Mr E Ukwu v Tritax Management LLP and Others: 2201558/2019
EMPLOYMENT TRIBUNALS
Case No 2201558/2019
Between
Mr E UkwuClaimantTritax Management LLP and OthersRespondent
Before
Employment Judge BrownIn person for claimantDate 27 May 2021
JUDGMENT
[1]The Claimant’s claims against Respondents 11 and 14 were brought out of time. Time is not extended for the claims. The Tribunal does not have jurisdiction to consider those claims.[2]The claims against Respondents 11 and 14 are therefore struck out.
REASONS
[1]The Hearing today was listed to consider a number of matters, including the following: 1.1. A strike out application in respect of claims against Respondents 11/14; 1.2. An application for deposit order in respect of claims against Respondents 11/14; 1 ph outcome jment and case mngmnt 1.5.14 version 1.3. Consideration of Time limits in respect of claims against Respondents 11/14.[2]Respondent 14 is a recruitment agency which introduced the Claimant to Respondents 1-10, 12 & 13. Respondent 11 is an employee of Respondent 14, who had particular responsibility for recruiting the Claimant to that employment.[3]The Claimant brings complaints of protected disclosure detriment against the Respondents as follows:a. His contract was not made permanentb. He was stereotype as an illegal immigrant and told to apply for biometric documentation, and this was a smokescreen to conceal his dismissal for making protected disclosuresc. He was put under continuous pressured. Malicious falsehoods about his status were shared amongst his colleaguese. He was not provided with the same benefits package as comparable employeesf. He was not provided with documentation on his SAR.[4]The Claimant also alleges that some of this conduct amounted to race discrimination / race harassment, in particular b. and c.[5]The Claimant also brings a complaint of protected disclosure automatic unfair dismissal and complaints of failure to pay holiday pay and other pay. These are complaints against his employer.[6]The Claimant alleges that R 11 and 14 acted as agents of the employer, R1.[7]The Claimant alleges that he was subjected to the detriments because he made protected disclosures in previous employment and this was known by Rs 11 and 14.[8]The Claimant and Rs 11 and 14 made lengthy, detailed written submissions for the purpose of this hearing. There were 2 Bundles of documents. The parties asked me to read the DMJ recruitment services agreement with Tritex (bundle page 12) and bundle pages – 1 – 35; 37 – 46; 52 – 55; 65 – 75; 87 – 93; 105 – 112. 238- 239, 240 - 241. 243. 245. 250 – 252 medical document (sample), and pages 124 and 130 – 137 of the scanned document bundle.[9]Given that there were issues about time limits, and whether time should be extended for the Claimant’s claims against Rs 11 and 14, I also heard evidence from the Claimant. There had not been an order for the Claimant to provide a witness statement, but the Claimant gave evidence for more than an hour. The Claimant read out the full text of a letter from his treating physician which was missing from the Bundle of documents. Time - The Allegations and the Claimant’s Evidence[10]The Claimant’s claim form states, at paragraph [24], that he employed by the First Respondent from 11 June 2018 until his dismissal on 30 November 2018. 2 ph outcome jment and case mngmnt 1.5.14 version[11]The Claimant was employed as company secretary.[12]It was not in dispute that Respondent 14 is a recruitment agency which introduced the Claimant to Respondents 1-10, 12, 13. Respondent 11 is an employee of Respondent 14, who had particular responsibility for recruiting the Claimant to that employment.[13]Respondents 11 and 14 were also involved in a recruitment process for R1’s permanent company secretary. The Claimant was not appointed to this role.[14]At this hearing I asked the Claimant who was responsible for the alleged unlawful acts.[15]I asked him, for example, who was responsible for not making his contract permanent. The Claimant said that he alleged that all Respondents, except Catherine Fry who was responsible for answering the SAR request, were responsible for not making the Claimant’s contract permanent.[16]I asked the Claimant when R11 and 14 did all the relevant acts alleged; what specifically did they do?[17]The Claimant said that Leena Myers put pressure on him in several conversations on 12 June 2018 to leave employment; that she told him then that he could not stay in the First Respondent’s offices and need to leave. He said that Ms Myers put further pressure on the Claimant in phone calls on 14 June 2018. She told him that he still needed a Resident Permit in July 2018. He said that Ms Myers sent him emails in August 2018, saying that he needed to start looking for another job. The Claimant told me that Leena Myers had conversations with him on 26 September 2018 about leaving the office.[18]The Claimant also said that he was supposed to be part of the recruitment process for the new permanent company secretary job, but was excluded from this. The recruitment process for this permanent role was competed 15 October 2018.[19]The Claimant said that, while he was on sick leave from R1 after 29 September 2018, he did not have any contact with Leena Myers.[20]The Claimant said that he was alleging continuing discrimination in relation to the benefits he did not receive when employed on his temporary contract. He said that he knew there was a discrepancy between his benefits and those of other employees in December 2018.[21]The Claimant’s allegations in relation to the SAR process were set out in paragraphs [54e] – [54f] of his claim form. These were specifically against Catherine Fry, R12, who was not an employee of R11.[22]The Claimant contacted ACAS on 28 February 2019. The ACAS EC period lasted until 28 March ACAS. The Claimant presented his claim on 27 April 2020.[23]In evidence to the Tribunal, the Claimant said that he was aware of the alleged acts when they happened, save that he was not aware until 26 September 2018 3 ph outcome jment and case mngmnt 1.5.14 version that R11 and R14 were supporting the other Respondents in denying the Claimant the benefits which other employees enjoyed. He also realized on 26 September 2018, from Henry Franklin, R2, that the Respondents were not going to consider him for the permanent position as company secretary.[24]The Claimant confirmed that he is qualified as a solicitor in England and Wales but is not practising as a solicitor.[25]He was aware of Employment Tribunals and time limits and his ability to bring claim in 2018. He had brought 4 previous Employment Tribunal claims.[26]The Claimant told me that he suffered worsening back and shoulder problems while employed by the First Respondent and was signed off sick from work from 29 September 2018. He had had a cortisone injection in April 2018 to manage the pain from this injury. The beneficial effect of this had been short lived, however, and the Claimant said that he also started suffering from stress due to his work conditions.[27]The Claimant told me that he is right handed, and could barely use his right hand during his employment, which led to him recording meetings, rather than taking notes.[28]The Claimant said that, after he was signed off work, his primary focus was to get well. When his doctor told him in September 2018 that he would need surgery under general anaesthesia, he was very scared and got life insurance.[29]The Claimant told me that he was bedridden from 30 September 2018 and had surgery on 6 November 2018. The surgery was on his rotator cuff. The Claimant said that, after surgery, his arm was in a sling he could not move his hand. The Claimant had painkillers, including morphine, which continued in January 2020.[30]The Claimant said that he could not start physiotherapy until December 2019. He told me that he had no movement in right arm at this time. The Claimant said that, because of his surgery and ongoing pain, he did not even look at his emails at this time.[31]The Claimant told me that he was unable to use a keyboard to prepare a claim and that his cognitive abilities were affected. He said that, because of this, he was still unable to prepare a claim form in February 2019. The Claimant told me that he was unable to attend a hearing in a claim against his previous employer, Afren, on 11-13 March 2019, because he was in pain and could not sleep and continued to use codeine as a pain killer.[32]The Claimant also said that, sadly, his mother in law died on 9 December 2019.[33]The Claimant told me that he does not have extended family in this country. His wife had family responsibilities and was working and was unable to help the Claimant with his claim.[34]Regarding the medical evidence, the Claimant submitted sick notes, signing him off work from 29 September 2018, until the end of his employment. 4 ph outcome jment and case mngmnt 1.5.14 version[35]The Claimant told me that he was unable to work and, likewise, was unable to prepare a claim. He said that, for him, preparing claim form is work, which requires mental and physical input.[36]I asked him about a detailed text message he had sent on 30 November 2018 to Henry Franklin, R2, page 246, which said, “..it is very disappointing that you have chosen to dissemble and misrepresent the facts regarding my employment and unlawful dismissal. The failure to renew my fixed term contact because I made protected disclosures is unlawful. The reason you previously provided for offering Ms Beard my position and which you are now denying is also unlawful. I have conclusive proof that you denial and claim that I was never offered the permanent role is false. Your response in our telephone conversation today also verified my concerns about the role played by your lawyers in the treatment I received. I will consider my legal options and take appropriate action against all entities and individuals involved in this matter which I believe is linked to the ongoing Afren matter.”[37]The Claimant said that there was a difference between a text message and claim form – he was not capable of completing a claim form – he said that he believed that he had typed this message with his left hand.[38]I asked the Claimant about an email he had sent to Mr Franklin on 7 November 2019, the day after his surgery, page 244. In it, he asked Mr Franklin to forward an email with attachments, and explained that he needed the email and attachments to rectify an error on his Biometric Resident Permit.[39]The Claimant said that he had, indeed, checked his emails on 7 November 2019 and discovered an email from the Home Office about his Resident Permit. The Claimant said that he was going to be unemployed by the end of that month and needed to get a job. He said that, nevertheless, he was unable to do anything with his shoulder for a month after the operation.[40]In cross examination the Claimant was asked about an email he sent on 14 December 2018 to the First Respondent’s employees about the days worked and his annual leave. The Claimant said that he was correcting errors in the records.[41]The Claimant was also asked about a lengthy email he had sent on 7 January 2019, running to 2 pages, page 216, concerning his DSAR request. The Claimant said that this was a “cut and paste” from other litigation, he just needed to change the names.[42]The Claimant was then asked about another lengthy email he sent on 29 January 2020, in which he discussed the Data Protection Act and the Companies Act and made allegations false assertions, protected disclosure and victimization.[43]The Claimant said that he had been a company law specialist for the whole of his career, and could answer questions about company law but could not prepare a claim form. He said that he typed the email with his left hand and it took him a while. 5 ph outcome jment and case mngmnt 1.5.14 version[44]This email was part of an email chain starting with the Claimant’s email on 7 January 2019, during which the Claimant had also sent similarly detailed emails on 16 January 2019, 25 January 2019 and 28 January 2019.[45]The Claimant said that he had medical evidence that he had been unable to attend a Tribunal hearing in March 2019 and was unable to participate in a disclosure exercise. As the Claimant said that this letter was not in the Bundle, I invited him to read it out. The letter was from Mr Yanni, Consultant Orthopaedic and Hand Surgeon, on 14 February 2019. The letter was directed to the Claimant and said, “To whom it may concern “This is to confirm that you are currently under my care with regard to your shoulder … it will take the best part of a year for the ultimate plateau of recovery which should be around November 2019. The rehabilitation will take some time before everything settles down. It is my recommendation that you adapt your physical /work activities to a level appropriate to your symptoms. Please submit this letter to your employers….”[46]The Claimant confirmed that he did not have any other medical reports about his ability to participate in proceedings or draft documents at that time.[47]The Claimant said, however, that he was taking Diazepam to help with his stress and to sleep, which affected him significantly.[48]On the facts, I did not accept the Claimant’s evidence that he was unable to draft documents or to engage in the Tribunal process after his operation on 6 November 2018. I concluded that the Claimant had not been reliable in the evidence he gave. Initially in his evidence, he told me that he was unable even to check his emails after his operation on 6 November 2018. However, it was clear that he had, on 7 November 2018, not only checked his emails, but written an email to Mr Franklin.[49]His assertion that he was unable to draft documents or formulate claims from November 2018 – February 2019 was further contradicted by his lengthy text message to Mr Franklin on 30 November 2018, stating the basis of claims against the First Respondent and saying he would bring proceedings, and by his email correspondence in December 2018 about his holiday and annual leave records.[50]I considered that he was not reliable in his evidence regarding his correspondence on his DSAR from 7 January 2019. He initially explained his very detailed email of 7 January 2019 by saying that this was “cut and paste”. However, when the Claimant was taken, during cross examination, to further correspondence, it was clear that he had been engaging in detailed email exchanges throughout January 2019, in which he had discussed Data Protection duties and Company law, as well as alleged protected disclosures and victimization.[51]I concluded that the Claimant had exaggerated the effects of his shoulder injury and operation on his ability to draft documents and prepare a claim for the Tribunal. I took into account the fact that the Claimant had been signed off work from 29 September 2018. I took into account Mr Yanni’s letter of 14 February 2019. I noted that it did not say that the Claimant was unable to carry out any 6 ph outcome jment and case mngmnt 1.5.14 version particular activity. Indeed, it appeared to envisage that the Claimant would be at work, but with some adjustments.[52]From all the evidence, I decided that the Claimant was likely to have been able to draft documents in November 2018 (although not on 6 November 2018), albeit slowly.[53]The Claimant is a qualified solicitor. He is familiar with Employment Tribunal processes, having presented 4 previous claims. He was familiar with the concept of protected disclosures – as evidenced by his text message of 30 November 2018. I concluded, on the facts, that he was capable of drafting his Employment Tribunal claim in November 2018 and thereafter.
Relevant Law
[54]By s123 Equality Act 2010, complaints of discrimination in relation to employment may not be brought after the end of 54.1. the period of three months starting with the date of the act to which the complaint relates or 54.2. such other period as the Employment Tribunal thinks just and equitable.[55]By s123(3) conduct extending over a period is treated to be done at the end of the period. Failure to do something is to be treated as occurring when the person in question decided on it.[56]In Commissioner of Police of the Metropolis v Hendricks [2003] ICR 530, the Court of Appeal held that, in cases involving numerous allegations of discriminatory acts or omissions, it is not necessary for an applicant to establish the existence of some 'policy, rule, scheme, regime or practice, in accordance with which decisions affecting the treatment of workers are taken' in order to establish a continuing act. The Claimant must show that the incidents are linked to each other, and that they are evidence of a 'continuing discriminatory state of affairs'. This will constitute 'an act extending over a period'. The question is whether there is “an act extending over a period,” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed'.' Paragraph [52] of the judgment.[57]In Owusu v London Fire and Civil Defence Authority [1995] IRLR 574, the EAT held that an employer’s repeated failure to upgrade an employee or to allow him to act up at a higher grade when the opportunity arose amounted to a prima facie case of a continuing act 'in the form of maintaining a practice which, when followed or applied, excluded [him] from regrading or opportunities to act up'. Mummery J stated that a succession of specific instances was capable of indicating the existence of a practice, thereby constituting a continuing act extending over a period. Whether those instances did in fact amount to a practice, as opposed to a series of one-off decisions depended on the evidence and the employer's explanations for the refusals.[58]There is a distinction between a continuing act of discrimination and a one-off act with continuing consequences. In Chaudhary v Specialist Training Authority of the 7 ph outcome jment and case mngmnt 1.5.14 version Medical Royal Colleges EAT/1410/00, [2001] All ER (D) 294 (Nov); affirmed by the CA [2003] ICR 1510, the EAT observed (per Miss Recorder Elizabeth Slade QC): ''The continuing application of a discriminatory rule or policy to a complainant is to be distinguished from the continuing existence of a discriminatory rule or policy and its single or occasional application to a complainant. An employment policy may be continuously or constantly applied to an employee and operate to his or her detriment as in Barclays Bank plc v Kapur [1991] IRLR 136, [1991] ICR 208, Cast v Croydon College [1998] ICR 500 at 515B and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574. However, the fact that the complainant is an employee cannot be determinative of the issue of whether an employer's discriminatory policy gives rise to a complaint of discrimination. For a complaint to be well founded that policy must be applied to the complainant to his or her detriment.'[59]Where a discrimination claim has been brought out of time the Employment Tribunal can extend time for its presentation where it is just and equitable to do so. In Robertson v Bexley Community Centre T/a Leisure Link [2003] IRLR 434 the Court of Appeal stated that there is no presumption that an Employment Tribunal should extend time unless they can justify a failure to exercise the discretion. Quite the reverse; a Tribunal cannot hear a complaint unless the Claimant convinces the Tribunal that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule. In exercising their discretion to allow out of time claims to proceed, Tribunals may have regard to the checklist contained in s33 Limitation Act 1980 as considered by the EAT in British Coal Corporation v Keeble & Others [1997] IRLR 336. Factors which can be considered include the prejudice each party would suffer as a result of the decision reached, the circumstances of the case and, in particular, the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the party sued has cooperated with any requests of information, the promptness with which the Claimant acted once he or she knew of the facts giving rise to the course of action and the steps taken by the Claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[60]S48(3) ERA 1996 provides that an employment tribunal shall not consider a complaint of protected disclosure detriment unless it is presented,a. before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, orb. within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[61]By s48(4) ERA 1996, for the purposes of s48(3), where an act extends over a period, the “date of the act” means the last day of the period and a deliberate failure to act is treated as done when it was decided on.[62]An act extending over a period has the same meaning as under the discrimination statutes, Arthur v London Eastern Railway Ltd [2006] EWCA Civ 1358, [2007] 8 ph outcome jment and case mngmnt 1.5.14 version IRLR 58, [2007] ICR 193, at para 31). The majority of the Court of Appeal (Mummery and Sedley LJJ, Lloyd LJ dissenting on the point) decided that, it is possible, depending on the facts, for 'a series of apparently disparate acts' to be 'shown to be part of a series or to be similar to one another in a relevant way by reason of them all being on the ground of a protected disclosure' (at para 35, per Mummery LJ).[63]It is also necessary to distinguish between the concepts of 'act' (or 'failure to act') and 'detriment', Flynn v Warrior Square Recoveries Ltd UKEAT/0154/12 per Langstaff P at [3]. Time runs from the date of the 'act', regardless of whether a claimant has any knowledge of the detriment that the act produces. Tribunals should not confuse a continuing detriment with a continuing act. Accordingly, per Langstaff P in Flynn : "…in any case that considers a question of whether a complaint is out of time, it is incumbent upon an employment tribunal to identify carefully the act, or the deliberate failure to act, that the Claimant identifies as causing him a detriment." [5].[64]The test to be applied to extension of time where a protected disclosure detriment claim is out of time is the “reasonable practicability” test, not the “just and equitable” test.[65]By s43K ERA 1996, a worker includes an individual who is not a worker as defined by s230(3) ERA 1996 but who “(a) works or worked for a person in which – (i) he is or was introduced or supplied to do that work by a third person, and (b) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them … and any reference to a worker’s contract, to employment or to w worker being “employed” shall be construed accordingly.” Discussion and Decision[66]The Claimant brings his complaints of direct discrimination race, race harassment and protected disclosure detriment against R11 and R14 on the basis that they acted as agents of the other Respondents. R11 and R14 were third party recruitment agents who placed the Claimant with R1 as company secretary. They also acted as recruiting agents for a permanent company secretary role which the Claimant was not offered.[67]The Claimant said that his case is based on a continuing act. He said that the last date of R11 and R14’s continuing act was 30 November 2018.This was when his temporary company secretary contract with R1 ended and he was not given the permanent company secretary position.[68]He said that the acts of R11 and R14 resulted in him not being offered the permanent role on 30 November 2018 and that they were therefore involved in his dismissal on 30 November and the failure to offer him the permanent role from 30 November 2018.[69]It was clear to me, however, that the Claimant was not saying that R11 and 14 did any act or omission, or made any decision, on 30 November 2018. The First Respondent, his employer, dismissed the Claimant on 30 November 2018. 9 ph outcome jment and case mngmnt 1.5.14 version[70]In his claim form, the Claimant was clear that he was employed by R1.[71]Insofar as R11 and R14 were involved in any decision not to offer the Claimant the permanent company secretary role, the recruitment process for the permanent company secretary post ended on 15 October 2018. That was the last date when R11 and R14 could have been involved in a decision not to employ the Claimant as the permanent employee. For the purposes of the protected disclosure detriment claims, R11 and R14 might be liable pursuant to s43K(1) ERA 1996 in respect of that decision. However, I concluded that that was a decision with continuing consequences, rather than a continuing act by R11 and R14.[72]The Claimant’s dismissal by R1 on 30 November 2018 arose from that earlier decision.[73]The Claimant also said that he was alleging that the failure to offer him the contractual benefits enjoyed by other employees of R1 was a continuing act.[74]I decided, however, that while that may have been a continuing act by R1 during his employment by R1, the Claimant was not alleging that R11 and R14 were the employer.[75]R11 and R14 therefore did not continue to apply those (allegedly) less favourable contractual terms to the Claimant.[76]I concluded that R11 and 14’s alleged acts in applying less favourable contractual terms to the Claimant occurred if R11 and R14 were involved in any relevant decision to offer those terms/ acted as agent in offering the terms, at the start of his employment by R1 in June 2018. However, was no continuing discriminatory act by R11 and R14 in applying less favourable contractual terms to the Claimant, because there was no ongoing employment relationship between the Claimant and R11 and R14, unlike Barclays Bank plc v Kapur [1991] IRLR 136, [1991] ICR 208, Cast v Croydon College [1998] ICR 500 at 515B and Owusu v London Fire and Civil Defence Authority [1995] IRLR 574.[77]This was the case in respect of both the Claimant’s discrimination allegations and his protected disclosure detriment claims. For the purposes of the protected disclosure detriment claims, R11 and R14 might be liable pursuant to s43K(1) ERA 1996 when the terms were initially decided upon at the start of the employment, if they were involved in formulating those terms. However, R1’s application of the contractual terms of employment amounted to an ongoing detriment, rather than a continuing act by R11 and R14, Flynn v Warrior Square Recoveries Ltd UKEAT/0154/12 per Langstaff P at [3]. Time, in respect of protected disclosure claims against R11 and R14 in this regard, ran from the date of R11 and R14’s 'act'.[78]The dates of other alleged acts by R11 and R14 were as follows: Leena Myers put pressure on him in several conversations on 12 June 2018 to leave employment; she told him then that he could not stay in the First Respondent’s offices and needed to leave. Ms Myers put further pressure on the Claimant in phone calls on 14 June 2018. She told him that he still needed a Resident Permit in July 2018. Ms 10 ph outcome jment and case mngmnt 1.5.14 version Myers sent the Claimant emails in August 2018, saying that he needed to start looking for another job. Leena Myers had conversations with him on 26 September 2018 about leaving the office. The Claimant was excluded from the recruitment process for the new permanent company secretary job. The recruitment process was competed on 15 October 2018.[79]While the Claimant was on sick leave from R1 after 29 September 2018, he did not have any contact with Leena Myers.[80]Insofar as the Claimant was alleging that R11 and R14 were acting as agents for the other Respondents in his discrimination claims, the Claimant did not allege that they did any acts as agents after 15 October 2018.[81]The relevant acts of R11 and R14 in the protected disclosure claims also ended on 15 October 2018, even though they were alleged to have continuing consequences.[82]I decided that, even if R11 and R14’s acts before 15 October 2018 amounted to a continuing act, or series of similar acts or failures, that continuing act ended on 15 October 2018.[83]Time for bringing the Claimant’s complaints against R11 and R14 therefore ran from 15 October 2018.[84]The Claimant should have contacted ACAS by 14 January 2019. He contacted ACAS on 28 February 2019 and presented his claim on 14 April 2019. His complaints against R11 and R14 were therefore at least 6 weeks out of time.[85]I considered whether time should be extended for the Claimant’s complaints against R11 and R14.[86]As set out above in my findings on the evidence, I did not accept that Claimant’s evidence that he was unable to draft and present a claim to the Tribunal from November 2018 – February 2019. I decided that the Claimant was likely to have been able to draft documents in November 2018 (although not on 6 November 2018), albeit slowly.[87]The Claimant is a qualified solicitor. He is familiar with Employment Tribunal processes, having presented 4 previous claims. He was familiar with the concept of protected disclosures – as evidenced by his text message of 30 November 2018. I concluded, on the facts, that he was capable of drafting his Employment Tribunal claim in November 2018 and thereafter.[88]The Claimant was aware of the relevant acts when they occurred, save that he was not aware until 16 September 2018 that R11 and R14 supported the other Respondents regarding the contractual terms he was offered.[89]There was very little to persuade me that it would be just and equitable to extend time for the Claimant to present his discrimination complaints. 11 ph outcome jment and case mngmnt 1.5.14 version[90]I considered that R11 and R14 would be prejudiced by having to defend complaints against them which were out of time. On the other hand, the Claimant still had complaints against 12 other Respondents. R1 was the principal respondent in any event, as the Claimant’s employer. R11 and R14 were only being pursued as agents of the principal. There was very little prejudice to the Claimant in not extending time for complaints against the agents.[91]The delay was relatively lengthy and there was no good reason for it. Many of the alleged acts had occurred in June – July 2018, more than 6 months before the Claimant contacted ACAS and almost 9 months before he presented his complaint to the Tribunal. The Claimant was legally qualified and was well aware of his employment rights, but did not take the appropriate action to bring a claim.[92]It was not just and equitable to extend time for the Claimant’s discrimination claims.[93]For the reasons set out, it was clearly reasonably practicable for the Claimant to bring his protected disclosure detriment claims in time. There was no basis for an extension of time regarding those complaints. 30 November 2018 as Last Act – Time Limits[94]Although I decided that the Claimant’s claim against R11 and R14 was out of time, I agreed with the Claimant that, if the last day of the continuing act had been 30 November 2018, he would have been in time when he contacted ACAS on 28 February 2019, as that was the last day in the month. The correct method of determining the last day of the 3 month period is to take the day and date before the last day of the continuing act and go forward three months; if there is no corresponding date in the month, then the last day of the month is taken, Pruden v Cunard Ellerman Ltd [1993] IRLR 317. There was no 29 February 2019 as 2019 was not a leap year, so the Claimant would have been in time when he contacted ACAS on 28 February 2019, because it was the last day in the month.
Background
[95]The recordings to which the Respondents have already listened include a recording of the Claimant going to the toilet and of him having a conversation with a taxi driver who was wholly unrelated to the claims. I considered that the Claimant requiring the Respondent to listen to such matters was vexatious. Requiring the Respondent’s solicitor to listen to a toilet visit is, frankly, offensive. The Claimant’s refusal to identify a single specific part of a transcript, or the relevant cause of action, also led me to believe that it was likely that there were, in fact, no relevant statements in the 20 hours of recordings. Requiring the Respondent to listen to 20 hours of irrelevant evidence was also, plainly, vexatious.[96]The Claimant’s conduct of the proceedings, in failing to comply with my order, is vexatious and unreasonable. It is clearly fair to the Respondent for the Claimant to identify the relevance of the audio recorded evidence. As I explained to the Claimant, if he does not, the Respondent would have the impossible task of guessing the relevance of 20 hours’ worth of recordings and trying to obtain instructions from witnesses about any potentially relevant comments on them. The Respondent would have to draft witness statements addressing all manner of potential arguments arising from the recordings.[97]This would put the Respondent to wholly unreasonable expense and would waste inordinate time.[98]The Tribunal would also be faced with an enormous tranche of evidence from the Claimant whose relevance was unclear. This would waste public time and money. 16 ph outcome jment and case mngmnt 1.5.14 version[99]Even if a fair hearing were possible, I considered that this was one of the rare cases in which strike out for deliberate disobedience of my order was appropriate. The Claimant’s conduct in requiring the Respondent to listen to 20 hours of audiotape, including wholly irrelevant and, in some parts, offensive material, is egregious. It appears designed to confuse and frustrate the Respondents, and to put them to considerable, pointless expense. The Claimant has misused the Tribunal process.[100]Nevertheless, I also considered that the Claimant’s unreasonable and vexatious conduct of the proceedings meant that a fair hearing was impossible.[101]The Claimant relies on the recordings and contends that all the recordings are relevant to all of his claims. The Respondent cannot prepare for a hearing fairly on that basis. If it fails to guess the relevance of a part of the recording, it may not adduce its own evidence in rebuttal. The Respondent would be going into the hearing “blind” and could be ambushed by the Claimant. Tribunal would also have to guess at the relevance of the evidence and would have great difficulty in managing the proceedings fairly.[102]Strike out is the appropriate course – an unless order would be pointless because the Claimant was clear that he had no intention of complying with the order. The Claimant suggested no alternative course, other than providing a transcript of the recordings on which he relies. He insists that the evidence is relevant for all his claims. As I have explained, provision of a transcript would not remedy the problem because he still refuses to identify the relevant parts of the transcript. Law - Strike Out – No Reasonable Prospects of Success[103]An Employment Judge also has power to strike out a claim on the ground that it is scandalous, vexatious or has no reasonable prospect of success under Employment Tribunal Rules of Procedure 2013, Rule 37(1)(a).[104]The power to strike out a claim on the ground that it has no reasonable prospect of success may be exercised only in rare circumstances, Teeside Public Transport Company Limited (T/a Travel Dundee) v Riley [2012] CSIH 46, at 30 and Balls v Downham Market High School & College [2011] IRLR 217 EAT. In that case Lady Smith said: “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word ‘no’ because it shows that the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions and deciding whether their written or oral recessions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospect”.[105]A case should not be struck out on the grounds of having no reasonable prospect of success where there are relevant issues of fact to be determined, A v B [2011] EWCA Civ 1378, North Glamorgan NHS Trust v Ezsias, [2007] ICR 1126; Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] CSIH 46. On a 17 ph outcome jment and case mngmnt 1.5.14 version striking-out application (as opposed to a hearing on the merits), the tribunal is in no position to conduct a mini-trial. Only in an exceptional case will it be appropriate to strike out a claim for having no reasonable prospect of success where the issue to be decided is dependent on conflicting evidence. Such an exceptional case might arise where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents E D & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472, or, where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation', Ezsias para 29, per Maurice Kay LJ.[106]Discrimination cases should only be struck out in the very clearest circumstances, Anyanwu v Southbank Student’s Union [2001] IRLR 305 House of Lords. Decision – No Reasonable Prospects of Success[107]The Claimant’s protected disclosure claim relies on protected disclosures he says he made 10 years earlier, in different and unconnected employment, at Afren plc. His claim against 12 remaining Respondents, alleges a conspiracy involving 10 people, 3 companies and an outside recruitment agency. I agreed with the Respondents that is inherently unlikely that these Respondents subjected the Claimant to detriments and dismissed him because of such historic disclosures in unrelated employment.[108]In order to succeed in his protected disclosure claims, the Claimant will need to show that the Respondents knew of the alleged 2009 disclosures at Afren.[109]The Claimant says that the First Respondent and Afren plc have both been clients of Taylor Wessing LLP. He also points to documents which show some of the Respondents discussing his CV at the time of his recruitment and mentioning his previous employment by Afren. He says that his disclosures were discussed at meetings which he did not attend.[110]Disclosure has taken place. The Claimant did not tell me that there are any outstanding applications for specific disclosure. He says that the Respondents have destroyed tapes of meetings where his disclosures were discussed. He did not go to those meetings himself, so cannot give his own evidence of what was discussed. He cannot give the date of the meetings or an account of what was said. He says that he will rely on cross examination of the witnesses to establish that his disclosures were discussed at the meetings. None of his 20 hours worth of audio recordings contain any evidence that the Respondents knew of his disclosures. There is therefore no supporting evidence at present that the Claimant’s disclosures were discussed by the Respondents in any meetings.[111]The Claimant asked me to look at the documents in the bundle. I considered that the emails wherein his employment by Afren plc was discussed do not indicate that the Respondents had any knowledge of his protected disclosures. The relevant discussion relates to his CV and the chronology of his previous employment. The fact that Afren is mentioned is incidental – it is simply mentioned as a previous employer with whom the Claimant had long service. The emails do not provide evidence that the Respondents knew of his disclosures. None of the 18 ph outcome jment and case mngmnt 1.5.14 version other pages to which the Claimant referred me, in his email of 13 May 2021, showed that the Respondents knew of the disclosures.[112]I agreed with the Respondents that the fact that Afren and the Respondents had both been clients of Taylor Wessing provides no evidence that knowledge of the alleged disclosures passed to the Respondent.[113]The Claimant cannot point, therefore, to any positive evidence that any of the Respondents knew of his disclosures made 10 years previously. He intends to rely on cross examination to extract evidence that they discussed his disclosures in meetings. His cross examination, however, will necessarily be unspecific, because he cannot give the dates of the meetings or any details of the alleged discussions.[114]I considered that it could properly be said that there was no reasonable prospect of the Claimant succeeding in his protected disclosure claims. The basis of the claims is highly improbable. The Respondents’ knowledge of disclosures is crucial to the claims. There is currently no evidence to support the Claimant’s contention that the Respondents knew of the protected disclosures. There is no reasonable prospect that he will extract such evidence from cross examination, when he has no positive, specific case to put to witnesses.[115]The Claimant’s race discrimination and harassment claims are put on the basis that he was subjected to such discrimination and harassment “in order to conceal the reason or principal reason for his dismissal” – which was allegedly his protected disclosures. If the Respondents did not know of the protected disclosures, the basis for the alleged discrimination and harassment claims also falls away. There is no reasonable prospect of them succeeding in the way they have been put by the Claimant.[116]Looking back, now, at the totality of the Claimant’s protected disclosure claim, including the way in which he has answered requests for particulars, it is apparent that it is vague and generalized in the extreme. It relies on a vast conspiracy. That is not alone a basis for strikeout, but it reinforces my decisions.[117]The Claimant’s claims against Respondents 1 – 10 & 11 & 13 are struck out on the grounds that the Claimant’s conduct of the proceedings has been vexatious and unreasonable and that the claims have no reasonable prospects of success.