Mr H Muhammed v University College London: 2201013/2017
JUDGMENT
[1]The respondent did not pursue applications for the claims to be struck out. Instead it is ordered that the claims be split. The first hearing will decide issues arising from the date the claimant moved into the Finance team managed by Mr H Choudhury in late 2014.[2]A second hearing may be listed at the end of the first hearing if the claimant is successful, see the Reasons and orders below.REASONS
The issues
The issues
[1]This preliminary hearing was originally listed to consider whether the claims should be struck out because there was no reasonable prospect of success and/or they were out of time.[2]The respondent wisely decided not to pursue the point on prospects of success and, whilst they were prepared to argue the time points, asked the tribunal to split the hearing so that the issues which were either in time, or potentially connected to events which were in time, were tried first.[3]It is always difficult to consider time points in discrimination cases at preliminary hearings because often context is required to decide whether a matter is a continuing act or it is just and equitable to extend time. If a decision is controversial it can result in an appeal which results in time and expense for both sides. Therefore, I gave the application for the hearing to be split serious consideration.[4]Whilst pointing out that it was unusual for a split hearing to take place and that the benefits were sometimes illusory, Underhill J in HSBC Asia Holdings BV v Gillespie [2011] ICR 207 pointed out that there was no reason in principle why cases should not be split and that secondary claims could be considered at a subsequent hearing, which might ultimately not take place.[5]This is a case where there is a clear divide between allegations made about the claimant’s time in the Estates Team run by Ian Cordrey and those made about his more recent membership of the Finance Team run by Habibur Choudhury. The allegations against Mr Choudhury begin when the claimant joined his team in late 2014 and continue after 16 December 2016, the date from which claims are in time. He ceased to have any contact with Mr Cordrey in 2014.[6]The claimant says that the claims against Mr Cordrey form part of a continuing act in that he influenced Mr Choudhury to discriminate. Therefore, the tribunal can first decide the claims against Mr Choudhury and, if it is decided he did discriminate, whether his attitude was infected by Mr Cordrey’s influence. If necessary it can then go back to the more historic allegations at a second hearing.[7]The questions for the first hearing are therefore:a. Did Mr Choudhury either directly discriminate against or harass the claimant?b. Is it just and equitable to extend time in respect of the allegations against Mr Choudhury occurring before 16 December 2016 or was there a continuing act?c. If Mr Choudhury did discriminate was he influenced by Mr Cordrey?[8]If the answers to 7 above are “yes” a second hearing is likely although that is a decision for the judge at the end of the first hearing. It might, for example, be decided that since Mr Cordrey is no longer employed by the respondent it is not possible to have a fair hearing. Also, issues of strike out might be considered at that stage in the light of the information available.[9]If the answers are “no” then that is the end of the case as the earlier claims will inevitably have been filed out of time.[10]This is a proportionate approach given that:a. The claimant is not barred from pursuing his early claims but, given that some date back to early 2013, those which are more obviously either in time or potentially in time have been given priority.b. There must be a chance that the very old allegations which relate to a different manager have a lower prospect of success. This is particularly relevant because this is not a high-value claim since the claimant remains employed and success or failure in relation to allegations dating from 2013 and 2014 will not add considerably to the value.c. This makes the first hearing a proportionate length which is particularly important given the claimant’s lack of resources and the fact that he has been off unwell for a long time and may need to represent himself at the hearing.d. The claimant raised a grievance in 2014 so those claims have been the subject of an internal justice system from which he did not appeal when the grievance failed. He also did not issue a tribunal claim.[11]Depending upon the outcome case management orders will be given at the end of the first hearing, including perhaps a listing for a second hearing. CASE MANAGEMENT ORDERS The hearing 1. The hearing was listed way back in May 2017 and although the timetable is tight I decided that it should go ahead, not least because the parties would have to wait four or five months for relisted hearing. 2. The length of the hearing is reduced from 10 to six days o, 12, 13, 14, 15, 18 and 19 December. It will decide liability, and remedy if appropriate. The indicative timetable as follows:2.1 Day 1: Reading and the start of the claimant’s evidence;2.2 Day 2: Finish the claimant’s evidence and Mr Choudhury’s evidence2.3 Day 3: Finish Mr Choudhury’s evidence and hear one or two other respondent witnesses2.4 Day 4: Finish respondent evidence and closing submissions, 30 minutes each.2.5 Days 5 & 6 in chambers. The issues3.1 There are 18 allegations for the first hearing. These are of direct race and religious discrimination and, in the alternative, harassment.3.2 Whilst Mr Choudhury is a Sunni Muslim like the claimant and is also of Asian ethnic origin, the differences are that the claimant is orthodox whereas is not and he is of Indian ethnic origin whereas Mr Choudhury’s ethnic origin is Bengali.3.3 The specific allegations are listed below. It is agreed that events from 16 December 2016 are in time. The list is given in date order with the number of the allegation as set out in the amended particulars of claim and the internal page reference from the claimant’s amended particulars of claim. 9 January 2015, allegation 33, page 63. 24 April 2015, allegation 38, page 68. 27 July 2015, allegation 40, page 72. 11 August 2015, allegation 41, page 128 17 September 2015, allegation 42, page 74. 18 September 2015, v43, page 76. 20-24 October 2015, allegation 44, page 76. 7 January 2016, allegation 47, page 82. 8 January 2016, allegation 47, page 84. 14 January 2016, allegation 48, page 85. 8 April 2016, allegation 49, page 86.[12]7 July 2016, allegation 50, page 88.[13]11 September 2016, allegation 54, page 89.[14]4 November 2016, allegation 52, page 90.[15]6 November 2016, allegation 46, page 80.[16]16 December 2016, allegation 53, page 92.[17]6 January 2017, allegation 54, page 93[18]20 February 2017, allegation 54, page 94. 4. The allegation of 20 February 2017 is clarified as: “Where there were complaints by suppliers and they needed to be escalated to Mr Choudhury, when the claimant did that Mr Choudhury ignored the relevant complaints and then used the concerns raised against the claimant in the capability discussions. He detriment was Mr Choudury not dealing with the complaints and then accusing the claimant of not dealing with them when it was his job to do so.” 5. The perpetrator on every occasion is said to be Mr Choudhury except allegations 40 and 41 were in addition to Mr Choudhury “BM” and “YA” are implicated. 6. The parties were given a number of breaks to discuss the issues and were both represented; I pointed out a few omissions as we went along. I am therefore content that this represents the full list of issues to be decided and additions will only be allowed in very narrow and exceptional circumstances. Schedule of Loss7.1 By 3 November the Claimant is serve on the respondent a full Schedule of Loss on the respondent. He provided a summary in his ET1 but details and calculations are required.7.2 The respondent is to serve a counter-schedule by 10 November. Disclosure8.1 The parties are ordered to give disclosure of documents relevant to the issues. This order is made on the standard civil procedure rules basis which requires the parties to disclose all documents relevant to the issues which are in their possession, custody or control, whether they assist the party who produces them, the other party or appear neutral.8.2 The parties shall comply with the dates for disclosure but if despite their best attempts, further documents come to light (or are created) after that date, then those documents shall be disclosed as soon as practicable in accordance with the duty of continuing disclosure.8.3 By 13 November the respondent is to provide its disclosure in the form of a draft bundle, indexed and paginated for the claimant to comment on.8.4 By 20 November the claimant is to provide to the respondent any additional pages for the bundle which he has in his possession or control and which are not already included in the draft. These should be paginated and included by the respondent. Fi hello you participate actually you feel better at ve copies should be provided for use at the tribunal hearing Witness statements9.1 It is ordered that oral evidence in chief will be given by reference to typed witness statements from parties and witnesses.9.2 The facts must be set out in numbered paragraphs on numbered pages, in chronological order.9.3 If a witness intends to refer to a document, the page number in the bundle must be set out by the reference.9.4 It is ordered that witness statements are exchanged so as to arrive on or before 3 December.9.5 Five copies of each witness statement should be provided at the hearing. CONSEQUENCES OF NON-COMPLIANCE[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.[2]The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.