Mr N Onaiwu v Alstom Transport (UK) Ltd and others: 2302059/2017
JUDGMENT
It is the judgment of the Tribunal that the claim be dismissed as against each of the Respondents.REASONS
[1]The Claimant presented a claim form ET1 to the Tribunal on 7 August 2017. He had contacted ACAS in accordance with the early conciliation procedure on 13 July 2017 and the certificate was issued on 17 July 2017. The Claimant named the First Respondent as ‘ATCjv Systemwide Crossrail Contract C610’. There was a preliminary hearing on 12 December 2017 at which it was established that the First Respondent as named by the Claimant was not a legal entity, and it was ordered that the parties be as above. The First Respondent, the Second Respondent and the Third Respondent are engaged in a joint venture on the Crossrail project. I do not know whether it will be necessary to become involved in the precise legal structure which has been adopted, but it is clearly important that if there is to be a judgment in favour of the Claimant then it is against the correct legal entity. For the purposes of this hearing I will refer to them as ‘the JV’.[2]In the claim form the Claimant stated that he had been employed as a CSCS Security Guard from 19 August 2015 to 2 February 2017. It is common ground that the Fourth Respondent was his employer and that he was dismissed by the Fourth Respondent with effect from 2 February 2017.[3]In section8.1 of the claim form the Claimant stated that his claim was that of race discrimination. In section8.2 he said the following: The date of the event that lead to me being discriminated against is 23/11/2016. I must state clearly that it is not the event, but the decision that emanated as a result of the event that I find discriminatory in all its ramification. This is a decision reached by ATCjv after a three months long investigation on 19th May, 2017. I find the decision racially discriminatory because I was treated less favourably. The people involved are James Mayes, Lee Howard, Jason sherer, Martin Harre and the investigation officer for ATCjv. There was thus no specific claim made against the Fourth Respondent. The Claimant sought compensation of £2,059,164, including interest.[4]A response was presented on behalf of the JV which contained two contentions. The first was that the claim was out of time. The second was that the claim was misconceived. The response of the Fourth Respondent also referred to the time limit, and it stated that the Claimant had been dismissed for gross misconduct.[5]There was a first preliminary hearing in this matter for case management purposes on 3 October 2017. On that occasion the Tribunal ordered that there be this hearing to consider issues of jurisdiction, as well as to establish the correct identity of the JV.1 The first issue of jurisdiction was whether the Tribunal had the jurisdiction to consider a claim against the JV as it was not his employer. The second issue was whether the Tribunal had the jurisdiction to consider the claim as against the Fourth Respondent taking into account the statutory time limit. Orders were also made for the provision of further details of the claims, and they were provided on 17 October 2017. Reference is made to them below.[6]On 6 December 2017 an application was made to the Tribunal on behalf of the JV for the claim to be struck out on the ground that it was vexatious and had no reasonable prospect of success. In the alternative an order was sought requiring the payment of a deposit as a condition of being able to continue with the claim.[7]As mentioned the Claimant was employed by the Fourth Respondent as a security guard. He was allocated to a site which forms part of the Crossrail construction project. He was one of five guards on duty each shift. A supervisor from the Fourth Respondent visited the site as necessary, but was not permanently stationed there. 1 It was intended at the time that all issues be dealt with on 12 December 2017.[8]The Fourth Respondent was informed that there was an incident on 23 November 2016 when the Claimant was not wearing appropriate Personal Protective Equipment in a zone where that was required. He had been reported by a colleague, Devina Ram. An investigation was carried out and the Claimant attended a disciplinary hearing on 2 February 2017. The Claimant was dismissed following that hearing, and he appealed against that decision. The appeal hearing was held on 24 February 2017, and the Claimant was informed by letter dated 15 March 2017 that his appeal had been dismissed. The position taken by the Claimant during the proceedings was that the area in question was a ‘relaxed PPE area’.[9]In paragraphs 8 and 9 of his further particulars the Claimant set out his case. He says that the JV should have ‘used their powers as they have in similar case to tackle this grave injustice done to my person by their subcontractor, as exemplified in their intervention in the case of Devina Ram (a fellow colleague), who committed an act of gross misconduct for a prolong time (smoking in a prohibited area and serious act of insubordination to a site foreman).’ The Claimant said that it had become ‘crystal clear’ that he had been treated less favourably because of the colour of his skin. It was the Claimant who had reported Ms Ram on 10 December 2016.[10]The amended response of the JV stated that the Claimant had contacted it through a Helpdesk on 13 February 2017 raising concerns about the process adopted by the Fourth Respondent. Papers were requested from the Fourth Respondent and they were supplied on 12 May 2017. A reply was sent to the Claimant on 19 May 2017 after the JV had reviewed the procedures adopted by the Fourth Respondent.[11]The amended response also dealt with the case of Ms Ram. It was stated that the Claimant had reported her for smoking in a non-smoking area, that the JV had been involved in the investigation and that the area in question was in fact a smoking area.[12]The Fourth Respondent provided an additional response following receipt of the further details from the Claimant. The Fourth Respondent stated that the Claimant had not named any comparator, and there was no evidence of there having been any less favourable treatment of him by comparison with others. It was said that Ms Ram’s case was totally different in that the factual allegation against her was not upheld.[13]I will deal with the JV first. There are two issues of jurisdiction and I will deal firstly with the question of the time limit. The Claimant says that the racially discriminatory act of the JV was 19 May 2017. The normal threemonth time limit would therefore have expired on 18 August 2017. The Claimant contacted ACAS before that date. The conciliation period was four days, thus extending the time limit to 22 August 2017. The claim was presented on 7 August 2017, and was therefore in time.[14]The second question of jurisdiction, or whether there is any reasonable prospect of success, is whether a claim can be brought against the JV. The Claimant is not a lawyer and could not therefore be expected to address the Tribunal on the matter. It is not in dispute that the Claimant was not employed by the JV and therefore he does not fall under the provisions of section 39 of the Equality Act 2010 which protects employees. I have concluded that section 41 relating to contract workers also does not apply to the Claimant. That protects individuals where a principal makes work available for an individual employed by another employer. In these circumstances, as I understand them, the JV contracted with the Fourth Respondent for the Fourth Respondent to provide security services, and it was the Fourth Respondent then who made work available for the Claimant, not the JV.[15]I have also considered whether the Claimant could rely on section 111 of the Act on the basis that the JV had instructed, caused or induced a contravention of the Act by the Fourth Respondent. The Claimant was dismissed on 2 February 2017, and contacted the JV’s Helpdesk on 13 February 2017. The Claimant’s appeal was dismissed on 15 March 2017. Thus the involvement of the JV began before the last possible date for any discrimination against the Claimant by the Fourth Respondent. It would therefore theoretically be possible for section 111 to apply. However, the Claimant’s case does not fall within the language of the section. His case as set out in paragraph 8 of his further particulars is that the JV did not use their powers to tackle the grave injustice which had already been done to him by the Fourth Respondent. In other words the complaint is one of an omission of an act, rather than of a commission of an act. Section 111 refers the committing of an act. A similar point applies to section 112 which relates to the aiding of contraventions of the Act.[16]I therefore conclude that there is no reasonable prospect of success of the claim succeeding as against the JV, and claim is dismissed as against the First Respondent, the Second Respondent and the Third Respondent.[17]I now turn to the Fourth Respondent. The claims against the Fourth Respondent appear to be that the dismissal was discriminatory, and also that the use of CCTV was discriminatory. The Claimant said that the Fourth Respondent was looking for someone who was black to walk through the area in question. In its original response form the Fourth Respondent stated that the claim was out of time. It is necessary to ascertain when time started running. The original claim form ET1 did not contain any details of any allegations against the Fourth Respondent, but only against the JV. In his further particulars the Claimant referred to the incident on 23 November 2016, and the decision emanating from it which was discriminatory. He also mentioned the use of CCTV cameras, apparently between 29 December 2016 and 19 January 2017.[18]The last possible date for any act of discrimination by the Fourth Respondent based on the further particulars was 15 March 2017. The normal limitation period thus expired on 14 June 2017. ACAS was contacted on 13 July 2017, one month out of time. The certificate was issued on 17 July, and the claim form presented on 7 August 2017. That was three weeks after the issue of the certificate.[19]The Tribunal has the jurisdiction to extend time where it is just and equitable so to do. The burden of showing that time should be extended is on the Claimant. There must be some good reason to justify an extension. In his further particulars the Claimant said the following: And if the [Fourth] Respondent where to try escaping the long arm of the law by cheaply claiming my claim is out of date, the honourable tribunal has powers to consider out-of-date claims with this unique circumstance. In his closing statement the Claimant did not elaborate on the matter.[20]One matter to be considered is the reason for the delay in presenting the claim against the Fourth Respondent. Sometimes a delay can be explained where an employee is awaiting the outcome of an internal appeal. That does not apply here where the Fourth Respondent’s internal process had been exhausted. The Claimant did involve the JV but I do not consider that to be relevant because it must have been clear to the Claimant that the JV was not in any position to reverse the dismissal decision taken by his employer, the Fourth Respondent.[21]The other material factor in these circumstances is the question of the relative prejudice to the parties. If a Tribunal were not to extend the time limit where the claimant in question had a strong case, and there was no specific prejudice to the respondent apart from having to defend the claim, then it may well be fair to extend the time limit. It was not suggested by Miss Finnis that there would be any specific prejudice to the Fourth Respondent.[22]However, the time limit is there for a purpose, and must be applied unless it can be shown that it is fair to both parties not to do so. In my view this claim has little reasonable prospect of success. The Claimant relied upon Ms Ram as a comparator, the allegation made against her by the Claimant being that she had been smoking in a non-smoking area. I am aware that it was found that that allegation was untrue, but I should not decide that point at this juncture. That is the sole support for the allegation of race discrimination. The two cases do not appear to me to be comparable. The non-use of PPE equipment is clearly potentially a safety risk, and in breach of regulations. There was no suggestion that smoking in the area in question created a safety risk. Further, the simple facts that a person has a particular protected characteristic and is also dismissed do not go towards showing that the dismissal was because of the characteristic in question. My conclusion is that the Fourth Respondent would be materially prejudiced by having to defend the claim, and that outweighs the limited prejudice to the Claimant in not being able to pursue a weak claim. This is not a ‘unique circumstance’ as suggested by the Claimant. I decline to extent the time limit.