Miss U Carrigan v Generator Hostels Ltd and Kennedy Pearce Consulting Ltd: 2204767/2021
EMPLOYMENT TRIBUNALS
Case No 2204767/2021
Between
Miss U CarriganClaimantGenerator Hostels Ltd and Kennedy Pearce Consulting LtdRespondent
Before
Employment Judge D HendersonMs H Platt (instructed by Counsel) for claimantDate 15 July 2022
REASONS
[1]This was an application by R1 (also relied on by R2) for strike out of the claims for breach of contract and sex discrimination; alternatively for a deposit order. Background and Claims[2]By a claim form presented on 27 August 2021, the claimant, who is female, brought complaints of direct sex discrimination (section 13 Equality Act 2010- EQA) and breach of contract against both respondents. R1 was her employer and R2 was the recruitment agency who had introduced the claimant to R1 and with whom she had the majority of her pre-employment communications.[3]R2 had written to the tribunal asking to be removed from the proceedings as it was not her employer and had never had any contractual arrangement with the claimant.[4]However at a Preliminary Hearing for Case Management purposes held on 8 December 2021, EJ Brown referred to ss. 109 & 110 EQA and the provisions regarding principals and agents. She observed that on the factual matrix of this case, R2 might be liable as agent for R1 (the principal): accordingly, the respondents may be joint and severally liable for any claims.[5]EJ Brown ordered that both respondents provide a response to the agency/principal issue by 14 January 2022. On 13 January 2022 (page 129) R1 accepted that R2 acted as its agent during the course the claimant’s application for employment; R1 did not rely upon the reasonable steps to fence in respect of any act allegedly done by R2 and R1 denied that any act done by either respondent amounted to unlawful discrimination. On the same day, (page 130) R2 accepted that it acted as agent for R1 but disputed being part of any decision-making process internally at R1. Further R2 said it was not involved in drafting and was not a signatory to the employment contract between the claimant and R1. R2 denied any unlawful discrimination against the claimant. The breach of contract claim[6]The claimant said that she had agreed to work for R1 on the basis that the job was “work from home”, but the day before her employment commenced she was told that she must attend the office. The claimant had objected to working from R1’s office in April 2021, at a time when Government advice was to work from home where possible. R1 then withdrew the offer of employment with immediate effect.[7]R1 said that the claimant had signed a contract stating that her normal place of work was at its headquarters. The claimant had refused to attend that office on her first day for an induction process: accordingly the offer of employment with was withdrawn. R1 said that the claimant had committed a repudiatory breach of contract by refusing a reasonable management instruction to attend the office on her first day of work to receive her laptop and the appropriate training in its use and company processes generally. The withdrawal was the acceptance of the claimant’s repudiatory breach. R1 denied that the claimant was owed one week’s notice as provided for in the employment contract. The direct sex discrimination claim[8]The claimant alleged that the withdrawal of the offer was less favourable treatment which was because of her sex. She referred to Rajan Sharma (RS) as an actual comparator who had been allowed in his contract of employment to work from home 3 days a week. The claimant also referred to a hypothetical male comparator who was allowed to work from home for the duration of his employment. R1 said that RS was employed in a very different role to the claimant and was not an appropriate comparator. Conduct of the Hearing[9]The Tribunal was presented with an agreed bundle of documents (264 pages) the claimant also added 4 pages of messages relating to R1 from a website which provided “reviews” of employers- which were added to the agreed bundle as pages 265-268. Page numbers in these reasons are references to that agreed bundle unless otherwise specified. The Tribunal was also assisted by written submissions from Mr Green and Ms Platt. The Respondents’ Applications[10]Mr Green relied on the written submissions provided by R1 (pages 104-108). Mr Smith said he also relied on the submissions and had nothing to add (page 109).[11]As regards strike out, he relied on rule 37 (1) (a) of the Employment Tribunal rules 2013: he relied on the ground that the claimant’s claims had no reasonable prospect of success. If this application was unsuccessful, he relied on rule 39 (1) whereby a Tribunal could make a deposit order where any specific allegation/argument had little reasonable prospect of success.[12]Mr Green acknowledged that as a general principle discrimination claim should not be struck out except in the very clearest of cases: Anyanwu v South Bank Union [2001] UKHL 14. However, he cited the case of Ahir v British Airways [2017] EWCA Civ 1392, in which he said the Court of Appeal had made clear that employment Tribunal’s should not be deterred from striking out claims (including discrimination claims involving disputes of fact) if they were satisfied that there was no reasonable prospects of the facts necessary to establish liability, being proved.[13]He said the central facts were not in dispute: namely that having signed her contract of employment dated 9 April 2021 (pages 202-215) the claimant had refused on 14 April 2021 to attend the office on her first day (15 April) to collect her laptop and complete the induction process. R1 considered this a repudiatory breach of contract and withdrew the offer of employment. The claimant said this was a breach of contract.[14]Mr Green said the only real dispute of fact was R1’s reason for taking this action. The claimant said this was because of her sex: this was denied by the respondents.[15]Mr Green said that both claims were fanciful and had no or little reasonable prospect of success.[16]Mr Green cited the offer letter (page 200) and the contract of employment both of which stated that the employment was based at R1’s office: the claimant had signed both the offer letter and the contract. Mr Green also referred to the remote interview in March 2021 with the claimant, RS and Mr Alistair Boyle. Mr Green referred to the claimant’s Particulars of Claim (page 19) which he said by her own account, the claimant acknowledged that RS had told her that she would be in the office 1-3 days per week working with Mr Boyle.[17]However, Mr Green did not mention that the reference made by the claimant was to an email she had sent to R2 in which she recorded that fact but noted that she was not prepared to travel to the office as she had not yet been vaccinated. This does raise a dispute as to whether the claimant accepted that she was prepared to attend the office.[18]I noted Mr Green’s references to the offer letter in the contract of employment. I asked whether these were the standard contractual terms for “normal times” or whether any consideration had been given to amending the contractual provisions bearing in mind the situation arising from the pandemic. Mr Green was unable to respond to this question. I suggested that this was exactly the sort of evidence that the Tribunal would want to hear at a final hearing.[19]As regards the sex discrimination claim, Mr Green said that there was no evidence to suggest that a man in the same circumstances the claimant would have been treated any differently. He noted that RS performed a very different role and was in fact the claimant’s line manager.[20]I also noted that RS’ contract of employment (pages 233-246) contained a variation of the “standard” clause 7 (Place of Work and Travel) included in the claimant and Mr Boyle’s contracts. RS’s contract stated that “it is agreed that you will work from home for a minimum of 3 days per week and subject to business requirements work from your normal place of work 1 to 2 days per week.”[21]As pointed out by Ms Platt this suggested that R1 gave more favourable treatment to RS in that he was allowed to negotiate a “work from home” clause into his contract of employment where is this was not allowed for the claimant. R1 may well cite the fact that RS was in a different role to the claimant but this was a further matter for evidence at the final hearing. The Claimant’s Response[22]In her written submissions, Ms Platt clarified some of the nuances of the claimant’s complaints. She noted that the claimant had not been legally represented at the Case Management Preliminary Hearing on 8 December 2021.[23]Ms Platt noted that the allegation of less favourable treatment was that both respondents had repeatedly misinformed the claimant that the role was “work from home”, whereas in fact R1’s expectation was that the role was predominantly office-based. Both respondents also appeared to ignore the claimant’s requirement to work from home, given her concerns about Covid and pressured her to attend the office on 15 April 2021 even after she had made it clear that she was not comfortable travelling to and working in an office without being vaccinated and whilst the Government guidelines were to “work from home” where possible.[24]There were several emails in the agreed bundle which supported the claimant’s reference to wishing to work from home. The conversations concerning this were predominantly with R2 and it was unclear what R2 had told R1 about the claimant’s concerns in this regard. This was another area of evidence which would have to be fully explored at a final hearing.[25]Ms Platt also noted that as well as relying on RS as an actual comparator, the claimant also relied on a hypothetical male comparators whose concerns would not have been ignored in the same or similar circumstances. Again, the claimant was unable to fully express the nuances of her claim at the previous Preliminary Hearing.[26]Ms Platt noted that the claimant also relied on a culture of toxic masculinity and misogyny evidenced by the anonymous reviews from former employees (pages 265-268). Mr Green challenged the validity of these documents as evidence of such a culture, given that they were posted online anonymously. However, I noted this was yet again another evidential issue which would benefit from being heard and tested before the Tribunal in a full hearing.[27]Ms Platt cited the established authorities concerning the high threshold for striking out a claim, especially a discrimination claim. (Ezsias v North Glamorgan NHS Trust [207] EWCA Civ 330 and Anyanwu). She also noted that Tribunals must exercise particular care with litigants in person as they may present a poorly pleaded claim or response (through no fault of their own) which might cause their case to appear to have little or no reasonable prospect of success. The Tribunal should exercise real caution to ensure it is properly understood the case.
Conclusions
[28]I gave my decision (with summary reasons) orally at the end of the preliminary hearing. Ms Platt asked for written reasons to be provided (as she was unsure whether the claimant would continue to be represented by her at subsequent hearings). Strike Out Applications – refused[29]The respondent’s application for strike out on the breach of contract claim is refused. During the course of submissions and discussion at the preliminary hearing it was evident that there was a clear factual dispute between the parties, in particular with regard to what the claimant told R2 concerning her wish to work from home during the pandemic and consequently what R2 told R1. The dispute turns on whether R1 can establish a repudiatory breach of the contract of employment by the claimant justifying her summary dismissal. In scrutinising the documents provided to the Tribunal there was also a question as to whether the claimant expressly refused to attend R1’s office (page 223). The question also arose concerning whether the claimant’s contract of employment was a “standard” contract for “normal” times with no variations or adjustments to consider the situation during a national pandemic/lockdown.[30]Given the clear factual disputes, it was desirable that they should be determined at a full merits hearing where each party’s evidence could be given orally and tested in cross-examination.[31]The strike out application on the claimant’s direct sex discrimination claim was also refused. The Tribunal was mindful of the high threshold set in the Anwaynu and Ezsias cases.[32]I noted Mr Green’s submissions concerning Ahir: but that that case had very specific facts. In that case, the issue related to false representations made by the claimant in his CV which were clear grounds for dismissal. The claimant had said the respondent had sent anonymous letters to itself in order to trigger an investigation. Those very specific facts are not replicated in this case. I also accept that the claimant was not able at the Case Management discussion hearing with EJ Brown (when she was not legally represented) to fully express the nuances of her sex discrimination claim. Deposit Order Applications – Refused[33]The applications for deposit orders on the breach of contract and the sex examination claims are refused. I find that there is sufficient conflict on the facts for it to be preferable for this to proceed to a full merits hearing. I heard no evidence from either side at the preliminary hearing; however, during the course of the hearing all three parties identified areas where it would have been useful to hear such evidence.[34]I also considered the case of Tree v South Eastern Coastal Services: which noted that there must be a “proper basis for doubting the likelihood of a party being able to establish facts essential to their case”. There was no such basis established here: the Tribunal needs to hear the evidence in full. There is a core factual conflict which should be properly resolved at a full hearing where the evidence is heard and tested. Final Hearing to be by video[35]The parties confirmed that full case management directions had already been given by EJ Brown in the Case Management Order of 8 December 2021, and that many of the directions had been complied with.[36]I discussed with the parties the method of the Final Hearing. Their preference was to have the Final Hearing using the video platform and it was not required to be in person. I note this accordingly in the Order. D Henderson
Conclusions
[1]The claimant’s claim against the second respondent is struck out as having no reasonable prospects of success.[2]The claimant’s claim of breach of contract against the first respondent is successful. The first respondent shall pay to the claimant the agreed net sum of £836.33.[3]The claimant’s claim of sex discrimination against the first respondent is unsuccessful and is dismissed.[4]The second respondent’s costs application against the claimant is refused.
Conclusions
[1]We have been asked to provide written reasons in respect of the second respondent’s costs application only.[2]On the first day of the hearing after the claim against the second respondent was struck out, it was indicated the second respondent would make an application for costs. A written application has been received and we had the benefit of oral submissions from both the second respondent and the claimant. The claimant has provided documentation as to her income, savings and outgoings.[3]Rule 76 of the Employment Tribunals Rules provides: (1) A Tribunal may make a costs 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; (b) any claim or response had no reasonable prospect of success…[4]We remind ourselves that costs do not follow the event in Tribunal proceedings and cost awards should be the exception not the rule.[5]The second respondent contends that the claimant has acted unreasonably in both bringing the proceedings and in the way in which she has conducted the proceedings, alternatively that the claim had no reasonable prospect of success.[6]In respect of conduct, the second respondent argues that the claimant has been unable properly to articulate a legally recognisable claim for discrimination against it. The claimant was given an opportunity to release the second respondent from the proceedings at the first preliminary hearing on 8 December 2021. The claimant has sought to introduce new allegations against the second respondent at the final hearing without any supporting evidence when seeking to introduce a newly formulated discrimination claim, meaning that the second respondent has had to incur costs and prepare for the final hearing without knowing exactly what was alleged against it. It is noted that the claimant also delayed providing a witness statement, which required the second respondent to apply for an unless order, which was granted.[7]The second respondent also refers to without prejudice correspondence exchanged between the parties which shows that it made financial offers to settle the claim in the sums of £500 on 10 June 2022, £2,500 on 17 June 2022 and £1,650 on 20 June 2022 (which was reduced as a result of the second respondent incurring a further instalment of Counsel’s fees). These offers were rejected, the claimant describing them as ‘a bribe and a threat’.[8]The second respondent notes that the claimant was legally represented at least since the second preliminary hearing on 23 February 2022. It was noted in oral submissions that the focus at the preliminary hearing was more on the first respondent than the second respondent, who was equally unrepresented at that point in time. The way in which the case was put at that stage was later abandoned.[9]It is further argued that the claim at no time had any reasonable prospect of success. This is borne out by the way in which the claimant abandoned its claim against the second respondent as articulated by Counsel at the second preliminary hearing, and the timing and nature of the final articulation of the claim which relied on factually incorrect assertions.[10]The claimant opposes the application. Mr O’Callaghan noted that the second respondent had already made a strike out application which was unsuccessful. The claimant was not represented at the first preliminary hearing and Employment Judge Brown considered there may be an agency argument. Employment Judge Henderson declined to strike the case out. The fact that this Tribunal struck out the claim should not mean that costs should follow. We are asked to take into account the conduct of the second respondent, which led to the contract being revoked and to proceedings being brought. Mr O’Callaghan confirmed he was instructed on 4 July 2022. The claimant confirmed that she had no legal advice between the second preliminary hearing and the instruction of Mr O’Callaghan. She relied on ACAS to mediate between her and the second respondent in negotiations.[11]We have first considered whether the claimant was unreasonable in bringing proceedings against the second respondent. She was a litigant in person when proceedings were commenced. Her pleadings show her view that the actions of the second respondent and first respondent were inextricably linked. We do not consider it was unreasonable to issue the claim. At the time of the first preliminary hearing consideration was given to whether the claim against the second respondent should be withdrawn. It could not be struck out as it was a closed hearing. It was Employment Judge Brown who identified that there may be an agency claim. The claimant would have considered at that point that she had a reasonable claim to proceed with.[12]The claimant was represented at the second preliminary hearing. At that point Employment Judge Henderson considered the claims and declined to strike them out. While the focus was more on the first respondent, Employment Judge Henderson must have been of the view at that stage that the claim against the second respondent had some prospects of success. It is noted that the claim was formulated in a different way at this time, namely that the allegations of less favourable treatment as against both respondents was that they had repeatedly misinformed the claimant that the role was work from home (as recorded at paragraph 23 of Employment Judge Henderson’s judgment). The claimant at this stage would again have considered that her claim had reasonable prospects. In her view the claim was still inextricably linked to the claim against the first respondent. It is also clear that the claimant felt very aggrieved by the second respondent’s actions.[13]We come to the period after the second preliminary hearing when offers were made. The sequence of events is important. On 10 June 2022 the claimant was offered £500 to settle the claim. The first tranche of Counsel’s fee were incurred on 13 June 2022 in the sum of £875. A second offer was made on 17 June 2022 of £2,500. On 20 June 2022 a second tranche of Counsel’s fee were incurred and the offer was reduced to £1,650. During this period the claimant was abroad and had little time to consider time constrained offers. She also had no legal advice, relying solely on ACAS. We do not consider she acted unreasonably during this period.[14]A third tranche was incurred on 27 June 2022. Mr O’Callaghan was instructed on 4 July 2022, and the final tranche of £875 fell due to the second respondent on 8 July 2022.[15]We have considered carefully whether there was sufficient time for Mr O’Callaghan to become appraised of the full papers by 8 July 2022 and to advise the claimant that her claim against the second respondent ought to be reformulated or withdrawn. We note that it was only on the first day of the hearing that Mr O’Callaghan was in a position to take instructions as to how precisely the claim should have been formulated. While we consider this ought to have been done before the hearing commenced, we cannot say that it could reasonably have been done before 8 July 2022.[16]In the circumstances we find that the claimant did not act unreasonably in the way in which she conducted her claim. In so far as the reformulation of the claim on the first day of the hearing was unsuccessful, full costs had already been incurred by the second respondent by that point. There would have been no difference had the claimant voluntarily withdrawn the claim at that time (or any time after 8 July 2022).[17]In relation to the prospects of success, we note that the claim has changed over time. It was Employment Judge Brown who first raised the possibility of an agency argument and Employment Judge Henderson considered there were some prospects of success for the claim as formulated then. We have not decided the case on that basis and cannot say what the prospects of success might have been had that been the way in which the claim was presented at trial. We accept the second respondent’s position that there would have been no prospect of success in the claim in the way it was reformulated on the first day, not least because it was an allegation of what the second respondent did in relation to negotiations with the claimant, and not what they did as an agent of the first respondent. However, as we have already found, by the time that claim was formulated full costs for the hearing had already been incurred.[18]In the circumstances we do not exercise our discretion to award costs in this case.