Ms A C De Jesus Pereira v Oliver Bernard Ltd and La Fosse Associates: 2216640/2023

EMPLOYMENT TRIBUNALS

Case No 2216640/2023

Between

Ms A C De Jesus PereiraClaimant

Oliver Bernard Ltd and La Fosse AssociatesRespondent

Before

Employment Judge Leonard-Johnston

In person for claimant

Date 22 May 2025

JUDGMENT

[1]The claim against the First Respondent under section 138 of the Trade Union and Labour Relations (Consolidation) Act 1992 is struck out under Employment Tribunal Rule 37(1)(a) because it has no reasonable prospect of success.

[2]The claim against the Second Respondent under section 138 of the Trade Union and Labour Relations (Consolidation) Act 1992 is struck out under Employment Tribunal Rule 37(1)(a) because it has no reasonable prospect of success.

REASONS

[1]The respondents are both recruitment agencies. The claimant was not employed by the respondents but has been using their services as a jobseeker to try and find employment as a designer. Her claim is brought on the basis that the respondents have unlawfully failed to provide/effectively provide their services because of(a) her nationality and because

(b) her trade union membership.

[2]The claimant was employed by a third party, Reply UK, which ended on 5 August 2022. The claimant claims that when her employment ended with Reply UK, she was owed two months’ wages and she recovered these wages on 29 September 2022 following the intervention of her trade union. The claimant says that because she involved her trade union, she was blocked and blacklisted by Salt Recruitment Group (“SRG”), a recruitment agency, from 3 September 2022. The claimant brought claims against Reply UK and SRG (Case no: 2210420/2023) which have been struck out. The claimant has appealed that decision. The claimant also brought a claim against another third party called Xcede Ltd (2216650/2023) which was dismissed on withdrawal by the claimant, who then changed her mind and sought for them to be reinstated. EJ Burns confirmed the dismissal on withdrawal by a decision dated 13 February 2024.

[3]The claimant brought this claim on 21 November 2023 for unfair dismissal, race discrimination and discrimination on the basis of religion / belief. The claimant subsequently withdrew the complaints of the complaints of unfair dismissal and religion / belief discrimination. The claimant also identified in her ET1 complaints about “trade union membership” and it is those complaints which were the subject of this preliminary hearing.

[4]As at the date of hearing the claim contained the following complaints against both respondents.a. Race discrimination. The claimant complains that the respondents refused to provide their services because of her Portuguese nationality.

b. The “trade union complaints”. The claimant complains that the respondents refused to provide their recruitment services on the grounds of trade union membership which the claimant says is a breach of section 138 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“TULR(C)A”)). i. The claimant complains that the first respondent (“R1”) refused its services as an employment agency from 27 September 2022 to 21 August 2023. ii. The claimant complains that the second respondent (“R2”) refused its services as an employment agency from 21 November 2022 to 20 September 2023.

[5]In a case management order dated 18 July 2024, Employment Judge Khan listed the claim for a one-day preliminary hearing to determine the following.a. To consider any application made by the claimant to amend the claim.

b. If the claimant proceeds with the trade union complaint against R2, to decide whether to strike out this complaint on the ground that it has no reasonable prospect of success (rule 37(a)).

c. Alternatively, in respect of the trade union complaints against the first and / or second respondent, to decide whether to order the claimant to pay a deposit as a condition of continuing with these complaints, and if so, to decide what amount of deposit to order the claimant to pay, taking account of any information the tribunal has in relation to the claimant’s ability to pay a deposit (rule 39).

d. To make any necessary case management orders.

[6]Some parts of the order made by EJ Khan dated 18 July 2024 are highly relevant to my decision and accordingly I set those parts out in full.

[7]Paragraph 17 of that EJ Khan’s order states: “In respect of the trade union complaint, the claimant claims that the first respondent knew about the involvement of her trade union with Reply UK because Paul Tucker, Director at Reply UK, told Holley Potts, Recruiter at SRG, who disclosed this to Dave Sims, a fellow Recruiter at SRG, who shared this with Gary Stefano, a Recruiter at the first respondent. As for the nexus between Mr. Sims and Mr. Stefano, the claimant relies on 4-month period some seven years prior to these events (i.e. October 2014 – February 2015) when they worked together.”

[8]Pargraph 20 of EJ Khan’s order states: “In respect of the trade union complaint, the claimant stated she did not “honestly believe” the allegedly adverse treatment was connected with her trade union membership, however she confirmed that she proceeded with this complaint. I explained that because of the claimant’s admission this complaint was unsustainable and it would be necessary to consider whether it should be struck out at a separate preliminary hearing. The claimant explained that she could not “trace out” a link between Reply UK and the second respondent to establish knowledge of her trade union membership “on the top of her head”. The claimant will have time to consider this. I also ordered the claimant to provide the further information set out below (see paragraph 33).”

[9]At the outset of the preliminary hearing the claimant clarified that she had made no written application to amend her claim to include a claim under the Employment Relations Act 1999 (Blacklists) Regulations 2010, and was not making any such application at the preliminary hearing.

[10]In addition, it was agreed between the parties at the outset that the preliminary hearing should include consideration of the strike out application made by R1 at the preliminary hearing on 11 July 2024 in relation to the trade union complaint, not only that made by the R2. This was on the basis that a) the claimant was aware that the first respondent had made such an application and was content for it to be considered, b) that the tribunal was in any event considering the R1’s deposit order application and R2’s strikeout application, which covered similar matters, and that it was in the interests of justice to do so, including saving parties and the tribunals resources. It was not objected to by the claimant.

[11]I had before me a bundle of 1481 pages which reflects the protracted correspondence and complexity of the proceedings. I also had before me skeleton arguments from both respondents and two skeleton arguments from the claimant; a 24-page document dated 24 October 2024 and a 6- page document dated 27 September 2024. The claimant confirmed that these two documents were an accurate record and compilation of her complaints. I also considered the claimant’s “further grounds” against the R1 and R2 dated 24 July 2024 and the claimant’s “skeleton arguments” against the R1 and R2 dated 24 July 2024. I also had before me two authorities from the second respondent.

[12]Given the procedural complexity and the quantity of documentation I adjourned to read a key reading list suggested by all parties, before hearing submissions. I reserved my decision in order to consider carefully the claimant’s case in full and to properly comprehend her pleadings.

LEGAL FRAMEWORK

[13]Section 138 TULR(C)A provides as follows: 138 Refusal of service of employment agency on grounds related to union membership(1) It is unlawful for an employment agency to refuse a person any of its services—(a) because he is, or is not, a member of a trade union, or (b) because he is unwilling to accept a requirement to take steps to become or cease to be, or to remain or not to become, a member of a trade union.

(2) A person who is thus unlawfully refused any service of an employment agency has a right of complaint to an employment tribunal. (2A) Section 12A of the Employment Tribunals Act 1996 (financial penalties) applies in relation to a complaint under this section as it applies in relation to a claim involving an employer and a worker (reading references to an employer as references to the employment agency and references to a worker as references to the complainant).

(3) Where an advertisement is published which indicates, or might reasonably be understood as indicating—(a) that any service of an employment agency is available only to a person who is, or is not, a member of a trade union, or (b) that any such requirement as is mentioned in subsection (1)(b) will be imposed in relation to a service to which the advertisement relates, a person who does not satisfy that condition or, as the case may be, is unwilling to accept that requirement, and who seeks to avail himself of and is refused that service, shall be conclusively presumed to have been refused it for that reason.

(4) A person shall be taken to be refused a service if he seeks to avail himself of it and the agency—(a) refuses or deliberately omits to make the service available to him, or (b) causes him not to avail himself of the service or to cease to avail himself of it, or (c) does not provide the same service, on the same terms, as is provided to others.

(5) Where a person is offered a service on terms which include a requirement that he is, or is not, a member of a trade union, or any such requirement as is mentioned in subsection (1)(b), and he does not accept the offer because he does not satisfy or, as the case may be, is unwilling to accept that requirement, he shall be treated as having been refused the service for that reason.

[14]Section 138 states that it is unlawful for an employment agency to refuse a person any of its services because the applicant is, or is not, a union member. A person is taken to be refused a service by an employment agency if the agency refuses or deliberately omits to make the service available or does not provide the same service, on the same terms, as is provided to others. To succeed in a claim under section 138 the claimant must show that she was refused services because she was a member of a trade union. In other words, that her membership of the trade union was a significant reason behind the refusal of services. A mere link between trade union membership and the reason for refusal is not sufficient for a claim. In Miller and ors v Interserve Industrial Services Ltd

2013 ICR 445

the EAT confirmed in relation to section 137 of TULR(C)A that in determining whether the refusal of (in that case, of employment) is ‘because of’ the unlawful trade union reason, it is appropriate for tribunals to take the approach in discrimination cases set out by the House of Lords in Nagarajan v London Regional Transport

1999 ICR 877

. Accordingly, the question of whether an employment agency refused services ‘because of’ membership of a trade union is a question as to their reasons for acting as they did, the so-called the ‘reason why’ question. It will be sufficient that the trade union membership had a “significant influence” on the decision to refuse the services. It need not be the sole ground for the decision.

[15]Rule 37 of the Employment Tribunal Rules of Procedure contained in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) provides that: Striking out 37.—(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;

(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). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

[16]I remind myself of His Honour Judge James Taylor’s EAT decision in Cox v. Adecco Group UK & Ireland

[2021] ICR 1307

paragraphs 21 to 34, and in particular the guidance given at paragraph 28 relating to strike out applications; 28. From these cases a number of general propositions emerge, some generally well- understood, some not so much:(1) No-one gains by truly hopeless cases being pursued to a hearing;

(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate;

(3) If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate;

(4) The Claimant’s case must ordinarily be taken at its highest;

(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is;

(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim;

(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing;

(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer;

(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances. The claims The claim against R1 at its highest

The claims

[17]The claim against the first respondent at its highest is as follows;a. The claimant has been registered with R1 since 15 May 2019 as a job seeker.

b. R1 stopped providing their services to the claimant after the claimant used her trade union at Reply UK in August and September 2022. Alternatively, R1 pretended to provide services but did not genuinely do so. R1 excluded the claimant from recruitment processes, asked in advance for references and blocked her on their recruitment channels.

c. Reply UK and SRG are connected with former and current employees of R1 over LinkedIn and through business relationships. In particular, R1’s employee Gary Stefano used to work with David Sims of SRG between 2012 and 2015.

[18]In the claimant’s ‘further grounds’ dated 24 July 2024 the claimant stated that; “As it was explained during the hearing on 11th July 2024 and highlighted by the EJ Khan on point (17) on CMO’s Oliver Bernard employees’ (Gary Stefano) used to work at Explore Group together with David Sims (actual recruiter at Salt and colleague of Holley Potts). “(17) In respect of the trade union complaint, the claimant claims that the first respondent knew about the involvement of her trade union with Reply UK because Paul Tucker, Director at Reply UK, told Holley Potts, Recruiter at SRG, who disclosed this to Dave Sims, a fellow Recruiter at SRG, who shared this with Gary Stefano, a Recruiter at the first respondent. As for the nexus between Mr. Sims and Mr. Stefano, the claimant relies on 4- month period some seven years prior to these events (i.e. October 2014 – February 2015) when they worked together.“ Equally, Izzy Clements (actual recruiter at La Fosse and colleague of Annabel Adams (former recruiter at La Fosse) is ex-colleague of Daniel Baldock (recruiter at Xcede) and Saffy Patel who used to work at Source recruitment together. Izzy Clements and the other recruiters, inclusive Daniel Baldock, have several LinkedIn connections with former and ex recruiters from the other competitors agencies, such as Salt Recruitment Group, Xcede, La fosse, of Oliver Bernard, Source Recruitment and other recruitment agencies. As well as direct employers to which also stopped introducing my profile to the hires. Izzy Clements also has LinkedIn's connection with Liam Flannery (current Xcede and colleague of Daniel 2 552 Baldock at Xcede) who has several connections with Exemployees of Source Recruitment and Salt Recruitment. Therefore the belief is that Reply UK (Paul Tucker) passed on informally references about my trade union to Salt Recruitment (Holley Potts). M.Potts spreed the gossip among Salt’s former and ex employees, inclusive David Sims who pass it to Gary Stefano (actual recruiter at OB and ex-explore group) Obviously I can’t show evidences of the recruiters passing my sensitive data among themselves as it is a gossip. Although, I can present evidences of connections between themselves through their LinkedIn connections, if the tribunal accepts that as evidence.”

[19]It is worth setting out the key paragraphs of the claimant’s case which is found at numerous points in the pleadings, but is also at page 4 of the document dated 24 October 2024, paragraph 3.4 (i): “C’s assumption that former and ex-employees of “R2”, “OB”, “LF” and “XCD”, as well as other recruitment agencies have been gossiping about “C’s sensitive data (trade union membership, health) and that “C’s” detriment post employment with Reply UK was triggered by Reply UK (Paul Tucker) passed on to Salt Recruitment Group (Holley Potts to David Sims) based to R1’s (“OB”) employees (Gary Stefano) by spreading the word among their former and/or ex-colleagues to other recruitment agencies, as well among their clients (News UK, Publicis Sapient, Vodafone UK, Virgin Media, etc) are supported on recruiters’s personal LinkedIn’s accounts connections (described bellow) that shows the respondents and other recruitment agencies are all linked:”

[20]The claimant then goes on to provide five and a half pages of LinkedIn connections between recruitment agents. This includes the following: “(i)(3)David Sims, former Salt’s employee worked at Explore Group Recruitment between Feb 2012 to Feb 2015 together with “OB’s” employee (Gary Stefano) between Oct 2014 to Jun 2021. Explore Group Recruitment to which also stopped providing their services as employment agencies or never represented “C’s profile to any of the hires, even if “C” has been a job seeker with them since 2017 (page 5)”; … “(m) (8) Nnenna Kalu used to be a recruiter at “R2” between Jun 2019 to Sep 2020 - 1 yr 4 mos), who inclusive used to approach “C” for new job opportunities. Mr. Kalu has a LinkedIn connection with Izzy Clements (actual recruiter at “LF” and ex-recruiter at “Source”), with Christopher King (ex-SALT), with Rob Smiley (ex-recruiter at “OB” between Mar 2017 to Mar 2020 - 3 yrs 1 mos), with Corinna Jones (ex-SALT), with Kate Gabb (ex-Source & ex Digital Gurus), with Alliecee Cummings (ex“SALT”), with Sarah Selisko (ex-SALT), with David Pratley-McGill (exSALT), with Faye Charleswoth (ex-“XCD”) and with Dave Boylesekera (ex-SALT).”(page 6) … “(h)(11.5) (Izzy Clements > Kenan Zarif to): Tim Hughes (Associated director at “OB” since Oct 2018 to present - 5yrs 10 mos) only have been working at competitors recruitment agencies and he is connected with Rob Smiley (ex-OB between Mar 2017 to Mar - 2 yrs 6 mos), with Cam Ovel (ex-“LF”), with Alice Czyz (ex-Source), with Sonny Meddle (ex-OB), and with Velsen Dev (ex-OB)” (page 7). … “OB’s former employee (Rob Smiley) between Mar 2017 to Mar 2017, is connected with Salt’s former employee (Nnenna Kalu) who is connected with the Second Respondent’s actual employee (Isabella Clements). Both recruiters (Rob Smiley and Nnenna Kalu) used to introduced new job opportunties to “C” over the years” (page 11).

[21]On page 12 and 13 of her skeleton argument dated 24 October 2024 the claimant summarises her case as follows: “(d) R1 confirmed they keep a business relationship with Reply UK, besides the fact their employees keep a personal relationship with recruiters of other recruitment agencies, inclusive with Salt Recruitment Group to which also works directly with Reply UK and triggered “C’s” detriment and discrimination on grounds of trade union membership. (e) Therefore, wether “C” has or not evidences of detrimental feedback or communication between OB and Reply UK or between Salt Recruitment Group and Reply UK gossiping about “C’s” sensitive data, the fact that OB’s stopped pretending to provide their employment services, its already detriment and discrimination against C on grounds of trade union and race.”

[22]During the claimant’s oral submissions, I spent some time clarifying her position. The claimant accepted she has no evidence that R1 had knowledge about her trade union membership, rather she makes an assumption that they did because of the network she has set out. She assumes R1’S knowledge of her trade union membership because Gary Stefano, employed by R1, used to be a co-worker of David Sims of SRG. She assumes that Paul Tucker at Reply UK, passed on this information to Holly Potts at SRG, who passed it on to David Sims of SRG, who passed it on to Gary Stefano of R1. She provides no explanation as to the reason why they would have done this, other than that the recruiters all know each other and gossip. The claimant’s approach is to equate networking connections with the respondents having knowledge of her trade union membership.

[23]I also questioned the claimant on her position on the necessary causative link between her trade union membership and the refusal of services, and why she considered it to be the reason why they did not put her forward for roles, as opposed to other reasons such as suitability for those roles. Her answer was that it must be the ‘reason why’ because they refused her services after she used her trade union at Reply UK. Given that the claimant is a litigant in person I reassured her that I would also spend time reading her many written representations which I have done. The claim against R2 at its highest

[24]The claims against R2 at its highest:a. R2 refused its services as an employment agency from 21 November 2022 to 20 September 2023. R2 excluded the claimant from recruitment processes, asked in advance for references and blocked her on their recruitment channels.

b. R2 has connections to Reply UK and SRG. Those connections are as follows. Isabelle Clements, a current employee of the R2 is connected on LinkedIn with employees at other recruitment agencies, including SRG. The claimant’s case is that Paul Tucker, Director at Reply UK, told Holley Potts, Recruiter at SRG about the involvement of the Claimant’s trade union, and that this “gossip” was spread amongst the employees and former employees of SRG and ended up with Isabelle Clements at R2. The claimant provides no explanation as to how the gossip spread exactly, but relies on the assertion that the recruiters know each other and gossip.

[25]It is important to note that at the closed preliminary hearing before EJ Khan, the Claimant stated that she did not “honestly believe” the alleged adverse treatment by the R2 was connected with her trade union membership. The Claimant also stated that “on the top of her head” she was unable to “trace out” a link between Reply UK and R2 so as to establish knowledge of her trade union membership. This was recorded at paragraph 20 of the case management summary.

[26]Despite the warning by EJ Khan that the claim against R2 was unsustainable, at this public preliminary hearing the claimant said that EJ Khan had given her an opportunity to find the link between R2 and Reply UK/SRG and that she had done so. The claimant provided over five pages listing LinkedIn connections between various recruiters, including many LinkedIn connections with Ms. Clements, employee of R2. I do not set those out in detail here. Again, the claimant’s approach is to equate networking links with knowledge of her trade union membership. Strike out application – R1

[27]I remind myself that when considering an application for a strike out, I must first consider whether the grounds for a strike out application are met, and then secondly consider whether to use my discretion. In considering this application I make no findings of fact because I did not hear evidence from either party.

[28]I take into account and put significant weight on the fact that the claimant is a litigant in person. I have taken into account that the claimant has had numerous opportunities to clarify her claim, including an opportunity to amend her claim which she did not take. Whilst the claimant has over the course of some months provided more detail about the alleged network of recruiters, I note that her claim has remained consistent throughout in that it is based on speculation that recruiters have been gossiping about her.

[29]In respect of the claim against R1, I have considered the respondent’s submissions that even taking the claim at its highest, the claimant has not put forward any facts that could establish, even by inference, that R1 had knowledge of her trade union membership, that there was a failure to provide services, or that failure was because of the trade union membership. The respondent submits that the claimant’s case against R1 is that R1 is assumed to know about her trade union membership because Paul Taylor (Reply UK) told Holly Potts (SRG) who told David Sims (SRG) who told Gary Stefano (R1) that the claimant was a member of a trade union. No evidence has been provided that any of these conversations took place and the claimant herself says she does not know that they occurred, but assumes that they did. There are four links in this chain, and the last link relies on Gary Stefano and David Sims who worked together for four months 7 years prior to the events. R1 submits that it has never interacted with Reply UK regarding the claimant, and that it does not work regularly with Reply UK but has placed job candidates there in the past. R1 says it has no business connections to SRG.

[30]The claimant’s case is based on her belief that recruitment agents have been gossiping about her. For the claimant to succeed in a claim she would need to persuade a Tribunal that four recruitment agents conspired against her, despite at least one of them having no professional connection to the claimant at all, and despite the claimant providing no reason why they would do so. Her case is widely speculative. She has provided no evidence that R1 knew about her trade union membership and admits that her case on knowledge is an assumption. I take into account that the claimant herself has accepted that she has no evidence that R1 had knowledge about her trade union membership. She provided no evidence that all the recruiters in the chain ever communicated with each other, let alone about her, and let alone relating to her trade union membership. There is no evidence that the recruiters who are supposed to have conspired to refuse their services are even in contact with each other, other than being connected on the networking website LinkedIn. LinkedIn is a social media platform which is used as a professional network. Making a connection with a person’s account on LinkedIn does not mean that the persons know each other or that they have ever communicated with each other, other than by accepting the connection.

[31]I remind myself that where facts are in dispute it will be only be appropriate to exercise discretion to strike out claims in very exceptional cases (Ezsias v North Glamorgan NHS Trust

[2007] ICR 1126

). In my view this is one of those exceptional cases. The case is so entirely speculative that the claimant has no reasonable prospects of convincing a Tribunal that R1 had knowledge of her trade union membership.

[32]In relation to whether R1 refused the claimant services, I have considered that the respondent has provided evidence that it emailed the claimant along with other candidates inviting her to apply for available positions between May 2019 and August 2023. On 21 August 2023, the Claimant telephoned Alex Scriven of the R1 to discuss a position she had applied for, which she had not been put forward. R1 explained that she had not been put forward for the position, as more suitable candidates for the vacancy had been identified. It had been explained to the Claimant that there were no jobs available for her due to the current job market. The respondent’s submission is that at no point has the Claimant been excluded or blocked from the First Respondent’s recruitment process.

[33]I note that whilst the claimant has made numerous submissions that the respondent has been pretending to provide recruitment services or ignoring the claimant’s interest in roles, on her own case she was approached by R1 for design positions on 6 July 2022 and then during the phone call with R1 on 21 August 2023 she was asked to provide an updated CV. Accordingly, even on the claimant’s own case she was not refused services within the meaning of section 138(4)(a), rather she was concerned that R1 was not effectively providing her with a service (in her words, they were pretending). This could amount to a failure under section 138(4)(c) to provide services in a non-discriminatory manner, however, the claimant has not given any examples of instances in which R1 has treated her differently to how it would treat any other job seeker. On her own case the claimant is not able to establish a claim under section 138(4)(a), and she has provided no information on which a Tribunal could make a finding under section 138(4)(c).

[34]In relation to the causative link between trade union membership and the alleged refusal of services, the claimant’s position is that the refusal of services is itself the evidence of such a link. Her case is that it is obvious that the ‘reason why’ is the trade union membership because when she used the trade union she was blacklisted. The claimant has been given numerous opportunities to explain what she relies upon, beyond speculation, to establish a causal link between trade union membership and alleged refusal of services, but has not provided one. Having heard her submissions I am satisfied that she would be unlikely to provide any facts that could establish a causal link at a final hearing, because she takes the position that none is needed. I take into account that the claimant is a litigant in person but note that it is still incumbent upon her to establish the facts that could lead to a Tribunal making inferences and then findings about the reason why she was refused services. In cases where the disadvantage is not inherent in the treatment, more is needed to establish that the treatment was because of the trade union membership than the fact of the treatment itself. The claimant provides no facts that would lead a Tribunal to decide that the alleged refusal of services was because of her trade union membership.

[35]The first respondent adopted the submissions made by Ms. Abas for R2 who relied on two authorities. First, Ashok Asir v British Airways PLC

[2017] EWCA Civ 1392

in which Lord Justice Underhill stated that; “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, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between ‘exceptional’ and ‘most exceptional’ circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ‘little reasonable prospect of success’.

[36]Ms. Abas also drew my attention to Thomas v Expansys UK Ltd

2022 EAT 164

. Ms. Abas submitted that in that case the EAT held that a tribunal had been entitled to strike out the claimant’s discrimination claims where she had failed, at the strike-out hearing, to assert that her sex or race had causally influenced a manager’s decision to 6 dismiss her. It was unfortunate that the claimant had been effectively put on the spot to explain her case, however, it was legitimate for the tribunal to ask what her case was. The tribunal had, in any event, looked beyond her response to its question and considered the pleadings and other core documents, as it was required to do. The claimant had also been afforded several opportunities to clarify her case before the strike-out hearing but had failed to do so. I am satisfied that in this case the claimant has had ample opportunity to clarify her case and that the claimant took the opportunity to address her position on causation at the preliminary hearing. As set out above I have also carefully considered her many written representations.

[37]Having taken into account all the circumstances, and bearing in mind the high threshold involved in such cases, I nevertheless conclude that this claim has no reasonable prospects of success. Each of the elements of a claim under section 138 including knowledge of trade union membership, refusal of services, and the causative link between trade union membership and refusal of services, is speculative, even on the claimant’s own case. The claimant has no reasonable prospect of proving facts or raising any inferences from which the tribunal could conclude that the respondents refused their services to her and that this was because of her trade union membership. This claim falls within Rule 37(1)(a) in that it has no reasonable prospect of success.

[38]As to whether or not to exercise my discretion to strike out the claim, I place significant weight on the severe consequences of striking out a claim and do not take the decision lightly. However, in this case I consider it is in the overriding interests of justice to strike this claim out, bearing in mind the costs to the respondents of defending a time-consuming and complex case that has no reasonable prospects of success, and the nature and importance of the issues. I take into account that the claimant has an outstanding appeal against the bodies who are the key source of her concern (Reply UK and SRG) and is still able to pursue her race discrimination claim against the respondents. Strike out application – R2

[39]In respect of the claim against R2, I note that many of the same considerations apply as I have set out above for R1, save that the claimant’s case on R2 having knowledge of trade union membership is even weaker. The claimant is unable to pinpoint how the fact of her trade union membership passed from Reply UK/SRG to R2, other than that it may have been through the many connections of Ms. Clements. I note that Ms. Clements herself gave a witness statement (at page 1212 of the bundle) stating she had no knowledge of the claimant until these proceedings. Ms. Clements is engaged in internal recruitment or recruitment agents and as such it is expected that she has a very wide network of recruitment agents.

[40]I have considered the respondent’s submissions that the claimant has not explained why it was not reasonably practicable for her to bring the claim within time. I take this into account but do not place significant weight on it because it is something that is properly determined at the final hearing after hearing evidence.

[41]I place significant weight on the claimant’s admission before EJ Khan that she did not genuinely believe that R2 knew about her trade union membership. When EJ Khan explained to the claimant that if she genuinely didn’t believe that R2 knew about her trade union membership then her claim was clearly unsustainable, instead of reconsidering her claim, the claimant took that as an opportunity to go on a fishing expedition to look for links between R2 and the subjects of her core complaints. All she has provided is a list of Ms. Clements connections to recruitment agents on LinkedIn.

[42]Having considered all the information before me and taking her claim at its highest, I find that the claimant has no reasonable prospects of succeeding in persuading a Tribunal that R2 had knowledge of her trade union membership. Because of this, and for reasons given above in relation to R1, she has no reasonable prospect of succeeding in establishing that R2 refused her services because of her trade union membership. I find that the trade union claim against R2 falls within Rule 37(1)(a) in that it has no reasonable prospect of success.

[43]I have considered whether to exercise my discretion under Rule 37. I take this into account the claimant’s approach to this claim after EJ Khan’s order and his warning that her claim was unsustainable. She saw this as an opportunity to go on a fishing expedition rather than take a realistic view of her claim. I also take into account other aspects of the claimant’s behavior in these proceedings which I consider to be approaching vexatious behavior, even taking into account that she is a litigant in person. The claimant has brought numerous satellite claims arising out of her original complaint against Reply UK and SRG and has withdrawn and added information to her claims and flooded the Tribunal with representations. The claimant indicated in the hearing before me that she will appeal any outcome that is not in her favour regardless of the reasons for such a decision. For these reasons in addition to the reasons given above for R1 I have decided it is in the overriding interests of justice to exercise my discretion to strike out the claim.

[44]Having made an order to strike out the claims, there is no need to consider the applications for deposit orders.

The claims

[1]The Claimant requested written reasons during the course of the hearing.

[2]Oral reasons were given on the final day of the hearing dismissing the claims. These written reasons are somewhat longer and more detailed but the 1. essential decision and the reasons for it are substantially the same as those given in our oral reasons and decision. Overview

[3]In summary the Claimant claims that each of the Respondents, who are recruitment agencies, discriminated against her because of her Portuguese nationality. The only connection between the Respondents is that they are named on the same claim form. Recording concerns

[4]During the course of the hearing on the final day both counsel raised a concern that the Claimant had been surreptitiously recording the hearing, given the extraordinary precision which with she had quoted evidence from the hearing (and against a backdrop of her having recorded meetings previously). The Claimant denied that she had been recording.

[6]The Tribunal took no action beyond explaining that recording a hearing was a contempt of court (section 9 of the Contempt of Court Act 1981), and making a note of the positions of the parties.

Evidence

[7]Page references thus [123] relate to pages in the bundle.

[8]We received the following evidence: 8.1. Bundle of 1,764 pages to which several pages were added by agreement; 8.2. 405 pages supplementary bundle, the Second Respondent pulled together in single PDF;

[9]Witness statements: 9.1. Alex Scriven, sales director of the First Respondent; 9.2. Annabel Adams, Senior Consultant - a witness statement at a supplementary witness statement.

[10]While not precisely witness statements but we have taken the following documents to understand the Claimant’s case: 10.1. A 51 page skeleton argument/witness statement; and 10.2. A 33 page counter-arguments against Respondent’s chronology. 2. 10.3. Also additionally the Claimant’s “chronologic time lines” relating to the First Respondent [597] and the Second Respondent [636]. Findings of fact Parties

Findings of fact

[11]The Claimant works in a number of overlapping specialisms which broadly speaking relate to design and customer interfaces.

[12]In relation to the Claimant’s work, UXR stands for “User experience researcher”, UX stands for “User experience designer”, UI stands for User Interface and “Service Designer” is a role which looks at the whole service experience which may be on or offline.

[13]The First and Second Respondents are recruitment agencies. The First Respondent has 33 employees. The Second Respondent 275 employees.

[14]There is no overlap in relation to their treatment of the Claimant for the purposes of this claim. The Claimant happens to have brought a claim about both of them which is similar in nature. It appears that the Respondents occasionally work for the same client although that would be in competition with one another. Basis for the claim

[15]The Claimant is Portuguese, and that nationality is the basis for her claim of direct race discrimination (based on nationality) falling under section 13 and 55 of the Equality Act 2010.

[16]The Claimant also has Brazilian nationality, although she has not relied on that nationality as part of her claim of discrimination and that information is only something that came out in evidence on the fourth day of the hearing. History

[17]The Claimant has worked in the UK for 11 years. Strictly speaking that point was mentioned in a submission document but she has also produced a CV showing an employment history in the UK.

[18]On 10 August 2022 the Claimant ceased working as a designer for a company called Reply Limited. That is not a respondent to this claim. She had been working there since 13 January 2022. Forgery and alleged “fake” documents

[19]During the hearing the Claimant alleged that many of the Respondents’ documents in the bundle were “fake”, forgeries or in some other way suspicious. 3.

[20]We reminded ourselves that there is a high threshold to establish fraud or forgery. Forgery is a serious allegation. We make findings on the balance of probabilities. There must however be cogent evidence before we find that a document has been forged.

[21]The Claimant placed significant emphasis on the fact that some versions of emails were in PDF whereas others were in HTML. The Second Respondent explains that the solicitor used a package in PDF which would allow parts of documents which contained privileged material or confidential information such as other candidates’ names to be redacted.

[22]The Claimant was also concerned that some emails appeared in the bundle differently formatted to others and that some emails had not been printed out from the particular Respondents’ original mailserver.

[23]The experience of the members of the Tribunal panel as both users of email and also as people experienced in litigation and the way that parties produce their evidence for Tribunal hearings, is that the fact of emails being presented in a somewhat differing formats is unremarkable and not inherently suspicious. This simply suggests that it has been printed from a different mail application or package. The same email may be accessed in a desktop PC mail application such as Outlook, or some other application. It might be accessed through an web-based email and also accessed on a mobile phone. Each one of these methods of accessing an email may present the email visually in a slightly different format. It is quite common in employment tribunal litigation that we see the same emails printed by two different parties and they look different in format. For example the dates might be printed out in a different language, but the content of the email is the same.

[24]Had there been an example where the purported content of the same email had been changed in substance, this would suggest to the Tribunal that this was a point that we need to look at in great detail. That is not what we have observed. In this case it appears that format may vary different but the content is the same.

[25]The Claimant did not identify two different versions of the same email showing that they had been changed. One example that she did raise which was to suggest that there was different wording in [1662], [931] which were not the same emails, but rather a situation in which the recruiter had quoted slightly different language to that which been used by a client end hirer. That is a exercise of an individual’s discretion. That is not evidence to our minds of fraud. We did not interpret that as suggesting that either email was fake.

[26]The Claimant appeared doubtful that some communications between clients and the Respondents were genuine documents. This was principally because she had not received them the time and in some cases had not received them as part of an SAR request. She has not put forward cogent evidence of forgery. The bundle contains 1,700 pages. Of those which are not documents prepared for the litigation, we did not find that these were other than routine 4. business communication that are unremarkable in content and we have no hesitation in finding that they are genuine. SAR

[27]The Claimant’s second concern is about documents not being produced in the SAR (Subject Access Request). That may raise a question as to how thoroughly the SAR has been carried out by Respondents. That is really a question which falls outside of the jurisdiction of this Tribunal. The fact that there are additional documents produced through the Tribunal disclosure process that were not produced through the SAR process that we have not found on balance of probabilities to undermine the veracity or validity of those documents. The Claimant has had the benefit of those additional documents.

[28]If this had been a case in which we felt that relevant documents that should have been disclosed within this litigation had been deliberately suppressed by one of the parties, that might have been something that we could draw an inference from. We have not found that. The Chronologies

[29]The parties have put forward a variety of different chronologies. There was a joint chronology from the Respondents. The Claimant provided a response to that document. In the closing submissions, the Respondents have highlighted timelines of communication.

[30]In preparing our findings of fact, we have taken account of the chronologies which show communication between each Respondent and the Claimant and her comments. The Claimant took respondent witnesses, in particular Mr Scriven, to communications within her own timeline which she said was significant. He did not dispute any of the communications that she put to him.

[31]The only points of dispute were on the interpretation to be placed on the documents i.e. was this discriminatory conduct or not?

[32]So much of the communication in this case is either by email or by LinkedIn that, we have a complete record of the communications. The Respondents’ witnesses did not dispute the content of any the communications put to them by the Claimant (sometimes for convenience put by reference to reproduction in her chronology documents rather than the original document). Given our finding that there was no forgery, we have a complete record.

[33]For the purposes of the oral judgment we not propose to go through every single communication. For the written reasons, more material has been included, but it will still not contain the entire thread of communication, as this is not a proportionate or good use of tribunal and judicial time. 5. First Respondent’s Chronology Relevant period

[34]The period relevant to the claim brought against the First Respondent was identified at a preliminary hearing in front of Employment Judge Khan [18] at paragraph 15 of the case management order as being 27 September 2022 to 21 August 2023.

[35]The Claimant applied to amend this period at the start of this hearing to 2019, by reference to comments in her Schedule of Loss. Pragmatically, this application was not opposed by the First Respondent and was granted by the Tribunal, subject to consideration of time points.

[36]The evidence of Mr Scriven was that he was a Sales Director. The role performed by the Claimant falls outside of his personal area of expertise which is “agile” technology.

[37]All of the people referred to in this chronology other than the Claimant herself are employees of the First Respondent. Early communications with R1: 2019

[38]On 15 May 2019 Rory Brandon had an email exchange with the Claimant about a position which was a UX Designer role. In that exchange the Claimant said that she wanted to move to a permanent position based in East London. She put to Mr Scriven in evidence that the First Respondent had subsequently failed to offer her role in Cannon Street, which in her view was East London.

[39]Mr Scriven’s perspective was that he would regard Cannon Street as being “the City”, (i.e. the Financial District in Central London) which he would not think of as being East London. It is relevant that the Claimant time was based in Hackey, London E9 which colloquially would be regarded as East London. The Claimant attempted to demonstrate by reference to a map that looking at London overall Cannon Street is in the East of London. That might be correct as a matter of logic. We found however that Mr Scriven’s understanding is consistent with the way that most people living in London normally describe the areas of London. They would not ordinarily describe the City (meaning the City of London financial district) as East London albeit that it is east of the centre and it falls within EC postcodes.

[40]This was one of a number of examples of a misunderstandings which the Claimant thought were sinister, but was readily explicable once the misunderstanding had been identified.

[41]Rory Brandon approached the Claimant about a permanent role in June 2019. She did not reply.

[42]Different colleagues messaged the Claimant in November and December 2019 about different roles. The Claimant did not reply. 6.

[43]Hayden Heath and Sonny Meddle messaged the Claimant about a variety of roles in January and February 2020.

[44]On 29 May 2020 Toby Harding wrote to the Claimant about a new senior UX/UI Role in Berlin. The Claimant was critical of this approach during the Tribunal hearing and cross-examined Mr Scriven in detail about his knowledge of the client, which was unsurprisingly fairly limited, since this email is nearly 5 years old, it was not his email and not his client. The email itself acknowledges that the market was a tough one (presumably by reference to the then ongoing events of early period of the Covid 19 pandemic) and this was something of a long shot. It is clear from the email, which contains a database mail merge term “$first name$”, and a list of names of potential candidates which are redacted, that this email was being sent to a variety of people. This communication seemed to the Tribunal to be fairly unremarkable and could not see how the Claimant was being singled out by it.

[45]In September 2020 Mr Harding wrote to the Claimant for an update on her situation. On 29 October 2020, the Claimant wrote to Toby Harding: “I'm currently looking for a new permanent opportunities as a senior Product designer or UX/UI designer, within a small/medium design team, in an agile environment, based in east/central London, post remote. Or permanently remote.”

[46]Mr Harding replied: “I've passed this and your CV etc around to the team to make sure we are keeping you in mind for anything. I've got something straight away that I will send you across to you separately in another email.”

[47]On 26 November 2020 Alex Scriven emailed the Claimant and also sent via LinkedIn – re: Senior product designer role. The Claimant responded saying that she wanted to avoid start-ups and that she could only start the following February i.e. more than two months in the future.

[48]There were three communications about different roles in January 2021, another in March and another in April 2021.

[49]On 27 April 2021 Sina Faramazi emailed the Claimant to check on her current situation on the basis that they had not heard from her recently and wanted to understand her current situation. 7.

[50]There were further communications about a variety of roles in May, June, July and August 2021.

[51]On 3 September the Claimant sent an email to Sonny Meddle, apologising for her late reply, setting out some quite specific requirements of what she was looking for in a role: “I'm looking for a client-side based in east London, post covid within a small-medium design team or fully remote work. I'm not looking for a consultancy and I'm willing to change for another job where I report to another designer and have at least another Senior designer role and I'm not looking for consultancies. My strengths are in visual design and I have been doing Ux for the past 7 years and Ux research for the past 3 years. My salary expectations are between 60k to 70k year. My notice is 1 month.”

[52]On 4 September 2021 Claimant wrote as follows to Jessica Keightley in response to a communication sent about a UX/UK Senior Designer role sent the previous day: “Hey Jessica, I hope you are well and had a great weekend. Thanks for your call on Friday and for sending me the job spec of this role. However, I have a thought about the role and the fact I would need to report to a project manager and I would prefer to try to find a role where I will report to a more senior designer instead. I'm happy with a middleweight or a senior product designer role. Technically I'm ready to be a senior designer, but I have some struggles with the communication which can be an obstacle to effectively manage stakeholders, ultimately it always come down to the right team support. Besides it I only have been a mentor for 3 months and had provided work guidance to another designer for 6 months. I would be thankful for your thoughts about it and I appreciate if could please keep me posted about other opportunities and share my details with your colleagues. Thank you.”

[53]The Claimant says that her allusion to communication was a reference to not having a high standard of English which is part of the basis for her claim of direct race/nationality discrimination which we deal with below.

[54]In relation to this job opportunity a couple of days later the Claimant changed her mind and said that she was after all interested in the role. She was not put forward for that role.

[55]Another colleague Mr Stefano approached the Claimant in November 2021 about a variety of clients (unspecified) across different sectors. The Claimant did not reply as she was by then working in another role. 8.

[56]On 14 February 2022 at 12:56PM, the Claimant replied to Jack Borszcz’s email sent 6 months earlier from on 12 August 2021 at 09:05AM, showing interest in opened positions AQKA, a design and communications agency, asking his help by stating: “Hey Jack, Happy New Year. I hope you are well. Apologies for my approach although I saw that AQKA is still looking for a few positions that I could fill: User experience Designer, freelance (link); Associate User experience Designer (link); Product designer (link); UI designer (link); Designer (link); I was wondering if you wouldn’t mind to give me the General HR email, off the record (I would not say that you gave me their email), so I could send my application directly to HR. I believe they might not even considering me for interview because I know some people working at the Design team and we just don’t have a good personal relationship. I meet them on personal context. Still, I believe AQKA is a good agency and I don’t give a dam for those people and I believe they might be interfering on my application. Also, I’m still looking for a good creative, consultancy or Marketing & Adverting agency to move to perm or start as freelance and move to freelance. I have that change at my current position but I don’t think they are really good. I have attached my latest CV and I would be thankful of your contact and eventually for new opportunities. I appreciate your time and attention and I look forward to hearing from you soon. Best Regards.” “OB” (Jack Borszcz)

[57]The Claimant complains that the First Respondent did not reply.

[58]Although he did not personally receive this email, Mr Scriven spoke on behalf of his colleague and said that to a recruiter this email and in particular the parts about not having a good relationship with this particular client would be a “red flag”. In other words this would not be a good candidate to put forward since there appears to be a difficult history. We entirely understand why he would say that. It would make no sense at all if there had been a history of poor relations to put forward a candidate, when there are many other people to choose from.

[59]We note that the Claimant was asking to cut the First Respondent recruitment agency out of the loop to approach the client’s HR department directly, which we can entirely see as a matter of common sense would not be something that a recruitment agency would wish to do.

[60]In March 2022 Mr Stefano emailed the Claimant about a couple of roles in a business created by an ex-Microsoft employee. The Claimant did not reply as she was working elsewhere.

[61]On 27 September 2022 the Claimant was sent summaries, albeit with no names of companies, job vacancies by Sarah Broughton, a Consultant at the First Respondent. Given the inclusion of $first names$ at the beginning of he 9. message (this looks like a mail merge for a generic communication) we find that this was a communication sent to quite a large number of potential candidates. The Claimant replied personally asking for detail. Market slow-down

[62]During 2022 and until the end of 2023 the evidence of Alex Scriven was that the recruitment market was slow due to the effects of the lockdown and the market generally.

[63]The Claimant suggests that an email sent by Sarah Broughton on 28 June 2022 undermines this because she refers to a “huge increase in the number of live roles”. On balance we find that appears to be a reference to “live” as opposed to “remote” roles. That would tie in with the tail end of lockdown measures and return to normal working, which is not the same as the market overall.

[64]The First Respondent’s case on market slowdown is supported by an exchange between two employees of the Second Respondent: Ebbani Juneja. Ms Juneja was reassured by her colleague Annabel Adams on 23 August 2023 after an exchange with the Claimant: “Don’t worry you haven’t don’t anything wrong. Just candidates are frustrated because there’s no work for them so there blaming it on you. Don’t let it get to you!”

[65]Mr Stefano emailed the Claimant about a variety of permanent and contract UX design positions in January 2023 which led to the Claimant expressing interest in one of them. LinkedIn post

[66]In or around April 2023 the Claimant posted a series of posts on LinkedIn which expressed in quite strong terms using swear words her exasperation with trying to find work in London and the design market more generally. These contain generalised assertions of corruption, but not specific examples naming people and companies.

[67]One example is as follows: “Darlings today I had the #confirmation that #london #uk is full of #corruption, #tyranny and that we actually live in a city of #crooks, who pay [emoticon bag of $] to powerful people, inclusive to the #government to get what they want and to hide their shit under the #carpet. I’m going to prove you all, this #society is an #uncovered #dictoship even if that takes a while…because unfortunately I had the unpleasant to deal with many #crooks during my staying in London, thinking that I was dealing with #good #people. I poor me [emoticon upside down :-)] you just wait and see! 10. [Link to a image or video showing characters from the Simpsons cartoon.]

[68]Another one: “Dear #readers, let me tell you why I’m sure UK GP is an #uncovered #dictatorship and we are not free as many people think, we are! After almost 10 years living in UK, mainly in #London, I realised while dealing with people and #companies with power (money and connections) that they are above the law. They are #omnipotents, they bribe people to get what they want no matter what cost. They are crooks basically. There is the #legislation which is more the like an #ideology which no one follows, specially #employers.”

[69]That goes on in a similar vein for several further paragraphs asserting that her life had been destroyed by big corporations and that her freedoms have been taken away and that she had been harassed. There is a link to what appears to be jokey or satirical image of Queen Elizabeth II. Complaint of discrimination (R1)

[70]On 18 August 2023 the Claimant applied for the First Respondent’s new position advertised on Total Jobs. She received what she describes as an automatic email rejecting her which said: “Thank you for your application and your interest in our company. Unfortunately, we have to inform you that we cannot consider you for the further application process. We wish you all the best for your professional and private future. Sincerely yours Oliver Bernard Ltd“

[71]On that same day the Claimant mailed the First Respondent saying that she had been discriminated against regarding her new position, which had automatically been rejected. She wrote: “I hope you are well. I’m reaching out because I have been victim of discrimination from you team members because of my beliefs and LinkedIn posts, it has been happening for a while. Now, I have just applied to a Senior Product Design role within the Total Jobs, and I received an automatic email from Oliver Bernand, saying that you cannot consider my application for the opened position. So, I’m reaching out to ﬁnd out what is your problem with me, and which justiﬁcation do you have to give because this behaviour is discrimination and it’s against the law and I’m not if you understand that I can sue you for that. I appreciate your attention and reply so we can solve this matter politely” 11.

[72]It is notable that this complaint raised discrimination but did not mention “race”, but rather raised a concern about “beliefs” and LinkedIn posts. Telephone call in August 2023: allegation of discrimination

[73]On 21 August 2023 there was a telephone conversation between the Claimant and Mr Scriven in which she said that she had been discriminated against. The Claimant made a recording which has been turned into a transcript by her.

[74]Alex Scriven said to the Claimant and reiterated that he had not seen the Claimant’s LinkedIn messages and they would try and find the Claimant a new position. The Claimant thanked Alex Scriven. She apologised if she was direct with her approach and she sounded rude.

[75]During the conversation Mr Scriven said: “I’m very sorry you feel that way but I can assure you that me and my team we will, we take any terms of discrimination very very seriously, but I can assure you if my team feels they can place you and wound’t care what you writing on LinkedIn. I haven’t seen it myself so I don’t really know what you referring too. I will have a look.

[76]The Claimant said: “but it’s not because of that. I, I cause [accuse?] you of discrimination because you automatically rejected my application and in my point of view an application should only be rejected if it goes through a recruitment process or after a while not just like, I apply and right way I received an email saying that I have been rejected.

[77]A bit later on Mr Scriven said “…. We think of you as highly as candidate, but Sarah, Ana I must admit we are working in a climate that has been the worse I have ever seen in my life now, and Oliver Bernard we have finding it very very difficult and we have not had many jobs and opportunties but I will look into why your rejection was instant, so let me look into that, but I can assure you is nothing to do with any sort of discrimination because this concern that you say, in your words: ‘I’m reaching out because I have been victim of discrimination from you and your team because of my beliefs and LinkedIn posts’ Now...

[78]There was then a conversation went on in which the Claimant said that the market for design was “shit” and the majority of companies were “shit” and she explained her concern was that she was not black but she did feel “xenophobia”. 12.

[79]The conversation ended with Mr Scriven saying that he would look into what appeared to have been an “instant” rejection and asked the Claimant to email to him an up-to-date version of her CV. The tone of Mr Scriven’s responses so far as we can see were kind and sympathetic. She thanked him for his time. Contact about potential roles

[80]Mr Scriven’s witness statement at paragraph 26 contains a long list of contacts made with the Claimant about a variety of roles, which the Tribunal accepted: “I and my colleagues contacted the Claimant regarding job placements namely Rory Brandon commencing on 5 May 2019 [Pages 703 to 714]; Sonny Meddle commencing 1 November 2029 [Page 720, 724 to 725, 739, 741 760 to 761]; Haydn Heath commencing 9 December 2019 [Pages 721 to 723]; Toby Harding commencing on 29 May 2020 [Pages 728 to 730, 740]; myself commencing on 26 January 2020 [Page 731 to 738, 1064 to 1070]; Jack Borszcz commencing 23 March 2021 [Page 742, 744 to 745, 747, 750 to 752, 755 to 756, 783 to 784]; Naushina Mohammed commencing 23 March 2021 [Page 743]; Sina Faramarz commencing 27 April 2021 [Page 746]; Reece Graves commencing 21 May 2021 [Page 748 to 749, 757]; Gary Stefano commencing in 2018 [Page 753 to 754, 768 to 769, 785 to 786, 982 to 985, 1049 to 1050, 1058 to 1062, 1425 to 1426, 1537 to 1538]; Jessica Keightley commencing 18 August 2021 [Page 758 to 759, 762 to 766]; and Sarah Broughton commencing on 4 July 2022 [Pages 831 to 841, 946 to 984, 1500 to 1503].

[81]There were occasions when Claimant did not get a response from the First Respondent different recruiters. As is evident from the chronology above the Claimant herself often did not reply to the First Respondent’s recruiters usually because she was in another role. Second Respondent’s Chronology

[82]The period relevant identified by Employment Judge Khan [19] at paragraph 18 of the case management order was: 21 November 2022 to 20 September 2023.

[83]The Claimant applied to amend this period at the start of this hearing to 2017, by reference to Schedule of Loss. This was not opposed by the Second Respondent and was granted by the Tribunal subject to argument about this being presented out of time.

[84]The individuals referred to below are employees of the Second Respondent. 13. Contact C2

[85]On 3 November 2017 Harry Watson sent the Claimant the job description for a Senior UX Designer role at Photobox. At that time the Claimant explained that she did not think she was read to be a lead designer.

[86]On 19 March 2018 Rosie O’Donoghue sent the Claimant an email about a contract UI Designer role at an educational publisher (unspecified) in London. This was followed up a couple of days later with a message asking for permission process data in line with GDPR legislation.

[87]On 21 March Ms Milne provided details of a Senior Product Design job opportunity without details of the job specification or company.

[88]A few weeks later as evidenced by an exchange on 2 – 4 May 2018 Ms O’Donoghue put the Claimant forward for a hybrid UX/UI designer role at News UK.

[89]On 8 May 2018 Annabel Adams sent the Claimant an email headed “Final Prep” to help with tips and information about her interview with News UK the newspaper publisher.

[90]In an email exchange in the period 21 – 22 May 2018 Holly Milne sent the Claimant an email about a mobile app Product Designer role. The Claimant responded with her CV. Ms Milne responded saying that the client had now revised their requirements and were looking for “someone slightly more senior”. Ms Milne asks the Claimant when would work to get a coffee to discuss the Claimant’s job search. The Claimant responded with her availability.

[91]In an email exchange in 28 – 29 May 2018 the Claimant emailed Ms Adams asking for feedback from the role at News UK. Ms Adams responded saying that she has already gone through detailed feedback with the Claimant and confirmed she would keep her updated on other roles. The Claimant acknowledged that it had been her misunderstanding and that she had muddled up a couple of different opportunities.

[92]On 13 June 2018 Ms Adams sent the Claimant a message on LinkedIn, congratulating her on her new role. The Claimant replied with thanks explaining that it was only a [by implication merely temporary] contract.

[93]On 19 June 2018 the Claimant and Ms Adams had a further exchange on LinkedIn. The Claimant had left a role because she had “not the culture fit” that her current employer was looking for. Ms Adams responded literally 5 minutes later to ask the Claimant about her availability to come to the office to discuss. Despite that extremely prompt reply Claimant did not reply in that exchange for another five months until November 2018, although in fact there were other communications in the intervening period. 14.

[94]On 21 June 2018 the Claimant is put forward for a role at BHF. Between 28 June 2018 - 10 July 2018 the Claimant and Ms Adams had an email exchange about the fact that BHF have been reviewing CVs. Ms Adams tells the Claimant that she is still waiting for a response. On 10 July 2018, Ms Adams tells the Claimant that she had not received a response from BHF and that it looks as though the role will not be going forward.

[95]In the period 24 – 26 November 2018 the Claimant contacted Ms Adams on LinkedIn. Ms Adams responded saying that she will call the Claimant.

[96]In the period 6 – 7 March 2019 the Claimant made contact with Ms Adams on LinkedIn. Ms Adams attempted to call the Claimant and then asked for her availability to speak.

[97]On 14 March 2019 Mr Watson sent the Claimant the job specification for a Product Design Lead role at The Office Group and asked for further information which the Claimant provided.

[98]In the period 2 – 3 May 2019 the Claimant and Ms Adams had a LinkedIn exchange about a role. On 19 June 2019 Ms Adams made contact with the Claimant who had been let go from a contract, but the Claimant did not respond.

[99]On 30 October 2019 Ms Adams emailed the Claimant saying she had a role in which the Claimant may be interested. The Claimant responded saying she is only looking for permanent roles. Ms Adams informed the Claimant that she dealt only with contracts, not permanent positions, and gave the Claimant details of a colleague Ethan Green.

[100]On 12 November 2019 the Claimant again made contact Ms Adams on LinkedIn about roles and alleged that “Over my research I have been discriminated, for some of your colleagues of profession and I was wondering if you would send me updates on contract roles, instead while I’m looking for a permanent job.”

[101]It would seem to follow that the Claimant is not accusing Ms Adams herself to discrimination but other recruiters. It is somewhat unclear whether in the Claimant’s mind that is within the Second Respondent or recruiters more generally.

[102]The Tribunal was directed to an entry on the Second Respondent’s IT system Bullhorn, which recorded information about candidates such as the Claimant. In relation to the Claimant on 14 November 2019 it was recorded that she was “Struggling to find a role but “Luton airport too far”.” 15.

[103]On 2 January 2020 the Claimant again contacted to Ms Adams on LinkedIn about a contract.

[104]A couple of weeks later on 15 January 2020 the Claimant and Ms Adams have an exchange on LinkedIn about a potential role. The Claimant was put forward for a role at Buro Global.

[105]On 6 September 2021 Ryan Patel sent the Claimant a Senior Product Designer role by email with Qlearsite. The Claimant replied stating that she was not ready to be a line manager, but wanted to remain posted about middleweight-senior designer opportunities, in relation to which she was happy to drop salary expectations for the right opportunity and company. In relating to that Annabel Adams comments that this was surprising given that Claimant had been a Lead UX/UK three years earlier.

[106]In 7–16 February 2022 there was an exchange in which Elinor Denney sent the Claimant a message on LinkedIn saying she has “a few outside IR35 Senior Prod. Design roles”. The Claimant responded saying that she is currently on a contract but asks to be kept posted on new opportunities starting in April 2022. Ms Denney responded to say that she would keep the Claimant posted on April contracts and asked whether the Claimant prefers inside or outside roles. The Claimant replied saying both types were acceptable.

[107]On 7 April 2022 Ms Denney sent the Claimant a message on LinkedIn saying she had an outside IR35 role available with a design agency. She asked the Claimant whether she is comfortable being the sole UX researcher in a team. The Claimant did not respond.

[108]A few days later in an exchange 11 – 14 April 2022 Ms Denney sent the Claimant details of a Design Research role at Ustwo. The Claimant responded stating that she was not a senior researcher and that she is better suited to UX or UI design roles. After further discussion, Ms Denney says that she has put the Claimant forward for the role and that she will keep the Claimant posted on other roles.

[109]On 6 June 2022 the Claimant emailed Ms Denney asking about available roles. Ms Denney directed the Claimant to Ms Adams and asks whether the Claimant would be interested in a permanent role with a design agency. The Claimant confirms that she is interested. August 2022 flurry of opportunities

[110]In August 2022 the Claimant was put forward for a succession of different roles. On 9 August 2022 she was put forward for a UX Designer role at 16. Informa by Jon Price and Elliott Pooley. Then on 16 August 2022 she was put forward for a permanent UX Designer role at UniLED by Dayami dos Santos. It seems from the available evidence that the Claimant felt that she had developed something of a rapport with Ms dos Santos who was a Portuguese speaker.

[111]Also on 16 August she was put forward for a UX/UI Designer role at OnTrack Retail and for a permanent role with ESS by Ms dos Santos. Ms dos Santos informed the Claimant that Ms Adams and Ms Denney would oversee the process while Ms dos Santos is on leave. The Claimant interviewed for the role.

[112]On 16 August 2022 the Claimant emailed Mr Pooley and Rich Horsley asking for feedback on her interview with Informa. Mr Horsley confirms that he will chase the internal recruiter.

[113]On 17 August 2022 Ms Denney confirmed details of the Claimant’s first stage interview with UniLED via email.

[114]On 23 August 2022 the Claimant emails Mr Pooley asking for feedback from her interview with Informa.

[115]On 30 August 2022 Ms dos Santos provides the Claimant with detailed and constructive feedback from her interview with ESS about the way that the Claimant came across: “We really appreciate the time and effort Ana put into sharing her experience and work. We felt she adapted to the technical difﬁculties well and shared her work with passion. However, the facilitation of workshops and presenting work is critical to this role. Being able to read the room and anticipate discussion areas is a space we feel could be developed. We suggest breaking information into smaller chunks and allowing time for questions before moving on to the next section would support the audience's understanding.”

[116]In 15 September 2022 Mr Pooley emailed the Claimant checking whether she has received her Informa feedback from Mr Horsley. The Claimant confirms she has not received feedback and asks for a call with Mr Pooley. Mr Pooley confirms he will call the Claimant and pass on the ESS feedback. He then provides the feedback via email.

[117]On 11 October 2022 a record was made on the Second Respondent’s system Bullhorn as follows: what C looking for – hybrid, prefers to be fully remote, can commute if close to East London, looking for a salary of £65k, depending on the role

[118]On 13 October 2022 it was noted on the Second Respondent’s system that Claimant could only work “inside IR35 as she hasn’t got a limited company set up”. 17.

[119]On 21 November 2022 Ms Dayami dos Santos sent the Claimant details of a role. The Claimant confirms that she has already found a new contract. We do not have a specific date but at some point shortly after this Ms dos Santos appears to have left employment of the Second Respondent.

[120]On 22 November 2022 Aaron Lemard sent the Claimant the job description for a role. The Claimant responded two days later confirming interest.

[121]On 17 April 2023 the Claimant sent Ms Adams a LinkedIn message about potential design positions. There appears not to have been a response and the Claimant followed up on 21 June 2023 the Claimant sent Ms Adams a LinkedIn message asking to be represented on a position.

[122]Stepping back in the chronology, on 22 May 2023 the Claimant sent Ms Denney a message on LinkedIn asking about available design roles. Ms Denney responded offering to arrange a call to discuss two potential roles. A call was set up for 24 May 2023.

[123]On 24 May 2023 Ms Denney sent the Claimant an email about upcoming roles including a UX/UI contract with GSK. At time or the day before they have a phone call and Ms Denney then put the Claimant forward for a role at News Licensing.

[124]On 5 July 2023 the Claimant sent Ms Adams a series of LinkedIn messages asking about available roles.

[125]On 7 August 2023 the Claimant sent Ms Adams a LinkedIn message asking about a product designer role. Ms Adams responded saying her colleague will call the Claimant.

[126]In 18 – 19 September 2023 there was an exchange in which the Claimant sent Ms Adams a LinkedIn message asking about a mid-level UX/UI Designer role. Ms Adams responded the next day saying she had tried to call the Claimant and asking her to let her know when she is free to speak. The Claimant says she had tried to ring back and that she is free to call.

[127]On 8 August 2023 Ms Denney and the Claimant discuss Ms Denney representing the Claimant for a Product Design role at News UK.

[128]On 15 August 2023 the Claimant and Ebbani Juneja had an email discussion about a Senior UI Designer role at Pearson. Key accounts email and Claimant’s concern about blocking

[129]On 22 August 2022 the Claimant sent Mr Horsley an email asking about available positions. She received an automated email response saying that Mr Horsley has left the business and directing her towards a generic company email address (KeyAccounts@lafosse.com). 18.

[130]On 23 August 2023 the Claimant sent an email to KeyAccounts@lafosse.com.

[131]The Claimant wrote an emails Ms Denney and Mr Pooley saying the email “is not active or it is suggests that I have been blocked from your system”. She says that “if that is the case it means my initial complaint about discrimination is true”. Ms Denney called the Claimant to discuss and follows up with an email.

[132]On 23 August 2023 Ms Juneja emailed the Claimant to let her know that Pearson did not progress with the applications. The Claimant expresses unhappiness about this and queries why she has not been shortlisted for recent roles. “you haven’t represented me at all. You just want gathered CVs and putted on hold”

[133]On that same day Ms Adams and Ms Juneja had a Teams discussion about the Claimant being upset that she had not been shortlisted for the Pearson and UK News roles. Ms Adams offered guidance to Ms Juneja with drafting an email response.

[134]What was recorded on the Second Respondent’s system was the following: “Elliott shared the key accounts email two days ago, and was not working I told her that it was closed, and that she was not being blocked which she believes was the case. She had one bad experience of an agency being racist to her, and now feels others are avoiding her because of her background e.g. being put forward to roles and not getting feedback since. I reassured her that this isn’t the case, and that she is a good designer, and it would be bad for business to ignore her / leave her out. And apologise for making her feel that way.”

[135]On 24 August 2023 Ms Juneja responded to the Claimant’s email with an explanation of what had happened with Pearson and UK News roles. The Claimant responded saying that the Second Respondent is “pretending” to represent the Claimant for roles and playing around with her.

[136]On 19 September 2023 Ms Adams emails the Claimant about a role with LexisNexis. Ms Adams and the Claimant spoke on the phone. On 22 September 2023 Ms Adams confirmed to the Claimant that she was not shortlisted for the LexisNexis role. Annabel Adams explains how she contacts candidates

[137]Annabel Adams who gave evidence for the Second Respondent explained to the Tribunal that she contacts candidates using a mixture of telephone, email and using a “recruiter search” on LinkedIn which uses keyword search for relevance. 19.

[138]Ms Adams has 12,000 LinkedIn followers. Matters common to both Respondents Role of recruiters & recruiter modus operandi

[139]The Claimant starts from the proposition that it is the role of recruiters to “represent” her, and has made repeated reference to steps that the Respondents should have taken to build a relationship with her or find her role.

[140]Both Respondents suggest that the Claimant misunderstands the role of a recruitment agency. Ms Abas for the Second Respondent put it like this in submissions “The Claimant appears to vastly overestimate the extent to which the Second Respondent would have been able to provide her with a personalised and bespoke service.”

[141]We have heard evidence from both Respondents as to their role as recruiters. They do use the word “represent” in relation to candidates. The reality however is that neither Claimant nor other candidates are paying them for a service. She is not a “client”, she is an individual candidate seeking work on the recruiter’s database whose details might be suitable for inclusion as part of a short-list submitted to a client.

[142]Alex Scrivens’ evidence was that his team are recruiters whose remuneration is heavily commission-based, meaning that they are strongly incentivised to place candidates successfully. They work under considerable time pressure in part because clients often want recruits to start in roles quickly and also because clients may be using more than one recruiter. It follows that getting a shortlist of candidates to their client as soon as possible maximises their chance of successfully beating their competitors to a successful placement of a candidate and therefore being paid. Recruiters have very large numbers of candidates names. Mr Scriven says that he has 8,500 contacts on LinkedIn.

[143]Ms Adam’s evidence was to similar effect. In the same way as Mr Scriven she also uses LinkedIn as a central tool in her trade. She says that she has 12,000 LinkedIn followers. She also emphasises the importance of quick turnaround and a very speedy provision of a list of names to clients, in particular for contractors rather than permanent appointments, given that lead times are shorter. She works exclusively providing contractors. She says that a request from a client for candidate names may go out to several agencies all at the same time and there is in essence a race to get names to the client which might turn into successful recruits. Slow response is likely to mean being beaten by a competitor.

[144]It follows from this evidence from both Respondents, which the Tribunal accepted, that any delay by candidates in responding to the recruiter, or prevarication, or asking questions or applying restrictions in the kind of roles 20. that a candidate is prepared to do is inevitably going to disadvantage that candidate. Anything less than a rapid communication of approval to being put forward is likely to reduce the chance of a particular candidate being put forward.

[145]As to the Claimant’s complaints that some of her questions went unanswered, in the context of the pressurised workplace for rapid turnaround of candidate lists, we readily accept that some questions posed by candidates might understandably go unanswered and that this might appear discourteous but this is very much the way that recruiters in the industry work. Slowness of response

[146]We accepted Mr Scriven’s evidence that the Claimant’s speed of response would have disadvantaged her. Given the very rapid turnaround required, waiting until the following day or later (or in some cases substantially later) plainly disadvantaged the Claimant. “Switching”

[147]The Claimant complained about what she called “switching”, meaning different recruiters communicating with her from the same agency. This again suggests to the Tribunal that the Claimant fundamentally misunderstand the role of the recruitment agents. They are not “her” agent in any meaningful sense. The Claimant is simply a name that each Respondent retains on their files, whose details are occasionally updated and if her skills and profile appear to match an opportunity, she might be contacted to see if she is available so that her name could be put forward. Conditions

[148]The Claimant in a number of communications placed conditions or requirements. For example she wanted roles in East London. She preferred not to work for a start-up. She was not prepared to do a role which required going to Cardiff one day a month. She would not travel to Luton airport. She would prefer to work reporting to another designer rather than dealing directly with stakeholders. She did not want to take on management responsibilities.

[149]The Claimant made the point more than once that she was entitled to have preferences. That is of course her right. We accept the point put forward by the Respondents however that each of these preferences reduced the likelihood that she would be offered a role. Nationality of alleged discriminator

[150]The Claimant placed significance on the nationality of the discriminator. Specifically she had a belief that “British” recruiters treated her differently to a Portuguese/Angolan recruiter Ms dos Dantos and a recruiter from the New Zealand Mr Richard Horsley. 21.

[151]This question of the nationality of individual recruiters in the employ of the two Respondents seems to have been on the Claimant’s mind. The evidence of the Second Respondent is that other recruiters, who were British e.g. Annabel Adams, Rosie O’Donoghue also put forward the Claimant for a succession of roles. Level of spoken/written English

[152]The Claimant’s basis for saying that she had been discriminated against in relation to her Portuguese nationality developed during the course of the hearing to an argument that she had been discriminated against because of her level of spoken and/or written English, which she says contained grammatical errors and like.

[153]The Claimant believes that her level of English has been a factor. We accept that she believes this. In particular she believed she would not be suitable for particular roles because her written English was not good enough. In some contemporaneous messages she made reference to struggles with communication and requested that she should work reporting to another designer rather than working directly with a stakeholder.

[154]The Claimant’s own concerns about her level of English, which may have been realistic in relation to some roles given that her English is very good but not perfect. We understand why she feels she might be disadvantaged in trying to obtain some roles. Some roles which involve “copywriting” which is going to appear in a public facing format e.g. a website, or perhaps making presentations to clients is likely to require a reasonably high standard of English. This applies to some but not all of the types of roles that the Claimant was looking for. Other roles have a greater focus on design in which language is less of an important consideration.

[155]We did not find evidence in this case that either Respondent was applying a English standard threshold either for spoken or written English.

[156]Although the Claimant directed Mr Scriven during the course of her questions to him in cross examination in the Tribunal hearing to try to identify grammatical mistakes in her LinkedIn exchange with him, this was not an exercise that he carried out at the time. His evidence was that LinkedIn is a fairly informal way of communicating with people and he really did not think anything of minor grammatical errors. History of the claim

[157]There was an ACAS Early Conciliation period 13 – 15 November 2023.

[158]A claim was presented by 21 November 2023 containing complaints of unfair dismissal, race discrimination & discrimination because of relation and belief. 22.

[159]On 11 July 2024 Employment Judge Khan case managed the case, listing the full merits hearing and public preliminary hearing. He identified the list of issues which we have used in today’s hearing

[160]By an order of 22 July 2024 the claims of unfair dismissal and discrimination because of religion or belief were dismissed upon withdrawal.

[161]On 25 October 2024 Employment Judge Leonard-Johnson struck out a complaint brought under TUCLRCA 1992 section 138 on the basis that it had no reasonable prospect of success. Law Legislation

Law

[162]The Equality Act 2010 contains the following provisions: 13 Direct discrimination(1) person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 55 Employment service-providers (1) A person (an “employment service-provider”) concerned with the provision of an employment service must not discriminate against a person— (a) by not offering to provide the service to the person.

(2) An employment service-provider (A) must not, in relation to the provision of an employment service, discriminate against a person (B)— (b) by not providing the service to B; 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (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. 23.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. Burden of proof

[163]We have considered Nagarajan v London Regional Transport

[1999] IRLR 572

, Madarassy v Nomura International plc

[2007] IRLR 246

CA, Ayodele v Citylink Ltd

[2017] EWCA Civ 1913

. In Madarassy CA Lord Justice Mummery held as follows: “The court in Igen v. Wong expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment 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.” (para 56)

[164]In Hewage v Grampian Health Board

[2012] ICR 1054

, SC in which Lord Hope endorsed the following guidance given by Underhill P in Martin v Devonshires Solicitors

2011 ICR 352

, EAT: “‘the burden of proof provisions in discrimination cases… are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination — generally, that is, facts about the respondent’s motivation… they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law’. Time limits/EqA complaints

[165]In Robertson v Bexley Community Centre t/a Leisure Link

2003 IRLR 434

, the Court of Appeal held that when employment tribunals consider exercising the discretion under [what is now] S.123(1)(b) EqA, ‘there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule.’

[166]In Abertawe Bro Morgannwg University Local Health Board v Morgan

2018 ICR 1194

, CA, the Court of Appeal pointed to the fact that it was plain from the language used in S.123 EqA (‘such other period as the employment tribunal thinks just and equitable’) that Parliament chose to give employment tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision. At paragraph 1‘’19 Leggatt LJ said: 24. ''it is plain from the language used (such other period as the employment tribunal thinks just and equitable) that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike s 33 of the Limitation Act 1980, s 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in s 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble

[1997] IRLR 336

), the Court of Appeal has It is submitted made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see

[2003] EWCA Civ 15

[2003] IRLR 220

, para [33]. The position is analogous to that where a court or tribunal is exercising the similarly worded discretion to extend the time for bringing proceedings under s 7(5) of the Human Rights Act 1998: see Dunn v Parole Board

[2008] EWCA Civ 374

[2009] 1 WLR 728

, paras [30] [32], [43], [48]; and Rabone v Pennine Care NHS Trust

[2012] UKSC 2

[2012] 2 All ER 381

, para [75].

[167]That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and

(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).''

[168]In Adedeji v University Hospitals Birmingham NHS Foundation Trust

[2021] EWCA Civ 23

, [2021] ICR D5, Underhill LJ said: ''The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular (as Holland J notes) the length of, and the reasons for, the delay. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.'' 2003 Regulations

[169]The Claimant made reference to the Conduct of Employment Agencies and Employment Businesses Regulations 2003/3319 (“the 2003 Regulations”).

[170]The 2003 Regulations govern the work of recruitment consultancies and include such matters as are described in the IDS Handbook on Employment Law (‘Atypical’ and Flexible Working), which for convenience and for ease of comprehension we have reproduced here rather than citing the regulations directly: 25. Pre-engagement vetting. 1.33 One fundamental requirement is that employment agencies and businesses must take certain steps to satisfy themselves of the work-seeker’s suitability for the position the end-user is seeking to fill — Reg 18. Thus, before introducing a work-seeker to a hirer, an agency or employment business must obtain the following information from the hirer:• the identity of the hirer and, if applicable, the nature of the hirer’s business

• the date on which the hirer wants a work-seeker to start work and the duration, or likely duration, of the work

• the position which the hirer seeks to fill, including the type of work the work-seeker would be required to do, the location at which and the hours during which he or she would be required to work, and any risks to health and safety known to the hirer and what steps the hirer has taken to prevent or control such risks

• the experience, training, qualifications and any authorisation that the hirer considers are necessary, or which are required by law or by any professional body, for the work-seeker to carry out the work

• any expenses payable by or to the work-seeker (such as expenses incurred in attending interviews or payments to the Disclosure and Barring Service)

• in the case of an employment agency only,

(a) the minimum rate of pay and any other benefits offered by the hirer and the intervals at which the work-seeker would be paid; and

(b) where applicable, the length of notice that a work-seeker would be required to give, and be entitled to receive, to end the employment with the hirer. Furthermore, an employment business is prohibited from introducing or supplying a work-seeker to a hirer unless it has obtained confirmation of the following:

• the work-seeker’s identity — Reg 19(1)(a), and

• that the work-seeker has the experience, training, qualifications and any authorisation which the hirer considers are necessary, or which are required by law or by any professional body, to work in the position which the hirer seeks to fill — Reg 19(1)(b). During initial registration, the employment business should therefore request sight of a passport, identity card, birth certificate or driving 26. licence, and any evidence of training received, qualifications and authorisations such as certificates and registrations with professional bodies. Discussion Witness evidence

Discussion

[171]Each Respondent only called one witnesses. The Tribunal did not draw any negative inference from that. The case that each Respondent prepared to meet was for a limited time frame in each case, which we extended on Claimant’s application at the hearing. We did not consider it proportionate or appropriate to postpone to allow new evidence to be obtained or further witnesses to be obtained. It is in accordance with the overriding objectives that cases are dealt with promptly and expense avoided. 2003 regulations

[172]The Claimant says that 2003 regulations are relevant. The Respondents submit that these regulations are irrelevant.

[173]The Claimant says points out that these regulations demonstrate the bare minimum documentation that must have been obtained in her case, which would include documentation showing her nationality.

[174]The witnesses put forward for each of the Respondents was unfamiliar with these regulations, despite the fact that these regulations regulate their industry. The Claimant was plainly genuinely surprised by this. We note that neither of Respondents’ witnesses were from compliance or legal departments.

[175]It seems in practice that both Respondents, and perhaps in particular when they were dealing with short-term contracts, seemed at initial stages to obtain very little information about candidates. They did not for example at a first stage obtain information about their Visa status. They would do little more than forward a CV and portfolio of work, relying on end-hirer clients to carry out the formalities. Further, they might not necessarily give the name of their client to candidates in the first instance. Given that the Claimant had tried to bypass the agent and go straight to the HR Department, we can see the risk to agencies that they are cut out of the communication and therefore risk not getting their commission. To be clear that is not what we believe the Claimant was necessarily trying to achieve in that communication, but it does highlight the risk.

[176]The Claimant did not put in clear terms to either Respondent witness that they were in breach of the 2003 regulations. We do not doubt however that she believed that they were in breach. 27.

[177]Had this been of central relevance to the Claimant’s claim, the Tribunal itself would have taken the time to explore breach with the witnesses.

[178]We can see that the Claimant would have an argument that a breach of regulations in dealing with her might be a basis to draw an inference of discrimination if it suggested disparity of treatment between herself and others.

[179]Neither witness knew the regulations however. That being the case there was a limit to how many questions could be asked about them.

[180]Whether or not the Respondents were following the letter of the 2003 regulations, the relevant consideration when it comes to the claim of race discrimination is whether the Claimant was receiving less favourable treatment because of her Portuguese nationality. The evidence does not suggest that the Claimant was receiving different treatment with regard to matters that the regulations govern when compared with non-Portuguese candidates. Alleged standard of English criterion

[181]The Claimant argued that if there is a standard of English being applied as a selection criterion this is “racist” or anti-Portuguese. The Tribunal found that there were two difficulties in this respect.

[182]First, the Claimant has not established that an English standard threshold was being applied by either Respondent to exclude her from roles which she might otherwise have been considered for.

[183]Second, level of English is not an aspect of her nationality. Some Portuguese people speak perfect English. Some UK citizens do not speak English at all or at least do not speak more than a few words. Some UK citizens cannot write English. Many UK citizens (whether from English, Wales, Scotland or Northern Ireland) could not write standard of English required to do the kind of work that the Claimant was doing which in some cases would include writing language to be placed on a website or other customer facing material.

[184]Case law (e.g. Dziedziak v Future Electronics Ltd EAT 0207/11) suggests that in some circumstances a reference to someone’s “own language” might be direct discrimination, since it was in the circumstances of that case directed to the claimant’s Polish nationality and D in that case being told not to speak her own language was a reference to her nationality and potentially discriminatory.

[185]That is unlike the present case. The Claimant alleges that the Respondents were applying a level of English language criterion. Even if she had managed to prove that (which she has not) that would not support a claim of direct race/nationality discrimination. It would simply be a criterion. We deal with possible complaint of indirect race discrimination claim below. 28. Conclusion on the claim 1. Factual allegations 1.1 Did the first respondent refuse the claimant any of its services between 2019 to 21 August 2023?

[186]The evidence we find is that she was contacted about a substantial number of potential opportunities during this period. In the period 15 May 2019 – 13 January 2023 there were 36 separate occasions on which various recruiters employed by the First Respondent make contact with the Claimant asking whether she was interested in being put forward for a role.

[187]We note that the Claimant was not put forward for a role by the First Respondent.

[188]The Claimant herself did not engage on occasions. We accept that during 2022 she was already employed and did not respond in some cases.

[189]We accepted the evidence of Mr Scriven that it was not possible to shortlist all candidates, there was a large number of candidates and they could not respond to all correspondence.

[190]The Claimant has failed to demonstrate that the First Respondent refused the Claimant its services during the period 2019 to 21 August 2023. 1.2 Did the second respondent refuse the claimant any of its services between 2017 to 20 September 2023?

[191]The evidence we find is that the Claimant was contacted about a substantial number of potential opportunities during this period, and further in the case of the Second Respondent, she was actually put forward for nine opportunities spanning throughout the period April 2018 – May 2023. We accept the submission that the communication between the Claimant and recruiters demonstrated a good rapport (in particular with Ms Adams and Ms dos Santos).

[192]The Claimant has failed to demonstrate that the Second Respondent refused the Claimant its services during the period 2017 to 20 September 2023. Non-replies

[193]In the context of the fast moving nature of the work carried out by the Respondents, and the occasions on which the Claimant herself did not answer emails, we do not find that occasional emails from the Claimant that went unanswered amounted to a refusal of services.

[194]The point might be made that response to the Claimant would have been courteous. We note that the Claimant herself did not respond to emails from the Respondents. 29. 3. Was treatment because of the Claimant’s nationality

[195]The Claimant has not made out the factual detriment which could enable her claim to succeed against either Respondent.

[196]In case we are wrong about that, we have considered the question of causation. Because of nationality (R1)

[197]We have not found that the Claimant’s nationality was a reason for detrimental treatment by the First Respondent. The fact that the First Respondent’s employees repeatedly went back to the Claimant to enquire about her interest in roles suggests that they considered that she was potentially a candidate for those roles.

[198]It follows that the claim brought against the First Respondent is not well founded and is dismissed. Because of nationality (R2)

[199]Although Miss Adams (R2) says that she was not aware that the Claimant was Portuguese until the litigation was ongoing, we find, from a telephone conversation that she was aware that the Claimant was not a native English speaker. The Claimant’s CV on the Second Respondent’s system showed that she was Portuguese. We find that Miss Adams was not particularly focused on the Claimant’s nationality.

[200]We have not found that the Claimant’s nationality was a reason for detrimental treatment by the Second Respondent.

[201]In the case of Miss Adams the communications were friendly.

[202]The Claimant was put forward for nine roles by the Second Respondent. If there was a general problem because of her nationality we do not consider that this would have happened.

[203]It follows that the claim brought against the Second Respondent is not well founded and is dismissed. Time 4.2 In respect of any of the complaints brought under the EqA which are prima facie out of time:4.2.1 Are they deemed to be in time because they are part of the same conduct extending over a period which is in time?

4.2.2 If not, would it be just and equitable to extend time? 30.

[204]Allegations in August/September 2023 are in time. Allegations earlier than that in time would be out of time absent a continuing course of discriminatory conduct.

[205]We have dealt with the allegations on the substantive merits.

[206]We have not found continuing a discriminatory act in relation to either Respondent.

[207]We note that the Claimant has not put forward reasons why we should extend time in relation to earlier matters. The onus would have been on her to do this. This point is academic since we have dealt with the allegations over the whole time period. Indirect discrimination –

[208]We were not dealing with a complaint of indirect race discrimination. This was not the claim pleaded and this claim had been carefully case managed by Employment Judge Khan.

[209]It was not clear that a complaint of indirect race discrimination might even be a possibility until we received the Claimant’s submissions document. It does not feature in the claim form.

[210]There are two reasons why we have allowed amendment or a complaint of indirect race discrimination. First, it is extremely late at a final hearing to bring in a different type of discrimination claim. The Respondents would have had potential justification defences. It was not appropriate in our view to make the Respondents call new evidence to deal with this.

[211]Second, even based on the evidence that the Claimant has brought she has not established that standard of English language was being used as a selection criterion by the Respondents. Victimisation

[212]The Claimant raised “victimisation” under the Equality Act 2010 during her closing submissions on the fifth day of a five day final hearing. That is a completely different claim to a claim of direct race discrimination.

[213]In the circumstances we found that it was too late to raise another new type claim during submissions once evidence has been heard.