Mr K Hamid Dankali v London United Busways Ltd: 2203278/2020
EMPLOYMENT TRIBUNALS
Case No 2203278/2020
Between
No appearanceClaimantMs Blythe , Solicitor Judgment 1. The Respondent’s application for a strike out order under Rule 37 of the ET’s ( Constitution & Rules of Procedure ) Regs 2013 Sch 1 on the grounds that the Claimant’s claim of race discrimination under section 9 and/or section 13 of the Equality Act and under Reg 7 TUPE Regs 2006 and Part 10 ERA 1996 for automatic unfair dismissal have no reasonable prospects of success and are dismissed. 2. The Respondent’s application for a strike out and or deposit order under Rule 37 or Rule 39 of the ET’s ( Constitution & Rules of Procedure ) Regs 2013 Sch 1 in respect of his wrongful dismissal/ breach of contract claim, on the basis such claim(s) have no or little reasonable prospects of success , is refused. 3. The Claimant’s claims of unfair and wrongful dismissal/ breach of contract shallRespondent
Before
Employment Judge RussellNo appearance for claimantMs Blythe (instructed by Solicitor) for respondentDate 8 October 2021
JUDGMENT
[1]The Respondent’s application for a strike out order under Rule 37 of the ET’s ( Constitution & Rules of Procedure ) Regs 2013 Sch 1 on the grounds that the Claimant’s claim of race discrimination under section 9 and/or section 13 of the Equality Act and under Reg 7 TUPE Regs 2006 and Part 10 ERA 1996 for automatic unfair dismissal have no reasonable prospects of success and are dismissed.[2]The Respondent’s application for a strike out and or deposit order under Rule 37 or Rule 39 of the ET’s ( Constitution & Rules of Procedure ) Regs 2013 Sch 1 in respect of his wrongful dismissal/ breach of contract claim, on the basis such claim(s) have no or little reasonable prospects of success , is refused.[3]The Claimant’s claims of unfair and wrongful dismissal/ breach of contract shall continue to the listed full hearing on 27,28 and 29 July 2021 now listed for 3 days ( down from the initially listed 5 days ).[4]On reconsideration on the tribunal’s own initiative the above judgment is confirmed .
REASONS
[5]Although the Claimant made no appearance today I heard representations from the Respondent and in the course of doing so I read carefully the ET1 particulars and much of the internal discussion between the Claimant and the Respondent during his long period of illness. In part to ensure the Claimant’s position was properly considered despite his representative making no appearance.[6]Before proceeding in the Claimant’s absence, I took the following steps. A) I checked the Claimant was aware of the listed hearing and noted he had been aware of it and the issues to be considered and had communicated with the ET as to the hearing . B) The clerk emailed both parties to ensure that they had the correct CVP hearing route and or to check if the Claimant’s representative had any substantive reason for nonattendance noting that whilst this was not to be Mr Neckles he wished to be the continuing contact point and was simply passing over to PTCS member ( Daniel Ibekwe) for today’s hearing. C) I did not start the hearing until 10.30 am . D) In the ET clerk’s second email the representative was invited to join late if he could and wished to do so .[7]And after the hearing I asked the Respondent’s representative to email the Claimant without referring to the orders I have made ( which were advised to the Respondent on the day ) to indicate that I had proceeded in the Claimant’s absence and that my orders and reasons would be sent to the parties asap including further case management orders .[8]I was subsequently informed by my clerk that the wrong CVP link had been sent out to both the Claimant and Respondent’s representative but having then reconsidered my own decision under Rule 70 ETs (Constitution & Rules of Procedure) Regs 2013 Sch 1 I founds that as both parties initially received the incorrect CVP hearing invite there was no reason to vary my decision which was confirmed .The Respondent’s representative managed to attend the hearing having clarified the correct link , the Claimant did receive the correct link in time to join the hearing at some point and yet at no stage in the two hours or so of the hearing did the Claimant’s representative do so nor did he contact the Tribunal to clarify the position. Nor was the Claimant going to attend to give evidence in any event and my findings were primarily made based on the pleadings .[9]The prejudice to the Respondent by delaying the hearing outweighed the prejudice to the Claimant in proceeding where it I was fairly able to do so and the Claimant’s representative could and should have attended the hearing even if the initial fault was with the tribunal administration. Long Term Absence Policy and Breach of contract /wrongful dismissal claim[10]The long-term absence policy relied upon by the Claimant to justify his claim of unfair treatment was one used by his former employer ( the Transferor ) . There was no evidence that this policy was being used by the Transferor at the time of the relevant transfer to the Respondent on or about 30 January 2003. Whether it has contractual effect or not as part of a collective agreement ( transferring over under Reg 5 TUPE along with the Claimant’s employment at that time ) or otherwise is unclear .It may be that it is simply part of a series of discretionary employment policies used by the Transferor . But I cannot make and do not make a finding about this given the lack of documentation available and in the absence of evidence.[11]The Claimant’s wrongful dismissal claim / breach of contract claim is limited to claiming an extra 4 weeks paid notice. He was employed from 18 February 2003 to 24 January 2020 so this is 16 full years and so claims 16 weeks’ notice under the Transferor’s long term sickness policy ( inherited by the Respondent) as opposed to the 12 weeks he actually received being his minimum statutory entitlement under section 86 ERA 1996. So, this claim must be determined by the full tribunal . I observe the amount at stake is a relatively small sum of 4 weeks’ pay is at stake here and the Respondent is not materially prejudiced by having to deal with this issue as well as the unfair dismissal claim . Race and TUPE Claims[12]The Respondent dismissed the Claimant after a long period of absence . On the purported grounds of capability. There are no details whatsoever given in the ET1 to show that the dismissal was or could be due to the Claimant’s Eritrean descent . Nor are there are any that are or might be linked to the relevant transfer made some 13 years ago . His TUPE claim. And whilst I neither make nor seek to make any other finding as to the reason for dismissal I can and do conclude that a strike out order is appropriate in respect of the Claimant’s race and TUPE related dismissal claims for reasons expanded below under strike out order - legal and further findings. Disability[13]The Respondent states that when they dismissed the Claimant it was clear that , inter alia, he was not suffering from a disability ( which he claims as a physical disability relating to chronic back pain ) and although he was not getting any better he was only using OTC medication to alleviate the symptoms and that there were no reasonable adjustments that could have been made to assist the Claimant ( and none he suggested) . Given his job as a bus driver with the obvious strains that might put on one’s back they had come to the end of a fair process at that point (24 January 2020) at which time the Clamant had been off with sickness for some 176 calendar days.[14]The issue of the Claimant’s disability remains disputed . The Respondent denies he had long term sickness related to a disability . In part because he was expected to be able to return to work even though he did not and in part because his medical reasons for absence varied. However, it is clear that the Respondent’s OH department classed his sickness as “ long term absence “ with “ an underlying condition” and as medical evidence has yet to be provided by the Claimant the issue of disability would therefore be dealt with at a future time.[15]It is also unclear , to the extent there was a disability, what adjustments might have been considered and whether they were. However there are no apparent claims made as to a detriment claimed by the Claimant relating to his disability other than a failure to make reasonable adjustments and in relation to his dismissal .This is reflected in the issues identified by me in case management orders made subsequent to my judgment. Strike Out Order Legal and Further Findings[16]In considering an application under Rule 37 and Rule 39 the Tribunal is not restricted to purely legal issues but is entitled to have regard to the likelihood of a Claimant being able to establish the facts essential to his case and reaching a provisional view as to the credibility of the assertions put forward. The Tribunal must have a proper basis for doubting that essential facts could be established before making an order: Van Rensburg v Royal Borough of Kingston-upon- Thames UKEAT/0095/07.[17]The power to strike out a claim on the ground that it has no reasonable prospect of success should only be exercised rarely: Tayside Public Transport Co Ltd [2012] IRLR 755. Examples of where strike out might be merited however are where it is “instantly demonstrable that the central facts in the claim are untrue”, where the facts sought to be established by the claimant were “totally and inexplicably inconsistent with the undisputed contemporaneous documentation” (Ezsias v North Glamorgan NHS Trust [2007] IRLR 603).[18]When determining a strike out application, Tribunals should have regard to the essential case to which a Respondent is required to respond, which is contained in the ET1, taken at its highest. Tribunals, crucially, should not determine strike out applications on the basis of other material, such as a witness statement or some other document, as ‘such an approach too easily forgets why there is a formal claim’ [Chandhok and another v Tirkey (Equality and Human Rights Commission intervening) [2015] ICR 527, 14-18].[19]Unlike in cases where there is a crucial core of disputed facts, Tribunals may have greater confidence in exercising their strike out powers when the central facts in a claim are not in dispute. Similarly, Tribunals may have confidence striking out a discrimination claim where: ‘on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867, para 56): “only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”’ [Chandhok and another, 20].[20]In respect of the race complaint it is not enough for the Claimant to simply show , still less just state , that he has been treated differently. There must be a quality in the treatment complained of that enables the complainant reasonably to complain about it [Chief Constable of West Yorkshire Police v Khan [2001] ICR 1065, HL]. An unjustified sense of grievance cannot amount to detriment or less favourable treatment [Shamoon, approving Barclays Bank plc v Kapur (No. 2) [1995] IRLR 87].[21]A complaint of direct discrimination will only succeed where the Tribunal finds that the protected characteristic was the reason for the claimant’s less favourable treatment. Where the reason for the alleged less favourable treatment is not immediately apparent, the Tribunal must focus on the reason why the employer acted as it did in so treating the claimant [R (on the application of E) v Governing Body of JFS and the Admissions Appeal Panel of JFS and ors [2010] IRLR 136, SC].[22]There is limited dispute as to the facts and yet no substantive information as to the existence of a race claim . There are no pleaded facts of any kind relating to any race claim . It is simply an allegation made , that the failure to make unparticularised reasonable adjustments or pay him the higher notice period , sought under what the Claimant states was the applicable sickness policy , was or may in some way connected to his Eritrean descent. But there is no other detail or assertions as to on what basis this claim is made and the race claim, clearly has no reasonable prospect of success. And if the suggestion is that but for his ethnicity he would not have been dismissed then , on the pleadings, such a claim clearly has no reasonable prospect of success.[23]In addition there is no pleaded case at all that does or could show the dismissal , over a decade on from the transfer over of the Claimant’s employment is related to such “ relevant transfer “ and , as claimed by the Claimant , a refusal to accept the terms of a transferring collective agreement . The TUPE claim is said to arise from a relevant transfer some 13 years previously but the only dispute that exists as to the referred to long term sickness policy , part of a collective agreement according to the Claimant but without any substance other than a bald statement. It remains unclear at this stage whether or not the Claimant has been served with the correct period of notice and whether the Respondent followed the procedure contained within the sickness policy and this may be relevant to his unfair dismissal claim. But on the pleadings, a TUPE claim clearly has no reasonable prospect of success.[24]The Claimant is stating that he should have got a longer period of notice because of contractual commitments inherited through a TUPE transfer and that the dismissal was an unfair one , particularly given his disability which seems to be stated as being chronic back pain . These are the therefore the principal issues that will progress to a full hearing over a reduced 3 day hearing . EMPLOYMENT TRIBUNALS BETWEEN Claimant MR K HAMID DANKALI Respondent LONDON UNITED BUSWAYS LIMITED OPEN PRELIMINARY HEARING JUDGMENT HELD AT: London Central (CVP video audio call) ON: 17 December 2020 BEFORE: Employment Judge Russell (sitting alone) REPRESENTATION: Claimant: Mr Ibekwe, Union rep Respondent: Mr Craven , Solicitor Judgment A. The Claimant’s claims of race discrimination and or harassment under s,9,13 and or[26]Equality Act 2010 are dismissed upon withdrawal by the Claimant. B. The Claimant’s claim of automatic unfair dismissal under Reg 7 TUPE Regs 2006 and Part 10 ERA 1996 is dismissed upon withdrawal by the Claimant. C. The Claimant’s claims of unfair and wrongful dismissal and a failure to make reasonable adjustments based on his disability continue to a full hearing. Background and Reasons[1]The Respondent dismissed the Claimant after a long period of absence . On the purported grounds of capability . The Claimant had a number of claims relating to his dismissal and the conduct of the Respondent but as they were , in some cases, unparticularised and or confused an Open Preliminary Hearing was listed for 9 November 2020 to consider the Respondent’s application for a strike out and or deposit order.[2]The Respondent applied for a strike out and or deposit order under Rule 37/39 of the ET’s ( Constitution & Rules of Procedure ) Regs 2013 Sch 1 on the grounds that the Claimant’s claims of race discrimination under section 9 and/or section 13 of the Equality Act and under Reg 7 TUPE Regs 2006 and Part 10 ERA 1996 for automatic unfair dismissal and further claims of wrongful dismissal/ breach of contract had no or little reasonable prospects of success.[3]On 9 November a judgment was given to allow the Claimant’s case of wrongful dismissal/ breach of contract to continue without strike out or a deposit order along with the claim of unfair dismissal but the judgement did strike out the Claimant’s claims of race discrimination and claim to have been dismissed for TUPE related reason under Reg 7 TUPE Regs 2006 .But on reconsideration this part of the Judgment was revoked. It was determined that the Claimant’s representative had not had sufficient opportunity to make submissions in response to the Respondent’s application and so the part of the judgement that was detrimental to the Claimant was revoked and with a view to being considered at a further hearing , which happened today.[4]Mr Ibewye’s written and oral submissions were considered by me today along with the Respondent’s submission but consideration of the outstanding part of the original strike out application was paused when the Claimant indicated he wished to withdraw two distinct claims. The Claimant , through his representative, first clarified that the race claim was principally one of harassment under s26 Equality Act 2010 but then went on to state he wished to withdrew the claim of race discrimination/harassment and also stated he also wished to withdraw the claim of automatic unfair dismissal relating to the TUPE transfer. As a result it became unnecessary to give further consideration to the Respondent’s strike out application per se ( as he was no longer proceeding with claims of either race discrimination or harassment on the grounds of race under section 9 and/or section 13 and now 26 of the Equality Act or claiming automatic unfair dismissal under Reg 7 TUPE Regs 2006 and Part 10 ERA 1996).But clarification was needed to clarify what claims the Claimant did wish to pursue. Noting that his claims of unfair and wrongful dismissal/ breach of contract were to continue to a full hearing in any event. There remained uncertainty as to the nature of his disability claim.[5]The Claimant’s principal argument was that the Guidelines for Dealing with Long term Sickness Absence ( the Policy ) were inherited by the Respondent under TUPE in or around 2003 and were not taken not account by the Respondent . In particular in respect of clauses 5 and 9 . Clause 5 "DISABILITY" CASES In all cases of sickness absence, managers must consider whether or not the employee is "disabled'', within the meaning of the Disability Discrimination Act 1995 and managers should seek advice from HR in case of any doubt about this. If so, the requirements and procedures laid down in the Act will apply, and must be followed. In particular, there is a duty to consider reasonable "adjustments" to enable the "disabled" employee to return to work, in their normal - or some other - capacity. This is a much more demanding and complex requirement than mere consideration of suitable alternative employment, and in all "disability" cases managers should consult with HR at every stage Clause 9 NOTICE Termination of employment on medical grounds is a dismissal and notice should be given. This notice is 1 weeks’ notice for weekly paid employees with less than two years' service and 4 weeks' notice for salaried staff with less than five years' service. For weekly paid staff with two or more years' service and salaried staff with five or more years' service, one weeks' notice is paid for each year of service (up to a maximum of 25 weeks).[6]This is what I said of the Policy after the hearing on November 9 “There was no evidence that this policy was being used by the Transferor at the time of the relevant transfer to the Respondent on or about 30 January 2003. Whether it has contractual effect or not as part of a collective agreement ( transferring over under Reg 5 TUPE along with the Claimant’s employment at that time ) or otherwise is unclear .It may be that it is simply part of a series of discretionary employment policies used by the Transferor . But I cannot make and do not make a finding about this given the lack of documentation available and in the absence of evidence”[7]It is clear that it is legitimate for the Claimant to argue this Policy applies as part of his unfair and or wrongful dismissal complaint . And the Claimant’s wrongful dismissal claim / breach of contract claim is straightforward as far as the issues are concerned. This is limited to claiming an extra 4 weeks paid notice under clause 9 of the Policy. He was employed from 18 February 2003 to 24 January 2020 so this is 16 full years and so claims 16 weeks’ notice under the Policy ( allegedly inherited by the Respondent) as opposed to the 12 weeks he actually received being his minimum statutory entitlement under section 86 ERA 1996. I had already decided on 9 November that this must be determined by the full tribunal and it will be . I observe the amount at stake is a relatively small sum of 4 weeks’ pay. This does involve considering the nature of the Policy claimed by the Claimant to be a collective agreement and whether it did pass over on any Transfer and whether it has contractual effect.[8]The disability part of the Claimant’s claim is harder to deal with given the Claimant is not seeking to suggest there was a stand-alone case of disability discrimination as far as the dismissal is concerned ( and I pressed Mr Ibekwe on this as I did in respect of the original claim that the dismissal was TUPE related and he confirmed more than once that the Claimant did not wish to proceed with either claim ) .What the Claimant is stating is that due to the Claimant’s disability the Respondent should have followed clause 5 of the Policy in dealing with his absence and should have considered “ reasonable adjustments” .And their failure to do so meant they were in breach of the policy and added a further layer of unfairness to the process.[9]The Respondent states that when they dismissed the Claimant it was clear that , inter alia, he was not suffering from a disability ( which he claims as a physical disability relating to chronic back pain ) and although he was not getting any better he was only using OTC medication to alleviate the symptoms and that there were no reasonable adjustments that could have been made to assist the Claimant ( and none he suggested) . Given his job as a bus driver with the obvious strains that might put on one’s back they had come to the end of a fair process at that point (24 January 2020) at which time the Clamant had been off with sickness for some 176 calendar days.[10]And so the issue of the Claimant’s disability remains disputed . The Respondent denies he had long term sickness related to a disability . In part because he was expected to be able to return to work even though he did not and in part because his medical reasons for absence varied. However, it is clear that the Respondent’s OH department classed his sickness as “ long term absence “ with “ an underlying condition” and so the Claimant believes the Respondent should have accepted their own occupational Health Guidelines and categorised the Claimant as disabled without the need for him to argue this, then or now. However as the position is disputed and as clause 5 ( if applicable ) of the Policy only applies , as do clauses 20 and 21 Equality Act 2010 , if the Claimant is disabled there is a need for further medical evidence to establish whether he was , in fact, legally disabled in accordance with Section 6 Equality Act 2010 ( which supersedes the DDA 1995 of course ).[11]This leads to the rather strange situation that the only stand-alone claim of discrimination is a failure to make reasonable adjustments in compliance with Clause 5 of the Policy or clause 20/1 Equality Act 2010 but the Claimant does not wish to include , as part of his dismissal , an allegation of direct or indirect discrimination based on his disability under ss13,15 or 19 Equality Act 2010.Which is reflected in the issues set out in separate case management orders. EMPLOYMENT TRIBUNALS BETWEEN Claimant MR K HAMID DANKALI Respondent LONDON UNITED BUSWAYS LIMITED Reconsideration Orders ON: 3 April 2021 Employment Judge Russell (sitting alone) Background Following a hearing on 17 December 2020 attended by Mr Ibekwe, Union rep for the Claimant and Mr Craven , Solicitor for the Respondent I gave a judgement on 18 December 2020 as follows . Judgment The Claimant’s claim of race discrimination and or harassment under s,9,13 and or 26 Equality Act 2010 are dismissed upon withdrawal by the Claimant. The Claimant’s claim of claim of automatic unfair dismissal under Reg 7 TUPE Regs 2006 and Part 10 ERA 1996 are dismissed upon withdrawal by the Claimant. The Claimant’s claims of unfair and wrongful dismissal and a failure to make reasonable adjustments based on his disability continue to a full hearing. Due to pandemic related delays causing a backlog in the Tribunal this Judgment ( with reasons ) was not promulgated and sent out to the parties until 5 March 2021 and on 9 March ( so in time for their application ) the Claimant applied for a reconsideration of the judgment by letter ( with reasons given and copied to the respondent so in accordance with Rule 71 of the ET rules ) of 9 March 2021. The Reconsideration Application The application was limited to a review/ reconsideration of the issue of the Claimant’s unfair dismissal complaint only by reference to paragraph 5 – 11 of the judgment reasons which paragraphs are reproduced below in bold italics. 5 The Claimant’s principal argument was that the Guidelines for Dealing with Long term Sickness Absence ( the Policy ) were inherited by the Respondent under TUPE in or around 2003 and were not taken [into] account by the Respondent . In particular in respect of clauses 5 and 9 . Clause 5 "DISABILITY" CASES In all cases of sickness absence, managers must consider whether or not the employee is "disabled'', within the meaning of the Disability Discrimination Act 1995 and managers should seek advice from HR in case of any doubt about this. If so, the requirements and procedures laid down in the Act will apply and must be followed. In particular, there is a duty to consider reasonable "adjustments" to enable the "disabled" employee to return to work, in their normal - or some other - capacity. This is a much more demanding and complex requirement than mere consideration of suitable alternative employment, and in all "disability" cases managers should consult with HR at every stage Clause 9 NOTICE Termination of employment on medical grounds is a dismissal and notice should be given. This notice is 1 weeks’ notice for weekly paid employees with less than two years' service and 4 weeks' notice for salaried staff with less than five years' service. For weekly paid staff with two or more years' service and salaried staff with five or more years' service, one weeks' notice is paid for each year of service (up to a maximum of 25 weeks). 6 This is what I said of the Policy after the hearing on November 9 “There was no evidence that this policy was being used by the Transferor at the time of the relevant transfer to the Respondent on or about 30 January 2003. Whether it has contractual effect or not as part of a collective agreement ( transferring over under Reg 5 TUPE along with the Claimant’s employment at that time ) or otherwise is unclear .It may be that it is simply part of a series of discretionary employment policies used by the Transferor . But I cannot make and do not make a finding about this given the lack of documentation available and in the absence of evidence” 7 It is clear that it is legitimate for the Claimant to argue this Policy applies as part of his unfair and or wrongful dismissal complaint . And the Claimant’s wrongful dismissal claim / breach of contract claim is straightforward as far as the issues are concerned. This is limited to claiming an extra 4 weeks paid notice under clause 9 of the Policy. He was employed from 18 February 2003 to 24 January 2020, so this is 16 full years and so claims 16 weeks’ notice under the Policy ( allegedly inherited by the Respondent) as opposed to the 12 weeks he actually received being his minimum statutory entitlement under section 86 ERA 1996. I had already decided on 9 November that this must be determined by the full tribunal and it will be . I observe the amount at stake is a relatively small sum of 4 weeks’ pay. This does involve considering the nature of the Policy claimed by the Claimant to be a collective agreement and whether it did pass over on any Transfer and whether it has contractual effect. 8 The disability part of the Claimant’s claim is harder to deal with given the Claimant is not seeking to suggest there was a stand-alone case of disability discrimination as far as the dismissal is concerned ( and I pressed Mr Ibekwe on this as I did in respect of the original claim that the dismissal was TUPE related and he confirmed more than once that the Claimant did not wish to proceed with either claim ) .What the Claimant is stating is that due to the Claimant’s disability the Respondent should have followed clause 5 of the Policy in dealing with his absence and should have considered “ reasonable adjustments” .And their failure to do so meant they were in breach of the policy and added a further layer of unfairness to the process. 9 The Respondent states that when they dismissed the Claimant it was clear that , inter alia, he was not suffering from a disability ( which he claims as a physical disability relating to chronic back pain ) and although he was not getting any better, he was only using OTC medication to alleviate the symptoms and that there were no reasonable adjustments that could have been made to assist the Claimant ( and none he suggested) . Given his job as a bus driver with the obvious strains that might put on one’s back, they had come to the end of a fair process at that point (24 January 2020) at which time the Clamant had been off with sickness for some 176 calendar days. 10 And so, the issue of the Claimant’s disability remains disputed . The Respondent denies he had long term sickness related to a disability . In part because he was expected to be able to return to work even though he did not and in part because his medical reasons for absence varied. However, it is clear that the Respondent’s OH department classed his sickness as “ long term absence “ with “ an underlying condition” and so the Claimant believes the Respondent should have accepted their own occupational Health Guidelines and categorised the Claimant as disabled without the need for him to argue this, then or now. However, as the position is disputed and as clause 5 ( if applicable ) of the Policy only applies , as do clauses 20 and 21 Equality Act 2010 , if the Claimant is disabled there is a need for further medical evidence to establish whether he was , in fact, legally disabled in accordance with Section 6 Equality Act 2010 ( which supersedes the DDA 1995 of course ). 11 This leads to the rather strange situation that the only stand-alone claim of discrimination is a failure to make reasonable adjustments in compliance with Clause 5 of the Policy or clause 20/1 Equality Act 2010, but the Claimant does not wish to include , as part of his dismissal , an allegation of direct or indirect discrimination based on his disability under ss13,15 or 19 Equality Act 2010.Which is reflected in the issues set out in separate case management orders. And so that the relevant parts of the documents under consideration are in one place I reproduce the Claimant’s argument here also in bold italics . The Claimant argues / contends as set out below –(i) That the construction of a contract is a matter / question of law;(ii) That the correct or appropriate construction of the contract, must be based upon the factors which were known to the Respondent employer at the point of making or reaching the decision to dismiss the Claimant;(iii) That the Claimant does not need or require to claim a free-standing complaint of disability in order to rely upon the particular term of the contract which he claims benefit or aid of;(iv) Otherwise, it would mean that the Respondent must be statutorily bound to stay or delay making any decision about termination of the contract (dismissal) if or once there arises a dispute about the question of disability of a relevant employee, in order to prevent or preclude the employee concerned from suffering prejudice or hardship of being dismissed without compliance by the Respondent of the relevant term / provision set out at paragraph 5 of the Judgment reasons;(v) Accordingly, the correct interpretation of the contract, must be that when / once the Respondent employer has Medical opinion or advice that the Claimant is likely to come under the EqA 2010 as a person with a disability, this is all the contract required for the Respondent to comply with the relevant provision;(vi) In the particular case of the Claimant, the Respondent’s own OHA advised or recommended to the Respondent that the Claimant is likely to be considered to be a person with a disability under the EqA 2010;(vii) Accordingly, this is / was enough to impose upon the Respondent employer to comply or cooperate with the relevant term / condition of the contract, and the Claimant does not have to prove such disability by having to be subjected to an actual Employment Tribunal proceeding to prove disability;(viii) In the particular case of the Claimant, the Respondent’s failure or refused to comply with the particular term or provision of the contract, which is engaged, is a matter / factor which goes towards the issues of whether or not the Respondent had a potentially fair reason for the dismissal, or otherwise whether or not the decision is unfair in the circumstance;(ix) Accordingly, whereas in the particular case of the Claimant, the Respondent wholly chose to ignore their own medical advice / recommendation and proceeded to dismiss without seemingly consideration the Claimant’s disability, then there has been an established breach of the contract, which without more goes towards the factors which the Employment Tribunal is / are supposed to consider in these proceedings. Accordingly, the Claimant contends that the Employment Tribunal is / was wrong to decide that the question of disability has to be established, before the particular term / provision can become engaged, irrespective or notwithstanding the medical advice or recommendation which was in front of the Respondent employer. Reconsideration Orders . 1. I have , in accordance with Rule 72 of the ET rules considered the Claimant’s application. Although the Claimant invited comment from the Respondents, I am unaware of any objection or other comment from them. My provisional view is that is that the reconsideration should be allowed to the extent set out below . 2. If the Policy is shown to have contractual effect then the obligation upon the Respondents was to consider whether or not the Claimant was "disabled'', within the meaning of [ s 6 of the Equality Act 2010]. 3. Whether the Claimant was or was not disabled under s 6 of the Equality Act 2010 is a matter for the Tribunal to determine at the full hearing but the Claimant need not prove he was so disabled for the provisions of clause 5 to potentially apply in the context of an unfair dismissal complaint if the Respondent is shown to have failed to comply with such provision when it should have done. 4. The wider conduct of the Respondent , to potentially include its compliance or otherwise with clause 5 of the Policy, will be considered in determining the issue of unfair dismissal under S98 ERA 1996 and the Claimant may refer to their reconsideration contentions (i) to ( ix) above in support of the unfair dismissal claim with the Tribunal determining the relevance and weight of such argument . 5. Whilst this affects the way the issues are framed it is not necessary to vary the judgement given on 18 December but only necessary to vary/clarify part of the reasons for that judgement , specifically that whilst the Claimant does have to show he was disabled at the relevant time to pursue his claim under section 20/21 Equality Act 2010 he may not have to do so to pursue his claim under s 98 ERA 1996 relating to his alleged unfair dismissal . 6. I am of the view that the reasons of the judgment can be considered varied accordingly as set out in the above orders and without the need for a separate hearing or a variation to the judgment itself unless the Claimant or Respondent object within 14 days of this order being sent out ( marked for my attention and copied to the other side under rule 92 ).If there is no objection then this reconsideration shall be reflected in the issues presented before the Tribunal by the parties at the full hearing. \ EMPLOYMENT TRIBUNALS Claimant: And Respondent: Mr H Dankali London United Busways Ltd t/a RPTV Dev London Heard by: On: 6 October 2021 Before: Employment Judge Nicolle by CVP Representation: Claimant: Mr J Neckles, trade union representative. Respondents: Ms R Blyth, solicitor. Open preliminary hearing Application by the respondent for the striking out of all of the claims being pursued Judgement The respondent’s application for the striking out of the claim is refused.[1]Extempore reasons were given to the parties but Mr Neckles requested written reasons.
Background
[2]This is an application brought by the Respondent for the striking out of all of the claims being pursued. It is brought under the five separate limbs of Rule 37. The application follows from a letter sent by the Tribunal at the Order of Employment Judge Spencer dated 22 July 2021. That letter directed that the full merits hearing listed to commence on 27 July 2021 should be vacated as it would appear that the Claimant is not actively pursuing his claim and his representative is unable to take instructions. It went on to state that the Employment Judge was considering striking out the claim because it is not actively being pursued. The Claimant was given a period of 14 days to indicate that he wished to proceed and that he has withdrawn the disability claim.[3]The Tribunal in a letter dated 8 September 2021 listed the case for a three hour hearing to be heard via CVP. The relevant facts are as follows. The Claimant was dismissed from his employment on 24 January 2020 following a sickness absence of 176 days. He did not appeal his dismissal. On 3 June 2020 he submitted his claim. There have been various previous case management hearings to include applications made by the Respondent for the strike out of various claims being pursued by the Claimant. It is unnecessary for me to detail those various case management hearings, judgments and reconsideration of those judgments.[4]It is relevant to confirm which claims remain extant. Mr Neckles confirmed that the only claims being pursued were for unfair dismissal and breach of contract. The reference to disability did not involve a freestanding claim under the Equality Act 2010 but rather a contention that for the purposes of his unfair dismissal claim the Respondent failed to give consideration as to whether the Claimant had a disability as referred to in clause 5 of a collective agreement dating from June 2008 entitled “guidelines for dealing with long term sickness absence”. There is a specific provision at paragraph 5 regarding disability. There is a dispute as to whether that collective agreement remained in force and whether it was contractually incorporated as part of the Claimant’s contract of employment as at the date of his dismissal.[5]In a letter dated 11 July 2021 to the Tribunal Mr Neckles summarised the position as it then existed. He advised the Tribunal that we have a current and ongoing emergency in the matter and proceedings in that we are seriously afraid that something may have happened to the Claimant or otherwise some kind of emergency is preventing him from being in contact with us. He advised that the Claimant had travelled to his home country of Eritrea in November 2020 and went on to say that they were extremely concerned about his wellbeing. He listed the apparently exhaustive efforts to contact the Claimant via a variety of means to include email, phone, WhatsApp, postal address, via ex-colleagues and even via the Swedish and Eritrean Embassies. Those attempts have been unsuccessful.[6]Mr Neckles said that he had had no communication with the Claimant either directly or indirectly since February 2021. Respondent’s submissions[7]The Respondent’s submissions in relation to why the claim should be struck out are on the basis that the matter cannot proceed in the absence of the Claimant and as a result of a lack of recent instructions from him to his Trade Union Representative. They rely on each of the five limbs of Rule 37 and set out why under each of those limbs the case should be struck out. Particular issues were highlighted in terms of the Claimant’s non attendance at the hearing and it being argued in effect that a continuation of a hearing where there would be no reasonable prospect of success was a waste of time, money and inconsistent with the overriding objective. Further issues potentially related to the Claimant not being able to demonstrate that he had a disability for the purposes of the collective agreement, should that be found to be applicable, and in relation to how remedy and mitigation would be assessed. Claimant’s submissions[8]Mr Neckles stated that it was entirely the Claimant’s prerogative as to whether he chose to give witness evidence. He says it would not wholly unusual for cases to proceed in the absence of one or other party. A position which I acknowledged to be the case particularly with Respondents who may be insolvent for example. He also says that it is possible for a claimant’s estate to continue a claim posthumously.[9]He states that the Respondent has already had one bite of the cherry in arguing that the claims have no responsible prospects of success. He refers to the hearing before Employment Judge Russell on 9 November 2020 and the resultant judgments dated 26 November 2020 and reconsidered on 17 December 2020.[10]He says that the Claimant has via his officers complied with case management orders but the Respondent has refused to disclose its witness statement. He says that the Claimant has already made full disclosure.[11]He says that the burden of proof is on the Respondent in terms of demonstrating the fairness of dismissal. He says there is no need for the Claimant to give evidence.[12]He says the Claimant gave instructions at the outset of the claim to do what is ever necessary without the need to revert and therefore says the lack of instructions is not an issue. Mr Neckles is not able to provide any written evidence as to the scope of his instructions and the unconditional authority he says has been bestowed upon him to take all actions necessary in the conduct of the claim. He says that is not how the union works, things are much more informal.[13]He says that only the Claimant will be prejudiced by his failure to attend to give evidence in terms of being able to demonstrate the existence of a disability and in relation to what, if any, compensation should be awarded should his claim succeed. Mr Neckles is not able to provide any written evidence as to the scope of his instructions and the unconditional authority he says has been bestowed upon him to take all actions necessary in the conduct of the claim. He says that is not how the union works, things are much more informal.[14]The Claimant has previously presented a detailed schedule of loss which involves seeking compensation over a period of 78 weeks. Mr Neckles confirmed that as far as he was aware the Claimant had not been able to mitigate his loss and had not received any benefits to which the Recoupment Regulations would apply.
Conclusions
[15]The starting point is to consider Rule 37 and the discretion which a tribunal has to strike out a claim. It is important that I do not revisit a decision previously made by Employment Judge Russell based on whether the underlying claims have a reasonable prospect of success. I have avoided doing so. My sole consideration is whether given the lack of communication from the Claimant this is a case where it would be appropriate to strike out the claim given the basis upon which Mr Neckles says it would continue to be conducted.[16]Looking in turn at each of the various limbs of Rule 37(1). (a) That it is scandalous or vexatious or has no reasonable prospect of success.[17]I do not consider the conduct to be scandalous or vexatious. Whilst I consider that there may be a limited prospect of success absent the Claimant’s attendance to give witness evidence I do not consider that it follows automatically that the claim has no reasonable prospect of success. It may well be that the claim is potentially weak but that is not in itself sufficient for it to be struck out. (b) That the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious.[18]It is not suggested that Mr Neckles in his conduct of the proceedings has been in any way scandalous, unreasonable or vexatious. Given that his position is that he has unconditional authority to take all actions necessary in the claim I do not consider any basis exists for this limb to be made out. (c) A party has not complied with any of these Rules or with an order of the Tribunal.[19]I find this more difficult as there have been various elements of the claim where arguably the Claimant has not provided full disclosure of evidence. Nevertheless, the position as now stated by Mr Neckles is that the Claimant has made full disclosure, he is not going to be providing any medical evidence as to the existence of disability, but rather relying on what he says is the Respondent’s failure to give consideration to whether disability potentially applied and the enhanced benefits which may therefore have arisen under a collective agreement should it be enforceable, and that failure to provide evidence of mitigation would be to the Claimant’s disadvantage. I am therefore not sufficiently satisfied that there has been a sufficiently serious failure to comply with Tribunal Orders that it would be justified to strike the claim out on this basis. (d) The claim has not been actively pursued.[20]At the outset I considered this to have been the most of likely ground for strike out given the acknowledged position that the Claimant has been incommunicado since February 2021. Nevertheless, based on Mr Neckles’ unequivocal confirmation that he has unconditional authority to take all steps in the claim, that the intention was to pursue the claim, that he was a participant in today’s hearing and has been involved in correspondence throughout I do not consider that it can be said the claim is not being actively pursued. It is true that it is being pursued in a highly unusual manner. That in itself gives rise to issues but to say the claim was not being actively pursued because it was being done on behalf of, rather than with the direct involvement of a claimant, would in my view be wrong. There will be occasions, for example, a claimant with a mental health incapacity who is not capable of giving instructions where the claim would be pursued absent their direct instructions. It may also be pursued by a deceased claimant’s estate. So, whilst unusual it is not wholly unprecedented and does not in itself provide an automatic reason why there should be a strike out. (e) That the tribunal considers it is no longer possible to have a fair hearing.[21]Whilst I accept the hearing will have unusual elements they will inevitably be to the Claimant’s disadvantage. The Tribunal will have to make findings of fact and conclusions and if necessary assess mitigation. Absent the Claimant that can only be to the his disadvantage but it does not mean that the hearing is not a fair hearing. Certainly as far as the Respondent is concerned it has the cards stacked firmly in its favour but it does not mean that it is not receiving a fair hearing.[22]The Claimant has the prerogative, as Mr Neckles argues, whether to give witness evidence or not, normally this is a right exercised or not in criminal proceedings rather than civil proceedings but nevertheless there is no absolute obligation on a party to give evidence. The fundamental principle is that each party has a discretion as to which witnesses it chooses to call, of course that normally would include the claimant, but there is no automatic obligation for it to do so. Final conclusion[23]Therefore, having carefully weighed up factors on what is in my view a marginal situation I have nevertheless found the balance of prejudice, after weighing all of the relevant factors, that it would not be appropriate to strike out the claim and therefore the claim should proceed and be listed for a hearing at the earliest available date to take place regardless of the Claimant’s attendance. In other words the non attendance of the Claimant would not be a reason for a further postponement.