Mr J Shah v Horsham District Council: 2304555/2023
EMPLOYMENT TRIBUNALS
Case No 2304555/2023
Between
Mr. J ShahClaimantHorsham District CouncilRespondent
Before
Employment Judge SudraFailed to Attend for claimantMr. S. Barratt (instructed by Counsel) for respondentDate 1 August 2024
JUDGMENT
The Claimant’s claim has no reasonable prospect of success and is struck out. The Final Hearing listed for 23 and 24 June 2025 is vacated.
REASONS
[1]This matter came before me today at a Preliminary Hearing held in public to determine an application made by the Respondent for the claim to be struck out for: Case Number: 2304555/2023 2 of 12(i) Lack of jurisdiction, as being out of time; and/or(ii) because it has no reasonable prospect of success.[2]The Claimant failed to attend the Hearing today. The Claimant was well aware of the Hearing – which he had been notified of on 20th February 2024 – and during the past week or so, he had made repeated applications for a postponement on the basis that he had started a new job on 29th July 2024 (the Claimant was aware on 10th July 2024 that he had been successful in a job application and would be beginning his new job on 29th July 2024. Although the Claimant had this knowledge, he failed to mention this at a Preliminary Hearing on 19th July 2024; had the Tribunal been made aware of his new employment, it may well have made a difference to the amount of the Deposit Order made at that Hearing).[3]The Claimant’s applications to postpone today’s Hearing, as he had started a new job, were refused by Acting Regional Employment Judge Khalil and this was made explicitly clear to the Claimant in various correspondence from the Tribunal. Despite AREJ Khalil asking the Claimant for evidence that his present employer had refused him leave to attend this Hearing, none was forthcoming. The only action the Claimant took was to email the Tribunal his new contract of employment and to accuse AREJ Khalil of ‘passive aggression.’[4]Mr. Barratt informed me that the Respondent had received an email from the Claimant at 4.34pm yesterday, stating that he was ‘unwell’ albeit, no further explanation or evidence in support was provided. The Tribunal had not received this email.[5]At 10.05am and 10.10am today my clerk telephoned the Claimant but the calls were not answered. At 10.20am my clerk emailed the Claimant stating, ‘Good Morning Please contact the tribunal at your earliest convenience to confirm whether you will be attending today’s hearing or not. Please note the Case Number: 2304555/2023 3 of 12 hearing will be starting at 10:25 and a Judgement (sic) may be issued in your absence’ but received no response. I decided to proceed with the Hearing under r.47 in the Claimant’s absence. I was fully satisfied that the Claimant was aware of today’s Hearing, least of all, as I had reminded him of it at the Preliminary Hearing on 19th July 2024 and in my Case Management Order of the same date I specifically stated: ‘2. A Public Preliminary Hearing by video hearing has been listed for 1st August 20241. At the Hearing, an Employment Judge will consider the Respondent’s application to strike-out the Claimant’s claim:(i) For lack of jurisdiction, as being out of time; and/or(ii) Because it has no reasonable prospect of success. The Hearing will start at 10:00.Sometimes hearings start late, are moved to a different address or are cancelled at short notice. You will be told if this happens. 3. No postponement of the hearing will be granted unless there are exceptional circumstances.’ (My underlining).[6]I heard no evidence but I had regard to the following written information:(a) A bundle of documents for the Preliminary Hearing which ran to 181 pages (any reference to page numbers in these Reasons is a reference to that bundle).(b) A written skeleton argument from the Respondent which incorporated relevant authorities. 1 This was a typographical error and should have read ‘15th August 2024.’ Case Number: 2304555/2023 4 of 12
Findings of Fact
[7]I made no findings of fact for the purposes of my decision, proceeding only on the basis of the documents available. I have been mindful to take the Claimant’s claim at its absolute highest.[8]On that basis I can summarise the facts as follows.[9]The Respondent is a Local Authority in Horsham and performs all the services expected of a Local Authority in the UK.[10]Prior to February 2023, the Respondent had had a vacancy for a Housing Officer (‘the role’) and the Claimant made an application in respect of it. The Claimant was successful in the Respondent’s initial sift and was invited for interview to take place on, 15th February 2023. The Respondent sent the Claimant the interview invitation on 8th February 2024 and specifically stated, ‘If you require any adjustments or equipment to be available whether you have declared a disability or not, please let us know as soon as possible.’[11]The Claimant responded 22 minutes later confirming that he would attend the interview but made no mention whatsoever of any required adjustments or equipment to be made available.[12]The Claimant attended for interview on 15th February 2023 but was deemed unsuitable. Three applicants (including the Claimant) were interviewed but none were appointed as they were not suitable. The Claimant had scored the lowest of all three applicants. The other two applicants were white British. The Claimant had not been treated less favourably than the two other applicants as none of them were offered the role. Background Case Number: 2304555/2023 5 of 12
Background
[13]As the Respondent was unsuccessful in filling the role, it re-advertised the vacancy on or around 24th February 2023. Also on 24th February 2023, the Claimant enquired if he could re-apply for the role he had been unsuccessful in being appointed to nine days prior. The Respondent advised that due to the very short passage of time that had passed and as the Claimant’s skills were unsuited to the role, it would be highly unlikely that a second interview for the same role would result in a different outcome. It is also appropriate to note at this juncture that the Claimant had scored the lowest of his cohort. The Respondent doubted that, within a nine-day period, the Claimant would have acquired the requisite experience and skill for the role he had been unsuccessful in when interviewed initially.[14]Undeterred, the Claimant did re-apply for the role but was again unsuccessful. The Respondent found two suitable candidates whom were each offered a role. One candidate was of black origin and the other was of mixed Asian origin. One of the successful candidates also had a disability.[15]There then ensued considerable email traffic between the Claimant and Respondent where the Claimant stated that the Respondent had discriminated against him for his ‘profile’ and that they were threatened by him as he was ‘highly educated.’ In his email ‘sign-offs’ the Claimant added the prefix ‘LLB (Hons),’ presumably to display that he was learned in the law.[16]On 24th February 2023 the Claimant requested the Respondent’s grievance policy. The Claimant’s degree in law had not informed him that a grievance can only be raised by an actual employee. The same day, Robert Laban (Head of HR and OD), again, advised the Claimant on how he could raise a complaint rather than a grievance, which he did.[17]Rob Jarvis (Head of Housing & Community Services) responded to the Claimant’s complaint on 21st June 2023, and informed him that his complaint of discrimination etcetera had not been upheld. Relevant Law Case Number: 2304555/2023 6 of 12 Time
Relevant Law
[18]S.123 of the Equality Act 2010 (‘EqA’) provides (so far as material): 123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. ….[19]Rule 37 of the ET Rules provides (so far as material): ‘(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; ….[20]The effect of a strike out is to terminate the claim or the part of the claim. It is a draconian jurisdiction, and the relevant case authorities underlie its exceptional nature. This is particularly so where the substantive case features allegations of unlawful discrimination, as it is ‘a matter of high public interest’ that such cases are heard (as per Lord Steyn in Anyanwu v South Bank Students’ Union [2001] IRLR 305).[21]The application here is made under Rule 37(1)(a), and Mr. Barrat clarified that the Respondent’s argument is based on the third category in that rule, that each of the claims ‘has no reasonable prospect of success.’ Case Number: 2304555/2023 7 of 12[22]Plainly, on the wording of the Rule, the threshold for the Respondent to persuade me that the Claims have no reasonable prospect of success is a high one, and the Employment Appeal Tribunal (‘EAT’) has cautioned against striking out a claim on that basis.[23]Furthermore, the cases of Ezsias v. North Glamorgan NHS Trust [2007] EWCA Civ 330 and Tayside Public Transport Co Ltd (t/a Travel Dundee) v. Reilly [2012] IRLR 755 indicate that it would be wrong to make a strike-out Order where there is a dispute on the facts that needs to be determined at trial.[24]As HHJ Eady (as she then was) put it in Mbuisa v. Cygnet Healthcare Ltd EAT 0119/18at [20]: ‘Such an exceptional case might arise where it is instantly demonstrable that the central facts in the claim are untrue or there is no real substance in the factual assertions being made, but the ET should take the Claimant's case, as it is set out in the claim, at its highest, unless contradicted by plainly inconsistent documents, see Ukegheson v. London Borough of Haringey [2015] ICR 1285 at para 21 per Langstaff J at para 4’ (my emphasis).[25]Mitting J, summarised the law in Mechkarov v Citibank NA UKEAT/0041/16, [2016] ICR 1121 as follows at [14]: ‘(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant's case must ordinarily be taken at its highest; (4) if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.’ Case Number: 2304555/2023 8 of 12[26]However, taking the Claimant’s case its highest does not mean that there is no burden on the Claimant at this stage – Lord Justice Underhill in the Court of Appeal case of Ahir v. British Airways [2017] EWCA Civ 1392 at [19] observed that: ‘where there is an ostensibly innocent sequence of events leading to the act complained of, there must be some burden on a claimant to say what reason he or she has to suppose that things are not what they seem and to identify what he or she believes was, or at least may have been, the real story, albeit (as I emphasise) that they are not yet in a position to prove it.’[27]The Court of Appeal in Madarassy v. Nomura International plc [2007] IRLR 246, CA. stated: ‘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.’[28]All of the Claimant’s claims are the subject of the application to strike-out, or in the alternative, an application for a deposit order, and again I remind myself that strike out should only be ordered in exceptional circumstances in discrimination cases. The binding authorities cited above emphasise that where there are core issues of fact in dispute, they should not be decided without hearing relevant oral evidence.[29]However, whilst the rationale of the EAT cannot be faulted it is important to understand that a caution is not a prohibition and that the EAT and Court of Appeal, recognises that there may be, and indeed are, instances where a strike out of a discrimination claim may be entirely appropriate and just. Time[30]S.123 EqA provides (so far as material): Case Number: 2304555/2023 9 of 12 123 Time limits (1) proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. ….[31]The Claimant began Acas early conciliation on 12th June 2023 (‘Day A’) therefore, any complaint relating to a period prior to 13th March 2023, is prima facie out of time.[32]In the present case I use the same nomenclature Mr. Barratt enunciated in his skeleton argument i.e. periods 1 (7th to 20th February 2023), 2 (24th February to 16th March 2023), and 3 (22nd May to 21st June 2023). The first question to address is for those acts which are outside of the primary time limit, 13th March 2023, was there conduct extending over a period so as to constitute a continuing act? If the answer is no, the second question is would it be just and equitable to provide an extension of time?[33]In respect of periods 1, 2, and 3 it is unclear how there is sufficient linkage between the periods so as to constitute a continuing act. What is clear is that there were a series of discrete acts which were not sufficiently linked so as to amount to conduct extending over a period so as to constitute a continuing act. Therefore, an extension of time on this basis is not appropriate.[34]Possessing graduate level legal knowledge and having had experience of the Tribunal process in the past, the Claimant should have submitted his claims sooner than he did. However, what he should have done is not sufficient to defeat the clear public policy reason that discrimination claims should be heard save in the most obvious circumstances where there are no reasons of justice or equity to validate an extension of time. There is a very good reason why discrimination claims should be heard and taking this into Case Number: 2304555/2023 10 of 12 account, as well as the length of the delay and the fact that the Claimant is a lay person, I have decided that it is just and equitable to extend time for the allegations which fall outside of the primary time limit. No Reasonable Prospect of Success[35]I now turn to merit and whether the Claimant’s claims have no reasonable prospect of success and in doing so, I have carefully considered the appellate authorities (and in particular the very sage and practical judgment of HHJ Tayler in Cox v. Adecco [2021] ICR 1307) and the Claimant’s claims.[36]The Claimant has the impairments of anxiety and depression and he says that by virtue of these impairments, he is disabled so as to attract the protection of s.6 EqA. However, the gaping hole in the Claimant’s assertion is the total lack of any medical evidence to support his contention. Stating that one has a mental or physical impairment, or even if one actually possess a mental or physical impairment does not automatically qualify one as disabled under s.6 EqA. Whilst I accept, as the Respondent has accepted, that the Claimant may well have anxiety and depression, the paucity of any evidence means that the Claimants claims of disability discrimination have no reasonable prospect of success.[37]In respect of the Claimants allegations of race discrimination it is clear that he relies on the mere possession of the protected characteristic as evidence in itself of discrimination. This does not, and cannot, go anywhere near raising a prima facie case of unfavourable treatment due to race. There must be something more. The Claimant, apart from stating that he is mixed Pakistani British, does not provide any cogent reason as to why he feels he has been treated unfavourably due to his race.[38]Regarding harassment related to race, I struggle to see, even taking the Claimant’s case at its highest, how the Respondent’s alleged actions can be taken to reasonably have had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him and how those alleged actions can be said Case Number: 2304555/2023 11 of 12 to be related to his race. For these reasons, the Claimants claims of race discrimination have no reasonable prospect of success.[39]Finally, the Claimant’s claim of victimisation is a non-starter. Even if he had done a protected act (which is not admitted by the Respondent) of, ‘On 24th February 2023 the Claimant emailed Kendra Barrington complaining of race discrimination,’ there are two fatal factors which weigh against he Claimant. Firstly, Ms. Barrington is not an employee of the Respondent and there is no basis to establish that the Respondent was aware of complaints the Claimant may have made to an external individual. Secondly, even if the Claimant had done a protected act and the Respondent were aware of it, he was not subjected to any detriment.[40]The detriment the Claimant complains of is, preventing him from re-applying for the HO role. The documents are clear that the Claimant was not forbidden from re-applying for the HO role but rather, was advised that ‘Generally, we would welcome reapplications from previously unsuccessful applicants, particularly after some passage of time, as people gain further experience and skills. As you attended for an interview recently it might be best to discuss that with the recruiting manager. I trust that you have received some feedback on your application and interview already.’ [114-115].[41]Therefore, the Claimants claim of victimisation also has no reasonable prospect of success[42]The Claimant’s offence seems to flow instead from beliefs he holds about the Respondent without any corroborating factor. In all those circumstances I am satisfied that there is no proper basis in this case for alleging that the Respondent had breached the Equality Act and I do not consider the Claimant has shown that his allegations have any prospect of success.[43]I then consider whether it was appropriate to exercise my discretion to strike the claim out. I can see no possible reason for allowing it to continue. The claim is struck out under rule 37(1)(a). Case Number: 2304555/2023 12 of 12[44]All claims are struck out and the Final Hearing listed for 23rd to 24th June 2025 is vacated. Endnotes[45]You can appeal to the Employment Appeal Tribunal if you think this decision involves a legal mistake. There is more information here https//www.gov.uk/appeal-employment-appeal-tribunal. Any appeal must be made within 42 days of the date you were sent the decision / these written reasons.[46]There is also a right to have the decision reconsidered if that would be in the interests of justice. An application for reconsideration should be made within 14 days of the date you were sent the decision / these written reasons.[47]A decision may be reconsidered where there has been some serious problem with the process, such as where an administrative error has resulted in a wrong decision, where one side did not receive notice of the hearing, where the decision was made in the absence of one of the parties, or where new evidence has since become available. It is not an opportunity to argue the same points again, or even to raise points which could have been raised earlier but which were overlooked. __________________________ Employment Judge Sudra 15th August 2024 Case Number: 2304555/2023 1 EMPLOYMENT TRIBUNALS Claimant: Mr. J. Shah Respondents: Horsham District Council
Relevant Law
[1]The Claimant’s application for reconsideration of the judgment given in this matter on 1st August 2024 is refused, and the decision in that judgment is confirmed. APPLICATION[2]The Claimant applied, under Rule 71 of the Employment Tribunals Rules of Procedure 2013, for reconsideration of my decision on 23rd August 2024 to strike out the Claimant’s claim.[3]The Claimant has applied for a reconsideration of my judgment as he believes that, ‘this judgment is heavily biased and pre-ordained outcome. Judge Sudra is corrupt and not fit to be in a position of authority as an impartial person in such a tenure. The judge continuously throughout the hearing bullied the claimant such that he berated his elderly mother from bringing him a cup of coffee, stating 'this is a private hearing and you should behave as Case Number: 2304555/2023 2 if you were in court'. There is no reasonable justification for the hearing to have been kept private, other than that the judge wanted to hide the unfair behaviours, bullying and harassment meted out against the claimant, totally biased in favour of the respondent barrister, whose judgment he deferred to on every aspect. Despite seeming to offer the claimant guidance on deciding what constituted a 'PCP' comparator, the very same judge (Sudra) then allowed counsel S. Barratt to conclude that this PCP was not valid. Judge Sudra then denied that he had advised the claimant that such a PCP comparator was suggested. The fact again that the hearing was held in private allows the judge cover to deny this, which he has done, stating in written judgment (received many days after the second hearing, which was held without the claimant being present, as the claimant notified the Tribunal he was unwell - yet the Tribunal proceeded in the claimant's absence, knowing full well this to be the case).’ and ‘I was sick at the time and the Tribunal was fully aware; I was awaiting legal representation and the Tribunal was made aware. Judge Sudra was hell-bent on dismissing my case notwithstanding and at all costs, as he is a thoroughly reprehensible person who discriminates against those from a Pakistani background and litigants in person. He made this obvious during the hearing.’[4]Upon reconsideration, there is no prospect of my decision being revoked or varied. Case Number: 2304555/2023 3[5]Reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to re-argue matters in a different way or adopting points previously omitted.[6]There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v. Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: ‘the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.’[7]Similarly, in Liddington v. 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P (as she then was) said in paragraph 34 that: ‘a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.’ Case Number: 2304555/2023 4[8]Reconsideration is not a means by which to have a second bite at the cherry, or is it intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.[9]Tribunals have a wide discretion whether or not to order reconsideration. Where a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.[10]For all of the above reasons, the Claimant’s application is refused. _____________________________ Employment Judge Sudra Date: 18th September 2024 Case No: 2304555/2023 EMPLOYMENT TRIBUNALS Claimant: Mr. J. Shah Respondent: Horsham District Council CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under Rule 69, the judgment sent to the parties on 16th September 2024, is corrected as set out in block type at paragraph 39 of the corrected judgment. __________________________ Employment Judge Sudra 26th September 2024 Important note to parties: Any dates for asking for written reasons, applying for reconsideration or appealing against the judgment are not changed by this certificate of correction and corrected judgment. These time limits still run from the date the original judgment or reasons were sent, as explained in the letter that sent the original judgment. Case Number: 2304555/2023 1 of 12 EMPLOYMENT TRIBUNALS Claimants: Mr. J. Shah Respondent: Horsham District Council PUBLIC PRELIMINARY HEARING Heard at: London South (via CVP video conference) On: 15th 1st August 2024 Before: Employment Judge Sudra Appearances For the Claimant: Failed to Attend For the Respondent: Mr. S. Barratt of Counsel
Findings of Fact
[11]The Claimant responded 22 minutes later confirming that he would attend the interview but made no mention whatsoever of any required adjustments or equipment to be made available.[12]The Claimant attended for interview on 15th February 2023 but was deemed unsuitable. Three applicants (including the Claimant) were interviewed but none were appointed as they were not suitable. The Claimant had scored the lowest of all three applicants. The other two applicants were white British. Background Case Number: 2304555/2023 5 of 12 The Claimant had not been treated less favourably than the two other applicants as none of them were offered the role.
Background
[13]As the Respondent was unsuccessful in filling the role, it re-advertised the vacancy on or around 24th February 2023. Also on 24th February 2023, the Claimant enquired if he could re-apply for the role he had been unsuccessful in being appointed to nine days prior. The Respondent advised that due to the very short passage of time that had passed and as the Claimant’s skills were unsuited to the role, it would be highly unlikely that a second interview for the same role would result in a different outcome. It is also appropriate to note at this juncture that the Claimant had scored the lowest of his cohort. The Respondent doubted that, within a nine-day period, the Claimant would have acquired the requisite experience and skill for the role he had been unsuccessful in when interviewed initially.[14]Undeterred, the Claimant did re-apply for the role but was again unsuccessful. The Respondent found two suitable candidates whom were each offered a role. One candidate was of black origin and the other was of mixed Asian origin. One of the successful candidates also had a disability.[15]There then ensued considerable email traffic between the Claimant and Respondent where the Claimant stated that the Respondent had discriminated against him for his ‘profile’ and that they were threatened by him as he was ‘highly educated.’ In his email ‘sign-offs’ the Claimant added the prefix ‘LLB (Hons),’ presumably to display that he was learned in the law.[16]On 24th February 2023 the Claimant requested the Respondent’s grievance policy. The Claimant’s degree in law had not informed him that a grievance can only be raised by an actual employee. The same day, Robert Laban (Head of HR and OD), again, advised the Claimant on how he could raise a complaint rather than a grievance, which he did.[17]Rob Jarvis (Head of Housing & Community Services) responded to the Claimant’s complaint on 21st June 2023, and informed him that his complaint of discrimination etcetera had not been upheld. Case Number: 2304555/2023 6 of 12 Relevant Law Time
Relevant Law
[18]S.123 of the Equality Act 2010 (‘EqA’) provides (so far as material): 123 Time limits (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b)such other period as the employment tribunal thinks just and equitable. ….[19]Rule 37 of the ET Rules provides (so far as material): ‘(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; ….[20]The effect of a strike out is to terminate the claim or the part of the claim. It is a draconian jurisdiction, and the relevant case authorities underlie its exceptional nature. This is particularly so where the substantive case features allegations of unlawful discrimination, as it is ‘a matter of high public interest’ that such cases are heard (as per Lord Steyn in Anyanwu v South Bank Students’ Union [2001] IRLR 305).[21]The application here is made under Rule 37(1)(a), and Mr. Barrat clarified that the Respondent’s argument is based on the third category in that rule, that each of the claims ‘has no reasonable prospect of success.’ Case Number: 2304555/2023 7 of 12[22]Plainly, on the wording of the Rule, the threshold for the Respondent to persuade me that the Claims have no reasonable prospect of success is a high one, and the Employment Appeal Tribunal (‘EAT’) has cautioned against striking out a claim on that basis.[23]Furthermore, the cases of Ezsias v. North Glamorgan NHS Trust [2007] EWCA Civ 330 and Tayside Public Transport Co Ltd (t/a Travel Dundee) v. Reilly [2012] IRLR 755 indicate that it would be wrong to make a strike-out Order where there is a dispute on the facts that needs to be determined at trial.[24]As HHJ Eady (as she then was) put it in Mbuisa v. Cygnet Healthcare Ltd EAT 0119/18at [20]: ‘Such an exceptional case might arise where it is instantly demonstrable that the central facts in the claim are untrue or there is no real substance in the factual assertions being made, but the ET should take the Claimant's case, as it is set out in the claim, at its highest, unless contradicted by plainly inconsistent documents, see Ukegheson v. London Borough of Haringey [2015] ICR 1285 at para 21 per Langstaff J at para 4’ (my emphasis).[25]Mitting J, summarised the law in Mechkarov v Citibank NA UKEAT/0041/16, [2016] ICR 1121 as follows at [14]: ‘(1) only in the clearest case should a discrimination claim be struck out; (2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence; (3) the Claimant's case must ordinarily be taken at its highest; (4) if the Claimant's case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out; and (5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.’ Case Number: 2304555/2023 8 of 12[26]However, taking the Claimant’s case its highest does not mean that there is no burden on the Claimant at this stage – Lord Justice Underhill in the Court of Appeal case of Ahir v. British Airways [2017] EWCA Civ 1392 at [19] observed that: ‘where there is an ostensibly innocent sequence of events leading to the act complained of, there must be some burden on a claimant to say what reason he or she has to suppose that things are not what they seem and to identify what he or she believes was, or at least may have been, the real story, albeit (as I emphasise) that they are not yet in a position to prove it.’[27]The Court of Appeal in Madarassy v. Nomura International plc [2007] IRLR 246, CA. stated: ‘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.’[28]All of the Claimant’s claims are the subject of the application to strike-out, or in the alternative, an application for a deposit order, and again I remind myself that strike out should only be ordered in exceptional circumstances in discrimination cases. The binding authorities cited above emphasise that where there are core issues of fact in dispute, they should not be decided without hearing relevant oral evidence.[29]However, whilst the rationale of the EAT cannot be faulted it is important to understand that a caution is not a prohibition and that the EAT and Court of Appeal, recognises that there may be, and indeed are, instances where a strike out of a discrimination claim may be entirely appropriate and just. Time[30]S.123 EqA provides (so far as material): Case Number: 2304555/2023 9 of 12 123 Time limits (1) proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. ….[31]The Claimant began Acas early conciliation on 12th June 2023 (‘Day A’) therefore, any complaint relating to a period prior to 13th March 2023, is prima facie out of time.[32]In the present case I use the same nomenclature Mr. Barratt enunciated in his skeleton argument i.e. periods 1 (7th to 20th February 2023), 2 (24th February to 16th March 2023), and 3 (22nd May to 21st June 2023). The first question to address is for those acts which are outside of the primary time limit, 13th March 2023, was there conduct extending over a period so as to constitute a continuing act? If the answer is no, the second question is would it be just and equitable to provide an extension of time?[33]In respect of periods 1, 2, and 3 it is unclear how there is sufficient linkage between the periods so as to constitute a continuing act. What is clear is that there were a series of discrete acts which were not sufficiently linked so as to amount to conduct extending over a period so as to constitute a continuing act. Therefore, an extension of time on this basis is not appropriate.[34]Possessing graduate level legal knowledge and having had experience of the Tribunal process in the past, the Claimant should have submitted his claims sooner than he did. However, what he should have done is not sufficient to defeat the clear public policy reason that discrimination claims should be heard save in the most obvious circumstances where there are no reasons of justice or equity to validate an extension of time. There is a very good reason why discrimination claims should be heard and taking this into account, as well as the length of the delay and the fact that the Claimant is a lay person, Case Number: 2304555/2023 10 of 12 I have decided that it is just and equitable to extend time for the allegations which fall outside of the primary time limit. No Reasonable Prospect of Success[35]I now turn to merit and whether the Claimant’s claims have no reasonable prospect of success and in doing so, I have carefully considered the appellate authorities (and in particular the very sage and practical judgment of HHJ Tayler in Cox v. Adecco [2021] ICR 1307) and the Claimant’s claims.[36]The Claimant has the impairments of anxiety and depression and he says that by virtue of these impairments, he is disabled so as to attract the protection of s.6 EqA. However, the gaping hole in the Claimant’s assertion is the total lack of any medical evidence to support his contention. Stating that one has a mental or physical impairment, or even if one actually possess a mental or physical impairment does not automatically qualify one as disabled under s.6 EqA. Whilst I accept, as the Respondent has accepted, that the Claimant may well have anxiety and depression, the paucity of any evidence means that the Claimants claims of disability discrimination have no reasonable prospect of success.[37]In respect of the Claimants allegations of race discrimination it is clear that he relies on the mere possession of the protected characteristic as evidence in itself of discrimination. This does not, and cannot, go anywhere near raising a prima facie case of unfavourable treatment due to race. There must be something more. The Claimant, apart from stating that he is mixed Pakistani British, does not provide any cogent reason as to why he feels he has been treated unfavourably due to his race.[38]Regarding harassment related to race, I struggle to see, even taking the Claimant’s case at its highest, how the Respondent’s alleged actions can be taken to reasonably have had the purpose or effect of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him and how those alleged actions can be said to be related to his race. For these reasons, the Claimants claims of race discrimination have no reasonable prospect of success. Case Number: 2304555/2023 11 of 12[39]Finally, the Claimant’s claim of victimisation is a non-starter. Even if he had done a protected act (which is not admitted by the Respondent) of, ‘On 24th February 2023 the Claimant emailed Kendra Barrington complaining of race discrimination,’ there are two is one fatal factors which weighs against the Claimant. Firstly Ms. Barrington is not an employee of the Respondent and there is no basis to establish that the Respondent was aware of complaints the Claimant may have made to an external individual. Secondly, even if the Although the Claimant had done a protected act and the Respondent were was aware of it, he was not subjected to any detriment.3[40]The detriment the Claimant complains of is, preventing him from re-applying for the HO role. The documents are clear that the Claimant was not forbidden from re-applying for the HO role but rather, was advised that ‘Generally, we would welcome reapplications from previously unsuccessful applicants, particularly after some passage of time, as people gain further experience and skills. As you attended for an interview recently it might be best to discuss that with the recruiting manager. I trust that you have received some feedback on your application and interview already.’ [114-115].[41]Therefore, the Claimants claim of victimisation also has no reasonable prospect of success[42]The Claimant’s offence seems to flow instead from beliefs he holds about the Respondent without any corroborating factor. In all those circumstances I am satisfied that there is no proper basis in this case for alleging that the Respondent had breached the Equality Act and I do not consider the Claimant has shown that his allegations have any prospect of success.[43]I then consider whether it was appropriate to exercise my discretion to strike the claim out. I can see no possible reason for allowing it to continue. The claim is struck out under rule 37(1)(a). 3 The judgment remains unaltered following the corrections made herein. Case Number: 2304555/2023 12 of 12[44]All claims are struck out and the Final Hearing listed for 23rd to 24th June 2025 is vacated. Endnotes[45]You can appeal to the Employment Appeal Tribunal if you think this decision involves a legal mistake. There is more information here https//www.gov.uk/appeal-employment-appeal-tribunal. Any appeal must be made within 42 days of the date you were sent the decision / these written reasons.[46]There is also a right to have the decision reconsidered if that would be in the interests of justice. An application for reconsideration should be made within 14 days of the date you were sent the decision / these written reasons.[47]A decision may be reconsidered where there has been some serious problem with the process, such as where an administrative error has resulted in a wrong decision, where one side did not receive notice of the hearing, where the decision was made in the absence of one of the parties, or where new evidence has since become available. It is not an opportunity to argue the same points again, or even to raise points which could have been raised earlier but which were overlooked.