Ms T Oladogba v Marks & Spencer plc and Office Angels Ltd: 2206073/2018
JUDGMENT
[1]I am not satisfied that the Claimant’s allegation of disability discrimination concerning the post assignment grievance against the First Respondent has no reasonable prospect of success and it should be allowed to proceed, subject to the deposit order.[2]I am satisfied that the allegations referred to in the attached deposit order have little reasonable prospect of success and the Claimant is ordered to pay a deposit in respect of each of those allegations in the sum of £200.[3]The Claimant is given leave to amend her claim as contained within her application dated 18 February 2019 to relabel allegations contained in paragraph 6(a) and (d) of the Case Management Order dated 30 January 2019 as harassment as well as direct disability discrimination.[4]The Claimant was at all material times a disabled person in relation to her Sickle Cell Anaemia.REASONS
[1]This preliminary hearing had been listed by Regional Employment Judge Potter to consider a number of possible issues. The First and Second Respondents (referred to collectively as ‘the Respondents’) had been asked to notify the Claimant and the Tribunal by 25 February 2019 which of the issues they wished 1 of 7 to be considered at this preliminary hearing.[2]At the hearing, it was confirmed that the Claimant’s application to amend her claim dated 18 February 2019, to include a relabelling of the facts already pleaded as harassment and direct disability discrimination (being allegations at paragraphs 6(a) and (d) in the Case Management Order dated 30 January 2019) was agreed by the Respondents.[3]The Claimant had already withdrawn her unfair dismissal complaint and this had been dismissed upon withdrawal.[4]The Respondents both conceded that the Claimant was disabled at all material times by virtue of her sickle cell anaemia.[5]The only remaining issues were the out of time point and the strike out/ deposit order applications.[6]The First Respondent had failed to confirm which of the issues it wished to be considered until 10 April 2019 and had provided no compelling reason why this had not been done. The Claimant had therefore been unable to prepare witness statements/ provide medical evidence (should she see fit) in answer to its application. I considered the First Respondent’s representative’s submissions and gave the Claimant the opportunity to respond. Having done so, I considered it inappropriate to deal with the out of time application at this hearing, as I considered that the Claimant should be fully prepared in order to be able to deal with this. Therefore, this remains to be considered at the full merits hearing. I confirmed to the Claimant that she would need to bring appropriate evidence to the hearing (including medical evidence of hospital admissions/ treatments which may have affected her ability to submit claims earlier) to be able to deal with this point then.[7]The First Respondent therefore continued with its application for strike out or a deposit order in respect of the Claimant’s allegation of discrimination arising after the termination of the Claimant’s assignment (being the investigation/ handling of her grievance) on the basis that it had no, or little, reasonable prospects of success.[8]The Second Respondent had informed the Claimant that it wished to apply for deposit orders on an unspecified date in accordance with the Case Management Order dated 30 January 2019. The Claimant acknowledged that this had been received. However, this had not reached the Tribunal’s file. It had submitted a detailed application for deposit orders in March 2019, although this was, unfortunately, incomplete on the Tribunal’s file. I was satisfied from the Claimant’s responses that she was prepared and ready to deal with the Second Respondent’s applications for deposit orders. Strike Out / Deposit order applications[9]For Strike out, the relevant statutory provision is Rule 37 of the Employment Tribunal Rules of Procedure 2013 which provide: 2 of 7 “(1) 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.(c) for non-compliance with any of these Rules or with an order of the Tribunal.(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 a claim or response (or the part to be struck out).”[10]I reminded myself that the power to strike out discrimination claims should only be exercised in rare circumstances and not where the central facts are in dispute. It did not appear to be a case where the central facts were in dispute in respect of this allegation. The correct approach is to take the Claimant’s case at its highest, as it is set out in the claim (as amended), unless contradicted by plainly inconsistent documents. As a general principle, discrimination cases should not be struck out except in the very clearest circumstances. That said, the above guidance is not to be taken as amounting to a fetter on the Tribunal’s discretion.[11]For deposit orders, the relevant provision is Rule 39 of the Employment Tribunal Rules of Procedure 2013. That states: “(1) Where at a Preliminary Hearing the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order. (4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented as set out in Rule 21. (5) If the Tribunal at any stage following the making of a deposit order decides a specific allegation or argument against the paying party for substantially the same reasons given in the deposit order: -(a) The paying party shall be treated as having acted unreasonably 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 each other party (or the parties as the Tribunal orders), otherwise the deposit shall be refunded. 3 of 7 (6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”[12]It is necessary to identify claims with little prospect of success and to discourage their pursuit by requiring a sum to be paid and placing the party at risk of costs if the claim is pursued and fails.[13]I am not restricted to considering purely legal issues, but entitled to have regard to the likelihood of the party being able to establish the facts essential to the case, and can reach a provisional view as to the credibility of the assertions being put forward.[14]It is important that I engage and understand the basis of the Claimant’s claims before making any such conclusion.[15]Finally, I must take a proportionate view of the totality of the deposit orders made, and reach a conclusion that is open to me on the exercise of my discretion. It is important that the order is one that is capable of being complied with, and that a party without the means or ability to pay should not be ordered to pay a sum that he or she is unlikely to be able to raise. The Strike Out or Deposit order Application of the First Respondent[16]The First Respondent only applied to strike out the allegation that the grievance investigation/ outcome given by Ms Whybrew-Bond was direct disability discrimination. He did not seek to strike out the other allegations/ claims made by the Claimant since he recognised that there were factual disputes concerning those allegations.[17]The contention made by Mr Crozier was that the strike out issue should be considered on the basis that there were no facts relied on from which the Tribunal could properly conclude that the reason for any unfavourable treatment was the Claimant’s disability, and therefore her allegation has no reasonable prospects of success.[18]Ms Whybrew-Bond, the First Respondent’s Head of Brand Creative and Content had been appointed to consider the Claimant’s grievance and I was referred to her outcome letter. The Claimant’s complaint regarding this is that the handling of her grievance, and what the Claimant refers to as a ‘demeaning and dismissive’ response, was an act of direct disability discrimination.[19]Mr Crozier stated that the Tribunal will have to consider what was in Ms Whybrew-Bond’s mind at the time of providing a less favourable outcome to the Claimant’s grievance, and, in order to succeed, the Claimant will need to show that the reason for doing so was the Claimant’s disability. As Ms WhybrewBond had no other involvement in the Claimant’s other allegations of discrimination, he considered that this claim had no reasonable prospects of success such that it be struck out or, alternatively, little reasonable prospects of 4 of 7 success such that a deposit order in the sum of £200 should be made so as to be allowed to proceed.[20]The Claimant considered that the failure to investigate her grievance properly and the demeaning wording was in itself an act of direct disability discrimination and that Ms Whybrew-Bond was biased because of her work colleagues.[21]I had some reservations concerning the Claimant’s allegation relating to the handling of her grievance and the grievance outcome being an act of direct disability discrimination, which I considered to be weak. However, I did not consider it appropriate to strike out the claim on the basis that it had no reasonable prospects of success.[22]I am satisfied that there are little reasonable prospects of the claim succeeding, and therefore order that a deposit be paid by the Claimant in order to continue to pursue this allegation against the First Respondent.[23]The reason for this is that Ms Wybrew-Bond had not been involved in any of the earlier alleged acts of discrimination and, it will be necessary for the Claimant to show that the reason for manner of the investigation and/or the grievance outcome itself was because of the Claimant’s disability, which I consider will be difficult for the Claimant to do.[24]Having heard sworn evidence from the Claimant as to her means and ability to pay any such deposit, and seen documentation confirming this, I am satisfied that the Claimant has reduced means. She is in receipt of universal credit which has been reduced to £598 a month, from which she pays £250 towards her rent, £64 for her mobile phone bill and £37 for broadband. Her other income, approximately £600 a month for disability living allowance almost all goes on her car (£570). She has no other income, savings and does not own any properties.[25]Having considered her ability to pay, and recognising that it is necessary to make a deposit order in a sum so as to make the party think about the consequences of continuing, I set the amount of the deposit for continuing with the allegation in the sum of £200. Deposit Order Applications of the Second Respondent[26]The Second Respondent sought deposit orders in respect of 4 separate allegations of direct disability discrimination as follows:a. Terminating the Claimant’s assignment;b. Not putting the Claimant forward for interviews;c. Not finding the Claimant alternative roles; andd. Sending the Claimant her P45.[27]The Second Respondent’s representative confirmed that the Second respondent was happy for the Claimant to remain on site working on assignment for the First Respondent, as long as the First Respondent wanted 5 of 7 her there. Therefore, the Second Respondent did not consider that there could be any grounds for claiming direct disability discrimination for a decision not taken by it. Having considered this allegation, I am not convinced that it has little reasonable prospects of success so as to grant a deposit order. I do have reservations about whether this claim will succeed, but consider that this will need to be tested at the full merits hearing.[28]The Second Respondent contended that the person dealing with the Claimant had the First Respondent as her main client, and that there were insufficient alternative roles available to send the Claimant to interview for during the period the Claimant alleges discrimination. Further, the Second Respondent relies upon similar reasons for failing to find the Claimant alternative roles during the period. However, I consider that these allegations should be properly considered at the full merits hearing and do not consider that the allegations have little reasonable prospects of success. Therefore, I do not make a deposit order in respect of these allegations.[29]Finally, the allegation of discrimination in sending out the P45 to the Claimant on or around 30 May 2018. The Second Respondent asserted that this was an automated process due to the Claimant having not received any monies through its payroll for 6 weeks. The covering letter dated 30 May 2018, which was considered, was acknowledged by the Claimant as having been received by her, although she could not recall its penultimate paragraph.[30]If this is an automatically generated system, it is difficult to see how this could be an act of direct disability discrimination, when there are already allegations of discrimination for failing to put the Claimant forward for interview and/or find her alternative roles. Therefore, I am satisfied that this allegation has little reasonable prospects of success, and therefore order a deposit to be paid in the sum of £200 in order for the Claimant to continue to pursue this particular allegation. In setting the amount of the deposit order, I considered similar factors to those set out above in ordering a deposit to continue with one of the allegations against the First Respondent. I considered that the totality of the deposit payments, namely £400 was appropriate in the Claimant’s circumstances. 1. Other matters1.1 The claim remains as previously listed on 24 and 25 June 2019. The Claimant indicated that she may be unable to attend the hearing should the hospital rquire her to undergo blood transfusions at this time. She will not know the dates of those transfusions until closer to the listed hearing dates. Should it become impossible for the Claimant to attend the listed hearing, she should notify the Tribunal and the other parties as soon as she becomes aware of this, providing evidence that the dates of her transfusions cannot be easily changed.1.2 The relevant case management orders contained within the Order dated 30 January 2019 remain in force. 6 of 71.3