H Rahim and others v Secretary of State for Defence and J Heappey: 2218125/2024 and others
EMPLOYMENT TRIBUNALS
Case No 2218125/2024
Between
H Rahim and othersClaimantSecretary of State for Defence and J HeappeyRespondent
Before
Employment Judge B SmithIn person for claimantMr J Duffy (instructed by Counsel) for respondentDate 13 January 2025
JUDGMENT
The judgment of the Tribunal is as follows: The claims are struck out because the Tribunal has no jurisdiction to determine them, alternatively because they have no reasonable prospect of success, alternatively they are an abuse of process.
REASONS
[1]The claimants bring complaints of race discrimination, post-employment claims of victimisation for bringing legal proceedings (sections 13 and 27 Equality Act 2010 ‘EQA’) and detriment for making a qualified disclosure (section 43B Employment Rights Act 1996 ‘ERA 1996’).[2]The claimants are litigants in person. The first and third claimants are married and the second claimant is their three year old child. The second and third claimants live in India.[3]The first respondent is the Cabinet Minister responsible for the Ministry of Defence (‘MoD’). The second respondent is an individual who was Parliamentary Under-Secretary of State for the Armed Forces between 7 July 2022 and 26 March 2024.[4]The claim form subject to the applications was presented on 9 April 2024 with accompanying Grounds of Claim.[5]The first claimant has previously sought to challenge an administrative law decision about him, namely that he was ineligible to benefit from a governmental policy. These claims relate to the rejection of the claimant’s application under the Afghan Relocations and Assistance Policy (‘ARAP’). This was a scheme under which Afghan citizens who worked for or with the UK Government in Afghanistan can apply for relocation to the UK. It requires the applicants to be deemed eligible by the MoD and suitable by the Home Office.[6]The respondents applied to strike out the claims on the basis that the Tribunal does not have jurisdiction to hear them, alternatively that they are scandalous or vexatious, alternatively they have no reasonable prospect of success, alternatively, they are an abuse of process.[7]The Tribunal considered:a. A hearing bundle paginated to 76;b. Respondent skeleton argument;c. Respondent authorities bundle;d. Claimant documents comprising: i. Part 1 email sent at 02:47 on 4 November 2024; ii. Part 2 email sent at 03:44 on 4 November 2024; iii. Part 3 email sent at 03:52 on 4 November 2024; iv. Claimant email sent at 03:56 on 4 November 2024; v. Claimant email sent at 09:22 on 4 November 2024; and vi. Claimant email sent at 14:52 on 2 November 2024.[8]The first claimant’s emails contained a very large number of attachments and word documents. Just one attachment alone from Part 1 was 57 pages. A very significant amount of the material was irrelevant to the issues. It is neither necessary nor proportionate to itemise every document, but a very considerable amount of material was relied upon by the claimant.[9]The first claimant appeared in person. The respondents were represented by Counsel. The first claimant fully and effectively participated in the hearing despite his previous requests for a remote video hearing.[10]The procedure followed was for the Tribunal hear and, in so far as necessary, determine preliminary matters first, and then the parties made submissions on the application to strike out. All reasonable efforts were made to put the claimants on an equal footing with the respondents given that they were not represented. The first claimant effectively represented the second and third claimants as a lay representative. They did not attend the hearing.[11]The respondents’ application to amend the name of the first respondent to the Ministry of Defence is not granted at this time. The application was made because the Ministry of Defence was said to be the proper legal entity for employment relationships. It was not necessary to finally determine this application because of the reasons given below. It would make no difference to the outcome whether the first named respondent is the relevant ministry or Secretary of State. For the purposes of the reasons below, any reference to the respondents includes the MoD as a potential respondent.[12]The claimants’ consequential application to include the Ministry of Defence as a respondent was refused. This is because, for all of the reasons set out below, there is no proper basis to include them as a respondent to the complaints at this stage. It did not appear to the Tribunal that there were issues between that entity and the existing parties falling within the jurisdiction of the Tribunal that it was in the interests of justice to have determined in the proceedings in the circumstances as a whole.[13]In light of the conclusions below, it was not necessary to determine the claimants’ application to transfer the claim to Wales, Scotland or Northern Ireland. In any event, there were no good grounds to do so before the determination of the application for the claims to be struck out. There is no proper and evidenced basis for suggesting that the Employment Tribunals in the London Central region would not provide a fair hearing to the claimants.[14]The first claimant also objected to the two respondents having the same representative, suggesting that the government legal department was unable to represent the second respondent who is an individual. This was misconceived. I was satisfied that that the respondents were properly represented. For the purposes of representation in these proceedings, it is a matter for the government legal department whether or not they represent the second respondent. In any event, even if the second respondent had been unrepresented at the hearing, it would have made no difference to the outcome.[15]Also, nothing arose from the lack of a separate ET3 form on behalf of the second respondent. The response submitted by the first respondent was on behalf of both respondents. In any event, even if it was necessary in the future to direct a separate ET3 form from the second respondent, it still remained entirely open to the Tribunal to strike out the claims on the basis of jurisdiction and no reasonable prospect of success. Such matters can be done even before a response is required if the claim is rejected under Rule 12.[16]The first claimant sought in an oral application during the hearing to apply to amend his claim to include indirect discrimination. This was not allowed. This is because no such application had been made in writing and it was entirely unparticularised. It would have been wholly contrary to the overriding objective to permit such an application to have been made in writing, causing an adjournment of the current hearing. In any event, there was no clear basis on which such an amendment would save the claimants from the jurisdictional points which arose. The balance of prejudice was clearly contrary to permitting the first claimant’s proposal. B The law[17]The Tribunal can strike out all or part of a claim under Rule 37 Employment Tribunals Rules of Procedure 2013 on grounds that it is scandalous or vexatious or has no reasonable prospect of success (Rule 37((1)(a)). The Tribunal must be cautious before doing so, particular if there are core disputed facts. The Tribunal must also be particularly cautious before striking out claims of discrimination and relating to protected disclosure detriment. However, the Tribunal should not be deterred from striking out a claim involving disputed facts if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established: Court of Appeal in Ahir v British Airways plc [2017] EWCA Civ 1392 at [16] Per Underhil LJ: ‘16. … 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.’[18]It is necessary to have sufficient clarity about what the claims are before they can be struck out: Cox v Adecco Group UK 2021 ICR 1307 EAT (HHJ Tayler). In particular: no one gains by truly hopeless cases being pursued to a hearing; strike-out is not prohibited in discrimination or whistleblowing cases but care must be taken in such cases and it is very rarely appropriate; if the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike-out will be appropriate; the claimant’s case must ordinarily be taken at its highest; it is necessary to consider in reasonable detail what the claims and issues are, but this does not require agreement on a formal list of issues; reasonable care must be taken to read the pleadings and supporting documents; and if the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment.[19]From the outset, I did not consider that this application falls foul of the issues raised in Cox v Adecco. The first claimant specifically raised this point during the hearing. However, neither the Tribunal nor the respondents considered that the claimants’ complaints were unclear and thus required further clarification. The first claimant himself was unable to say how his claims required clarification. Although the first claimant objected to the application proceeding without extensive case management and an agreed list of issues, this was a misconceived approach in all of the circumstances. Specifically, there was nothing in terms of amendment that would have saved the claimants given all of the circumstances of the case. Neither was it necessary to clarify the claims or produce a list of issues.[20]Direct discrimination is prohibited conduct under s.13 EQA: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. […][21]The comparator’s circumstances must be the same as the claimant’s, or at least not materially different. This is because s.23 EQA says: (1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.[22]The protected characteristic need not be the only reason for the less favourable treatment, or the main reason: London Borough of Islington v Ladele [2009] IRLR 154 (EAT). The decision must be more than trivially influenced by the protected characteristic.[23]Protected disclosure detriment claims are governed by the ERA 1996. Only qualifying disclosures as defined by s.45B ERA 1996 qualify. There must be a disclosure of information. The disclosure has to have sufficient factual content and specificity such as is capable of tending to show that one of the applicable wrongdoings has occurred or deliberate concealment of them. Verbal disclosures can be qualifying disclosures. There must be a genuine belief that the disclosure tends to show a relevant failure or concealment of a failure. Also, that belief must be a reasonable belief. This is an objective test applied to the personal circumstances of the discloser. A belief may be reasonable even if it is wrong. A relevant failure includes breaches of legal obligations (s.43B(1)(b) ERA 1996). There must also be a genuine and reasonable belief that the disclosure is made in the public interest. When deciding about the public interest, the relevant factors include the number in the group whose interests the disclosure served, the nature and extent of the interests affected, the nature of the wrongdoing, and the identity of the wrongdoer.[24]Where there is a protected disclosure, the protection from detriment arises in s.47B ERA 1996. Where a detriment after employment has ended it is limited to acts of detriment by the previous employer and by a worker of the previous employer in the course of employment, or by an agent of the worker’s employer (with the employer’s authority).[25]Victimisation is prohibited conduct under s.27 EQA: A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.[26]Protected acts are defined in s.27(2) and include making allegations, whether or not express, that someone has contravened the Equality Act 2010 and bringing proceedings under the EQA. One relevant question is why was the discloser subjected to the detriment: was it because of the protected act, or for wholly other reasons? A detriment is a disadvantage.[27]The individual employee who did the act complained of must have been motivated by the protected characteristic / protected act: Reynolds v CLIFS (UK) Ltd [2015] EWCA Civ 439 at [36].[28]Section 108 EQA is the relevant section for post-employment claims. This applies if the discrimination arises after the end of the employment relationship: (1) A person (A) must not discriminate against another (B) if (a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and (b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act.[29]This includes victimisation.[30]An employer can be liable for the act of an agent: ss.109 and 110 EQA.[31]The jurisdiction of the Employment Tribunals is limited to that conferred upon it by statute, for example under the ERA 1996 or EQA.[32]The EQA provides jurisdiction for the Employment Tribunals to determine a complaint relating to a contravention of Part 5 (work) or a contravention of s.108 that relates to Part 5.[33]The EQA jurisdiction extends to employers and employees or applicants (ss.39-40A EQA), between contract workers and their principals (s.41), police officers and their employers (s.42), partners within partnerships (s.44), members within LLPs (s.45), barristers and advocates and pupils or tenants (s.47), advocates and evils or stable members (s.48), office holders and appointees and others (ss.49-51), qualifications bodies and qualified persons (s.53), employment service providers and service users (s.55), trade organisations and members (s.57) and local authorities and members (s.58).[34]Employment is defined in s.83(2) EQA.[35]For protected disclosure detriment cases, the ERA extends protection to workers in the following circumstances: s.43K(1)(a): (1) For the purposes of this Part ‘worker’ includes an individual who is not a worker as defined by section 230(3) but who - (a) works or worked for a person in circumstances in which— (i) he is or was introduced or supplied to do that work by a third person, and (ii) the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them […] and any reference to a worker's contract, to employment or to a worker being 'employed' shall be construed accordingly.[36]In Lawson v Serco [2006] UKHL Lord Hoffman held that the standard case of an employee working in Great Britain falls within the territorial scope of the ERA 1996. He also identified that peripatetic employees whose base is in Great Britain are included, even if they spend months working overseas. For expatriate employees something more is necessary. Lord Hope stated at [28] that: ‘It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain require an especially strong connection with Great Britain and British employment law before an exception can be made for them’.[37]Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] ICR 1312 identifies as a principle that the question, for employees working or based abroad, is whether the employment has much stronger connections both with Great Britain and with British employment than with any other system of law. Relevant factors include where the employer is based, the governing law of the contract, and where taxes were paid. Notwithstanding the wording of s.204 ERA 1996, it was confirmed by the Court of Appeal in Jeffrey (for example, at [61] onwards) that Duncombe correctly identifies the governing law of the contract as a relevant factor.[38]In Ravat v Halliburton Manufacturing & Services Ltd [2012] ICR 389 the Supreme Court held that (per Lord Hope): [27] I agree that the starting point needs to be more precisely identified. It is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive. But it is not an absolute rule. The open-ended language of section 94(1) leaves room for some exceptions where the connection with Great Britain is sufficiently strong to show that this can be justified. The case of the peripatetic employee who was based in Great Britain is one example. The expatriate employee, all of whose services were performed abroad but who had nevertheless very close connections with Great Britain because of the nature and circumstances of employment, is another. [28] The reason why an exception can be made in those cases is that the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. [29] But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they were not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional. The question whether, on given facts, a case falls within the scope of section 94(1) is a question of law, but it is also a question of degree. The fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous. Mr Cavanagh said that a rigorous standard should be applied, but I would not express the test in those terms.[39]It follows that a less onerous burden falls on a claimant who has his home in Great Britain. Bates van Winkelhof v Clyde and Co [2013] ICR 883 CA confirms that the comparative exercise of showing a stronger connection to Great Britain than another country is unnecessary in those circumstances. The comparative exercise will be appropriate where the applicant is employed wholly abroad but this is not necessary where the applicant lives and or works for at least part of the time in Great Britain (at [98] per Elias LJ). All that is required is that the ‘tribunal should satisfy itself that the connection is .. ‘’sufficiently strong to enable it to be said that Parliament would have regarded it as appropriate for the tribunal to deal with the claim.’’’[40]If the nature of the employment evolves over time, the tribunal must identify when the territorial jurisdiction of the ERA 1996 extends to a claimant: Partners Group (UK) Ltd v Mulumba UKEAT/0237/20/RN.[41]I also took into account the other authorities relied on by the respondent, in particular, R (Hottak) v Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 438. This confirms that the test in Serco v Lawson applies to discrimination claims brought under the EQA. Hottak involved two Afghan interpreters employed by the British government under local contracts and working with British Forces in Afghanistan. Part 5 of the EQA does not have a wider territorial reach than the unfair dismissal provisions in the ERA 1996 and Part 5 does not operate on a world-wide basis. It was a question of fact and degree whether an oversees employment would have a sufficient connection with Great Britain to enable a claim of unfair dismissal to be brought. Those particular individuals did not, on the facts of that case, come within the employment-related discrimination provisions of Part 5 EQA. C Findings and conclusions[42]From the outset, the Tribunal finds that it has no jurisdiction to determine complaints brought by the second and third claimants because there is no basis on which they were employed by (or were workers of) the respondents or otherwise have any standing to bring a claim of discrimination under the Equality Act 2010 or Employment Rights Act 1996 for protected disclosure detriment. There is no basis in law or fact (pleaded or otherwise) which would bring them within the scope of the Employment Tribunal’s jurisdiction. Although the first claimant sought to argue that as dependents of him (as a ‘Crown servant’ or similar) they were entitled to bring claims, this is misconceived. The first claimant submitted that there was a NATO regulation which established that his son would be included as an employee or worker, but the particular regulation was not identified. The first claimant’s overall submission was that his family should be considered protected under ‘Crown Law’.[43]In terms of the first claimant’s relationship with the respondent, the claim is brought on the basis that he was engaged through ‘thebigword Limited’, a translating company, to work for the Romanian government in Afghanistan. The respondents deny that the first claimant was providing work or services (directly or indirectly) to the UK government or the MoD. The claimants’ submission, in effect, was that because Romania is part of NATO, and NATO includes the UK, this was sufficient. This is misconceived as a matter of law, in terms of the ambit of the EQA and ERA and the jurisdiction of the Employment Tribunals. Alternatively, the claimant has no reasonable prospect of establishing a factual relationship between him and the named respondents to this claim.[44]The first claimant accepted during the hearing, when asked, that his employer was ‘TheBigWord’. He said that they had been given a contract by NATO, and he sought to bring claims against these particular respondents because they were said to be part of the same NATO mission. The first claimant said that everyone was part of the same unit, relying on ‘State Force Agreement’, namely the UK’s treaty obligations.[45]The claim form included, after referring to an email sent to the MoD on 29 January 2023 with attachments to support his claim for eligibility: ‘38.5) I stated in this email “I worked as a NATO Contractor, for Romanian Special forces through a British company called TheBigWord Group Ltd. […][50]The United Kingdom’s Joint Delegation to NATO is the link between the UK government and the North Atlantic Treaty Organisation. […]46. The first claimant only goes as far as to plead that he ‘previously worked for MOD for some what 1 year through a company MAB WAY (ASSOCIATED company) to provide and assist MOD with various contingency training before they flew to Afghanistan’.47. The claimants’ documents did include a copy of a letter (undated) on Mabway headed notepaper stating ‘I write with regard to Mr Haziz Rahim, an employee of Mabway Ltd, to confirm that he has worked as part of the Contingency Operating Environment Force … that works in support of training the British Army for operations. Whilst Mr Haziz has only been working with us for a short while from 10th June 2013 to 12th July 2013 as an interpreter….’48. I consider that the evidence of employment by Mabway, given the short length and timing of the employment, was insufficient to bring the first claimant to within the jurisdiction of the Employment Tribunals such that he could bring a claim against the respondents. There is insufficient pleaded nexus between that company and the respondents such that the Tribunal has jurisdiction, or alternatively any such contention has no reasonable prospects of success in all of the circumstances. One factor supporting this conclusion is length of time between the end of the first claimant’s work for Mabway and the acts complained of, particularly given there being no direct link between the first claimant and the respondents in that engagement. On any proper analysis the first claimant’s case was about his employment by TheBigWord, not Mabway. The pleaded fact that the first claimant, significantly before the relevant events, had been employed by a company that was contracted by the MoD was insufficient in the particular circumstances of this claim, particularly given the close connection requirement for s.108 EQA. The first claimant’s case, on any proper analysis, is not that the MoD has treated him badly because of any connection to his engagement by Mabway between for around a month in 2013. Alternatively, such an allegation has no reasonable prospects of success given the time between such an engagement and the detriments relied on and lack of facts suggesting any link between the claimant’s ARUP decisions and that engagement.49. The claimants’ pleaded claim continues to include ’40) My mission was also live with UK to deliver ‘Resolute Support Mission …. . Also, quoting from an email at ‘118) ….I have worked for the NATO of which MOD is a member between 2019 and 2020’. 50. The claimants’ pleaded grounds include that he was refused eligibility for ARAP on 6 April 2023 and that he sought a review refused on 16 August 2023.[51]In summary, the claims are that the claimant was victimised because he brought claims against various companies that he says provided services to the MoD in various countries. He alleges race discrimination and victimisation including various matters in relation to his ARAP application, a failure to evacuate him from Afghanistan, and a failure to provide him with accommodation.[52]It is important to note that the first claimant has brought a number of claims already against other respondents. These include that in claim number 2209961/2023 the claimant’s claims of whistleblowing detriment and victimisation against various permutations of NATO were struck out as having no reasonable prospect of success. Also, the Employment Appeal Tribunal in Rahim v The Big Word and thebigword Overseas Interpreting Limited ([2023] EAT 171]) remitted claims against those respondents to the Employment Tribunal for determination. These claims and this decision must therefore be understood in the context of the claimant already having existing claims in respect of his actual employer, and other claims against other potential respondents having been struck out. This was not a case where it was necessary in these proceedings to identify the claimant’s real employer or the proper respondent’s to a claim that has a proper basis: other respondents have already been identified in earlier proceedings, with some determinations already having been made.[53]Taking everything into account, I find that there is no proper basis on which it could be found that the claimants were at any material time an employee or worker of the respondents. The claims do not arise from the claimant’s employment with these respondents or the work context with these respondents. There is no proper basis on which the claimant would have a claim against these respondents under the employee or worker definitions in the EQA and neither is there a proper basis for a claim to proceed on the basis that his actual employer was an agent of these respondents. There is also no proper basis on which the claimant would have a claim against these respondents under the employee or worker definitions in the ERA, even taking into account the extended worker definition outlined above.[54]I also do not consider that there is a pleaded claim of the claimant’s actual employer being a contractor of either respondent (or potential respondent) such that he could feasibly come within the ambit of s.41 EQA.[55]If the above is wrong, then I find that there is no reasonable prospect of the claimant establishing that he was an employee, worker, or otherwise comes within the jurisdiction of the Employment Tribunals under the EQA or ERA. This is because even on his pleaded claim, taking his case at its highest, there is no reasonable prospect of there being facts established that would bring him within those jurisdictions or that the necessary agency (EQA) or third-party influence provisions (s.47K ERA) would be engaged. The claimant’s employer has been identified by him and a claim already brought against them. There is no proper basis for suggesting that these respondents were the claimants employer or otherwise, or that the claimants employer was an agent of them, or that the respondents in practice substantially determined the claimants terms of work, or likelihood of the necessary facts for such a relationship being established.[56]Alternatively, given that the first claimant’s claim revolves around his work in Afghanistan, I consider that he has no reasonable prospect of success in establishing the relevant connection between him and these respondents on a territorial basis. The question in respect of the UK-based company interpreting company for which he was actually employed is less straightforward. In those circumstances, there is at least the argument that his relationship with theBigWord Limited was sufficient to bring him within the territorial jurisdiction of the Employment Tribunals to bring a claim against them. However, the link between the claimant and these particular respondents is clearly missing. This conclusion is supported by the decision in Hottak.[57]In the alternative, taking into account the material allegations in the claim form, the named respondents, and the claimant’s other claims mentioned in this decision, I am satisfied that in reality the claimant seeks to bring a claim which is nothing more than a collateral attack on the administrative decisions made about him as opposed to a genuine claim within the jurisdiction of the Employment Tribunals. The claimant on his own account in an email dated 1 November 2024 at 12:02 states ‘I have over 150 claims and appeals in various courts and tribunals in London region’ and he then provides case references for the vast majority of those cases, including a number of cases in the High Court and the Employment Tribunal and Employment Appeal Tribunal. To continue to make claims against every possible respondent in the contemplation of the claimant, given that he has existing claims against his former employer, is an abuse of process in these particular circumstances.[58]Although the first claimant asked for an unless order as an alternative to a strike out, this was entirely misconceived. This is because claims were not at risk of being struck out because of something which could be remedied in the future.[59]For all of those reasons, there are no complaints by any claimant against any respondent for which the Tribunal has jurisdiction to determine, alternatively any such complaint has no reasonable prospect of success, alternatively they are an abuse of process. I find that the grounds for a strike out are met. Also, I consider that there are no alternatives to a strike out that would be appropriate, not least because the claimant has existing other claims against potentially more appropriate respondents. I also consider it just to proceed to a strike out in all of the circumstances. There is no good reason to allow these claims to proceed.[60]The claims are, accordingly, struck out.