Employment Judge HildebrandIn person for claimantMr A Rozycki (instructed by Counsel) for respondentDate 17 May 2019
JUDGMENT
[1]The Claimant’s claims of direct race discrimination and victimisation related to race are struck out on the grounds that they stand no reasonable prospect of success in accordance with Rule 37 of the Rules of Procedure.[2]The claim of unlawful deduction of wages is not to be listed until a hearing is requested by either party.
REASONS
[1]This preliminary hearing follows a hearing before EJ Morton on 12 November 2018. The order following that hearing recorded that the claimant was to provide by 3 December 2018 further details of the acts of race discrimination, victimisation and the claim of unlawful deduction of wages brought by the Claimant.[2]The requirement imposed on the Claimant was clearly set out. In paragraph 1 of the reasons for the order. The Judge further explained that the Claimant had not set out his claim clearly. In particular he did not state why he thought that 1 of 9 the treatment he received was because of his race. The Judge recorded that she had asked him why he said this and he responded that remarks made to him led him to think that this was discrimination and that he had not had any problems when working for the Respondent as an agency worker. He said that his problems had begun when he had become directly employed. 3.[4]The Claimant produced further particulars as requested and the Respondent has renewed the application for strike out . Background Facts 4. By a claim presented on 31January 2018 the Claimant claimed discrimination on grounds of race and victimisation and discrimination in relation to his work with the Respondent from 23 April 2017 to 20 October 2017, some 6 months. In the supporting manuscript details the Claimant complained of deduction of hours, extension of probation and failure to deal with his grievances. He said he had been dismissed following a delivery to the Respondent’s store at Rayleigh where staff had said he looked aggressive.
Background Facts
[5]In the Grounds of Resistance the Respondent drew attention to two incidents during his time as an agency worker. One, on 23 December 2017, related to the Claimant scraping the Respondent’s vehicle on leaving the premises at Barking. The Claimant was said to have been rude to the Warehouse Manager investigating the incident. The second was on 28 January 2017 when a third party driver complained the Claimant had loudly sounded his horn at him, made hand gestures and sworn at him.[6]Further negative incidents were recorded in June 2017 and on two occasions in July 2017. The Respondent engaged in a disciplinary process before the second incident in July. It was decided on 27 July 2017 that in relation to the first incident in July extension of probation was sufficient sanction. In relation to the second incident on 29 July 2017, following rejection of a grievance brought by the Claimant, a disciplinary hearing concluded on 13 October 2017 that the 2 of 9 probation would be brought to an end by one weeks notice. That was confirmed to the Claimant by letter dated 16 October 2017.[7]The dismissal letter found that while on probation the Claimant had behaved in an aggressive manner to staff at the Rayleigh store. The Claimant’s allegations regarding victimisation by colleagues were considered and found to be without substance. Five members of staff had found the Claimant to be aggressive. they were form different levels in the Respondent’s organisation. They also coma from different sites which would have rendered collusion highly unlikely. That decision was upheld on appeal by the General Manager, Gavin Town.[8]The Respondent therefore denied the allegations of race discrimination and victimisation. No comparator had been identified. The Respondent was unclear whether the Claimant had brought a victimisation complaint. 9.The Claimant had not made any clear claim of deduction of wages. The Respondent surmised this related to a failure to round up the Claimant’s pay to the nearest quarter hour on 24 June 2019. The Claimant subsequently confirmed this was the claim in his particulars of 17 November 2018 and the amount of the claim was established in my hearing as £3.28.[10]Following the order of EJ Morton referred to above the Claimant produced a document headed “Statement of Truth”. In this document the Claimant reiterated the procedural history of the grievance he brought on 12 July 2017 and the disciplinary hearing on 27 July 2017 which considered no further sanction beyond extension of probation appropriate. The Claimant recounted the investigation meeting in relation to the incident at Rayleigh on 29 July 2017 and the meeting at which he was dismissed. He disputed the severity of the sanction of dismissal imposed on him. Nowhere does he make any reference to race or his reason for considering he had been subjected to discrimination. He does not mention any comparators or refer to a hypothetical comparator. He did not set out any PCP or detriment for a claim of indirect discrimination. He did not refer to any protected act or consequent detriment for the purposes of a claim of victimisation. 3 of 9[12]The Claimant in his Particulars referred to Daniel Joyce of the Respondent saying to him when issuing discount cards that the Claimant would not need one as he would not be staying long. That is not an allegation made in the initial Claim form. It is certainly not a protected act because it is not something done by the Claimant.[13]The only reference which might assist the Claimant is in the note of the disciplinary hearing on the 13 October 2017 where he states: “I’m not an aggressive person but some people because of my background or accent think I am aggressive.” It is difficult to see how that can stand as a protected act because it is not possible to describe it as something done under the EA.
The Hearing
[14]At the hearing I received a bundle which runs to 239 pages. I had written submissions from the Respondent and an authority, Mr Ashok Ahir V British Airways plc [2001] EWCA Civ 1392. I received oral submissions from both parties. I do not refer extensively to the oral submissions of the Respondent based as they were on the detailed and helpful written submissions. In light of pressure in the list and the volume of material supplied I reserved the decision. The Submissions[15]In his oral remarks the Claimant said that his colleagues had not described him as aggressive but unhelpful. He had reported them for not being ready to do their job. He said all the allegations against him were fabricated. When I asked the Claimant how that was related to his race he stated that he could prove he did not have infringements on his Tachograph when they said he did. When I asked him for a comparator for his race discrimination claim he referred to the remark of Daniel Joyce about the discount card that he would not be staying long. He could not explain to me why that related to his race.[16]When asked about the lack of reference to race in his Particulars he stated that he understood the request was about race discrimination, but he had not 4 of 9 understood the format required. He said he first became aware of discrimination of grounds of race when he had resigned in response to the extension of his probation period. He said he had not made any reference to race because his union representative had told him not to.[17]I explained to the Claimant the way in which a victimisation claim is expressed and the need for a protected act. The Claimant was not able to identify any protected act on which he can rely. The closest he could approach the issue with some assistance was the grievance letter of 4 June 2017. The Claimant said he was not treated as a colleague and was pushed around. When he had joined the Respondent he was made to understand that he would be treated like all other colleagues but that was contrary to what he was experiencing. That letter does not appear to meet the statutory requirements for a protected act. A concise summary of the law[18]Rule 37 of the Rules of Procedure provides that at any stage of the proceedings the tribunal may strike out all or part of a claim or response on a number of grounds. The ground engaged here is Rule 37 (1)(a) “that it is scandalous or vexatious or has no reasonable prospect of success.”[19]There is an application in this case in the alternative for a deposit order but in light of the ruling I do not deal further with that.[20]As stated above the Respondent set out comprehensive submissions on the law. There does not appear to be anything contentious in the propositions advanced which I summarise.[21]The tribunal in considering a case of direct discrimination under section 13 of the Equality Act 2010 (“EA”) looks to the Claimant to establish facts from which an inference could in the absence of an explanation be drawn. 5 of 9[22]In an indirect discrimination claim under section 19 EA the Claimant must identify a provision, criterion or practice which placed the Claimant at a substantial disadvantage.[23]In a victimisation claim under section 27 EA there must be a protected act and a causal link to the detriment established.[24]In considering the use of the power to strike out the tribunal should consider whether the specified ground for strike out has been made out. Then the tribunal should consider whether it should exercise the discretion to strike out: HM Prison Services v Dolby [2003] IRLR 694 (EAT).[25]“No reasonable prospect of success” imports a lower threshold than frivolous or hopeless. The exercise of caution in striking out does not impose a fetter on the tribunal’s power to strike out in an appropriate case: Jaffrey v Department of the Environment, Transport and the Regions [2002] IRLR 688 (EAT).[26]Where a straightforward and documented explanation for what had occurred is provided, a case should not be allowed to proceed on the basis of a mere assertion that that explanation is nor the true explanation, even in the context of a usually fact sensitive discrimination claim: Ahir v British Airways plc [2017] EWCA Civ 1392.[27]There is a considerable public interest in discrimination claims being determined on the evidence given that they are particularly fact sensitive. There is an importance in not striking out such claims as an abuse of process except in the most obvious and plainest cases: Anyanwu v South Bank Student Union [2001] UKHL 14. Only in an exceptional case will a strike out be appropriate when the central facts are in dispute: Eszias v North Glamorgan NHS Trust [2007] EWCA Civ 330. Discussion 6 of 9
Discussion
[28]The first claim which should be considered is the claim expressly stated on the claim form of victimisation. I explained in the course of the hearing to the Claimant that this word carries a very different meaning in the tribunal from its frequent use in common parlance. In the tribunal there is a requirement for a protected act and for a detriment to be established and linked to the protected act. In this case there is nothing which the Claimant can rely on as a protected act. The Claimant accepts that he did not raise race discrimination in the internal procedures. There is nothing said or written on which he can rely in this context. I have considered the extensive material in the bundle and found nothing that meets the statutory definition in section 27 (2) (c) EA, namely “doing any other thing for the purposes of or in connection with this Act.“[29]Since there is no pleaded protected act, and the Claimant has had a series of opportunities to remedy this defect, I do not see how this claim stands any prospect of success. I am not clear whether it is a claim the Claimant intended to bring. If I consider whether the deficiency could be cured on amendment I do not find any remark or document on his own case on which he can rely.[30]The claim insofar as there is one of victimisation is one where the power to strike out has clearly arisen. Use of the discretion to strike out is appropriate given the fatal deficiency in the claim.[31]The Respondent referred in its submission to indirect discrimination. Again there is no suggestion in the claim or the particulars of the formulation of such a claim. The claimant was given an opportunity to give detail and has not done so. It is impossible to speculate what might be said on an application to amend if one was to be made. Again I am not clear that this is a claim the Claimant intended to bring. Insofar as he did, the power of strike out arises given the absence of any prospect of success. I consider it appropriate that this aspect of the Claim should be struck out.[32]Finally I turn to the claim of direct race discrimination. The Claimant failed to refer to race or any other discrimination in his internal procedures which were extensive. He stated that as early as June 2017 he had formed the view he was 7 of 9 a victim of discrimination. I understand the difficulty encountered in the external expression of such a claim. However here, in addition to not mentioning it in the internal process, the Claimant did not mention it in the structured and coherent narrative on the Claim form. The only step taken was in the boxes for “Discrimination” and “Race“ which he ticked and the words written: “victimisation and discrimination”. The protected characteristic is not mentioned at that point. The manuscript at box 8.2 does not make a claim of race discrimination. The Claimant attended a hearing with EJ Morton where he did not make his claim clear. He was offered an opportunity to do so in writing and I offered him a further opportunity in this hearing. He has failed despite his detailed comment on the facts to make out the grounds for the claim the Respondent has to meet. It is hard to see how that position will improve if a further set of particulars is ordered or a further hearing is listed. The Respondent has no knowledge of a case to meet.[33]The Respondent by contrast has a coherent documented history of the engagement recording, despite what the Claimant states, significant difficulties in the period of his agency work and further difficulties in his short employment. These difficulties arose not only where the Claimant was based but also at other locations he visited. As the Respondent’s manager Mr Steven Spencer indicated to him in his dismissal letter of 13 October 2017, for the Claimant’s factual assertions to be accepted 5 individuals independently stating the Claimant was aggressive would have to have colluded. Against that compelling analysis the Claimant offers nothing of substance. The Claimant has not made clear the primary facts which he intends to prove so that an inference of discrimination may be established. The case therefore stands no reasonable prospects of success.[34]I therefore conclude that this is a case where the power to strike out has arisen. The race discrimination claim as presently framed stands no reasonable prospects of success, and there is no indication that amendment could do anything to remedy the position. The Claimant has been given an opportunity to make out the case and has not been able to take it. 8 of 9[35]I further consider whether it is appropriate to exercise the power to strike out. I conclude that is the appropriate course of action in this case. Ample opportunity has been allowed for the Claimant to set out his case. If allowed to go to hearing the Claimant will I anticipate not be able to set out a coherent case and the exercise will be of no benefit to him. The claim of direct race discrimination is therefore struck out.[36]The Claimant is left with his unlawful deduction of wages claim which he has valued at 15 minutes work. It dates from June 2017 and it is questionable whether it was presented in time. I t is not a claim that should be allowed to take up further time in the tribunal.[37]I would hope that the parties would be able to resolve the wages claim without further recourse to the tribunal . If that is not possible then it would be appropriate to be resolved on paper.