Mr A G Badita v Roofoods Ltd (Sued as Deliveroo plc) and others: 2204016/2022 and 2204017/2022

EMPLOYMENT TRIBUNALS

Case No 2204016/2022, 2204017/2022

Between

Mr A G BaditaClaimant

Roofoods Ltd (Sued as Deliveroo plc) and othersRespondent

Before

Employment Judge Mr J S Burns

In person for claimant

1. Ms R Ward (instructed by Solicitor) for respondent

Date 28 October 2022

JUDGMENT

[1]The names of the First and Fifth Respondents are amended so they read as above.

[2]The Claimant’s informal “applications” made in his ET1 (for statistics) and in his letter dated 26 July 2022 (for specific disclosure and further information) are refused.

[3]The Claimant’s application dated 20/10/22 for all the Responses to be struck out is refused.

[4]The Claimant’s application that the proceedings be transferred to the Court of Justice of the European Union is refused.

[5]It is declared that the claims are totally without merit.

[6]The Claimant’s claims are all struck out under Rule 37.

REASONS

[1]I have had regard to the following documents: the pleadings, various Claimant’s correspondence on file including a “DHL bundle” and other informal bundles lodged by him, R1: skeleton argument and three authorities and 176 pages bundle; R2: skeleton argument and supplementary bundle of 52 pages, R3: skeleton argument and 51 page bundle, various letters of application for strikeout.

[2]I heard evidence on oath from the Claimant (the Respondents chose not to cross-examine him) and then submissions from the Claimant, followed by short submissions from the Respondents and then further submissions in reply from the Claimant. The hearing lasted just over three hours.

[3]During part of the Respondents’ submissions I muted the Claimant’s microphone to stop him rudely interrupting. This followed my having repeatedly asked him to stop interrupting and warning him that if he did so again I would mute his microphone, which warning he promptly ignored. While his microphone was muted he was still able to observe and listen to the Respondents’ submissions.

[4]At the beginning of the hearing the Tribunal clerk read out CVP ground-rules to the parties including the rule that no party was to write anything in the CVP chatroom without my prior permission. While the Claimant’s microphone was muted for the reason explained above, he wrote numerous comments in the chat room without my permission, many of which comments were grossly offensive. When this was drawn to my attention, I interrupted the Respondents’ submissions to order the Claimant to stop writing comments in the chat-room, which order he then flagrantly and repeatedly breached, by continuing to write further abusive comments until the end of the hearing.

[5]According to the Claimant’s ET1s, presented on 20/6/22, the Claimant is bringing the following complaints: “Discrimination by victimisation under Equality Act 2010 section 27 by refusing employment because the Claimant is a Romanian national, accepting third parties to discriminate him against, being fully aware of his situation. It is denied employment and the disclosure of his personal information/references, basically being denied income.’

[6]Very limited details are provided in the ET1s to distinguish one claim from the next. For example the particulars against the first three Respondents read: “The Claimant had applied for the senior Accounts Payable Lead position on 23/4/22 but R1 did not reply to his application…The Claimant had applied for the Accounts Payable Manager position on 23/4/2022 bur R2 did not reply to this application…The claimant had applied for the Transactional Finance Manager position 23/4/22 but R3 rejected the application without giving any reasons…” .

[7]The particulars end with the following “Each Respondent must disclose the number of Romanian citizens employed covering finance jobs. If the response does not contain this report about the Romanian employees, it must not be accepted as being incomplete (sic)”

[8]The Claimant explained in his oral evidence that the claims were for(i) direct race discrimination in that the Claimant’s job application to each Respondent was rejected in each case because he is Romanian, and

(ii) victimisation, in that his job application was rejected because he previously has done protected acts namely bringing acclaim in the Birmingham ET under case number 1305765/2018 against a third party DHL Services Ltd, and subsequently has brought numerous other tribunal claims against various other third party companies, in all of which claims he has alleged breaches of the Equality Act 2010.

[9]The Claimant told me he was previously employed by DHL Services Ltd but was dismissed by that company following allegations against him of sexual misconduct. He subsequently brought the 2018 Birmingham ET proceedings about that, which was struck out, and then in 2019 he brought another claim in the High Court against DHL alleging breaches of data protection law. The Claimant told me they are both these litigations are “stuck in the Court of Appeal”.

[10]The Claimant suggests that as a result of his problems with DHL, DHL has blacklisted him and caused many other UK prospective employers to reject his subsequent applications for employment. He claims that this blacklist is part of a conspiracy against him involving the UK and German governments, and all judges, whether in the tribunals or civil courts, who handle his litigation, who manifest their corruption and conspiracy by not acceding to the Claimant’s claims applications and appeals.

[11]I accept for present purposes that the Birmingham ET claim against DHL and the Claimant’s subsequent many ET claims against other employers, are all protected acts. I asked the Claimant what evidence he has to support his claim that he has been blacklisted by DHL. After much evasion and repeated questioning by me, he finally was able to point me to two documents only:

[12]The first is a paragraph in a letter written by “Gessie in DHL People Services” dated 20/7/2018 in response to a data access request from the Claimant. Gessie’s letter reads in part: “Having considered the content of the data and the context relating to allegations made against you, along with your subsequent behaviour and having considered with the rights of individuals concerned, it was decided that it was not possible to redact the documents in part without disclosing the personal data of the third party and therefore the documents in question were withheld as we are entitled to do so in such circumstances”.

[13]The Claimant suggested that this reference to “allegations made against (him)” was an admission of blacklisting. It is nothing of the kind. The reference is probably to the allegations of sexual misconduct made against the Claimant when he was employed by DHL.

[14]To put this letter in context, Mr Hignet drew my attention to another document in the Claimant’s “DHL file” which was an email written by a Mr Oliver Greasby, Senior Legal Consultant for DHL, in response to an email from the Claimant dated 6/6/2017. The email reads “we do not operate any blacklists and have not instructed any of our agency suppliers to do so. Should you be having difficulty obtaining agency work with third party companies you should raise this with the agency directly as this is not something that DHL has any control over”

[15]The second document referred to by the Claimant is an internal email dated 13/8/2018 written by a Mr Garry Howling, MD of a company called publicpracticerecruitment, or similar, to “all consultants”, which refers to the Claimant in the subject line and which reads “Do not consider this person for any positions. Do not respond to any applications he makes and avoid any contact. If you do see any applications or have any contact report to me immediately. I will make a robust stance to protect our business interests”

[16]This document shows that the Claimant had made himself persona non grata with publicpracticerecruitment, which appears to be or have been a recruitment agency, but there is no reference to DHL or any of the Respondents in it and no other evidence that that agency worked for or had any contact with DHL or any of the Respondents.

[17]The Claimant was unable to produce any evidence whatsoever to show that there has ever been any communication by DHL of any information about the Claimant to any of the Respondents or that any of the Respondents were aware of any of the protected acts before he made his job applications to them.

[18]Insofar as his direct discrimination claim is concerned, the Claimant who is Romanian, told me in his oral evidence that he had shown his Romanian nationality on his CV sent in for his unsuccessful job applications, and that, having carried out his own research on the internet, he was unable to find any Romanian “working in finance in the UK” and therefore he concluded that UK prospective employers are all opposed to employing Romanians in finance, or at all. I asked the Claimant to produce any document showing his research to me, but he was unable to do so. I regard this evidence about his research as worthless and take judicial notice of the fact that many Romanians are and have been for years successfully and variously employed by UK employers.

[19]The Responses filed by the Respondents raise defences suggesting that the Claimant’s applications were unsuccessful for reasons other than those claimed by him. They suggest that Respondents had no prior knowledge of the Claimant and that his applications were unsuccessful because the Claimant typically applied for jobs for which he had no recent relevant experience, or he applied when the position had already been filled, or he applied as one of numerous applications made by others, or that he was sifted out by a computer etc. The Responses do not contain statistics about the number of Romanians employed by the Respondents in finance. The Claimant’s applications for specific disclosure and statistics.

[20]The Claimant made his demand in his ET1s for statistics about Romanians and in a letter to the Tribunal dated 26/7/2022, which he also copied to the Respondents by email, (while the Respondents were still preparing their ET3s and GORs), he made the following further demand: “Additionally, each defendant must disclose within 7 days, all the personal information held about claimant. The claimant will enclose what information are held about him. This request is made under Rule 31. If within 7 days, the defendant fails to disclose all the personal information held about claimant, then its defence is automatically struck out and charged for perjury. Lies as “don’t know” or “don’t have” are not accepted, because DHL delivered these data indirectly through the claimant’s personal data. The claimant is particularly interested about the false statement where he was charged with a sexual assault. There was in invitation to contact DHL for more details, and now each respondent must disclose any reference and information provided on his behalf by DHL and his former agency or UK government. No response within 7 days, will result automatically to have its defence struck out and charged for perjury….. The tribunal must order immediatelly (sic) pursuant Rule 31 the disclosure of all information held by defendants about claimant. “

[21]These demands were not treated previously as formal applications for Tribunal Orders against the Respondents, and no such Orders have been made.

[22]The Claimant renewed his demands today, in effect submitting that it was improper to order strike out of his claims when the Respondents had failed to provide the information he had demanded. I have therefore treated his submissions as informal applications for specific disclosure under Rule 31 and for further information by way of statistics about Romanians employed in finance by the Respondents; and I have considered whether justice requires these matters to be ordered before dealing with the Respondents’ strike-out applications further.

[23]Most, if not all, of the Respondents, when they found the Claimants 26/7/2022 letter copied to them, treated it as a data access request and responded accordingly, carrying out a search for any data held by them referring to the Claimant, and telling the Claimant the outcome. Where this has occurred, I was told that the process has not produced anything which supports or indicates prior knowledge by the Respondents of the protected acts, blacklisting or participation in a conspiracy.

[24]If these claims proceeded, then standard disclosure by lists would be ordered in the usual way at the proper time. That however is not what the Claimant is asking for and at this stage no such directions have been issued. The Claimant is asking for early specific disclosure and further information in the hope that something will turn up to give his claims (which at this stage appear to be based simply on the Claimant’s unsubstantiated conspiracy theory) some objective material to support them. In other words his requests are simply fishing.

[25]There is no general rule that strike out of a hopeless case cannot occur prior to disclosure. Such a rule, if it existed, would undermine part of the benefit of striking-out which if done at an early stage saves further costs being incurred.

[26]The normal rule is that specific discovery is not to be ordered for the purpose only of 'fishing', so that (in order to justify such an order) the applicant must be able to show some prima facie evidence of the sort of disparity of treatment envisaged (by anti-discrimination legislation) Clywd County Council v Leverton

[1985] IRLR 197

, EAT.

[27]In Santander UK PLC and Others v Bharaj UKEAT 0075/20 The Hon Mr Justice Linden said this at paragraph 27 “…applications for specific disclosure in the ET should normally be supported by evidence. This need not be in the form of a witness statement in every case, but the burden is on the applicant to put materials before the ET which establish the case for an order.”

[28]The facts that the Claimant has established so far are(i) that he was dismissed probably in 2017 or thereabouts by and subsequently sued DHL in 2018

(ii) that in 2018 he was persona non grata with one recruitment agency which has no apparent link to either DHL or the Respondents

(iii) that he is Romanian

(iv) that he made previous protected acts which had nothing to do with the Respondents,

(v) that his job applications to them did not succeed and

(vi) that since being dismissed by DHL he had made many unsuccessful job applications to other prospective employers also.

[29]The facts established by the Claimant do not establish a prima facie case against any of the Respondents for either direct discrimination or victimisation and I regard the claims against the Respondents as purely speculative and in all probability brought for an impermissible ulterior purpose such as promoting the Claimant’s campaign against DHL, and or trying to extract a payment from the Respondents simply for commercial reasons on account of their nuisance value, but with no real belief by the Claimant in their merit.

[30]In these circumstances I decline to make the Orders sought by the Claimant and regard it as proper to go on to deal with the Respondents’ strike-out applications as I do below. The Claimant’s application to strike out the Responses.

[31]On 20/10/22 the Claimant filed an application to strike out the Responses on the grounds that the Respondents had not provided the addition information and specific disclosure which he had demanded, as discussed in the previous part of these reasons. However, no Order was made against or breached by the Respondents in this regard or otherwise, and there is no good reason shown for such a strike-out. The Claimant’s application that the proceedings be transferred to the Court of Justice of the European Union.

[32]The Claimant made this suggestion thus in his letter dated 26/7/2022: “the claimant requests to be referred immediately all these cases for preliminary rulings to the Court of Justice of the European Union as the UK government will interfere again in these proceedings, the HM Courts & Tribunals Service being not able to give a fair trial. This referral is compulsory therefore it cannot be ignored, this tribunal having no longer jurisdiction to deal with all these cases.”

[33]He repeated this in another letter dated 11/10/22 and today in his oral submissions.

[34]The Claimant said his application was made under Rule 100 in Schedule 1 of the 2013 Rules. However, that rule was revoked with effect from 11pm on 31/12/2020. The Claimant was unable to point me to any other law or rule permitting such a reference.

[35]Even if I had power to order or facilitate such a reference, I would not do so because the reason for the application is spurious. As I understand it, such references used to be made when clarification was required about a point of EU law, which is not the case here. The Respondents’ application's for strike out. The law on strike-out

[36]Rule 37(1) reads as follows: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).’

[37]In the context of this rule, “scandalous” connotes what is irrelevant and abusive of the other side: Bennett v Southwark LBC

[2002] ICR 881

(CA); and “vexatious” means an abuse of process and, in particular, a claim which is not pursued with an expectation of success but to harass the other side: Marler Ltd v Robertson

[1974] ICR 72

(NIRC).

[38]It is well‐established that discrimination claims should not be struck out before hearing the evidence, “except in the most obvious and plainest cases” (Anyanwu v South Bank Student Union

[2001] UKHL 14

;

[2001] ICR 1126

(HL) “Anyanwu” at §24). However, even in Anyanwu, it was noted they are not immune from strike out because “[t]he time and resources of the employment tribunals ought not to taken up by having to hear evidence in cases that are bound to fail” (see Anyanwu at §39).

[39]Since Anywanwu, more recent authorities have emphasized the importance of the Tribunal adopting a pragmatic approach when considering strike out of discrimination claims. In Chandhok v. Tirkey

[2015] ICR 527

(“Chandhok”) at §20, Langstaff P (citing Anyanwu) noted that discrimination claims could be properly struck out, among other things): “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.” Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse.

[40]Similarly, in Ahir v. British Airways Plc

[2017] EWCA Civ 1392

(“Ahir”) at §16, Underhill LJ stated: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment.”

[41]In Ahir at §19, Underhill LJ also noted that “where there is an ostensibly innocent sequence of events leading to the act complained of, there must be some burden on a claimant to say what reason he or she has to suppose that things are not what they seem and to identify what he or she believes was, or at least may have been, the real story, albeit (as I emphasise) that they are not yet in a position to prove it”. In Ahir at §21, Underhill LJ noted that the appellant’s “case theory” was “not only speculative but highly implausible”. Thus, at §23, Underhill LJ held that it was “wholly unsurprising” that the employment judge struck out the appellant’s case, bearing in mind its “inherent implausibility” and that fact that the “the appellant could point to no material which might support” or provide a basis for it.

[42]It is therefore clear that, if a respondent’s pleaded case sets out an “ostensibly innocent sequence of events”, it is not enough merely for a claimant to make an assertion of unlawful treatment without identifying potential supportive evidence or a proper basis for this, all the more so if that assertion is “speculative”, “highly implausible” or “inherently implausible.” Rule 37(1)(a) The claims are scandalous and vexatious and have no reasonable prospect of success.

[43]I have already given reasons above - see paragraphs 28-29, why I find the claims to have no reasonable prospect and to be vexatious. In summary these claims have no prima facie evidence to support them and are based on irrational assertion only, and they are brought for an improper purpose.

[44]The Claimant is a serial litigant having, on his own account, brought over 100 claims in various regions in the UK against different respondents, all of which are nearly identical to the Claimant’s current claims and all of which have been struck out in accordance with Rule 37(1)(a) of the Rules: These have been summarised by the Respondents as follows:• In Mr A G Badita v C.T. Group Recruitments Limited and others (case number: 1305494/2018) the claimant presented claims against 47 respondents. In these claims, the claimant asserted he had been unsuccessful in securing employment with the respondents because it became known he was Romanian. He further asserted that the rejection of his applications amounted to direct discrimination on the grounds of race and/or victimisation on the basis of a claim against his previous employer DHL Services Limited. The claimant’s claims against all 47 respondents were struck out on the basis that

(i) the claims were scandalous, vexatious and had no reasonable prospect of success pursuant to Rule 37(1)(a) of the Rules; and

(ii) the manner in which the claimant had conducted the proceedings had been scandalous, vexatious and unreasonable pursuant to Rule 37(1)(b) of the Rules.

• In Mr A G Badita v Hays PLC and others (case number: 2200287/2019) the claimant presented claims against 12 respondents. His claim form asserted that he had suffered “discrimination by way of victimisation by refusing employment because I am a Romanian national…”. The claimant’s claims against all 12 Respondents were struck on the basis that they had no reasonable grounds of success pursuant to Rule 37(1)(a) of the Rules.

• In A G Badita v D R Newitt Recruitment (case number: 4100905/2019) the claimant’s claim was struck out on the basis that (i) it had no reasonable prospect of success pursuant to Rule 37(1)(a) of the Rules; (ii) the manner in which the claimant had conducted the proceedings had been scandalous, vexatious, disruptive or otherwise unreasonable in terms of Rule 37(1)(b) of the Rules; and

(iii) the claim had not been actively pursued in terms of Rule 37(1)(d) of the Rules.

• In Mr A G Badita v DHL Services Limited (case number: 1305765/2018) the claimant’s claim was struck out on the basis that (i) it was scandalous, vexatious and had no reasonable prospect of success pursuant to Rule 37(1)(a) of the Rules; and (ii) the manner in which the claimant had conducted the proceedings had been scandalous, unreasonable and vexatious pursuant to Rule 37(1)(b) of the Rules.

• In Mr A G Badita v Merrow Language Recruitment Limited (case number: 3312385/2019) the claimant presented a claim for discrimination and victimisation on the grounds that he was refused employment because of his Romanian nationality. The claimant’s claim was struck out on the basis that it had no reasonable prospects of success pursuant to Rule 37(1)(a) of the Rules.

• In Mr A G Badita v Wheatcroft Sims Associates Ltd (case number: 2600395/19) the claimant asserted he was discriminated against when he applied for positions with the respondent. His claim was struck out on the basis that it had no reasonable prospects of success pursuant to Rule 37(1)(a) of the Rules.

[45]I do not strike out the instant claims simply because other judges have struck out previous very similar claims. However, I find that the fact that the Claimant has already had other very similar claims struck out does contribute to the abusive and vexatious character of his instant claims which he has brought with no more evidence or reasons for doing so than he had previously.

[46]The claims appear to be based on an irrational conspiracy theory including numerous people including the UK and German governments and the whole UK judicial system and any prospective employer that the Claimant sends an unsuccessful job application to. This theory is entirely fanciful and inherently implausible.

[47]Strike out is therefore appropriate, applying the reasoning from Chandhok and Madarassy as set out above. Rule 37(1)(b) The manner in which the proceedings have been conducted by or on behalf of the Claimant has been scandalous, unreasonable or vexatious;

[48]In conducting this litigation the Claimant has written abusive and racist comments as follows:• In a letter to the Tribunal dated 26/7/22 he referred gratuitously to Paul Dyer (former CEO of DHL Supply Chain UK/Ireland) as being “a mentally retarded individual”.

• In his email to the parties’ representatives on 23/8/22 he stated: “If you filed false statements even on the PH agenda, how to agree something with you fucking idiots?”.

• In his email of 8/9/22 he stated: “…those slaves from respondents must stop moaning something about these claims.”

• in an email dated 13/9/2022 to the Tribunal he described Rachel Ward, a solicitor for R1, as “a stupid crook” and “the people hanging round her” as “cheap crooks”.

• In the Claimant’s email of 15/9/22 he referred to the Respondents and/or their representatives as “Another two stupid crooks” and “These beggars keep begging like the gypsies…”

• In the the Claimant’s email of 16/9/22 he responded to an email from Garyn Young by stating “Another idiot appeared again…These beggars are worse than the gypsies. Let’s go to the Court of Justice of the European Union to discuss about your pathetic lies!”

• In an application to the Tribunal dated 11/10/22 he referred to “The President of the Employment Tribunals Judge Clarke, REJ Wade and everyone else admitted to be corrupt”.

• In a document dated 20/10/22 the Claimant wrote “The claimant competing for jobs on this island against everyone is looking like an educated English competing against illiterate Gypsies from Romania, so huge is the difference. His IQ is simple indecent for this island. The reason is simple, the highest IQs from this island are only medium IQs in Romania.” The same document refers to all the Respondents in the instant litigation as “mentally retarded beggars (who) are dumb and incoherent.”

[49]As explained above, during the CVP hearing today while his microphone was temporarily muted by me because of his continuous rude interruptions when the Respondents were making their submissions, and having been instructed by the clerk not to use the chat room without my specific authorisation, the Claimant wrote the following comments ..”these crooks..Mr Weiss you are the perfect example..the face helps you a lot… strike them out because the UK government will pay them in full”.

[50]When I noticed these comments, I ordered him to stop using the chatroom with immediate effect and for the rest of the hearing. He then continued, in flagrant disobedience of this order, writing further repeated abusive comments either addressed to the Respondents representatives or me or both namely “stop lying…you are corrupt…end this farce quicker..” etc.

[51]The Claimant has a well-established prior record of making such comments, as appears from documentation which he has filed with the Tribunal in support of the instant claims: In previous litigation under reference UKEATPA/0144/20/BA he made threats in an email dated 7/2/2020 threatening to lay criminal charges against each member of the EAT for “corruption and all other misconduct” adding “everyone should think twice before refusing to comply with my lawful requests, because the end is near”.

[52]When The Hon Mr Justice Lavender on 24/8/2020 dismissed that appeal as totally without merit he informed the Claimant that making threats such as this would not be tolerated and said he would report the Claimant to the President of the Employment Tribunals.

[53]Regrettably nothing appears to have been done subsequently to put a curb on the Claimant continuing with more of the same.

[54]In response to this the Claimant sent a letter to the EAT suggesting that The Hon Mr Justice Lavender was “only a prostitute of a deeply corrupt judicial system”, and making many other abusive comments about him; and also referring to EJ Gaskell as “the scumbag”. Similar remarks were made in Grounds of Appeal and a skeleton argument filed with the Court of Appeal.

[55]The Claimant’s misconduct in the instant litigation justifies and requires the striking out of the instant claims and the refusal of the Claimant’s applications in any event, even if those claims and applications had any merit, which they do not. Rule 37(1) (c) non-compliance with Rules or with an order of the Tribunal; and (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim

[56]The Claimant flagrantly disobeyed my order which I made today to try to protect the Respondents from ongoing abuse from the Claimant written by him in the CVP chatroom.

[57]The Claimant’s tendency to make offensive and racist comments while openly disregarding and flouting the authority of the Tribunal would make it impossible to have a fair trial of these claims - in this context fairness extending to include the principle that all parties and representatives should not be expected to put up with an uncontrolled foul abuse from anyone when they come before a tribunal.

[58]For these reasons also, I strike out the claims. J S Burns