Mr L Hasan v Dr C Hoffman and others: 2201127/2019 and others
EMPLOYMENT TRIBUNALS
Case No 2201127/2019, 2202159/2019, 2202770/2019, 2203220/2019, 2203545/2019
Between
Mr L HasanClaimantDr C Hoffman University College London (UCL) Mr A Salisbury Ms L Y LiaoRespondent
Before
Employment Judge WalkerDate 11 June 2020
JUDGMENT
Each of the following claims are dismissed following a withdrawal by the Claimant.[1]The claims for harassment and for direct discrimination on the grounds of race and or sex Harassment on the grounds of race and/or sex when the Claimant had alleged:(1) In October 2018 the Respondent forced the Claimant to teach level 2 Arabic to 2 unfit medical students and ignored his suggestions to teach them separately(2) In December 2018 the Respondent bullied the Claimant to allow his students to sit an error-ridden exam,(3) In February 2019 bullied the Claimant to accept an unfit student into his level 2 Arabic class and ignored his concerns.[2]The claims for discrimination on the grounds of race or sex as follows:(1) In November 2016, the Respondent emailed two female members of the Arabic team about changes in the team but did not email the Claimant. When later asked for a copy the Respondent sent a forged version.(2) June 2018 the Respondent failed to ask the Claimant if he would be interested in the co-ordinator role but only asked his 2 female colleagues; Case Numbers: 2201127/2019 2202159/2019 2202770/2019 2203220/2019 2203545/2019 2(3) In September 2018, the Respondent allowed the Claimant only 2 days to apply for the post of co-ordinator, whereas his 2 female colleagues had been allowed 3 months;(4) In November/December 2018, the Respondent failed to reply to two emails from the Claimant asking for the outcome of his application;(5) In December 2019 the Claimant was bullied by the Respondent and others to let his students sit a poor quality exam;(6) In January 2019 the Respondent appointed Ma LiYun Liao to be coordinator of the Arabic department despite her not being able to speak Arabic.[3]All claims of direct discrimination and harassment in the third claim number 2202770/2019, including claims for gender re-assignment.[4]The claim for unfair dismissal in the third claim number 2202770/2019.[5]The claim for unauthorised deductions or other payments in the third claim number 2202770/2019.[6]The claims of direct discrimination, victimisation and harassment in the fourth claim number 2203220/2019.[7]The claims of direct discrimination on the grounds of sex and the claim of victimisation in the fifth claim number 2203545/2019. The remaining claims will be heard in due course. EMPLOYMENT JUDGE WALKER SIGNED ON: 10 Dec 2019. ………………………………………………….[1]On 11 September 2019 this Tribunal struck out all the Claimant’s claims for victimisation in claim numbers 2201127/2019 and 2202159/2019. The reason for this was that in relation to the those claims, the Claimant had not identified any protected acts which took place prior to the detriments he complained about.[2]The Claimant immediately indicated that he felt he had misunderstood the Tribunal’s questions put to him about his victimisation claim and English was not his first language. He would like the Tribunal to reconsider its Judgment and he reiterated that request in an email 30 September 2019.[3]The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 at Rule 70 provides for a Tribunal to be able to reconsider its Judgments which may do on the application of a party. In this case Mr Hasan had made an application both in person and by email within the time limit provided. The requirement in the Rule 70 is to reconsider where it is necessary Case Numbers: 2201127/2019 2202159/2019 2202770/2019 2203220/2019 2203545/2019 - 2 - in the interest of justice to do so. Accordingly, I heard the Claimant’s application today.[4]The judgment set out the following. In the course of submissions, I read the sections in the Equality Act 2010 to the Claimant carefully and explained to him the nature of a protected act. There was no question that the Claimant was suggesting that he had done any more than complain about the Respondent. I asked the Claimant whether in those complaints, he had ever made any allegation of discrimination or taken any act which fell within the definition of a protected act. I explained to him that he need not have used the words in the legislation, but I wanted to know if he was saying he had indicated such a complaint. He confirmed that the first time that occurred was at the beginning of 2019. Prior to that he accepted that he had made no mention of discrimination nor indicated anything that would fall within that ambit. Indeed, he was of the view that any grievance amounted to a protected act. In the circumstances it appears that when the Claimant refers to protected act and relies upon certain complaints he does not mean anything in the nature of a protected act for the purposes of a claim for victimisation. The three items that were identified were firstly in March 2010 which I understand the Claimant only included by way of background and which I have therefore struck out. The second one took place in November 2015 which again appears to pre-date the point when the Claimant refers to any course of conduct but also is limited to complaining about Arabic courses and some extra payments. The third matter he relies upon took place on 24 and 29 of May 2018, when he emailed the Vice-Provost Education and Student Affairs regarding the improvement of marks of certain students. Nothing in that reference suggests any complaint about discrimination. In all the circumstances those matters cannot be protected acts for the purposes of a victimisation claim and thus the entire claim for victimisation is struck out.[5]In applying for reconsideration, the explanation that the Claimant gave to the Tribunal immediately and that he reiterated in his email dated 30 September 2019 was that he said “I misunderstood the Judge’s question when she asked me about the date I submitted my claim (not grievance) which let [sic] to an inaccurate answer Jan/2019, while my grievance was in Oct/Nov 2017 and then in May/June 2018. In essence, he was saying that when he had been asked when he first complained about anything which should have been understood as Case Numbers: 2201127/2019 2202159/2019 2202770/2019 2203220/2019 2203545/2019 - 3 - a complaint of discrimination, he thought he was being asked about when he first issued proceedings and so he had identified the first ET1. He had misunderstood the question.[6]The Claimant also explained that he was under pressure after a whole day at the Tribunal and had been suffering from a sleep disorder problem. It was noted at the time that the Claimant’s first language is not English.[7]Prior to this hearing today, the Claimant was ordered to supply any documents on which he relied which he said were protected acts for the purpose of the victimisation claim. Prior to getting that request the Claimant sent in an email with a list of ten documents and then he sent a further email with additional references and copy documents.[8]The background to the strike out is that the Claimant submitted an ET1 which was written in layman’s terms against Dr Hoffman and then another claim, covering similar grounds against UCL. Judge Palca hearing the Preliminary Hearing for Case Management purposes on 30 July 2019, set out to identify all the claims in her draft list of issues which were those in the current claims as well as those she thought the Claimant was aiming to add. At paragraph 4.6 of the list of issues, she set out the following: 4.6 Has the claimant carried out a protected act? The claimant relies upon the following:4.6.1 In March 2010 C insisted on complaining to a member of HR about college MS L Aldin, despite R refusing to endorse this.4.6.2 In Nov 2015 C complained to MS L Malvo of HR about R relating to the Arabic courses and some extra payments.4.6.3 On 24 and 29 May 2018, C emailed the Vice Provost Education and Student Affairs regarding R illegally improving the marks of 10 students in the June 2017 exams.[9]At the hearing before me on 11 September 2019, the Respondent pointed out that a few matters in that list were not in the Claimant’s ET1’s at all and those were disregarded. In relation to the remaining matters, they applied to strike out a number of claims including the claims for victimisation. In considering their application, I worked from the Order of Judge Palca, as the Claimant had not indicated that he disputed that list in any way whatsoever. It appeared to be the only way to able to understand the Claimant’s claims. Case Numbers: 2201127/2019 2202159/2019 2202770/2019 2203220/2019 2203545/2019 - 4 -[10]The Claimant submitted written submissions in response to the Respondent’s application to strike out, in which he made submissions on their application and on his claim. In his written submissions, he specifically addressed the list of protected acts which Judge Palca had identified at 4.6 of her Order, in respect of his claim for victimisation.[11]The Claimant said regarding point 4.6 in the ET Order on 31 July 2019 I would like to be more specific in this point. He then referred to the three items listed by Judge Palca, but expanded on them.[12]The first two items listed as protected acts were struck out for reasons relating to the Claimant’s submission about time. The Claimant does not suggest that his request for reconsideration applies to either to those items. Rather he refers to the general statement made in the striking out Judgment about the nature of the protected acts generally which led to the protected acts identified at 4.6.3 being struck out.[13]In essence the reason for the strike out was that on the face of it, none of the events that are listed in November 2015 and May appeared to refer to a matter which could potentially fall within the definition of a protected act for the purposes of a victimisation claim.[14]As noted in the judgment, I had read out the relevant section of the Equality Act 2010 to the Claimant and explained that he had to have carried out a protected act before he could bring a claim of victimisation. I had asked him if he was arguing that he had in fact complained in terms which should have been understood as a complaint about some sort of discrimination. That led to a question put to the Claimant as to when he had first complained about discrimination, even if he had not used that expression. He referred to the first ET1 claim.[15]Prior to this hearing I ordered the Claimant to produce copies of the relevant documents if he was saying that he had in fact written in terms which amounted to a protected act. He did produce two sets of documents, one prior to my order and one after my order. Most of those documents were entirely new and not the items listed in the list of issues. 13 The Respondent argued that the judgment should not be reconsidered. The Respondent produced a copy of the case of Lindsay v Ironsides Ray & Vials [1994] ICR 384 which addressed the scope of a Tribunals jurisdiction in relation Case Numbers: 2201127/2019 2202159/2019 2202770/2019 2203220/2019 2203545/2019 - 5 - to reconsideration. It made clear that in essence the review procedure enables errors occurring in the course of the proceeding to be corrected but would not normally be appropriate when the proceedings had given both parties a fair opportunity to present their case and the decision had been reached in the light of all relevant arguments. The Respondent argued that was the case. The Respondent also argued that the Claimant was in effect now seeking to introduce new matters as potential protected acts for which he would require permission to amend and as yet no permission to amend had been given.[16]Having considered the Claimant’s application carefully I reached the following conclusion. I rejected the Respondent’s submission that the case of Lindsay meant that the strike out decision was not appropriate for reconsideration as the Claimant had had a proper opportunity to present his case. I accepted that the Claimant was arguing that he had not had a proper opportunity to present his argument on the basis of his lack of understanding of the language used and in the light of his concern I concluded that it would be in the interest of justice to reconsider the Judgment.[17]I noted that the Claimant did not have permission to amend. I could not reconsider on the basis of new documents which were not previously mentioned in the Claimant’s claims.[18]I noted the comments made by the Claimant in his written submissions prepared to support his argument that the Respondent’s strike out application should be rejected. At that stage the Claimant still relied on the same documents.[19]In relation to 4.6.2 he said “In November 2015, C complained to the HR staff Ms L Malvo about extra payment for extra work which R totally refused to pay and he had already submitted earlier a complaint to R’s line manager Prof Malcom that his work at this department was not appreciated by hi line manager (R). R has lost some of her seniority position may be because of this and her relation with her line manager was affected.”[20]In relation to 4.6.3, he said: “On 24 and 29 May 2018 C emailed the Vice Provost Education and Student Affairs that R illegally improving the student marks of about ten Case Numbers: 2201127/2019 2202159/2019 2202770/2019 2203220/2019 2203545/2019 - 6 - students in the exams in June 2017 and the external examiner was surprised in his report how two markers agreed on a mark and then this mark jumped to a higher figure later! The investigator’s report was initially issued in February 2019 and the HR at UCL are in the process of dealing with this issue as part of Cs grievance hearing.”[21]The Claimant’s subsequent correspondence, which he sent with various attachments to the Tribunal, amounts to various documents which he now seeks to argue constituted protected acts. To the extent that these are new documents not mentioned ad protected acts previously I cannot take them into account without considering the question of amendment.[22]There is one item which appears to be within the list in the list of issues. That is an email dated 24 May to Professor Anthony Smith, who the Tribunal understands is the Vice Provost Education and Student Affairs. That email is very much as described by the Claimant in his written submissions in that it specifically refers to the exam papers, the process of marking and the complaint that he believes the exam paper was written badly and he thought it was not fair that the student marks were changed just because they had submitted complaints and he thought it was wrong.[23]There is nothing in that email that could constitute a protected act under the Equality Act 2010. There is no other document supplied by the Claimant which falls within the documents relied on by the Claimant in his pleadings as a protected act. In those circumstances there is no basis on which to reconsider the decision and the original decision must stand. Accordingly, the reconsideration application is rejected. Employment Judge Walker Dated: 10 Dec 2019 Judgment and Reasons sent to the parties on: 13/12/2019 ………...................................................................... For the Tribunal Office Case Numbers: 2201127/2019 / 2202159/2019 2202770/2019 / 2203220/2019 2203545/2019 / 2200135/2020 EMPLOYMENT TRIBUNALS Claimant Respondents Mr L Hassan AND Dr Christine Hoffmann University College London Adam Salisbury Ms Li-Yun Liao Heard at: London Central On: 5 March 2020 Before: Employment Judge Walker (sitting alone) Representation The Claimant: In person, assisted by Ms MacKay of ELIPS For the Respondent: Miss M Tutin, of Counsel JUDGEMENT The following allegations were struck out.[1]In claim 4, the allegations of detriment on the grounds of having made a protected disclosure which are in the new list of issues under the numbering below;1.1 the allegation numbered 8.6, that between November 2018 and February 2019 the Second and Third Respondents forced the Claimant to teach two medical students who were unfit to be taught in a Level 2 class; Case Numbers: 2201127/2019 / 2202159/2019 2202770/2019 / 2203220/2019 2203545/2019 / 2200135/20201.2 the allegation numbered 8.7, that between November 2018 and April 2019, the Second and Third Respondents forced the Claimant to teach a student who was unfit to be taught in a Level 2 class,1.3 the allegation numbered 8.4, which is the Second and Third Respondents refused to send the Arabic exam paper to the Claimant before it was sent to external examiner.[2]In the fifth claim, the following allegations:2.1 the allegation at 8.12 in the list of issues that in October 2018 the fourth Respondent threatened the Claimant that if he had a problem with teaching Level A Workshop on Thursday’s it would be offered to someone else and his hours would be reduced”.2.2 the allegation 8.14 is an allegation that in November 2018 the fourth Respondent bullied the Claimant to allow his students to sit an error written exam.
REASONS
[1]The Respondent has applied for a Strike Out in relation to various allegations raised by the Claimant in what we refer to as claims 3, 4 and[5]Their application in relation to claims 1 and 2 were heard some time ago. 2 The relevant rules are set out in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. 3 Rule 37(1a) provides that the Tribunal can strike out where it considers the claim is scandalous or vexatious or has no reasonable prospect of success. 4 Rule 37(1b) provides that it can do so where it concludes that the manner in which the proceedings have been conducted by or on behalf of a Claimant has been scandalous, unreasonable or vexatious. 5 I heard the Respondent’s application and took the Claimant through their arguments one by one in order to obtain his comments. At that time, the Claimant was assisted by the representative from ELIPS. We worked through the application using the new list of issues, which was prepared by the Respondent under my order and which includes the amendments raised by the Claimant. We had resolved two minor disputed issues and agreed that list at the outset of this hearing. That is the document we use today as a basis for Case Numbers: 2201127/2019 / 2202159/2019 2202770/2019 / 2203220/2019 2203545/2019 / 2200135/2020 identifying the separate allegations. Having heard the arguments on both sides I have reached the following conclusions.[6]The first argument which the Respondent said that I should consider was based on a proposition set out in the case of Virgin Atlantic Airways v Premium Aircraft Interiors UK Limited 2013 3WLR 299. Effectively the Respondent referred me to paragraph 17 of that Judgment which explained various types of abusive procedure, including one which arose when a party endeavoured to bring a claim which they could already have done in earlier proceedings, but choose not to. Effectively the Respondent said that in this case there had been issue estoppel and certain claims or allegations should be struck out as a result. It is clear from that Judgment that, in the High Court at least, a party may not raise in subsequent proceedings matters which were not, but could, and should, have been raised in earlier ones. I also had a reference to the case of Henderson v Henderson 1843 3 hare 100.[7]The Respondent took me through the dates of various claims and started off by referring to the possibility that the Claimant could at an earlier stage have raised allegations that he subsequently raised in later claims.[8]While I accept the relevance of the case law, I bear in mind the overriding objective and the fact that the Claimant was an unrepresented litigant at the time and also his first language was not English. I am also satisfied from listening to the Claimant that when he commenced the first two sets of proceedings, he was confused over certain legal obligations. In particular, he was confused because there is a requirement for an ACAS certificate for each individual Respondent, and he did not understand that it was unnecessary to have a separate claim form for each individual Respondent. It took him a little time before he was fully aware that there is a distinction and that he could include in one claim form multiple Respondents.[9]Thereafter, having brought claims 1 and 2 separately, albeit that claim 2 repeated claim 1 and then expanded on it, he brought claim 3 against the Second Respondent, Dr Hoffman. The Claimant says he thought that he could not do that differently. He also referred, as I understand it, to the possibility that he could not put in a claim form things that he had not talked about when he was applying for the ACAS certificate, which is not strictly correct, but again I accept there was some confusion on his part.[10]In the light of that confusion I reject the Respondent’s argument in relation to claim 3. However, by the time the Claimant brought claim 4 and 5, he was clearly aware, those claims having been brought in August 2019, that the situation was not as he had first thought. Claim 4 was brought against a new third Respondent who was Adam Salisbury and against Dr Hoffman who had been in the first claim. It is clear that in claim 4, the Claimant has knowingly repeated allegations that were in the earlier list of issues, which had been prepared by then. Case Numbers: 2201127/2019 / 2202159/2019 2202770/2019 / 2203220/2019 2203545/2019 / 2200135/2020[11]There are two allegations raised by the Claimant, which are virtually identical to allegations he had previously withdrawn. The first is identified at 8.6 of that list is that between November 2018 and February 2019 the Second and Third Respondents forced the Claimant to teach two medical students who were unfit to be taught in a Level 2 class. The second is the allegation numbered 8.7, which is that between November 2018 and April 2019, the Second and Third Respondents forced the Claimant to teach a student who was unfit to be taught in a Level 2 class was already withdrawn.[12]Effectively, the Claimant’s argument is he says he believed he could put them forward in a different way, and whereas before they were put as harassment claims, he now puts them forward protected disclosure detriments. I reject that as an ostensible abuse of the process. Changing allegations from one type of claim to another simply to bring them before the Tribunal when they had been withdrawn, as the Claimant did not want to continue them in the past, is precisely what an abuse of the process is about. It is not open to a Claimant to withdraw claims and then to reframe them slightly differently. He does not suggest that he realised they were wrongly framed before, or that he has good reason to revise them in this manner. He admits he reframed them and thought it was possible to do so to get around previous Tribunal orders and his own decision to withdraw them. For that reason I strike them out.[13]In the 4th claim there is also an issue in relation to what is itemised as allegation 8.4. The Respondent argues that the Claimant was refused leave to amend in relation to certain applications and those too should be treated as an abusive of process. I reject that. The reason for refusing requested amendments can vary and my primary reason for refusing amendments was that they were too vague to be capable of being understood. I am not satisfied that the refusal to amend on that occasion, was anything which would prevent the Claimant from bringing the claims, if properly framed and if they are still in time. However, I am satisfied that the allegation at 8.4, which is the Second and Third Respondents refused to send the Arabic exam paper to the Claimant before it was sent to external examiner has, on its face, no reasonable prospect of success. The reason for that is that the emails cited in the claim itself by the Claimant specifically set out his suggestion that the exams papers could be sent to him beforehand and he quotes an email which says, “I am happy to have the final checking before it is sent to the external examiner …….”. That is simply a suggestion that he would be willing to do it. The fact the Respondents did not take him up on that suggestion is not a refusal, and thus, on its face, the allegation cannot succeed. It has no reasonable prospects of success.[14]The next matter I considered was the fifth claim and allegation 8.12 in the list of issues. The allegation is that “in October 2018 the fourth Respondent threatened the Claimant that if he had a problem with teaching Level A Case Numbers: 2201127/2019 / 2202159/2019 2202770/2019 / 2203220/2019 2203545/2019 / 2200135/2020 Workshop on Thursday’s it would be offered to someone else and his hours would be reduced”. That is a repetition of a previous allegation, which appears at item 2 of the first and second claims and is also in this case framed against a different individual. On its face, there is no basis for that being raised another time and it is inexplicable that the Claimant should raise it against a different party, having previously, and indeed much closer to the event, argued it in relation to the Second Respondent. He could have perfectly well have raised that allegation before, but chose not to. I regard that as abuse to raise it in a different form again and I strike it out.[15]Allegation 8.14 is an allegation that in November 2018 the fourth Respondent bullied the Claimant to allow his students to sit an error written exam. The Claimant has withdrawn that allegation in the past. He now puts it in largely the same way, but raises it as an allegation against the fourth Respondent in relation to a matter which he had withdrawn previously and for the reasons as I have explained before, having chosen to withdraw it, it is an abuse of the process to raise it in a different format in the hope of bringing it back before the Tribunal again.