applied by me in reaching my decision namely: 4.1. Mr G Mechkarov v Citibank N.A. UKEAT/0041/16/DM (referred to below as Mechkarov). 4.2. Mr A Ahir v British Airways PLC 2017 WL 02978862 (2017) ( referred to below as Ahir). 4.3. Mr. J Cohen v Faculty Services Ltd 2020 WL 12919862 (2020) (referred to below as Cohen).[5]The hearing commenced at 10 a.m. with an introduction when I explained the issues I had to decide, the order of the parties’ submissions, and I indicated the likely timetable for the day ahead. Counsel for the Respondent commenced her oral application in support of the written application at 10:06 concluding at 10:59. We then took a short break. The Claimant commenced his response and opposition to the application at 11:20 concluding at 11:51. Counsel made a brief reply between 11:51 and 11:55. I then adjourned for deliberations and preparation of the judgment. Oral judgment was delivered between 12:31 and 12:43 at dictation speed. The Issues & summary conclusion:[6]I firstly had to consider whether, taking the Claimant’s claims at their highest and without hearing full evidence of the merits of the claims themselves, any or all of them had a reasonable prospect of succeeding at a final hearing.[7]The second limb of the Respondent’s application was for a strike out on the basis that the Claimant’s claims or the manner in which proceedings were conducted were vexatious.[8]I was also asked to consider whether it would be appropriate in the alternative to make deposit orders in respect of any one or more of the Claimant’s claims on the basis that they had little reasonable prospect of success. If I decided to make a deposit order I would take into account the Claimant’s means and ability to meet a deposit order; in the event that situation did not arise. Case No.1601480/2023 3[9]In the light of the application and submissions made by the Respondent (in part in reliance on the authorities cited) and having heard from the Claimant both in writing and orally, I resolved these issues. I concluded that the Claimant’s claims had no reasonable prospect of succeeding; I struck out his claim in its entirety. Neither the Claimant’s claims nor the manner in which the proceedings were conducted were vexatious.The Law:
[10]Rule 37 ETs (Constitution and Rules of Procedure) Regulations 2013 provides that a Tribunal may strike out all or part of a claim on a number of specified grounds, including that it is vexatious or has no reasonable prospect of success or that the manner in which proceedings have been conducted by a party have been, amongst other things, vexatious. The claim may not be struck out unless a Claimant has been given a reasonable opportunity to make representations either in writing or at a hearing.[11]Rule 39 provides that where, at a preliminary hearing a Tribunal considers that any specific allegation or argument in the claim or response has little reasonable prospect of success, it may make an order requiring a party to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. The Tribunal shall make reasonable enquiries of the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. If a party subject to a deposit order fails to pay the deposit by the date specified, the specific allegation or argument to which the deposit order relates shall be struck out. If, following the making of a deposit order, the Tribunal decides the specific allegation or argument against the paying party for substantially the same reasons given in the deposit order, the paying party shall be treated as having acted unreasonably in pursuing a specific allegation or argument and the deposit shall to be paid to the other party; otherwise the deposit shall be refunded. Submissions:[12]The Respondent’s submissions (which should be considered along with the Respondent’s written application) were as follows (with direct quotations from Counsel indicated): 12.1. The Claimant has no prospects of succeeding with his claims, which are also vexatious. Alternatively the claims have little reasonable prospect of success and ought to be the subject of deposit orders. 12.2. The sex discrimination and sexual orientation claims are made on the same factual allegations, but the age discrimination claim is different and it relates only to the handling of a grievance hearing. 12.3. Makarov at paragraph 14 sets out the approach that should be taken in a strike out application in a discrimination case as follows: Case No.1601480/2023 4 12.3.1. Only in the clearest case should a discrimination claim be struck out. 12.3.2. Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. 12.3.3. The Claimant’s case must ordinarily be taken at its highest. 12.3.4. If the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out. 12.3.5. A Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts. 12.4. Ahir at paragraph 16 provides that a Tribunal should not be deterred from striking out claims, including discrimination claims which involve a dispute of fact, if the Tribunal is satisfied that there is no reasonable prospect of finding the facts necessary for liability to be established, provided that the Tribunal is also “keenly aware” of the danger of reaching that conclusion without the benefit of hearing all the evidence. The Tribunal must exercise its judgement as to whether the “necessary test” is met in a particular case. “….It remains the case that the hurdle is high, and specifically that it is higher than the test for the making of deposit order”. 12.5. For the Claimant to succeed with the claim of direct discrimination he must establish facts from which a reasonable Tribunal could conclude, in the absence of a reasonable explanation, that there was discriminatory conduct. He must establish more than a difference in protected characteristic with a comparator, and more than a mere difference in treatment between himself and that comparator. 12.6. The Claimant does not rely on an actual comparator or comparators but hypothetical comparators. [At this point I stopped Counsel and explained to the Claimant what was meant by reliance on comparators and hypothetical comparators; the Claimant confirmed that he understood]. Counsel proceeded to say that the burden was on the Claimant to prove facts from which the Tribunal could find discrimination and, unless he did so, his claims would fail, so he must establish what was referred to us “a prima facie case” and only then would the burden shift to the Respondent. [Once again I note that I was satisfied the Claimant understood what was meant by the Respondent’s submission]. 12.7. Counsel referred me to the record of preliminary hearing held on 1 December 2023 conducted by Employment Judge Povey. The Claimant makes four allegations of less favourable treatment on the basis of sex and sexual orientation set out in the draft list of issues in paragraphs 32 and 33 (pp 33 & 34): Case No.1601480/2023 5 12.7.1. The Claimant alleges that he was not given the opportunity to put his side of the story. Contemporaneous notes of the disciplinary hearing disprove this. The Claimant did not dispute the allegations put to him. He still does not dispute the allegations put to him. 12.7.2. He alleges discriminatory dismissal in circumstances where the Claimant has repeatedly accepted that he made the comments for which he was dismissed. He has never disputed that. 12.7.3. The Claimant alleges that Simon Argent took part in the grievance hearing on 20 June 2023 despite having been involved in the decision to dismiss him. Mr Argent was present at the meeting prior to the dismissal to provide HR support as HR Director (or manager). He was not present at the meeting when the Claimant was dismissed, during which meeting the allegations were put to the Claimant; he did not deny them; he also said he felt that this may happen, namely that he would be dismissed for what he had said to his colleagues. The dismissal letter is clear as to the reason for dismissal, referring to failure of probation standards with the notes of the meetings showing the reason for the dismissal being the admitted comments. It was clear to the Claimant that this was the reason for his dismissal. Whilst the Respondent accepts that Mr Argent was present at the grievance meeting, the main fact is that the Claimant admitted making the comments to female members of staff that led to his dismissal. 12.7.4. Furthermore, the Claimant alleges unfavourable treatment by being refused accompaniment at the disciplinary meeting. By reference to pages 78 to 83 it is clear that this is not the case. The Claimant attended the meeting aware of his rights and the unavailability of the person he had nominated to accompany him. “It is abundantly clear” from contemporaneous documents that he was not refused accompaniment. That claim must fail. 12.7.5. There is no evidence from which a Tribunal could conclude any of the alleged treatment of the Claimant was because of his sex or sexual orientation. It is clear that the reason the disciplinary hearing took place the way it did, and the reason for the dismissal was because of allegations of sexual harassment by way of the admitted comments that the Claimant made to two female colleagues (one being a cleaner employed by OCS). There is documentary evidence that pages 86, 90 and then 89 bear out the allegations against the Claimant. There were then subsequent complaints at pages 86 to 88. 12.7.6. On the other hand the Claimant has no evidence at all to support his assertion that his treatment was due to his sex or sexual orientation. He is making a mere assertion, nothing more than a belief, that somebody with different protected characteristics would have been treated differently. He is obliged to provide more than that. The Respondent has a concrete reason for its actions and that reason was Case No.1601480/2023 6 related solely to conduct; clearly it had nothing whatsoever to do with sexual orientation or sex. 12.7.7. The allegation of age discrimination relates to a comment made at the grievance hearing. The grievance officer commented on the age of his own daughter, and that it was the same as one of the complainants. That is not disputed. It is a factual observation on the age of a complainant in comparison to his daughter; it is not a comment on the age of the Claimant. It is difficult to analyse this in any sense as being less favourable treatment. Even if it was less favourable treatment, the Claimant would still need to prove facts which from which it could be concluded that the reason for it was his age; the Claimant cannot prove that. There is no reasonable prospect of the Claimant establishing that it was discriminatory. In any event Respondent would have the opportunity to justify itself. The justification is clear in terms of compliance with policies and a duty to protect people vulnerable by reason of their age. That was a necessary consideration. The Claimant has no prospect of succeeding with this claim. 12.7.8. The Claimant’s claim and his pursuance of it is vexatious. There is little or no discernible basis in law for him to make the claims. He is subjecting the Respondent to inconvenience out of proportion to any gain he could achieve. It is also vexatious because of correspondence between the Claimant and the Respondent’s legal representatives at pages 107 and following (including page 110, 112, and 118, which correspondence includes threatening language). 12.7.9. At this point of the Respondent’s oral application I queried whether I could properly strike out the Claimant’s claims without hearing evidence from the decision maker as to rationale, as I am wary of striking out a claim without the benefit of all the evidence (having to take the Claimant’s case at its highest). Counsel submitted that the case of Cohen is similar to that of the Claimant and the EAT set out its approach at paragraphs 64 to 69. There must be “something more” than a difference of characteristic and treatment. Here there is no evidence whatsoever to find or infer discrimination. Under cross-examination at a final hearing, the only evidence that the Respondent could give is to say that it did not make any decision, or take any action alleged to be discriminatory, on the grounds of a protected characteristic. 12.7.10. Counsel went on to say that there is a lesser test in respect of the deposit order application; the same points as raised above would be relied upon to show that there is little reasonable prospect of success. The primary submission is that there is no reasonable prospect of the Claimant succeeding.[13]The Claimant’s submissions (and in fairness to the Claimant I have included direct quotations where appropriate to show that I took a full note of what was said and so that the Claimant’s submission is properly represented at its highest; these are the notes of the oral submission which should be read in conjunction Case No.1601480/2023 7 with the Claimant’s Rebuttal document, the response to the written application by the Respondent): 13.1. The Claimant says that he ought to have been involved in the meeting that took place prior to his dismissal and there was no witness on his behalf, whilst during the disciplinary hearing he had PTSD and a breakdown. So serious was the allegation that he wanted police involvement. He was entitled to a probationary review of which he would have had one month’s notice; that was not given. He had no prior disciplinary record and so he does not understand how it could be said that he had failed his probation. 13.2. “The only thing I can come up with was why were only females approached and there was no full investigation. The only thing I can come up with is that I am male”. 13.3. The email at p84 dated 5 June 2023 refers to 2 confirmed complaints raised by female members of staff. The Respondent says that the references include one member of OCS staff. The evidence at page 86, being a statement dated 24 May 2023, post-dates dismissal (the effective date of termination of employment was 18 May 2023); therefore the Respondent was not aware of two cases of alleged harassment before 18 May. 13.4. “I spoke to everybody. I like banter. I overstepped and should have been slapped on the wrist and told to calm down but this was not the case”. 13.5. The Claimant submitted that he is vulnerable and should be looked after but in any event he was the same age as the member of the Respondent’s staff who alleged harassment, and she was 20 to 30 years older than the OCS member of staff, the latter of which did “not want to be protected”. She did not expect further action to be taken and had not required it. Neither complainant wished to pursue the matter. [I note that this is recorded, in effect or may be so implied, in the documentation, however the Respondent concluded that its standards had not been reached by the Claimant in his probationary period]. 13.6. The Respondent’s dignity to work policy changed after the Claimant’s dismissal. The Respondent also changed what was considered so serious as to fall within gross misconduct. In any event the Claimant says that he turned down an appeal against dismissal because “it was already with the higher echelons of the Respondent”. 13.7. The grievance officer in making his comment about the age of his daughter and of the OCS complainant, adopted a tone of “anger and disgust”. 13.8. The Claimant feels that the Respondent was vexatious towards him and did not carry out a thorough investigation. “I do not know why. I can only make assumptions why. My hypothesis is that I am a male and that if I was a female I would be given a chance.” The Claimant says that the evidence against him looks “stunning”, but he did not provide a statement and some of the Respondent’s evidence post-dates dismissal. Case No.1601480/2023 8 13.9. The Respondent did not follow processes and policies that were in place but just thought that his conduct was unacceptable and they got rid of him. He was first told that he was being summarily dismissed for innuendos made to two female members of staff, then he was told that he failed probation in relation to performance standards, then that there was sexual harassment and finally that he made inappropriate comments of a sexual nature. If it was really that serious the police should have been involved. Whereas the evidence for the Respondent “looks brilliant”, there is no evidence from the Claimant until after the decision was made and he was not treated equally; he considers it was one-sided with no impact statement from accusers. “I knew I was in trouble because they did not take a statement. I offered to resign – I did offer”. 13.10. The Claimant says that he should have been treated equally with others, in that the complainant employed by the Respondent was taken at her word, but he was not (in that the context was “just banter”). The Claimant has repeatedly admitted using the words alleged against him as amounting to sexual innuendo and harassment. 13.11. The Claimant referred me to an email dated 25th of May 2023 at page 88 which described his conduct as “someone trying to groom the two young cleaning girls”, amongst other things. The Claimant considers this to be “defamation and slander”. The people involved were adults. Grooming is illegal. The comment in the email amounts to age discrimination. The Claimant repeatedly submitted that he apologised for his actions; he accepted that the complainant employed by the Respondent was affected by his comments, although she did not react angrily as he would have apologised to her at the time if he had known how she had been affected; she was impacted as she told another colleague about it; neither she nor the OCS employee wanted to make any more of the matter. 13.12. He said that he could not explain why he had said some of the things that he had said, “a slip of the tongue”, but feels that this was a “witch-hunt”, and that the Respondent had “taken the female stance” which “is the way of the modern world”. “I think if I was gay or female I would be treated differently”.[14]The Respondent’s reply to the Claimant’s submissions: 14.1. Two women initially made allegations. The Respondent’s employee who complained did so before 18 May which is confirmed in the email at page 85. The document dated 24th of May is just a written version of what was said prior to dismissal. 14.2. The incident involving the OCS member of staff is detailed at page 90. There were two confirmed cases. 14.3. Nothing that the Claimant has said throughout his submission points to any facts which could lead the Tribunal to conclude that the allegations of discrimination could succeed. Case No.1601480/2023 9 14.4. Counsel accepted that the Claimant was upset about the process, but submitted that he has misunderstood the principles of law in relation to discrimination and how they operate. Application of law to facts:[15]After careful consideration of all that I have read and heard today I concluded as follows: 15.1. The Claimant makes claims of discrimination in respect of the protected characteristics of sex, sexual orientation, and age; all of his claims are of direct discrimination. The Claimant is effectively saying that he was treated less favourably than a hypothetical comparator in each case because of his protected characteristics of sex (male), sexual orientation (heterosexual) and his age (50 years of age at the material time). 15.2. The details of the Claimant’s claim is set out in Judge Povey’s preliminary hearing minutes of 4 December 2023 at paragraphs 30 to 34. The direct sex discrimination and direct sexual orientation discrimination claims mirror each other. The direct age discrimination claim is entirely different and is in respect of a comment made by the grievance officer at the grievance hearing, which comment is not denied. The Claimant relies on hypothetical comparators in each case. 15.3. To succeed, the Claimant must prove facts from which a Tribunal could find discriminatory conduct. Only if that test is satisfied does the Respondent have the burden of proving an innocent or non-discriminatory explanation. Mere difference in treatment (or here a speculative difference in treatment from that which the Claimant believes a hypothetical comparator would have received) is not enough. The fact of a difference of protected characteristics alone is not enough. There must be something more than that. A Tribunal ought to try to make positive findings of fact although it may draw inferences from findings of fact where, as is often the case with discrimination claims, there is no “smoking gun”. By this I am referring to the requirement that the Tribunal will either positively find facts or will be able to draw inference from facts of the “something more”, something more than different treatment and different protected characteristics. When one is relying on hypothetical comparators, as in this case, there must be some evidence from which a Tribunal could find positive facts or draw inferences of discriminatory conduct other than just saying that the Claimant believes someone with different characteristics would have been treated differently relying on nothing more than a suspicion. 15.4. The questions I had to address today were whether the Claimant’s claims had any reasonable prospect of success or none, where that is a difficult test or high hurdle for a Respondent to cross with its application. The alternative question is whether or not the Claimant’s claims have little reasonable prospect of success. I had to consider whether there was any Case No.1601480/2023 10 reasonable prospect or only little reasonable prospect that the Claimant would prove facts from which the Tribunal could find discrimination or facts from which it could infer discrimination. 15.5. It is clear from established case law including that which has been cited that: 15.5.1. Claims ought only be struck out in the clearest of cases. 15.5.2. If there are core issues of fact, a claim should not be struck out at this stage. 15.5.3. The Claimant’s case must be taken at its highest. 15.5.4. Strikeout may be appropriate if the basis of the Claimant’s claim is totally disapproved or is totally inconsistent with contemporaneous documentation. 15.6. The Tribunal ought not to conduct a mini trial at this stage. 15.7. The Tribunal is entitled to strike out a claim if there is no reasonable prospect of finding the facts necessary to prove liability. 15.8. In this case I am faced with: 15.8.1. Two complaints of sexual harassment raised to the Respondent before the effective date of the Claimant’s termination of employment, allegations that the Claimant made sexual comments and innuendo that made two female workers uncomfortable although one did not wish to take the matter further. 15.8.2. The Claimant’s acceptance that he made the comments alleged against him and his acceptance that his direct colleague was impacted enough by his comments to tell someone else about them. 15.8.3. A situation where the Respondent’s management had to decide whether to act (to uphold its standards and/or to protect its staff and subcontractor workers) and had to decide how better to act, or whether not to act at all but to tolerate and accept the Claimant’s conduct for what it was. Here the Claimant has put the Respondent in a position where it had questions to ask itself, to act or not to act, and if acting then how. 15.8.4. The Claimant’s version is that he was joking and bantering, but realised at the time that he would be in trouble. He even submitted that such were his remarks that he did not know why he made them to the complainant who was employed by the Respondent, and where he anticipated that the Respondent would take some action. Indeed the Claimant confirmed to me that he would have appreciated the opportunity to resign from his employment because of his conduct. He accepts that Case No.1601480/2023 11 he over-stepped a line drawn by the Respondent, however tolerant either complainant said (for whatever reason) they would be. 15.8.5. Undisputed conduct where the Claimant accepts that his colleague was impacted and she told someone else about it before any form of investigation. 15.8.6. The decision by the Respondent to dismiss the Claimant on the basis of his admitted words, albeit he did not accept that the context was other than good-humoured “banter” on his part; he has not said that either complainant was engaging in “banter”. 15.8.7. Mr Argent, being the director of HR attending a meeting prior to the formal dismissal where there is no evidence or suggestion that his role was other than to provide support, and he subsequently attended a grievance hearing, again it appears on the documents and there is no other suggestion, in a HR role; the Claimant has not submitted that he has any evidence to the contrary or indeed that he has any belief or grounds that Mr Argent played any other role; he just takes exception to his presence on principle because he was at a meeting when the Respondent’s management decided it had to act and he is said to have agreed. 15.8.8. The Claimant having been informed of his right to be accompanied at the disciplinary hearing as shown in the documents; it is clear from the documents that two suggested companions refused, or were unable, to attend and that the Claimant chose to attend the disciplinary hearing alone in those circumstances (of which he was aware at the time). The claim that he was refused accompaniment is wholly inconsistent with the available contemporaneous documents. 15.8.9. At the grievance hearing the grievance officer stating as a fact that his daughter was the same age as the OCS complainant. 15.9. It seems to me that the Claimant’s claims are more akin to the type that would form part of a claim of Unfair Dismissal. The Claimant was employed from 3 April 2023 until 18 May 2023 and is not entitled to pursue such a claim. In Unfair Dismissal claims there will be issues of fairness and reasonableness which do not arise in the same way in a discrimination claim. 15.10. The Claimant believes that “the way of the modern world” is to “take the female stance”; he feels he was treated harshly and that he would have been treated differently “if gay or female”. He has absolutely no evidence to support those beliefs in this case. 15.11. It is more likely than not that at any contested hearing the Respondent’s evidence will comprise a statement rehearsing the points made at paragraph 15.8 above, explained as having nothing whatsoever to do with the Claimant’s protected characteristics. There is little more that it can say as the Claimant has indicated that he is basing his entire claim on his belief of Case No.1601480/2023 12 what he calls “the way of the modern world”. I stress that I am not making findings of fact but that points listed above in paragraph 15.08 are from submissions. 15.12. At any contested hearing the Claimant’s evidence will be to say that he thinks something different would have happened if he was gay or female because that is the way of the modern world. The Claimant conceded in his submissions that the Respondent’s evidence looked overwhelming, referring to it as “brilliant” et cetera because he has no evidence, but only a suspicion, of discrimination. 15.13. The Claimant has no reasonable prospect of proving facts from which the Tribunal could find unlawful discrimination. 15.14. If I am wrong about that, and even the Claimant seems to accept by his comments that he has little reasonable prospect of succeeding, then in those circumstances I would have to consider making a deposit order in relation to a number of different claims, in fact all of them: 15.14.1. Any such deposits that would be appropriate in this case may cumulatively act as a considerable disincentive to the Claimant, effectively obstructing him from litigating at all. 15.14.2. I have to consider the overriding objective of the Tribunal, to deal with cases fairly and justly and in so far as is practicable by ensuring that the parties are an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality, seeking flexibility and avoiding delay so far as is compatible with the proper consideration of the issues, and saving expense. 15.14.3. I am concerned that if I defaulted to a deposit order, instead of a strike out order, it would amount to a “cop-out” by me, rather than me dealing with the matter conscientiously and diligently in accordance with the overriding objective. 15.14.4. Subject to any evidence of the Claimant’s means, which would be taken into account, it is likely I would be minded to impose deposits of multiples of hundreds of pounds, or even thousands of pounds. 15.15. Despite my natural caution about striking out a discrimination claim at this stage (without the benefit of full evidence, taking the Claimant’s case at its highest), and the authorities that support such caution, I consider it appropriate in this case to strike out all the Claimant’s claims as having no reasonable prospect of success. The balance of prejudice would weigh heavily against the Respondent, having to prepare for and face a lengthy hearing, when the claim lacks merit. I take notice of the likely cost and inconvenience to the Respondent and the reasonable probability, if not certainty, that the Claimant stands to gain nothing (other than any satisfaction he may have from rehearsing all that has been said at this hearing, and Case No.1601480/2023 13 necessitating the attendance of witnesses and the commitment of judicial and other resources). 15.16. That said, I do not consider that the Claimant’s proceedings to date, or his conduct, have been vexatious. He got off on the wrong foot. Some of his correspondence is at least impolite and could be seen as threatening. I take account however the Claimant lost his job and he has suffered serious consequences upon his income and potentially to his reputation. He genuinely believes that circumstances and events were stacked against him, and he has a fervent desire to clear his name. I believe he is wrong in legal principles and he cannot factually prove his case. I accept however that he is genuinely seeking to establish some principle of equality as he sees it, from his “worldview”. At this hearing I have been able to consider whether this litigant has a reasonable prospect of succeeding in litigation based only on such a worldview. I consider that this is an appropriate stage of these proceedings to bring them to an end. I take into account that the Claimant is upset, he has a mistaken sense of injustice, and is a litigant in person. I am not striking out these claims on the basis of the Claimant being vexatious or the claims being such. Employment Judge T V Ryan ________________________________ Date: 25 April 2024The Law:
[1]The Claimant has applied for reconsideration of my Preliminary Hearing Decision of 27th March 2024, sent to the parties on 2nd April 2024 and in respect of which Reasons were signed by me on 28th April 2024 and sent to the Claimant.[2]The application for reconsideration was referred to me today, and until today I was unaware of it. I have made enquiry as to the cause of the delay. Had I been the cause, or been aware before today of the application, I would apologise to the Claimant for delay. As I am not aware of the reason and I am not responsible for the delay, I cannot apologise except in a general sense in saying I regret that the Claimant has been inconvenienced; I am sorry for that.[3]I have re-read my Decision and Reasons, and I have considered the Application.[4]I have reminded myself of the procedure set out in Rules 70 – 73 ETs (Constitution & Rules of Procedure) Res 2013.[5]I consider that there is no reasonable prospect of the original decision being varied or revoked by me. I refuse the application.[6]I note that the Claimant has appealed the Decision and I await notification of the outcome in due course, re-assured that, despite delay in the matter being referred to me, the Claimant has been able to pursue his challenge Case Number: 1601480/2023 2 appropriately. In the circumstances the matter would now be better dealt with by the Employment Appeal Tribunal.