Mr J Kora v General Dynamics Information Technology Ltd: 1801150/2017
EMPLOYMENT TRIBUNALS
Case No 1801150/2017
Between
Mr J KoraClaimantGeneral Dynamics Information Technology LtdRespondent
Before
Employment Judge T R SmithDid not appear for claimantMr M Hibbs (instructed by Solicitor) for respondentDate 19 January 2018
JUDGMENT
The claim issued under case reference 1801150/2017 is struck out in its entirety.
REASONS
[1]This hearing was convened to determine the issues set out in a Notice of Preliminary Hearing issued on 8 November 2017. In particular the claimant was forewarned that the Tribunal was considering whether the claimant’s complaints ought to be struck out on the basis that the Tribunal had no jurisdiction to hear the types of complaints being pursued, the complaints having been submitted outside applicable time limits and/or they had no reasonable prospect of success.[2]The claimant failed to appear. The Tribunal waited until 2:15pm and the claimant still failed to appear.[3]The Tribunal made enquiries with the General Office and no message had been received from the claimant.[4]The Tribunal was satisfied that the Notice of Hearing had been sent to the claimant’s email address. The claimant had clearly received notice of the hearing as he sent an email to the Tribunal on 17 November 2017 with a submission attached which specifically referred to a Preliminary Hearing convened for Wednesday 13 December 2017 at 2:00pm.[5]Mr Hibbs for the respondent indicated that he had received no indication from the claimant why he was unable to attend today.[6]The Tribunal being satisfied that the claimant was aware of the hearing decided to proceed in his absence but the Tribunal had full regard to the pleadings and the written representations made by the claimant.[7]The facts that are material to this application are as follows:-7.1 On or about 2 June 2013 the claimant who was at that stage an employee of the respondent issued Tribunal proceedings in which he alleged he had been subject to race discrimination. The proceedings were defended and came before a full Employment Tribunal sitting on 7 February 2014 at Sheffield. The judgment is short but indicated that the claimant’s complaints of direct race discrimination and harassment succeeded in part and the claimant was awarded £6,000 by way of compensation of injury to feelings together with interest.7.2 On 27 July 2017 the claimant issued High Court proceedings against the respondent and 27 other defendants. The particulars of claim to the extent they are relevant to these proceedings alleged that the respondent had placed the claimant on a national blacklist of whistleblowers and had denied the claimant “£10,000 plus” employment opportunities. He also accused the respondent of subjecting him to defamation, liable, slander, and misuse and sharing of personal information.7.3 The matter came before District Judge Jenkinson sitting at the Liverpool District Registry on 28 September 2017. The claimant did not attend. The claims were struck out. A limited civil restraint order was also made.7.4 On 19 October 2017 the claimant applied for the order of 28 September to be set aside in its entirety. It would appear from the documentation before the Tribunal the claimant did not attend. Permission was refused by order of District Judge Jenkinson on 19 October 2017.7.5 In the intervening period on 28 July 2017 the claimant issued Tribunal proceedings against the respondent. The claim form is not easy to follow but it appears the claimant alleged Whistleblowing, that he had been placed on some form of data base which impinged his abilities to obtain alternative employment and defamation and breach of confidentiality.[8]The Tribunal noted the written representations that the claimant had made. He indicated that he put part of his claim under section 108 of the Equality Act 2010. Section 108 provides:- “a person(a) (A) must not discriminate against another(b) (B) if – (a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and (b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this act”[9]In the claimant’s written representations he also drew to the Tribunal’s attention the high threshold required for striking out.[10]Studying the documents the claimant appeared to allege that the data base which he had been placed upon by the respondents was the well known legal publisher, Lexis Nexis[11]There was no evidence before the Tribunal that the respondent had been used as a referee in any of the job applications the claimant made subsequent to dismissal.[12]There was no evidence of any communication between the respondent and any potential employer of the claimant subsequent to dismissal.[13]There was no evidence that the respondent had placed anything to do with the claimant on a data base held by Lexis Nexis.[14]The Tribunal noted the breadth of those employers the claimant alleged he had submitted applications to and had been rejected on the basis that he had been blacklisted by the respondent. They included such diverse employers as Royal Mail, Deutsche Bank, Sainsburys Plc, NHS Greater East Midlands Commissioning Support Unit, NHS Blood and Transplant, Nottinghamshire Health Care NHS Trust, The London School of Economics, Manchester City Council and Nationwide Building Society. It is not credible that such respected employers would subscribe to a purported blacklist.[15]Rule 37 of the Employment Tribunals (Constitution and Rule of Procedure) Regulations 2013 provides in relation to striking out:- 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 - (a) that it is scandalous or vexatious or has no reasonable prospects of success… (d) that it has not been actively pursued”[16]The Tribunal reminded itself that the claimant appeared to be relying on his protected characteristic of race and the extent this was a discrimination claim such a claim should only be struck out on the basis that it had no reasonable prospect of success in the very clearest of cases – Anyanwu v Southbank Student Union 2001 ICR 391[17]The Tribunal also reminded itself that before striking out it was appropriate to consider alternatives to strike out.[18]The Tribunal is a creature of statute. It can only adjudicate upon those matters to which Parliament permits it to do so.[19]The Tribunal has no jurisdiction to deal with claims of defamation, breach of confidentiality or any associated allegations such as slander. Such claims have no reasonable prospect of success due to the lack of jurisdiction and therefore must be struck out.[20]To the extent of the claimant asserts he made a protected disclosure, to the extent it related to his employment with the first respondent Res judicata applies in that the rule in Henderson v Henderson is applicable as the claimant could have raised such matters in his previous Employment Tribunal proceedings and did not do so. To the extent that the claimant relies upon post dismissal protected disclosures the claimant must establish he was an employee or a worker. He was neither, post dismissal. It follows that such a claim has no reasonable prospect of success.[21]The claim under section 108 of the Equality Act 2010 does not require an ongoing employment relationship. However, as the Tribunal have already rehearsed there is not a scintilla of evidence that the respondent has placed the claimant on any form of blacklist, or that the reasons he has not secured employment is due to any act or default of the respondent. The claim has no reasonable prospect of success.[22]Even if the Tribunal had not struck out the claimant’s claim on the above grounds the Tribunal would have held that the claimant was estopped from pursuing these matters against the respondent given that the claimant raised, albeit in slightly different language, identical claims against the respondent in the High Court and those proceedings have been dismissed.[23]In the alternative if the Tribunal is wrong in relation to its previous findings and section 108 of the Equality Act 2010 was engaged the last specific job application upon the claimant relies was on 2 February 2015. The claimant has failed to bring his claim within time periods set out in the time limit set out in section 123 of the Equality Act 2010 and there is nothing in the papers that would suggest it would be just and equitable to extend time.[24]Finally for completeness the Tribunal would have struck this claim out in any event on the basis that it is not being actively pursued given the claimant failed to attend the Preliminary Hearing without good cause.[25]Mr Hibbs, generously, did not make an application for costs and therefore no order in this regard was made.[26]For the above reasons the claimant’s claim number 1801150/2017 is struck out in its entirety.