Mr L Ramos v Green Tomato Cars Ltd and others: 2300629/2023

EMPLOYMENT TRIBUNALS

Case No 2300629/2023

Between

Mr L RamosClaimant

Green Tomato Cars Limited James Alexander ROWE Joseph Justin BITRANRespondent

Before

Employment Judge Quill

In person for claimant

Date 29 August 2024

JUDGMENT

The following judgment was given orally on 26 July 2024, after I had, earlier in the hearing, decided that I should not refuse myself.

[1]During these proceedings, including at any final hearing, the Claimant must not refer to what the Respondents allegedly said to the ACAS officer (during early conciliation or at all), as he does not have the Respondents permission to do so. The evidence is inadmissible because of Section 18(7) of the Employment Tribunals Act 1996 and because it is covered by “without prejudice privilege”.

[2]For the avoidance of doubt, paragraph 1 of this judgment does not forbid the Claimant from asking the Respondents about their reasons for not (on the Claimant’s case) progressing his application further following 21 September 2022 interview(s).

[3]Paragraph 2.2 of the statement of claim document is struck out in its entirety.

[4]The word “allegedly” is struck out from paragraph 2.3 of the statement of claim document.

[5]There are no changes to paragraph 2.4 of the statement of claim document.

[6]Paragraph 3 is not struck out in its entirety, but parts of it are struck out and the remainder is amended so that it makes still makes sense without the deletions. Case No: 2300629/2023

[7]The new versions of paragraphs 2.3 and 3 of the statement of claim, taking account of the above, are as follows: 2.3 Not to have allowed me to proceed to the next step of the recruitment process i.e. to the individual interview because I did not articulate well during the collective interview of the 21 September 2022 without having properly and fully assessed my English is race discrimination because I am of foreign origin 3 Any opinion by the Respondent that I did not articulate well during the collective interview on 21 September 2022 would not be a good reason for not allowing me to proceed to the next step of recruitment process because as stated in the email granting an interview the candidate anyway will have to get a PCO licence which include a proper written and oral English assessment

[8]The only version of the statement of claim document that should be included in the bundle for the final hearing (or any further preliminary hearings) is one which redacts the parts which I have struck out and includes the amendments which I have set out in the preceding paragraph of this judgment.

[9]The claim is not struck out because of (alleged) failure to comply with existing case management orders.

[10]I have reserved judgment on the remaining parts of the strike out application and a separate judgment with reasons document will be sent, as will a separate summary and orders document.

REASONS

[1]The Claimant alleges contraventions of the Equality Act 2010 (“EQA”) based on an advertisement placed by R1, and on his application for employment with R1, which was unsuccessful. R2 and R3 are directors of R1. Recusal

[2]The Claimant made an application that I recuse myself. This was based on: Case No: 2300629/20232.1 I had previously dealt with claims brought by the Claimant, and the Claimant suggested that a fresh pair of eyes would be preferable.

2.2 I had previously made decisions against the Claimant, and had struck out some cases brought by him. That strike out decision is currently the subject of proceedings before the Employment Appeal Tribunal (“EAT”).

2.3 The Claimant had previously made complaints about my conduct.

2.4 On 25 July 2024, the day before this hearing, I had rejected an application by the Claimant that this hearing be before a panel of three, rather than before an employment judge sitting alone. (The application at the hearing was not that that decision be changed; it was that the fact that I had made that decision was one of several factors that required me to recuse myself from the hearing.)

[3]As noted in Porter v Magill

[2001] UKHL 67

, where bias is alleged, the Tribunal must first ascertain all of the circumstances. I am satisfied that I was able to do that, before making the decision.

[4]The test for apparent bias (as approved by the House of Lords in Porter) is whether a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility the Tribunal was biased. If so, there is no discretion; the judicial office holder must decide to recuse.

[5]I have had in mind and the guidance Jones v Das:

[2003] EWCA Civ 1071

in relation to apparent bias, as well as the guidance in Locabail v Bayfield Properties Ltd:

[1999] EWCA Civ 3004

(especially in paragraph 25).

[6]It is important that justice is done and that justice is seen to be done. If there is any real ground for doubting the lack of bias, then that the doubt should be resolved in favour of a recusal. Justice being seen to be done is crucial to ensure public confidence in the judicial system, and the need to recuse (in an appropriate case) so as to help preserve public confidence outweigh issues of administrative convenience that might arise from the recusal decision.

[7]That being said, as well as having an obligation to recuse myself in an appropriate case, I must note that it is important that judicial officers discharge their duty to sit on cases which are assigned to them, and that they must not accede too readily to suggestions of appearance of bias.

[8]Paragraph 25 of Locabail included: Nor, at any rate ordinarily, could an objection be soundly based on the judge's … previous judicial decisions … And The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. And Case No: 2300629/2023 … if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be.

[9]I have made decisions in more than one case involving the Claimant. The mere fact alone that the Claimant thinks that a pair of fresh eyes (my phrase, not his) would be beneficial is not a proper basis on which I should recuse myself. I say that in any event, as a matter of principle. However, in addition, it would simply not be possible for any party to be guaranteed to to have a different judge for every hearing (that is, a judge who had never previously dealt with the same case, or any other case involving that party). My duty in this case, and in this hearing, would be to make decisions based on the merits of this case, and the evidence and arguments presented to me in this hearing, rather than based on anything I had decided previously in a different case. I am confident that I can do that.

[10]In terms of the fact that I struck out a batch of the Claimant’s claims in 2022, at a hearing which combined several of the cases, I do not think that my reasons for those decisions have any bearing on what the judge at today’s hearing would have to decide. I do not think that there is any appearance of bias if I deal with this hearing. The fact that those decisions are under appeal adds nothing, in my opinion, to the Claimant’s argument. His appeal might be successful, or it might not, but the fact that he has appealed one of my decisions does not give rise to the appearance of bias if I deal with this particular hearing today.

[11]In terms of the complaints about me, while I was aware that complaints had been made, as I told the Claimant, as far as I was aware, those were attempted complaints about judicial decisions rather than anything else. There was a lengthy delay during the Claimant’s application (more than 15 minutes) while he searched for the complaints so that he could tell me what they were about. He described three complaints made between around April 2021 and around November 2021. I had already made a decision (at the hearing of the 9 cases mentioned above) that I did not consider that those complaints were a reason for me to recuse myself from that hearing. I still think that decision was correct, and I do not think that they are a reason for me to recuse myself from this hearing either.

[12]In terms of my decision to decline the Claimant’s application for a panel of three, it is very common place for a judge who has made a decision on the papers about an application connected to a particular hearing to be the judge who then sits on the hearing (either alone, or as part of a panel, depending on the circumstances). Many such decisions will be to the liking of one party, and will be a disappointment to the other party (including some where a party Case No: 2300629/2023 might strongly disagree with it). These situations are routine, and I am satisfied that no fair-minded and informed observer could conclude that there was a real possibility that the judge was biased in such circumstances.

[13]In summary, having taken account of the relevant facts and circumstances, and the appellate court guidance, and of the Claimant’s rights to a fair trial (including his Article 6 rights), I decided that there was no proper basis for me to recuse myself and that (therefore) my duty was to continue with the hearing.

Hearing

[14]This was a hearing in which the Claimant and the Judge were in the physical hearing room and in which the Respondent's representative attended the hearing by video.

[15]No witness evidence was heard. The Claimant invited me to listen to an audio recording, and the Respondent stated that it had no objection (claiming that the recording actually supported its own arguments more than the Claimant’s), but I declined on the basis that I was considering strike out applications (and deposit orders), not conducting the trial of any preliminary issue.

[16]Some documents had been submitted extremely late. These included by the Claimant’s email of 2.34am on the day of the hearing and also a document which he brought to the hearing in hard copy only (without having sent to the Respondent). Ultimately, I did not refuse to consider any of the documents that were actually presented to me (though the parties did make reference to some items which the Claimant had apparently sent to the Respondent the day before the hearing which had not been passed to me).

[17]The hearing finished around 1.15pm, which meant that I needed to reserve my decisions on some of the matters raised. Law Strike Out Rule 37(1)(a)

Law

[18]The power to strike out a claim on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances. Generally, cases should not be struck out when the central facts are in dispute.

[19]On a striking-out application the tribunal does not conduct a mini-trial to decide disputed facts. It is only in an exceptional case that it will be appropriate to strike out a claim (on this ground) where the issue to be decided is dependent on conflicting evidence. An exceptional case might exist where it is obvious that the central facts in the claim are untrue or there Case No: 2300629/2023 is no real substance in the factual assertions made, particularly if contradicted by undisputed contemporaneous documentation.

[20]Furthermore, as a general principle, discrimination cases should not be struck out except in the very clearest circumstances. Discrimination cases are generally fact-sensitive, and their proper determination is vital. It is in the public interest that the protections given by the Equality Act are upheld by the courts and tribunals, and it is frequently the case that a decision can only be made after hearing the evidence, including seeing how witnesses answer questions during cross-examination.

[21]That does not mean that claims or responses in discrimination cases can never be struck out under Rule 37(1)(a). However, it does mean that a judge should exercise great caution before doing so. There is a high threshold to be met by the party seeking a strike out under Rule 37(1)(a) in a discrimination case. Analysis and Conclusions

[22]In relation to the individual respondents, the Respondent's representative makes the accurate point that it is not enough, to establish personal liability, that the individuals are directors; that is so even if R1 is found to have contravened EQA and even if R1 were to be insolvent (which is not an argument raised by any of the respondents). For an individual to be personally liable, the claimant has to allege, and the Tribunal has to decide, that there was a particular act or omission committed by that individual which was conduct prohibited by EQA.

[23]While I agree with the Respondent that the Claimant has not been specific, I think it is clear enough that the Claimant is alleging that the individuals had roles in the decisions about the advert, and the decisions not to offer him a job. He does not know the surnames of the people he spoke to on the day of the interview (and therefore does not know if the “Jamie” that he thinks he spoke to was R2); however, even if R1 and R2 did not interview him, then it does not inevitably follow that R1 and R2 played no part in R1’s decision that the Claimant would not be offered a job.

[24]I am obliged to take the Claimant’s factual arguments at there highest. It is true, of course, that if R2 and R3 played a role in the decisions, then it does not follow that the claims against them will succeed. The Claimant would also have to show (with the assistance of section 136 EQA, if needed) that they did things which amounted to discrimination. However, I do not think that there is a proper basis for me to decide that there is no reasonable prospect of the Claimant showing that the individuals played some (relevant) role in R1’s decision making. Case No: 2300629/2023

[25]In terms of R1’s alleged liability, the Respondent's representative’s arguments included that:25.1 The Claimant is not a genuine job applicant, and his claims should fail for that reason.

25.2 The Respondent advertised for both male and female drivers at the same time.

25.3 The Claimant was interviewed (so his application was not rejected on the basis of his sex) and he was interviewed alongside 5 other men (some of whom were appointed).

25.4 In terms of indirect discrimination, the alleged PCP was in no way connected to race and was justified.

25.5 There is no evidence that the Respondents would have known that the Claimant had the (alleged) disability, or that it played a part in the decision to decline to appoint him. In any event, the alleged PCP was justified.

[26]Dealing with the PCP first (the last two of the arguments just outlined), I agree with the submission that, if not struck out, greater clarity is needed. However, for present purposes, it is sufficiently clear that the alleged PCP is that “drivers must be able to articulate well”, and it is sufficiently clear that the Claimant says that this discriminated against him because of race and disability.26.1 It is sufficiently clear that the Claimant argues that there is group disadvantage because a greater proportion of people with a disability will not be able to satisfy the PCP compared to the group of people without a disability. The Claimant also says that he was disadvantaged because of disability. The alleged disability is a stammer and/or a cluttering. Clarity will be required in due course as to the specific groups that the Claimant is relying on for the purpose of the disability discrimination complaint, but I can deal with the matter on the basis just described.

26.2 It is sufficiently clear that the Claimant argues that there is group disadvantage because a greater proportion of people who are, in the Claimant’s words “of foreign origin” will not be able to satisfy the PCP compared to the group of people who are not “of foreign origin. The Claimant also says that he was disadvantaged because he is “of foreign origin”. Clarity will be required in due course as to the specific groups that the Claimant is relying on for the purpose of the race discrimination complaint, but I can deal with the matter on the basis just described.

[27]The Respondent argues that(a) the audio recording does not show the Claimant having a stammer and

(b) that the Claimant was wearing a mask during the interview and

(c) that being of foreign origin does not imply the lack of ability to articulate well in spoken English. Case No: 2300629/2023

27.1 The first of these two things are factual issues, and are not the proper basis for a strike out application. Similarly, there would be no proper basis at this stage to decide that there was no reasonable prospect of the Claimant showing that he can satisfy the definition of “disability” within section 6 EQA.

27.2 The third of those things is plainly correct, but does not undermine the basis of the race discrimination complaint. The Claimant merely needs to show a statistical basis for his argument about group disadvantage. He does not need to show causation. (See Essop v Home Office in the Supreme Court). If he can demonstrate the group disadvantage (and that he, personally, was disadvantaged), then it does not mean that the claim succeeds, but it potentially means that the Respondent will need to show that the PCP is a proportionate means of pursuing a legitimate aim.

[28]For both disability and race, I do not think that there are “no reasonable prospects” of the Claimant showing group disadvantage or that he personally was disadvantaged.

[29]Further, the argument that the PCP (once it is clarified) was justified is one which can only be decided after evidence about the existence of the PCP, and how the Respondent operated it in practice, has been heard.

[30]The indirect discrimination complaints are not struck out.

[31]The argument that the Respondent advertised for both male and female drivers is disputed by the Claimant. In any event, even if true, it would not, in itself, prove there was no sex discrimination in the advertising or recruiting. The same is true of the alleged fact (the Claimant’s assertion being that the interviews were a sham) that men were interviewed. The Respondent’s claim that men were offered posts would have to be proven with evidence. In any case, these are all fact sensitive arguments, not a basis to decide that there are no reasonable prospects of success.

[32]I have also decided that the assertion that the Claimant was not a genuine job seeker is a dispute over fact and is not the proper basis for a strike out decision. As per the separate case management orders that I am sending, I am proposing that it be dealt with as a preliminary issue. In the circumstances, I do not think it would be helpful for me to comment on the arguments that the parties raised before me (for example, in relation to the Claimant’s employment history, his litigation history, or his reasons for making covert voice recordings of the interview process). Outcome and next steps

[33]None of the claims are struck out. The parties must write to the Tribunal and each other as required by the case management orders sent separately. Case No: 2300629/2023