Ms S Messi v Pret-a-Manger (Europe) Ltd: 2203613/2019
EMPLOYMENT TRIBUNALS
Case No 2203613/2019
Between
Ms S MessiClaimantPret-a-Manger (Europe) LtdRespondent
Before
Employment Judge GoodmanIn person for claimantMr O. Holloway (instructed by counsel) for respondentDate 4 March 2021
JUDGMENT
The race discrimination claim fails.
REASONS
Relevant Law
[1]This claim of race discrimination arises from a job interview on 20 June 2019 for a post as interim ledger assistant in the respondent’s accounts department. The claimant was unsuccessful. She is black. The successful candidate was white.[2]It has been agreed that it is not necessary to name the successful candidate in the proceedings - though his identity is known to the claimant – and in this decision he will be called SC.
Evidence
[3]To decide the claim we heard evidence from two former employees of the respondent who interviewed three candidates for the position: Mr. Hiren Pandya, who was to line manage the successful candidate, and Ms Indre Matiuskaite, the Finance Operations Manager. As she had not provided a witness statement, we relied on the claim form for her account. The respondent’s witnesses affirmed to tell the truth, and confirmed the content of their statements with small corrections (page numbers, and the fact that neither still worked for the respondent). The Tribunal asked questions of the witnesses to make sure that we understood the context of this selection process. The claimant, Sandra Patricia Messi, did not give evidence, (in circumstances described below), and declined to ask questions of respondent’s witnesses. She left the hearing before they were called.[4]There was a bundle of documents. It contained the CVs of the claimant and SC, the job advertisement and the job description which set out the experience Case No: 2203613/19 10.2 Judgment - rule 61 required, the interview notes, and correspondence with the claimant about why she had not succeeded. The claimant already had the job advertisement and job description as part of her job application, and she was sent the interview notes on 13 July 2019, when she asked for feedback on why she had not got the job.
Relevant Law
[5]Unknown to the respondent, the claimant had recorded the job interview on 20 June 2019, but when ordered on 4 March 2020 to send the recording and transcript to the respondent by 2 April 2020, she declined to do so, saying that she wanted only to play it the final hearing. She has not sent it to the tribunal. That evidence is not therefore before the tribunal.[6]The claimant had included information about her subsequent job search, to show mitigation. The bundle also included the claim form, the response, and previous case management orders. Claimant’s Application to Postpone Hearing[7]As noted, the claimant declined to participate, and so we will set out the history of the claim, and the claimant’s reasons for her decision.[8]The claimant presented her claim to the employment tribunal on 24 September 2019. She completed the claim form with a description of what occurred, and the reasons she was given for lack of success. The respondent filed a response denying there was any discrimination and gave a full account of the reasons for the decision in a four-page document.[9]There was a case management hearing on 4 March 2020 before Employment Judge James. The hearing record shows that the claimant did not attend at 2.15 pm, and that she had emailed the respondent’s solicitors that morning to say that she would not attend because she had three other hearings on the same day, including one at Bromley County Court starting at 10 a.m., and another employment tribunal hearing (although in fact that had recently been adjourned to a date in April 2020). She said that having three hearings on one day caused her anxiety and aggravated her existing mental health. The judge declined to consider strike out, as invited by the respondent’s counsel, but of his own initiative considered whether to make a deposit order. He indicated that on review of the claim form and response the claim had little reasonable prospect of success, but invited the claimant to supply information about her ability to pay by 13 March. At that time the claim was listed for hearing on the 9 and 10 July 2020.[10]On 27 May 2020 Employment Judge James made a deposit order. The claimant was to pay £250 by 10 July as a condition of being permitted to advance her claim. He noted that since 4 March the claimant had objected to the deposit order, saying she had evidence to support the claim, being the disclosure provided by the respondent’s representative, but she had not sent this to the tribunal. The respondent however did send documents the tribunal. After considering this and the claimant’s evidence of means Employment Judge James did make the order. t is not known to this tribunal whether the claimant paid the deposit, we proceed on the basis that she did. At the same time he postponed the final hearing, as due to Covid restrictions it was not at that time possible to hold three-person panel hearings remotely, and arranged a further case management hearing on 24 July 2020.[11]The claimant did attend that hearing. The case was listed for a three-day final hearing starting today. Disclosure had taken place some time ago. The bundle was to be prepared by 28 August and witness statements exchanged by 3 October 2020. A note was made that the claimant had requested a French Case No: 2203613/19 10.2 Judgment - rule 61 interpreter, and that she would need ‘more frequent breaks to her mental health issues’. Another note was made that her witness statement must contain a statement of the amount of compensation she is claiming and an explanation of how it had been calculated.[12]The claimant has never sent the respondent or the tribunal a witness statement. In September 2020, a month ahead of the exchange date, the respondent’s solicitor wrote to ask if she was ready, as she had said she was going to be away. When the exchange did not take place the respondent wrote to ask for an unless order. Reviewing the correspondence on 3 November, Employment Judge E Burns directed that unsigned witness statements could be sent as password protected documents and signed later. At that stage the claimant was still fit for work – the first fit note we have is dated 27 November. In January 2021 the claimant wrote to the tribunal complaining that the respondent’s representative kept “chasing applications for exchange witness statements when in any event it can be done 2- 3 weeks before the final hearing or even on the first day of the hearing and also seems to ignore the advice of my GP”. In February, she said that she had difficulty preparing a witness statement because she does not have a keyboard or a scanner and libraries have been closed since December. Yesterday the tribunal asked the claimant to send her witness statement to the tribunal, including a Skype address which I could access. She did not reply, but she did use the Skype address to copy me into a message to the respondent’s solicitor saying: “Your tactics will not work. I will wait to see what will happen in my absence and will take action accordingly. I will not be forced to attend the hearing which can aggravate my mental and physical health”.[13]On 16 February 2020 she asked for the hearing to be postponed on the grounds of mental health. This was accompanied by a GP fit note saying that she was unfit for work until the end of March by reason of anxiety and depression. In the hearing bundle are similar fit notes going back to the end of November 2020. The application was refused by Employment Judge James on 26 February. He pointed out that while unfit for work, she might be fit to participate in a hearing from her own home. The claimant has replied that her GP is not prepared to provide a further note.[14]Yesterday I emailed the claimant directly asking her to join the hearing this morning when we could discuss the postponement application, and explaining that it may be possible to conduct the hearing without a witness statement from her, using her claim form. This morning she joined the hearing soon after 10 am. I explored a number of matters with her to supplement the information provided to Employment Judge James, and to assess what would be best in the interests of justice. On her health, she said she had a disability, and asked what this was, she said it was sciatica. Later, she added that she had depression. She has been prescribed Sertraline (an anti-depressant), and takes Co-codamol for the back pain. I explored how long her condition was likely to last, explaining that if this hearing was postponed, it would be necessary to set a date for a new one. She said: “when the sicknote runs out”, and confirmed this was the end of March.[15]I explained to her that I was aware that she had participated in a case management hearing on 11 January 2021 before Employment Judge Walker on another claim, suggesting that despite the fit note at the time she could participate, though another London Central case management hearing had been postponed on 2 March 2020 because of her health, when it was noted by the judge that there three other similar claims that should be consolidated with it.[16]I explored the language issue with her. It is evident both from her written documents and emails, and listening to her speaking, that she writes and speaks fluent English, and sounds like a native speaker. She has attended school in Case No: 2203613/19 10.2 Judgment - rule 61 England since she was 14, left school at 16, and on the evidence of the CV has worked here continuously since 2000. She agreed her language was good, but said she needed an interpreter because she might not recognise technical legal terms. The tribunal said that any terms she did not understand could be explained, as many litigants in person who only speak English do not understand legal terms, and could also be explained in French, as the panel has some French language competence.[17]I was concerned that she was only able to participate by phone, having no other screen. I understand from emails in another case that this was raised by the tribunal in connection with an open preliminary hearing next week; the respondent had been asked to provide hardcopy bundles, which were delivered to her address and signed for in the name of “Messi”, but which the claimant said she had not received. In this case the respondent said they had tried to deliver hardcopy bundles, but been informed by Royal Mail that there was a redirect on the claimant’s address. The claimant told this tribunal that she lives at the address given, and does not know about the redirect, although, confusingly, she added that she was not going to give the respondent her address. The respondent proposed to courier the bundles to her again today so we could start tomorrow. Meanwhile she has had the electronic bundle for some time and so has had the opportunity to read it at leisure, even though it will be difficult to do this in the hearing. The tribunal notes that most of the few relevant documents in the bundle are items she has already seen, and that the relevant material was provided to her as long ago as July 2019.[18]She agreed she had seen the respondent’s two witness statements, which were sent to her after the postponement application was decided, but added that she had not “read them properly”. The tribunal stated that if the hearing went ahead, there could be an adjournment of one to two hours so she could read the statements properly and make a note of questions to ask the witnesses.[19]After hearing from the respondent, which objected to postponement because of delay now that the matter complained of was nearly 2 years ago, both witnesses having left their employment and now working for others, and that there has been no material change in circumstances since Employment Judge James refused the application on 26 February, the panel adjourned to discuss how to proceed.[20]We returned at 11 am to say that the hearing was not to be postponed, and gave brief reasons. There would be an adjournment for the claimant’s reading (the panel had already read both statements and the relevant documents, which are not extensive). At this point the claimant said that she did not agree, and she would not participate. She would go to the Employment Appeal Tribunal, and she left.[21]In view of the stated intention to appeal, we set out here the reasons for not postponing.21.1 The claimant’s health. She has been certified unfit for work by reason of anxiety and depression for just over three months. There is no indication of when she may be fit, and given her conduct in other respects on claims she is conducting in London Central employment tribunal, the tribunal is not confident that she will be fit next month. Judging by the frequency and lucidity of her emails to various respondents and the tribunal, the antidepressant medication is effective and she is able to read, write and reason. She may not be fit for work, but she is fit to conduct a remote hearing which focuses on a single job interview.21.2 In relation to only having a small single screen, there were very few Case No: 2203613/19 10.2 Judgment - rule 61 documents relevant. There could be pauses and adjournments to make sure that she had time to read witness statements, and check the documents referred to. Her conduct in relation to delivery of hardcopy bundles to accommodate her lack of a second screen for the hearing suggested some deliberate lack of cooperation, seeking to avoid a hearing, such that it was probably not worthwhile adjourning to the following day for a further attempt at delivery as she would still refuse to participate. There was the opportunity to do this, as the claim is listed for three days, one being set aside for deliberation and judgement, but we judged it more than likely we would be in the same position tomorrow morning, and with an interpreter booked.21.3 On the witness statement, she had known from last July that she had to write a witness statement by 3 October. She decided not to do this, and maintained she should send it just before the hearing. So any difficulty with lack of access to a computer to write it she has brought on herself; even so, there is no reason why she could not write it out by hand, as litigants in person used to do, and sometimes still do, and then post it or photograph it. Again, this lengthy period of failing to comply with the order to write or send her witness statement, which predates any doctor’s notes about her mental health, suggests that she is reluctant for the case to be decided. This is relevant to whether we believe the postponement is the right outcome: we are concerned that she will later apply to postpone any further hearing that is listed. In view of the narrow compass of fact on which this claim is based, we would be prepared to hear the case on the basis of the claimant’s oral evidence by question and answer to deal with points arising from the response and the respondent’s witness statements, and dispense with a witness statement as the claimant has been reluctant to provide one.21.4 In our judgement, she was able to participate fully in the hearing in English; had we doubted this we would have postponed the case to the afternoon, or more likely tomorrow, to arrange for the attendance of an interpreter.21.5 A decision about postponement has to be made in the light of the overriding objective to deal with cases justly. This includes seeing parties are on an equal footing, saving expense and avoiding delay, and making sure that measures are proportionate to the complexity and importance of the issues. The matter at issue is not complex but it is important. Cost is a factor, and what weighed with us that we might postpone until tomorrow, and resume after a further attempt at delivery, and an interpreter, and additional cost to the respondent and inconvenience to the witnesses, and still the claimant would absent herself so wasting additional costs. Delay is a particular concern in this case where the matter complained of was nearly 2 years ago. If it is true that the claimant has a recording of the interview, the frailty of human memory would be of less concern, but as she has never been prepared to disclose it, it is of little use. If human recollection is all the evidence available, the hearing should not be postponed, the more so when it is so uncertain when the prognosis may improve. Even if she does have a recording, it is still important that justice should not be delayed. Under article 6 of the ECHR the respondent as well as the claimant is entitled to a fair and public hearing of their rights and obligations within a reasonable time.21.6 Taken overall, the tribunal did not believe that the claimant was unable to participate fully in a hearing today, or tomorrow, if the start was postponed by a day. There were real grounds for fearing that the real reason for seeking a postponement was not the claimant’s inability to participate, but her reluctance to obtain judgement in her claim. Case No: 2203613/19 10.2 Judgment - rule 61
Findings of Fact
[22]The respondent placed an online job advertisement on 12 June 2019 for an interim ledger assistant to “support the delivery and completion of accounts payable; accounts receivable; cashbook and expenses activities”. The tasks included the processing of invoices from receipt to payment, ledger maintenance including statement reconciliation, property accounts upkeep and reconciliation, and working with management accounts to ensure that costs were allocated to correct accounts and on time. The deadline for applications for 14 June.[23]The claimant applied and submitted her CV. The respondent’s HR department reviewed the CVs and shortlisted 7 for possible interview. This selection was reviewed by Mr Pandya, whom the candidate was to assist, and his manager Ms Matiuskaite. Initially she rejected the claimant’s CV in the belief that the salary she expected (she said that she was currently on £31,000 p.a. and expected a salary of £32,000- £35,000) was too high, but Mr Pandya was attracted by her long employment record, as there have been a lot of staff turnover and he would like someone who would stay the full 12 months of the temporary post, and she agreed they could negotiate on salary. So the claimant made the cut.[24]Mr Pandya telephoned her on 19 June asking her to come in for interview. The claimant has described this on the claim form as a first interview, but on the evidence it lasted two minutes 26 seconds and can only have been a check she was still interested and could attend.[25]The respondent interviewed three candidates for the job on 20 June 2021.[26]The witnesses said the claimant presented as confident and professional and gave some good answers. There was initial chat about travel, when the claimant explained that she done a great deal of travelling. This prompted closer examination of her employment record, as on the face of the CV t she has been continuously employed art from the year 2000, and had worked for her last employer from 2014 to the present. Probing showed that she had worked for her last employer from October 2014 to October 2017, possibly with some gaps in that, and then for a second period from February 2019, but was no longer employed. In another question about her CV, which indicated that she had worked in New York, where Pret has another office, the claimant laughed and said she had never worked in New York. Mr Pandya said he found her reaction “bizarre” and “a bit weird and noticeable”, as if she was saying “why are you asking me that question”. Both were concerned that she was trying to mislead, or if, as she said, she had not updated her CV, that she lacked attention to detail in a job where attention to detail is extremely important. They also explored her experience. It seemed that in her last employer she mainly dealt with expenses, which was 20% of their job. She had little experience of accounts payable, 40% of the role, and none of accounts receivable (15%) or of cash (25%). Within the interview, all candidates were asked what they thought their weak points were. The claimant said that her weakness was that if she emailed someone and they did not reply she would then go to see them to insist. The interviewers have some concern that this was not a good fit with Pret culture, which was to be open and friendly. Both thought she was a good candidate, subject to these reservations.[27]SC, the successful candidate, had not got the length of experience of the claimant, but he had a much broader experience, it was continuous, he could cover all the areas required and looked forward to bigger reconciliations to work on. No concern arose as to the accuracy of his CV. In answer to the weakness question he said he sometimes got frustrated with those who are not pulling their Case No: 2203613/19 10.2 Judgment - rule 61 weight at work, but he dealt with this by escalating issues in private, and with respect.[28]The third candidate, also unsuccessful, was a woman of Vietnamese origin. Her experience was not as extensive as SC.[29]Mr Pandya said the job was “pretty full on” and he needed someone who could cover all areas. If they had not had a candidate with the right range of experience they could have trained the claimant on the gaps.[30]On 21 June, SC was offered the job on a salary of £26,000 per annum. The claimant and the third candidate learned they had not been successful.[31]The following week the respondent posted an advertisement for a ledger assistant , a permanent role. The claimant did not apply, but believed her CV should have been considered for this role. Ms Matiuskaite told us it was not practice to go back to consider the suitability of unsuccessful candidates. On this occasion the successful candidate was a white man.[32]Mr Pandya’s evidence was that at the time the team included two people of Asian origin, two British people, one black and one white, one white French person, a Lithuanian, and a Romanian. The evidence of the documents is that SC is from Poland.[33]On 26 June the claimant made a subject access request for the interview notes and the reasons for not sending her to the next stage. She also asked the salary and for interview feedback. She was sent the notes on 12 July together, with a two page statement of reasons. After a detailed analysis of her answers at interview they gave three reasons offering the role: her limited experience, that some of her answers “didn’t meet the Pret behaviours” as a friendly, collaborative and equal team, and the inconsistencies and misleading information in the CV.[34]The claimant replied that she would shortly start a tribunal claim because she believed she was not offered the role due to race. Saying someone did not have the right fit was discrimination on grounds of race. She said “I have recorded the interview and the notes you sent me are malicious and dishonest”. She was going to refer the matter also to the Information Commissioner’s office, as there was no note of the telephone call on 19 June.[35]In December 2019 the claimant informed the tribunal that she was still looking for work.
Relevant Law
[36]The Equality Act 2010 prohibits direct discrimination at section 13: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[37]Sex and race (race as defined includes nationality) are protected characteristics. The treatment invites comparison with either an actual person (“treats”), or a hypothetical comparison (“would treat”). The protection extends to people applying for jobs as well as those already in work.[38]When considering whether less favourable treatment was “because of” a protected characteristic, this means making a careful evaluation of the respondent’s reason or reasons for the less favourable treatment (here, offering Case No: 2203613/19 10.2 Judgment - rule 61 the job to SC and not the claimant). This is in essence a finding of fact, and inferences to be drawn from facts, as a reason is a set of facts and beliefs known to the respondent - Abernethy v Mott, Hay and Anderson 1974 ICR 323 CA, and Kuzel v Roche Products Ltd (2008) IRLR 530, CA. The real reason may not be the label attached to it by the employer, nor the reason advanced by ether party. It is for the Tribunal to make a finding – Blackbay Ventures Ltd v Gahir (2014) ICR 747.[39]Because people rarely admit to discriminating, may not intend to discriminate, and may not even be conscious that they are discriminating, the Equality Act provides a special burden of proof. Section 136 provides: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (2) But subsection (2) does not apply if A shows that A did not contravene the provision.”[40]How this is to operate is discussed in Igen v Wong (2005) ICR 931. The burden of proof is on the claimant. Evidence of discrimination is unusual, and the tribunal can draw inferences from facts. If inferences tending to show discrimination can be drawn, it is for the respondent to prove that he did not discriminate, including that the treatment is “in no sense whatsoever” because of the protected characteristic. Tribunals are to bear in mind that many of the facts require to prove any explanation are in the hands of the respondent. Anya v University of Oxford (2001) ICR 847 directs tribunals to find primary facts from which they can draw inferences and then look at: “the totality of those facts (including the respondent’s explanations) in order to see whether it is legitimate to infer that the actual decision complained of in the originating applications were” because of a protected characteristic. There must be facts to support the conclusion that there was discrimination, not “a mere intuitive hunch”. Laing v Manchester City Council (2006) ICR 1519, explains how once the employee has shown less favourable treatment and all material facts, the tribunal can then move to consider the respondent’s explanation. There is no need to prove positively the protected characteristic was the reason for treatment, as tribunals can draw inferences in the absence of explanation – Network Rail Infrastructure Ltd v Griffiths-Henry (2006) IRLR 88 - but Tribunals are reminded in Madarrassy v Nomura International Ltd 2007 ICR 867, that the bare facts of the difference in protected characteristic and less favourable treatment is not “without more, sufficient material from which a tribunal could conclude, on balance of probabilities that the respondent” committed an act of unlawful discrimination”. There must be “something more”. Discussion and conclusion[41]What has the claimant proved? The starting point for her claim is that she is black and the successful candidate was white. She adds: “I was informed that my application was unsuccessful because they believe I was aggressive in one of the question which I was asked which is not true and this is stereotyped due to my race by this manager”. Nor did she believe that she did not have relevant skills and experience, otherwise she would not have been called to the interview in the first place. She had also been told that they would train the successful applicant in all aspects of the role. It was also “absurd and totally untrue” that there were inconsistencies and misleading information on her CV. She concluded by saying that the manager who interviewed her had “harassed, stereotyped, discriminated and victimised because of my race”. Case No: 2203613/19 10.2 Judgment - rule 61[42]We considered whether the respondent saying she was not a good fit was evidence of a stereotypical attitude that black people are aggressive. Hypothetically, it can be, but on the evidence of the interview the claimant’s reply to the weakness question about chasing colleagues who did not answer immediately was the basis for their concern about “good fit”, given their aim of a friendly and collaborative team. They already had one black person in the small team, so another black person could well be a good fit.[43]As for harassment and bullying, the claimant has never given any detail of the behaviour complained of, and it is hard to deduce from the evidence we do have of what went on the interview. Had the claimant been prepared to disclose her recording of the interview, or explain in a witness statement or in this hearing what she meant, it would have been possible to make some findings. As it is, she has the evidence, but has not been prepared to set out what happened that amounted to harassment or bullying. There is no evidence on which we can make such a finding.[44]The context the interview does not assist the claimant. The team was small, so as a sample may not be representative, but even so two of the seven were not white.[45]As for experience, on the CV, the claimant had only worked on expenses from 2014. She had some prior experience on Accounts Payable and in posting invoices. She was nevertheless invited to interview. Absent other factors, an inference could be drawn that discovering she was black altered their assessment. The respondent established at interview that her experience of accounts payable and receivable was not extensive. The claimant has not supplied evidence to show their assessment was wrong. In any case, her experience may have been adequate, but SC’s was better. An employer is entitled to prefer stronger and wider experience. If there had not been an interviewee with the range of experience they wanted they might have decided to take on the claimant and train her, but they did not have to.[46]The respondent decided to interview, despite her salary expectations, because of her long and solid employment record. This turned out to be more apparent than real, with a long gap in the time claimed with her last employer, a misleading statement that she was still employed, and a misleading claim to have worked in New York which she laughed off. There may have been reassuring explanations for these, but the claimant has not provided them. Given some reason for unease about the reliability of her claims to experience, they were entitled to prefer a candidate whose experience was not open to doubt in the same way.[47]The respondent’s reasons for deciding she was good enough to interview, but then preferring another candidate were in our finding real, based on the claimant’s answers at interview, and would have justified offering the job to SC if she had been white. She was good; he was better. We concluded that the difference in race had nothing to do with SC being offered the job and the claimant not. Accordingly the claim that the respondent discriminated does not succeed. _____________________________ Employment Judge Goodman Date: Case No: 2203613/19 10.2 Judgment - rule 61 JUDGMENT and REASONS SENT to the PARTIES ON . 05/03/2021. . FOR THE TRIBUNAL OFFICE Case No: 2203613/2019 10.2 Judgment - rule 61 EMPLOYMENT TRIBUNALS Claimant: Ms S. Messi Respondent: Prêt-a-Manger (Europe) Ltd London Central 28 June 2021 Employment Judge Goodman Mr. D. Carter Mr. P. de Chaumont-Rambert RULE 70 RECONSIDERATION The order whose text appears below was sent to the parties on 29 June. It has been brought to my attention that the order itself has an error of arithmetic in the calculation of the balance payable by the claimant after allowing for the deposit she paid. I have reconsidered the decision on my own initiative under rule. It is in the interest of justice to vary it to correct the error. The variation is made by striking through the wrong figure. The correct figure has been added and underlined. _______________________________ Employment Judge Goodman 30th June 2021
Relevant Facts
[1]The claimant conducted the claim unreasonably, and is ordered to pay the respondent’s costs in the sum of £15,000.[2]The deposit of £250 is to be paid to the respondent’s solicitor in part Case No: 2203613/2019 10.2 Judgment - rule 61 payment, and the claimant is to pay the balance of £12,500£14, 750 to the respondent’s solicitors in 28 days.[1]Following a hearing on 4 March 2021 the tribunal dismissed the claim of race discrimination in relation to a job application. The judgement with written reasons was sent to the parties on 5 March 2021.[2]On 25 March 2021 the respondent applied for an order that the claimant pay the costs of the case. They do so on two grounds, first that the claimant conducted the claimant unreasonably, including the making of a deposit order in May 2020, second that the claim had no reasonable prospect of success.[3]By rule 77, a tribunal can make a costs order either at a hearing, or based on written representations. Neither party has asked for a hearing, and the panel has reconvened today to discuss the parties’ written representations. As before, the claimant is not represented, and the respondent is represented by solicitors.[4]Unlike in the courts, costs in the employment tribunal do not follow the event. Instead, one of the conditions in rule 76 has to be fulfilled, and then the tribunal has to exercise discretion whether to make an order. Rule 76 says: When a costs order or a preparation time order may or shall be made 76.—(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that—(a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.. The Parties’ Submissions[5]The respondent relies on both (a) and (b), and says the claimant both acted unreasonably, and brought a claim that had no reasonable prospect of success.[6]The respondent’s application dated 25 March 2021 sets out the chronology and in essence argues that conduct was unreasonable in relation to rule 76(1)(a) in a number of ways. First, the claimant has always stated that she had a recording of the contested job interview, but has never disclosed it, although ordered to do so. Second, she did not file a witness statement, contrary to order. Third, she was twice made a drop hands offer, that if she withdrew the claim the respondent would not seek costs, on 25 February 2020 and 22 June 2020. Fourth, by failing to engage with the orders made, and in her behaviour over delivery of the hearing bundle, she increased the costs the respondent’s solicitors had to incur. Lastly, she engaged in accusatory and threatening correspondence.[7]In relation to rule 76 (1) (a) the respondent also relies on the deposit order made 27 May 2020, and argues that the claimant’s claim failed for substantially as the same reasons as those anticipated by Employment Judge James in his reasons for finding then that the claimant had little reasonable prospect of success. Case No: 2203613/2019 10.2 Judgment - rule 61[8]Responding to the application, the claimant states (email 13 April 2021) that she relies on the EAT decision in Cox v Adecco UKEAT/0339/19, judgement 9 April 2021, which overturned a preliminary decision to strike out a claim because the judge who did so had not been able to properly identify what the issues were, in particular in relation to a number of protected disclosures. The case concerns a strike out, and it was suggested that a deposit order may have been an alternative, but in paragraph 34 adds that similar issues may apply where deposit orders are made.[9]The claimant does not go into detail on the alleged unreasonable conduct, but asserts that the respondent acted unreasonably in failing to engage in conciliation (email 25 March 2021). She also says that she is on universal credit (UC), and has no savings, and would not be able to pay any order made (email 6 April 2021). A statement of UC payments from December 2020 to April 2021 was attached. Relevant Facts[11]The claim is about a job interview in June 2019. The claimant did not get the job. She asked for feedback, and was sent several pages of information on the reasons for her lack of success. In her claim presented 24 September 2019 she alleged this was by reason of race discrimination. A response was filed 4 December 2019 asserting the reasons for selecting another candidate out of the three people interviewed, namely a more reliable employment record, and interview answers suggesting she would not be a “good fit” with the respondent’s office culture. There was a preliminary hearing on 4 March 2020 to decide an application by the respondent for an order striking out the claim on grounds that it had no reasonable prospect of success, which she did not attend because she said she had another hearing that day. By letter the claimant was given permission to use a covert recording she had made of the job interview, provided it was disclosed to the respondent by a particular date. Having given preliminary reasons for making a deposit order, Employment Judge James adjourned a final decision so that the claimant could provide evidence of ability to pay (though she did not) before making a deposit order, dated 27 May 2020, that the claimant had little reasonable prospect of success, and should pay £250 as a condition of proceeding. There was a further case management hearing on 24 July 2020, which the claimant did attend (but for Covid it would have been the final hearing) , when a revised timetable of orders was made, and the final hearing was fixed for three days starting 4 March 2021. The claimant did not then send a witness statement in October 2020, as ordered, and Employment Judge Burns directed on 3 November that the respondent disclose theirs, with a password so the claimant could open them when she had served hers. Later that month the claimant said in her first fit note saying that she was unfit for work by reason of depression, anxiety and panic attack. She has sent similar notes since then. On 26 February Employment Judge James refused an application to postpone the final hearing. The claimant attended the hearing on 4 March 2021 to renew her application, but left the hearing when it was refused, and the evidence was heard without her. Further details of this are set out in the judgement and written reasons of 5 March 2021. In occasional emails to the tribunal and the respondent the claimant had suggested that disclosure of the witness statement and recording would only be made nearer the hearing, despite the orders made, but in fact she has never disclosed either a witness statement or the recording. On 4 March 2021 the tribunal offered to hear her evidence without a witness statement, as the claim form was reasonably detailed, but the claimant left the hearing before her evidence could be taken.[12]Employment Judge James’s record of the reasons for making a deposit order shows additional evidence of the claimant’s uncooperative approach to tribunal orders. Discussing the fact that as late as the end of May 2020 she had not provided information about her ability to pay, as requested in March, and the claimant’s objection to the respondent’s analysis of her ability to pay without giving any information herself, the judge commented: “the claimant appears … to be assuming that she can avoid the deposit order being made by being uncooperative. If that is the case, she is mistaken”. Case No: 2203613/2019 10.2 Judgment - rule 61 12. The tribunal has seen emails the claimant sent from time to time during the course of the case, which the respondent says are accusatory and unreasonable conduct. In March 2020 she said that the respondent’s statement about salary expectation and working in New York was libellous, quoting the Defamation Act. In June 2020 she threatened the respondent with the SRA, the police and the legal ombudsman, in relation to their correspondence, and we can see that she did in fact she did copy to the Metropolitan Police an allegation that the respondents were engaged in harassment victimisation and bullying and causing anxiety by their correspondence. Later she said she was going to block the respondent’s emails, and respondent replied that they would continue to email in relation to compliance with orders and blocking was unreasonable conduct. Sometimes tribunals read emails from solicitors to another party which are high-handed and intemperate, but this respondent’s emails seems to us to be reasonable in tone and factual in content. They could not be described as bullying, even if what they said from time to time (for example, that her claim had little reasonable prospect of success) may not have been what she wanted to hear.[13]An unexpected feature that has come to light since the decision of 4 March 2021 is that the claimant did not in fact pay the deposit when the order was made. She was ordered to do this by 8 July 2020. When she appeared at the hearing on 24 July it must have been assumed that she had paid, otherwise she would not have attended. But it does not seem that any check was made with the Bristol payments office on this, perhaps because of the administrative difficulties caused by Covid. After the final (March 2021) decision was sent to the parties, which mentioned that it was not in fact known if the claimant had paid the deposit, the claimant then dispatched a payment of £250 to Bristol, and there was then some frantic, and from the claimant’s side, unpleasant correspondence, resulting in confirmation that the deposit had been received and paid in on 7 April 2021. If she did not pay until 7 April 21, her claim had been dismissed in July 2020. There is a possibility that she did make a payment before 7 July 2020 and it was misdirected; the respondent’s bill of costs records emails from the claimant of 8, 13 and 29 July saying she had paid the deposit, but the claimant has not said so in the recent post-hearing correspondence, and if she had made a payment she must have known it had not been cashed or acknowledged. It probably does not matter. She has always behaved as if it had been paid on time. When attending the hearings on 24 July 2020, and 4 March 2021, she never expressed surprise that the claim was going ahead because she had not paid the deposit, and she has never mentioned this in the correspondence. By not stating she was not paying, or had not paid, the respondent has assumed she had paid, and so has incurred costs defending the claim.[14]As recorded in the reasons dated 4 March 2021, the information available to the employment tribunal, now backed by disclosure of the relevant emails, indicates the claimant has deliberately avoided and obstructed service of the hearing bundle. She has not explained why the signature in the name of Messi acknowledging receipt of the bundle delivered, which she said she did not receive, is not authentic. A further bundle was returned by Royal Mail because, it was said, a redirect had been put on that address. The claimant told the tribunal she still lived at the same address, while at the same time as saying she was not going to reveal her address, which is of course on the claim form. She has had the bundle in electronic form, indeed she requested it in this form, and it was the tribunal that wanted her to have a hard copy because she lacked a second screen for a remote hearing. To this tribunal it looks very much as if the claimant was being difficult for the sake of it and to obstruct or prevent a hearing. Discussion - Was the claimant’s conduct unreasonable?[16]In our view, it was. She deliberately postponed writing a witness statement, saying she would do so nearer the hearing, but never wrote one, despite reminders. She obtained permission to rely on the covert recording, but has not disclosed it, whether before or after the deadline set for doing so. She has caused the respondent added cost and difficulty in their attempts to send her a hardcopy bundle. In these respects she has been uncooperative in the respondent’s reasonable attempts to prepare for a hearing, while doing nothing herself, to the extent that the tribunal strongly suspects that she may Case No: 2203613/2019 10.2 Judgment - rule 61 never have intended to go to a final adjudication of her claim. As for the correspondence, we could overlook aggression and threats as an expression of nerves on the part of a nervous and unrepresented litigant, but knowing that she has brought a number (at least six) claims in this employment tribunal and in other tribunal regions from time to time, we are less inclined to be sympathetic, as she must have acquired some knowledge of the steps necessary to bring a claim to hearing. The aggressive tone however is not what weighs with us in finding her conduct unreasonable. It is the complete lack of cooperation, whether before or after she obtained doctor’s notes saying she was not fit for work. Parties to Employment Tribunal litigation are required by rule 2 “to assist the tribunal to further the overriding objective and in particular to cooperate generally with the other parties and with the tribunal”, and the claimant was specifically reminded of this in Employment Judge James’s order of March 2020. It seems that it fell on deaf ears. The deposit order[17]The order was made under rule 39, which provides: (5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order—(a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and(b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.[18]The reasons for the making the deposit order were(1) that the claimant had not said in her claim form what the “irrelevant questions” indicating race was the reason for not selecting her were,(2) that if they were about sickness absence they did not relate to race,(3) that the respondent’s case that when they said she did not fit with their culture it did not appear to amount to negative stereotyping but to a reasonable concern, in the light of her answer to the question about how she would interact with colleagues, lastly,(4) that the successful candidate seemed better qualified. In the light of those reasons he found she had little reasonable prospect of establishing that race was the reason she was not appointed.[19]These are strikingly similar to the reasons given by this tribunal a year later. We had the interview notes and the application forms. We were able to question the witnesses with a view to seeing if their ostensible reasons were backed up in fact. We did not of course have anything more from the claimant to contradict their evidence, but that was because she had not made a witness statement or disclosed the recording.[20]In Cox the Employment Appeal Tribunal overturned a strike out order on the basis that the issues had not been clearly defined at the stage that it was made. That claim concerned a public interest disclosure where there are a number of legal issues to be defined and established before a claim can succeed, and the judge making the deposit order had not grappled with the complexity. In this case however, the single issue – was race the reason why did the claimant did not succeed at interview - had a narrow compass of fact, and concerned only why the respondent chose SC and not the claimant; the tribunal had only to consider what facts had been proved, whether inferences could be drawn from those facts, and whether race played any part in that decision. The issue was clear from the pleadings, and from the case management order of 4 March 2020. In any case, if the claimant had thought the deposit order had been made wrongly, without clearly identifying the issues to be decided, her proper course was to appeal it at the time, not to wait another year, until after the final hearing and after the respondent had applied for costs. The order sent to the parties on 27 May 2020 makes clear (paragraph 5) that it provides “a warning to the claimant as to costs”.[21]As the claimant failed for the same reasons as the deposit order was made, but chose to continue her claim without providing evidence that might improve her prospects of success, it follows that she has conducted the claim unreasonably. Case No: 2203613/2019 10.2 Judgment - rule 61[22]In view of this conclusion we do not need to consider the alternative ground that the claim had no reasonable prospect of success. In the absence of the recording, or the claimant’s account of why she says the respondent’s witnesses are wrong, it does look as if there was no reasonable prospect. Discretion[23]Having concluded the claimant has met the threshold in rule 76(1) for making an order, we have to consider whether in all the circumstances we should make one.[24]Obviously, we must consider her ability to pay. She has no dependants. She has not said whether she loves in rented accommodation or her own, but the bill of costs itself shows that the respondent made a search of the Land Registry and could not find her registered as owner of the address where she lives. She has not said whether she is earning or not, only that she is in receipt of Universal Credit. The DWP letter she had supplied shows that she was being paid £ 725 per month on 4 December and 4 January, and £ 648 on 4 February 2021. There was no payment on 4 March, and only £175 on 4 April. We understand that Universal Credit is likely to be adjusted in arrears. This suggests that the claimant was earning in February or March 2021, which is why her benefit payment sharply dropped. This is in a period when she was, on her account, unfit for work and too ill to attend the hearing. It appears from the recent online interim relief judgment of Bristol Employment Tribunal, sitting at Southampton, (1401285/21) that the claimant was an agency worker supplied to Serco in March 2021, and was dismissed from that job on 1 April 2021. This suggests that if unemployed now, she has been working recently, and has some earning capacity. 24. The claimant is now aged 41. She may not have much income to spare now, whether in or out of work, but she has the ability to earn in coming years, and may come into money too. The respondent can enforce judgment and have that suspended until her circumstances change, or the claimant can pay by instalments.[25]We have already concluded from the claimant’s conduct of the claim that in all probability she did not want to bring it to a hearing. In so doing, she kept this hanging over the respondent. The evidence was growing stale. The respondent’s witnesses had both left the respondent’s employment and had had to get time off to appear. She has complained that the respondent acted unreasonably in failing to negotiate, so she hoped to settle the claim while it was undecided. A claimant may hope for a settlement, but if proceedings are brought, they must be heard if it is not settled. The tribunal has considered, though without being able to give the conclusion, that the claimant’s conduct at least suggests that the recording of the interview she says she made does not in fact contain anything contradicting the respondent’s account, as she had everything to gain by disclosing it, and it was a bluff. Making a claim to obtain a settlement, without any intention of taking it to a final hearing, is an improper use of the tribunal process, and to be discouraged.[26]The claimant understood from the making of the deposit order that by continuing the claim she was running the risk of costs. The respondent had made her two proposals to walk away without making application for costs on 25 February 2020 (before incurring the costs of the preliminary hearing) and on 2 June 2020 -significantly, after the deposit order was made -and she rejected both. She was therefore well aware of the risk. Nothing in her submissions shows she did not understand, or had any good reason for continuing.[27]Last, this is not the only claim she has made. There are five, past and present, recorded in London Central. One of these has recently been transferred to London East, where there are pending claims against two other respondents. One London Central was dismissed in June 2018 after she did not attend a preliminary hearing. One other was struck out. There have been unsuccessful appeals to the Employment Appeal Tribunal. Another claim was withdrawn. A group of claims against 9 claimants was struck out in London South in 2020, and, as noted, there is current claim in Bristol. The claimant should by now have acquired some knowledge of the rules and of how parties are expected to conduct their claims. That is a factor suggesting that making a costs order in this case Case No: 2203613/2019 10.2 Judgment - rule 61 may deter her from bringing claims of little merit, as it will bring home to her that while tribunals are generally costs neutral, that does not apply where a party is unreasonable or uncooperative. Making a costs order does not discourage her from bringing claims of substance, and it may encourage her to comply with orders in those claims, and cooperate in preparing cases for hearing. It is an added reason for exercising discretion to make an[28]The tribunal considers she has in this case wasted tribunal time and respondent’s costs by the way she has conducted the claim, and when she knew she ran the risk of a costs order. There is no good reason not to make an order, and some features suggesting we should. An order should be made. Amount of Costs[29]The respondent’s bill of costs totals £27,294.61. This is without VAT, which has properly been excluded given that the respondent itself is registered for VAT. They have caped the claim at £20,000, to bring it within the limit for summary assessment.[30]Within that total are counsel’s fees of 4,068.75, of which £3,000 is for the brief delivered for what was expected to be a three-day hearing, although in the event the case concluded in one day. That is hard to reduce when counsel will have had to prepare on the assumption that the claim was going ahead. The rest is for one preliminary hearing and an advice.[31]There is some duplication, or else very slow working. For example, drafting the costs application comes out at £1,300 for a fee earner charged out at £200- £275 per hour. It also took, apparently, 1 hour 36 minutes to draft a chronology and cast list in a case about one job interview, which is improbable or unreasonable. There is 11 hours 36 minutes claimed for drafting 2 witness statements and making some changes after meetings, which does not include meeting the witnesses, and another 7 hours for travel to see them. They are comprehensive statements, but the time recorded is excessive for the task.[32]Of course time can be wasted when events occur piecemeal and the file has to be revisited, which might account for 4 charges of 6 minutes just to read and file the early conciliation certificate, but overall the tribunal decided to allow £15,000 in total. Taken in the round, that is fair to the respondent as between the parties, and within range of an amount the claimant can pay, later if not now.[33]The deposit the claimant paid under rule 39 will be paid to the respondent, and the claimant must pay the rest to the respondent’s solicitors direct. Case No: 2203613/19 11.6C Judgment – Reconsideration refused – claimant - rule 72 EMPLOYMENT TRIBUNALS Claimant: Ms. S. Messi Respondent: Prêt-a-Manger (Europe) Ltd London Central Employment Judge Goodman[1]On 29 June 2021 the parties were sent the decision of the tribunal panel that had heard her discrimination claim, ordering her to pay the respondent’s costs in the sum of £15,000.[2]Later that day the claimant emailed the tribunal applying for reconsideration in these terms: Good Morning ET Asking for reconsideration and I believe the same judge who decided to go ahead with the postponement is the same judge who did not consider my affordability to pay knowing my circumstances despite sending it to it. I am not able to pay this at all and if the respondent representative comply me to do so, I will again send evidence as such to the court and ET Very bias decision by the judge. I will also take this to the EAT S[3]The email subject line of the email said: Asking for RECONSIDERATION based on my circumstances that the same judge did NOT consider.[4]This email was forwarded to me yesterday. Case No: 2203613/19 11.6C Judgment – Reconsideration refused – claimant - rule 72
Relevant Law
[5]Under the Employment Tribunal Rules of Procedure 2013 a request for reconsideration may be made within 14 days of the judgment being sent to the parties. By rule 70 a Tribunal “may reconsider any judgment where it is necessary in the interest of justice to do so”, and upon reconsideration the decision may be confirmed varied or revoked.[6]Rule 72 provides that an Employment Judge should consider the request to reconsider, and if the judge considers there is no reasonable prospect of the decision being varied or revoked, the application shall be refused. Otherwise it is to be decided, with or without a hearing, by the Tribunal that heard it.[7]Under the 2004 rules prescribed grounds were set out, plus a generic “interests of justice” provision, which was to be construed as being of the same type as the other grounds, which were that a party did not receive notice of the hearing, or the decision was made in the absence of a party, or that new evidence had become available since the hearing provided that its existence could not have been reasonably known of or foreseen at the time. The Employment Appeal Tribunal confirmed in Outasight VB Ltd v Brown UKEAT/0253/14/LA that the 2013 rules did not broaden the scope of the grounds for reconsideration (formerly called a review).[8]When making decisions about claims the tribunal must have regard to the overriding objective in room 2 of the 2013 regulations, to deal with cases fairly and justly, which includes ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, and seeking expense.[9]As to who should reconsider the judgment, Rule 72(3) says: Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part. Discussion and Conclusion[10]It is practicable for me to make the decision. The claimant is aggrieved by the hearing on 4 March continuing after she left when her postponement application did not succeed, and has indicated she is appealing. I have not seen any notice of appeal she has filed and do not know if bias is alleged or on what grounds. In any case a bare allegation of bias does not make it impracticable for me to reconsider. If grounds were shown I should make a reasoned decision on recusal, but they are not. Case No: 2203613/19 11.6C Judgment – Reconsideration refused – claimant - rule 72
Relevant Facts
[11]The grounds given in the claimant’s 29 June email are:(1) her ability to pay was not taken in to account and(2) the judge was biased.[12]On ability to pay, the written reasons set out what information was available to the tribunal in the form of the claimant’s emails, and the panel considered what she had told us, and what the respondent had found about home ownership. Her means were taken into account, and notwithstanding her limited resources we made the order for the reasons given.[13]On bias, the claimant makes the allegation without explaining why. A bare allegation is not grounds to reconsider.