Ms C Israel v Capita Customer Management Ltd and Department for Work and Pensions: 1800771/2021 and 2201727/2021

EMPLOYMENT TRIBUNALS

Case No 1800771/2021, 2201727/2021

Between

Ms C IsraelClaimant

[1] Capita Customer Management Ltd [2] Department for Work and Pensions RECORD OF A PRELIMINARY HEARING Heard on 31 January 2022 (CVP)Respondent

Before

Employment Judge D N Jones

In person for claimant

Date 24 November 2022

JUDGMENT

[1]The claims against the second respondent are struck out on the ground they have no reasonable prospect of success.

[2]The complaints of age, religion and belief, sex and disability discrimination against the first respondent are struck out as they have no reasonable prospect of success.

[3]The remaining applications of the first respondent to strike out the complaints and/or to require the claimant to pay a deposit are dismissed.

REASONS

[1]By rule 37 (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— 1 of 5 a) that it is scandalous or vexatious or has no reasonable prospect of success;

[2]By rule 39: (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. No reasonable prospect of success

[3]The President of the EAT, Choudhury J, summarised the approach a Tribunal should take with respect to an application to strike out on the ground that discrimination claims have no reasonable prospect of success in Malik v Birmingham City Council

UKEAT/0027/19

: “30. It is well-established that striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union

[2001] ICR 391

. The applicable principles were summarised more recently by the Court of Appeal in the case of Mechkarov v Citibank N.A

[2016] ICR 1121

. 31. In Mechkarov, it was said that the proper approach to be taken in a strike out application in a discrimination case is that:(1) only in the clearest case should a discrimination claim be struck out;

(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;

(3) the claimant’s case must ordinarily be taken at its highest;

(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; and

(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.” 32. Of course, that is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Methuen

UKEAT/0024/11

, it was stated that in appropriate cases, claims should be struck out and that “the time and resources of the ET’s ought not be taken up by having to hear evidence in cases that are bound to fail.” 33. A similar point was made in the case of ABN Amro Management Services Ltd & Anor v Hogben

UKEAT/0266/09

, where it was stated that, ‘If a case has indeed no reasonable prospect of success, it ought to be struck out.’ ”

[4]I have considered the applications to strike out by assuming that the factual complaints of fact in the claim forms, or the amendments I have allowed, are made out. 2 of 5 The claims against the second respondent

[5]The second respondent entered into a contract with the first respondent in May 2020 to outsource its telephony service in relation to universal credit queries from its customers. The claimant worked on the contract from 20 May 2020. The claimant worked from home because of the restrictions arising from the pandemic, but had previously worked at the first respondent’s offices in Leeds.

[6]The claim against the second respondent, as expressed in box 8.2 of the claim form issued on 13 April 2021, is that she was racially abused and called vile racist names by DWP customers. The claimant says she was ignored when she asked for a recorded message which warned claimants against making such abusive comments. She says the second respondent ought to have known of the abusive conduct of these callers and it breached its duty of care to her to provide a safe working environment. She says her human rights were violated, her mental health has suffered and that the second respondent is jointly responsible with the first respondent.

[7]The legal claims which the claimant has ticked in 8.1 of the claim form are age, religion or belief, race, disability and sex discrimination. In addition the claimant says she was unfairly dismissed and is owed holiday pay.

[8]The employment tribunal does not have an inherent jurisdiction, that is a right to decide any legal claim known to the law of England and Wales. It is restricted to determining cases which have specifically been identified for that purpose in a number of statutes or statutory instruments. The claims for breaches of the duty of care and free-standing human rights challenges are not cases the employment tribunal have the right to determine.

[9]The claims which the employment tribunal has jurisdiction to decide in box 8.1. are to be found in the Employment Rights Act 1996 (ERA), for the claims of unfair dismissal, the Working Time Regulations 1998 (WTR) and/or the ERA for holiday pay, and the Equality Act 2010 (EqA) for the discrimination claims.

[10]The claim for unfair dismissal can only be made against the claimant’s employer. Under section 230 of the ERA an employee is defined as an employee who has entered into or works under a contract of employment and a contract of employment is a contract of service whether express or implied and if it express whether oral or in writing. In her claim form the claimant says she joined the second respondent as an outsourced employee of the first respondent. Nothing in the documents suggests the claimant ceased to be employed by the first respondent. Her agreement to work was with them, they paid her, they provided the offices from which she worked until the pandemic led to her working from home, they provided her with work equipment, they retained responsibility for line management, direction and control. The claimant’s telephony work on the DWP contract was for the first respondent. The second respondent was its client. In these circumstances, the claim for unfair dismissal against the second respondent is bound to fail. It was not the claimant’s employer.

[11]At the hearing the claimant queried whether she might be an employee of the second respondent and referred to her belief that she acquired the same rights as an 3 of 5 employee after working for a period of 12 weeks. It is probable that the claimant had read about the rights of an agency worker under the Agency Worker Regulations, to which this provision is relevant. They had no application to the arrangement in this case. The first respondent is not a temporary work agency within the meaning of the Agency Workers Regulations 2010 and the claimant was not an agency worker. The second respondent was a client of the second respondent, for telephony services.

[12]In respect of a claim for holiday pay, such a claim may be brought by a worker. A worker is defined, in regulation 2 of the WTR and section 230 of the ERA, as an individual who works under a contract of employment or any other contract whether express or implied and (if it express) whether oral or in writing, whereby the individual undertakes personally to do or perform any work for another party to the contract whose status is not by virtue of the contract that of a client or customer or any profession or business undertaking carried on by the individual.

[13]The claimant entered into no contract with the second respondent, expressly or impliedly, to do work for them personally. She did the telephony work on the DWP contract pursuant to her contract of employment with the first respondent. She worked for the second respondent as the client of the first respondent. The claim for holiday pay as against the second respondent cannot succeed.

[14]A discrimination claim may be brought against a broader category of respondent than the employer of the claimant. They are contained in Chapter 1 of Part 5 of the EqA. The claimant relies upon the second respondent as her employer, for the same reasons set out above in respect of the unfair dismissal claim, or on the basis there was some joint liability.

[15]The definition of an employee is broader under section 83 of the EqA than section 230 of the ERA, in that it includes a contract do work personally. It is similar to the definition of a worker under the ERA. The claimant says in the second claim form that she joined DWP as an outsourced employee of Capita and in the first that she was moved to the DWP contract under Capita. In neither does she say she was an employee of the second respondent. For the same reason that she was not a worker, that there was no contract between her and the second respondent, she cannot establish she was an employee under the EqA.

[16]The claim against the second respondent is in reality a claim for harassment about the customers who made phone calls about benefits, not the employees of the second respondent. These are members of the public. They are not people for whom the second respondent has legal responsibility under the EqA. The complaint is about harassment by third parties. The right to bring a claim for third party harassment against an employer or other responsible party within Part 5 of the EqA has now been removed, following the repeal of provisions for that type of complaint under section 40 of the EqA, and there is no residual claim, see Unite the Union v Nailard

[2019] ICR 28

. This claim cannot therefore succeed against the second respondent.

[17]With respect to joint responsibility, there are provisions which extend the liability to others under Part 8 of the EqA, but these were not argued and I cannot see they assist the claimant. The employees of the first respondent cannot attach liability to their client under the premise that the first respondent acted as the agent of the second respondent, see Ministry of Defence v Kemeh

[2014] ICR 625

. 4 of 5

[18]In these circumstances the discrimination claims cannot succeed against the second respondent. I have already refused the applications to allow an amendment against the second respondent for the reasons set out in the Case Management Order which accompanies this judgment.

[19]The claimant raised the public authority duty under section 149 of the EqA. That duty is not enforceable by an action in the employment tribunal.

[20]The claimant relied upon the case of James-Bowen v Commissioner of the Metropolitan Police

[2018] ICR 1353

. The case is authority for the proposition that a comparable duty of trust and confidence applies to office-holders as between employer and employee, but the duty did not extent to reputational damage of officers who were affected by the way the Commissioner had conducted litigation. It has no relevance to the claims brought against the second respondent. The claims against the first respondent

[21]In Chandok v Tirkey

[2015] IRLR 195

Langstaff J said, “A respondent is not required to answer a witness statement, nor a document, but the claims made – meaning, under the Employment Tribunals Rules of Procedure 2013 (SI 2013/1237) the claim as set out in the ET1”.

[22]The contents of the claim form with respect to the complaints of age discrimination, religious or belief discrimination, disability discrimination and sex discrimination are so lacking in detail and clarity that the first respondent cannot sensibly respond to them. They are a mere list of protected characteristics in box 8.1 which have no apparent relevance to the matters contained in box 8.2. The application to amend includes facts about each of these claims, but they are not in the claim form. They are new. I have refused requests for amendments in respect of these claims. As presented in the claim form, these claims have no reasonable prospect of success.

[1]The Respondent has applied for a strike out of the claim under rule 37 (1) (b) of the Employment Tribunals Rules of Procedure 2013, on the grounds that the manner in which the proceedings have been conducted on behalf of the Claimant has been vexatious or unreasonable, or under (e) that it is no longer possible to have a fair hearing.

[2]This basis of the application was first indicated in summary form at about 12 o’clock on day 3, Wednesday 23rd November 2022. Mr Johnston made it clear that if the Claimant changed her position with regard to being cross-examined on the bundle of documents, he would withdraw the application. The case was then adjourned for reflection on both sides, and resumed at 12.40 pm when the application was again made by way of reasoned oral submissions. The case was then further adjourned from 12.50 pm to 2.20pm, to include lunchtime, after which the Claimant’s submissions in response were heard. In addition the Claimant relies upon an email to the tribunal timed at 12.35 pm in which she asserts that the continuation of the hearing is an abuse of process, and repeats her claim of a lack of judicial impartiality. The Tribunal then began considering it’s decision at 2.40pm, calling the Parties back at 3.40 pm to deal with additional questions, and then reserving judgment overnight for further deliberations.

The facts

[3]The Claimant’s evidence had commenced at 10.30 am on the morning of Day 3.

[4]Initially she answered some questions in cross-examination about pre-employment checks in which she was taken to relevant documents within the hearing file. However, following a short adjournment at about 11.35am , when she began to be questioned on the outcome letter in respect of her first grievance, she refused to read the document. She stated that she would not be “ordered” by Mr Johnston to refer to a bundle which was incomplete.

[5]The Claimant has confirmed that she will not now engage with the consideration of any documents within the tribunal process so long as the bundle is that which has been prepared by the Respondent. In response to specific questions from the Tribunal in the course of its deliberations, she stated that not only would she continue to refuse to look at documents in the bundle, but that she would also not answer questions based upon extracts from such documents if they were read out to her. This refusal to engage withy documents in the bundle was confirmed to extend not only to further questions in cross-examination, but also to any questions which the Tribunal panel may have in due course. The background

[6]It is worth our reciting briefly the chronology of the issues concerning preparation of the bundle, and which has led to the Claimant taking her present stance.

[7]Following two preliminary hearings on 29th June 2021 and on 22nd September 2021, where the potential issues in the claim had been clarified, the case was set down for a public preliminary hearing on 31st January 2022 to consider the extent to which leave to amend was needed, whether such leave should be granted and whether any part of the claim should be struck out as having no reasonable prospect of success.

[8]Prior to that public preliminary hearing Case Management Orders (CMOs) had been made by Employment Judge Morgan KC, which included a direction that the Respondent should be responsible for preparing the bundle of documents for that preliminary hearing.

[9]On 18th January 2022 the Claimant wrote to the Respondent., copying in the Tribunal, complaining that the preliminary hearing bundles were “subjective and selective – incomplete and confusing to portray me the Victim wrongly. Totally unethical”. In her subsequent skeleton argument for the preliminary hearing , dated 29th January 2022, the Claimant referred to this letter of 18th January as if it were a strike out application. In fact Employment Judge Davies had addressed this correspondence on 20th January 2022, and expressly told the Claimant that this was a copy of correspondence with the Respondent, that it dd not contain any application to the Tribunal, and that accordingly no action would be taken.

[10]In any event, the preliminary hearing was able to go ahead and any previous dispute about documentation was no longer relevant.

[11]Employment Judge Jones, who conducted the preliminary hearing by CVP on 31st January 2022, then reserved his decision both on any substantive judgment and in respect of further CMOs. He did not then, in fact, conclude his decision making until 23rd February 2022 and the Judgment and the Case Management Order were both sent out on or shortly after 4th March 2022.

[12]In the meantime the Claimant had submitted further documents to the Tribunal and to the Respondent, for the attention of Employment Judge Jones. These were necessarily, however, relevant still only to the preliminary issues and not to the issues for final hearing. That is because until Employment Judge Jones had handed down his decisions, the extent of the claims and issues that were actually to go forward to a final hearing had not yet been ascertained.

[13]In the event a substantial portion of the potential complaints were either disallowed or struck out, including the entirety of the claim against the then Second Respondent DWP. Both the case management decisions and the Judgment of Employment Judge Jones are subject to a pending appeal to the Employment Appeal Tribunal ( EAT), where there has still as yet been no decision on the merits of the Claimant’s application .

[14]In accordance with Employment Judge Jones’ directions the Respondent on 9th March 2022 produced a list of the remaining issues. Those are still the only issues that would have fallen to be determined at this hearing.

[15]In respect of the claims and issues that were proceeding, the case management order was that the parties send each other a list of relevant documents by 14th April 2022, that copies should then be requested by 21st April and sent by 28th April 2022. The Respondent was then tasked with preparing a file of those documents by 6th May 2022.

[16]On 22nd March 2022, Employment Judge Maidment, whilst extending the time for the submission of the Claimant’s Schedule of Loss, had reminded her that regardless of any appeal she must continue to comply with the directions in the claims which were going forward to a final hearing. On 6th April 2022 the Respondent’s application to postpone the hearing listed for July 2022 was granted, and the new notice of hearing for 21st November 2022 was subsequently sent on 29th April 2022. The case management timetable was, however, not varied.

[17]The Respondent sent the Claimant a list of its relevant documents on the due date, 14th April 2022. She did not send the Respondent her list. Instead, she drafted a document, also on 14th April 2022, listing a number of applications, including one for a strike out for “repeated failures to follow Case Management Orders by respondents”. This appears to be on the basis that the Claimant objected to the list that the Respondent had supplied in compliance with the Order for disclosure of documents, because it did not also include some, unidentified, documents which she had submitted at the preliminary hearing stage.

[18]This application was not , however, sent to the Leeds Employment Tribunal, even if that was the Claimant’s intention, but only to the EAT.

[19]From 14th April 2022 onwards the parties engaged in private correspondence regarding disclosure. This led to the Respondent, on 9th May 2022 applying for an Unless Order or for a strike out of the claim on the basis that the Claimant had not complied with the directions regarding disclosure. The inter-party email correspondence was then attached to that application. It is clear reading those documents that the tone of the Respondent’ solicitor, Mr Heyes, was moderate and reasonable throughout. In contrast the attitude of the Claimant was uncooperative and her language intemperate.

[20]Notwithstanding that she correctly identified the apparent failure on the part of the Claimant to meet her obligations under the orders, Employment Judge Cox, on 18th May 2022, refused that application by the Respondent. She also observed that if the Claimant still did not supply her own list of other documents the Respondent could complete the bundles based upon their own disclosure only.

[21]Also on 18th May 2022 the Claimant sent to the Leeds Employment Tribunal a copy of her 14th April submission to the EAT, wanting to know why it had not been responded to.

[22]Employment Judge Maidment dealt with that on 24th May 2022, when he informed the Claimant that no strike out application had in fact been made to the Leeds Employment Tribunal , and that he could not comment on her correspondence with the EAT

[23]The Claimant replied on 24th May 2022, inaccurately asserting that she had had applied for a strike out every time that the Respondent failed to produce a fair, objective and complete bundle, and questioning why the Tribunal had not responded to these purported strike out applications.

[24]She also in that email did, however make a separate, albeit misconceived, application for a strike out on wholly unconnected grounds. I refused that strike out application on 9th June 2022. At the same time I specifically reiterated Judge Maidment’s observation that there had never in fact been any application actually addressed to the Tribunal for a strike out in relation to alleged non-compliance with CMOs. I also expressly stated in that letter that if any dispute remained unresolved as between the parties in respect of either non-inclusion of documents in the bundle, or non-disclosure of specific documents, an application would need to be made to the Tribunal in order for the issue to be determined.

[25]The Claimant wrote again to the tribunal on 9th June 2022 specifically applying for interim relief, preparation time orders and witness orders, and asking for an extension of time in which to submit her witness statement. She also again asserted that she had already submitted applications for strike out for noncompliance with CMOs. Employment Judge Cox, on 10th June 2022, granted the extension of time but refused the applications for interim relief or witness orders. The costs application was not specifically addressed but was in any event. clearly premature. Judge Cox also treated the reference to a strike out as if it were in fact an application, and stated that it was refused as she was not satisfied that there were grounds for making such an order.

[26]Since my directions on 9th June 2022 the Claimant has never supplied to the Tribunal any list of specific documents which she says ought to be added to the hearing bundle. She has not even identified any categories of documents which she claims have been omitted. She has not applied for any orders in respect of any contentious further inclusion of her supplied documents.

[27]At the telephone preliminary hearing before myself on 18th October 2022 the Claimant applied for specific disclosure of one item, which I refused with written reasons given. No application was made in respect of any additions to the bundle. It was, in fact expressly noted that the bundles had been produced solely by the Respondent , following Judge Cox’s observation so 18th May, and that these would, therefore, be the files that were used at the final hearing. What is in those bundles is, of course, material and admissible evidence in the case, and is cross-referenced within the Respondent’s witnesses’ statements. It still remained open for the Claimant to produce any additional relevant documents and apply for them too to be admitted. She has not done this.

[28]On 15th November 2022, 6 days before the hearing was due to start the Claimant applied for a strike out, in part on the basis of alleged continued failure to comply with CMOs so resulting – as she expressed it - in wrong, inaccurate and incomplete information being put before the Employment Tribunal.

[29]That application was dealt with on the first day of the hearing, and was unanimously dismissed. The Claimant clearly does not accept that decision and has repeatedly attempted to renew her arguments.

[30]At the end of Day 1 the Claimant applied that I recuse myself, and that application was dealt with and refused on Day 2. Because that recusal application was based in large part upon the conduct of the strike out application on Day 1, the Claimant was given a further opportunity to identify any occasion when she had in fact made a specific and relevant strike out application directly to the Tribunal in connection with the bundles in respect of final hearing issues, no such application being evident on the tribunal file. She was unable to do so. Therefore, I also concluded that there were no grounds upon which we should review or reconsider our decision to refuse the strike out application. The lay members of the Tribunal have confirmed in the hearing that they also agree with that assessment.

[31]Although the Claimant has firmly persuaded herself that her position as to the inadequacy of the bundles is right, against that chronology it is not an objectively reasonable stance.

Conclusion

[32]The unreasonable conduct of proceedings, we do not need to go so far as to say it is vexatious although it is in part an attempt to undermine the decision to refuse a strike-out, lies however not so much in the unreasonableness of the Claimant’s previous stance on the bundles, as in the way that has now manifested itself in the conduct of the hearing.

[33]A fair hearing requires consideration of fairness to both sides. By refusing to engage with any questioning on the contemporaneous documents the Claimant is denying the Respondent the proper opportunity to put its case to her and to challenge her evidence. That is manifestly unfair to the Respondent. It is not simply a case of the Claimant subjecting herself to a disadvantage by declining to address relevant evidential issues, it also has an adverse effect upon the way the Respondent’s case can be presented. The Tribunal itself is also prevented from carrying out a proper evaluation of the whole of the evidence in the case.

[34]Even where we have identified clearly unreasonable conduct, we must, applying the principles in Blockbuster v James

[2006] IRLR 630

, consider whether a strike-out, which is a draconian course of action, is proportionate. We unfortunately have to conclude, in the light of her expressly stated unwillingness to cooperate with any possible alternative suggestions, that there is no way of mitigating the Claimant’s intransigent stance so that a hearing might nonetheless continue. We consider that in these circumstances it is simply no longer possible to have a fair hearing.

[35]We have also considered a possible adjournment. However, this tribunal is ready and able to hear the case, an adjournment is not appropriate and would not alter the position

Conclusion

[1]This was an unanimous decision of the tribunal, made after full consideration of the respective arguments.

[2]There is still no indication whatsoever that the Claimant would agree to conduct the trial proceedings reasonably, if the claim were not to remain struck out and the hearing were to resume.

[3]The refusal of the strike-out application dated 15th November 2022 was also an unanimous decision of the tribunal, and oral reasons for that preliminary case management decision made in the course of the final hearing were given at the time.

[4]Reasons for my refusal of the subsequent application to recuse myself, and also for the refusal upon initial consideration under rule 71 to reconsider that decision on strike out, were again given orally by way of further case management decisions made in the course of the final hearing. The decision on reconsideration was also expressly endorsed by the other members of the tribunal.

[5]The Claimant’s unparticularized assertion in her email of 23rd November 2022, that the trial was an abuse of process is merely a 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 1800771/2021 repetition of the already refused strike-out application.

[6]It is not an abuse of the process for the Respondent to seek to crossexamine upon relevant and admissible documents within the prepared hearing bundle.

[7]There is nothing in this application which in fact contradicts the factual basis of the chronology in the judgment. Whatever disputes the Claimant may have had with the Respondent’s solicitors, or with the DWP’s solicitors, prior to the preliminary hearing on 31st January 2022 are not still material to the disclosure of those documents that are relevant to the issues in the final hearing. The Claimant has still not in her application actually identified any allegedly missing documents, let alone explained why they are relevant to the issues or how their omission prejudices her. She has still not produced documentary evidence of any actual application to the tribunal, following my direction of 9th June 2022, for any further documents in her possession to be included in the bundles. If the Claimant has such documents, it would still of course have been open to her to produce them. Nor after 9th June 2022 has the Claimant made any application for further specific disclosure, save in respect of the single oral application which I refused on 18th October 2022. The Respondent had not “added”“ any documents to the bundle in the course of the final hearing. As was fully explained to her at the time, the Respondent’s solicitor simply indicated that he had brought the full file of correspondence with the Claimant in order to assist in identifying any documents to which she wished to refer in argument and which would not necessarily be on the tribunal file.

[8]No further consideration of the so-called “abuse of process point” was, or is, therefore necessary before determining the Respondent’s strike-out application. The fact that it was sent by email before the resumed oral submissions were made by counsel for the Respondent (but not in fact brought to the tribunal’s attention by the Claimant until afterwards, and then not elaborated upon), does not afford it any priority.

[9]The Claimant alludes to other matters in her reconsideration application, which are not relevant to the specific judgment under consideration, namely her unreasonable conduct in refusing to engage with the material documentary evidence: these are not therefore further addressed.