Mr I A Chandel v Northfield Farm Ltd: 2304959/2022
EMPLOYMENT TRIBUNALS
Case No 2304959/2022
Between
Mr I A ChandelClaimantNorthfield Farm LtdRespondent
Before
Employment Judge TsamadosIn person for claimantDate 10 January 2024
JUDGMENT
The Judgment of the Tribunal is as follows: The claim is struck out under Employment Tribunal Rule 37(1)(a) because it has no reasonable prospect of success. Employment Judge Tsamados Date: 10 January 2024 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.
REASONS
These are the reasons for the Judgment which were given orally at the public preliminary hearing held on. The Judgment was sent to the parties on 17 January 2024. They have been requested by the Claimant. These written reasons additionally set out the background to the hearing and our findings in more detail. However, they do not materially depart from the oral reasons that were given.
Background
[1]The Claimant presented a claim to the Employment Tribunal on 24 December 2022 following a period of early conciliation between 29 October and 24 November 2022.[2]He was employed as Manager for Burger Section/Van from 26 May 2022 to 26 October 2022 (although the Respondent states that his dates of employment were from 22 May 2022 to 25 October 2022). His claim form raises allegations relating to complaints about the bullying and harassment of other members of staff by his employers which he raised with them and was subsequently dismissed. Page 1 of 8[3]The Claimant has ticked the unfair dismissal box at paragraph8.1 of the claim form and has also indicated by ticking the box below headed “I am making another type of claim which the Employment Tribunal can deal with”, that he challenges “the reasoning of dismissal.” He provides a degree of narrative at box8.2 of the claim form. In addition, he has provided some further information at box 9.2 which asks him to specify what compensation or remedies he is seeking.[4]In its response to the claim form, the Respondent denies the allegations and states that the complaints that the Claimant is bringing are unclear.[5]In a letter dated 20 March 2023, the Employment Tribunal wrote to the Claimant in the following terms: “It is currently unclear whether or not the claimant has claims which are within the tribunal’s jurisdiction. A separate letter will be sent in respect of the unfair dismissal claim. It is not clear whether the claim for harassment falls within the jurisdiction of the tribunal as the claimant has not stated what unwanted conduct he personally was subjected to and how it related to a protected characteristic (see section 26 Equality Act 2010). The claimant is ordered to write to the tribunal and the respondent within 28 days to provide a list of the unwanted conduct he relies on stating for each incident the person responsible, the date, what happened and the relevant protected characteristic. Alternatively if the claim is that the claimant was subjected to detriments including dismissal because he complained of harassment contrary to section 26 Equality Act 2010 then he should make this clear in writing to the tribunal and respondent within 28 days, giving a list of the detriments complained of, and details of when, how and to whom he raised a complaint of harassment contrary to section 26 Equality Act 2010. A preliminary hearing will be listed in due course for the tribunal to consider whether the complaints have reasonable prospects of success.”[6]The letter went on to list a number of organisations which might be able to provide advice to assist the Claimant.[7]Also on 20 March 2023, the Employment Tribunal wrote to the Claimant advising him that claimants are not entitled to bring a complaint of unfair dismissal unless they were employed for 2 years or more except in certain specific circumstances which do not seem to apply in his case. He was given until 29 March 2023 to give reasons in writing as to why his complaints of unfair dismissal should not be struck out.[8]On 22 March 2023, a notice of the full hearing was sent to the parties advising of dates from 16 to 19 July 2024. In addition, the parties were sent notice of a preliminary hearing for case management set for 18 August 2023. However the preliminary hearing did not take place because the Claimant was overseas in India and at the time of the hearing there was a power cut.[9]On 29 March 2023, the Claimant sent an email to the Tribunal in which he set out what would appear to be his response to the letter requesting further information that was sent on 20 March 2023. Unfortunately, he did not copy this to the Respondent’s representative. Page 2 of 8[10]On 17 April 2023, the Claimant sent an email to the Tribunal providing whatappears to be a further response to the letter seeking further information that was sent on 20 March 2023. Unfortunately, again he did not copy this to the Respondent’s representative.[11]On 12 September 2023, the Employment Tribunal wrote to the parties statingthat the claim would be listed for a further preliminary hearing to determine the nature of the Claimant’s claims and to consider whether all/any of the claims or allegations should be struck out or subject to a deposit order on the basis that they have no, or little, reasonable prospect of success.[12]The letter also advised the Claimant of the necessity to contact the Tribunal’sadministration if he needs to give evidence from India and also it set out the information he needed to provide.[13]On 28 September 2023, notice of today’s hearing was sent to the parties. Today’s hearing[14]The hearing was conducted by Cloud Video Platform (“CVP”). The Claimantattended in person and the Respondent was represented by Mr McFarlane with Mr Leo and Mr Jan McCourt in attendance.[15]The Claimant had some difficulty joining the hearing and ultimately was onlyable to participate with audio only using his mobile phone. Both parties were content to continue in this manner.[16]I explained, mainly for the benefit of the Claimant, that today’s hearing wasto determine what complaints he has brought and then to consider whether these were ones that the Tribunal has jurisdiction to deal with and whether they should be struck out or a deposit order issued as a prerequisite of continuing with all or any of them. Dependent on the outcome of this part of the hearing, I would then go on to deal with any further case management if it was necessary.[17]I went through the powers of the Tribunal to strike out complaints/allegationsin some detail and also the powers to issue a deposit order or indeed orders in respect of the complaints/allegations.[18]The Respondent had provided an electronic bundle of documents comprisingof 41 pages. I also provided Mr McFarlane with copies of the two emails identified above which the Claimant had not copied to him at the time as well as a further email from the Claimant dated 3 January 2024 (also not copied to the Respondent). I adjourned for half an hour to allow Mr McFarlane to read them and to take instructions.
Findings
[19]In his claim form, the Claimant has ticked the box indicating that he wasunfairly dismissed and in addition he indicates that he is challenging the Page 3 of 8 reasoning for his dismissal. The details of his claim at box 8.2 indicate that he was concerned and expressed his concerns as to the way in which the Respondent was treating other members of staff which he describes as “bullying and harassment”. More generally he sets out his general dissatisfaction with the nature of the work, which he found quite different from what he expected it to be, his general feeling that he was treated unfairly and, in particular, as to the reason why he was dismissed, which he believes was as a result of his raising concerns about the treatment of members of staff.[20]He has sent three emails to the Tribunal which appear to be a response toour letter ordering him to provide more information about the nature of his claims. These are dated 3 January, 29 March and 17 April 2023. Whilst these expand upon his issues of concern, they raise matters of more general concern as to the work, as to disclosure of personal information and as to his working terms and conditions. Whilst the Claimant asked for a contract of employment it does appear that this was provided and it is not something which he relies upon as giving rise to his dismissal. Whilst the Claimant also raises his concerns that other members of staff were either working illegally or claiming social security benefits or both, these are not complaints that he raised prior to his dismissal.[21]I asked the Claimant a number of questions in order to ascertain what he wascomplaining about and whether it fell within any of the types of complaints that the Tribunal has jurisdiction to deal with.[22]From his answers I elicited the following:22.1 He believes he has brought complaints of unfair dismissal andharassment.22.2 He was complaining at work about the way surrounding workers werebeing treated, which he labels as “bullying and harassment”;22.3 He was unable to identify any specific reason why he believed the otherworkers were being treated in this way. I commented to the parties that obviously if what the Claimant alleges is true (and I have made no decision either way), it is clearly not an acceptable way for an employer to behave towards its workers.22.4 When he complained to Mr Leo McCourt about the way in which theother workers were being treated, he alleges that Mr McCourt said that this is how he wanted the business to function - essentially because it was better for business. Again, I said by way of comment to the parties, that if this allegation is true (and I have not decided either way) it is clearly a deplorable way for an employer to conduct its business.22.5 He complained on a number of occasions verbally to differentstaff/managers: on 2 June 2023 to Mark; on the 7 or 8 July 2023 to Cagla; and every week or every second week to Mr Dominic McCourt. Page 4 of 822.6 He believes the last occasion was on 5 or 6 October 2023, on whichoccasion Mark advised him to write a grievance letter albeit this was about the Claimant’s concern that his private affairs regarding his wife were being discussed at work.22.7 The Claimant received an email on 18 October 2023 telling him that hisemployment had been terminated but no reason was given.22.8 The Claimant’s concerns were that, as a professional and hardworkingperson, he had left a better paid job and gone to work in an environment which, if he had known what it was like, was one he would never have joined [this point appears as corrected after an interruption by the Claimant].[23]I invited Mr McFarlane to question the Claimant, but he had not questions. Submissions23. In submissions, Mr McFarlane said that the claim form and the emails thatthe Claimant sent subsequently do not appear to disclose anything further than his general unhappiness with the work environment and as to how others were being treated. He has not given any indication of a link to a protected characteristic, either his own or of other members of staff. Whilst his unfair dismissal claim is perhaps more closer to a complaint that he has been dismissed for making a public interest disclosure (ie whistle-blowing), he has not identified any of the recognised grounds within section 43B of the Employment Rights Act 1996 (“ERA”). What is clear is that he was unhappy at work but most of this arose from having made “a wrong call” in going to work for the Respondent. Whilst he raises the issue of a contract it was clear that he got one and he is not alleging that he was dismissed for requesting one.24. [At this point, the Claimant interrupted my reasons and asked if he could just say something about the contractual point and what he had asked for. I explained that I was giving my judgment and not to interrupt me (as he had already done but I had allowed as it was a correction). I added that this issue was not relevant. He continued speaking and I told him to stop which he did.][25]Mr McFarlane continued. Whilst the Claimant’s email of 17 April raiseshuman rights issues these are not matters that are engaged in his case. In his email of 29 March he refers to the “employment statutory code of practice” which he states means that his dismissal is automatically unfair because it violates basic employment rights, he does not identify what basic employment rights he refers to. And he also refers to unlawful discrimination against the protected characteristic of belief and refers to a code of practice. However, he has not identified what that belief is and although he refers to other personal matters, these are not linked to the work environment.[26]Mr McFarlane finally submitted that whilst the Respondent does not acceptthe characterisation placed on events by the Claimant, he has not Page 5 of 8 identified any actionable claims over which the Tribunal has jurisdiction and so they have no reasonable prospect of success.[27]I invited the Claimant to reply. He stated that employing staff not payingtaxes and/or claiming social security benefits at the same time as working was clearly in the public interest. Whilst I agreed with him, I pointed out that this was not part of his claim and whilst he may have raised it in an email this was only after he had been dismissed.
Relevant law
[28]Under Rule 37(1)(a) of the Employment Tribunals (Constitution & Rules ofProcedure) Regulations 2013, the Employment Tribunal has the power to strike out all or part of a claim or response if among other things it has no reasonable prospect of success. This power is a draconian step to take only in exceptional cases.[29]Mechkarov v Citibank NA UKEAT/0041/16, set out the approach that should be taken in a strike out application in a discrimination claim, although this should also be applied to other analogous claims:2.1 only in the clearest case should a discrimination claim be struck out;2.2 where there are core issues of fact that turn to any extent on oralevidence, they should not be decided without hearing oral evidence.2.3 the claimant's case must ordinarily be taken at its highest.2.4 if the claimant's case is "conclusively disproved by" or is "totally andinexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out; and2.5 an Employment Tribunal should not conduct an impromptu mini trial oforal evidence to resolve core disputed facts.[30]Harassment is defined under section 26 of the Equality Act 2010. A person“A” harasses another “B”, if “A” engages in unwanted conduct related to a protected characteristic (eg race, sex or disability), which has the purpose or effect of violating the dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. In deciding whether the unwanted conduct has such purpose or effect, the Tribunal must consider the perception of B, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.[31]In essence, a complaint of detrimental treatment or dismissal for making apublic interest disclosure (ie whistle-blowing) arises in the following circumstances. A claimant must have disclosed information to his employer, either verbally or in writing, which in his reasonable belief relates to the commission of a criminal offence; or a failure to comply with a legal obligation; or a miscarriage of justice; or that the health and safety of an individual has been endangered; or that the environment has been endangered. The Page 6 of 8 claimant has to show that the disclosure was in the public interest. Finally, the claimant has to show that he was treated to his detriment or dismissed as a result of making the disclosure. This is governed by sections 43A-C, 47B & 103A ERA.[32]As has already been pointed out to the Claimant in correspondence, undersection 108 ERA, a claimant requires two years’ service to bring a complaint of unfair dismissal, unless specific circumstances apply (such as whistleblowing as indicated in the paragraph above).
Conclusions
[33]Having considered the matter carefully, I come to the simple conclusion thatthe claim as a whole has no reasonable prospect of success because it simply does not identify complaints over which the Tribunal has jurisdiction.[34]With regard to harassment which broadly the Claimant’s claim points to, itfails because he has not identified that the unwanted conduct of which he complains was linked to either his own protected characteristic or indeed the protected characteristics of his colleagues. He gives no reason for the treatment other than Mr McCourt wanted to conduct his business in this manner. Moreover, his complaint is about the way that the others were treated.[35]With regard to unfair dismissal, the Claimant does not have the requisite twoyears’ service to bring a complaint of ordinary unfair dismissal under section 98 ERA.[36]Whilst it could be said that the Claimant is in effect stating that he wasdismissed because he made a protected disclosure, relating to the treatment of others at work, for which he does not require the two years’ service, he has not identified that his complaints (or disclosures) fell within any of the categories of qualifying disclosure set out within section 43B ERA.[37]Whilst I appreciate that the Claimant is unrepresented, I believe that it wouldbe in effect taking over his case and putting words into his mouth to suggest that they do. In any event he did not address the issue of whether he had a reasonable belief that his complaints were made in the public interest. Indeed, the only public interest he identified was that relating to the alleged non-payment of taxes and fraudulent claims for social security benefits which in any event were not the reason for his complaints to the Respondent and he only made after his employment had ended.[38]For these reasons I find that the claim has no reasonable prospect of successand I therefore strike it out under rule 37(1)(a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 because it has no reasonable prospect of success.[1]Under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1: “(Rule) 70. Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. … 72.— Process(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge's provisional views on the application.(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.”[2]The Employment Appeal Tribunal has given guidance as to the nature of a request for reconsideration: a) 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. b) 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. c) It 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. d) 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. The claimant’s application[3]The hearing of this matter took place on 10 January 2024 at which I decided to strike out the claimant’s claim on the basis that it had no reasonable prospect of success. Both parties attended and neither party requested written reasons.[4]The claimant sent an email to the Tribunal cc the respondent on 10 January 2024 in which he asked for a reconsideration “under section 43” and set out the reasons why. He sent a further email to the Tribunal on 11 January 2024 again asking for a reconsideration of the decision and appeared to refer to the reasons as being contained in an earlier email in the thread dated 17 April 2023 as “these are the things that have been overlooked”.[5]The respondent’s representative emailed the Tribunal cc the Claimant later that day effectively stating that given the two-stage approach to reconsiderations (as set out in T W White & Sons Ltd v Ms K White UKEAT/0022/21), it had no comment to make unless the Tribunal sought its views on the substantive merits of the application.[6]On 17 January 2024, the Judgment was sent to the parties. Later that same day, the claimant wrote to the Tribunal cc the respondent requesting written reasons and also indicated that he wished to seek a reconsideration and to appeal.[7]On 24 January 2024, I instructed the Tribunal’s administration to write to the claimant cc the respondent essentially acknowledging his request for a reconsideration, indicating that the written reasons would be sent in due course and directing him to renew his application for reconsideration at that stage. I was not aware of his email of 10 January 2024 at the time but in any event it does not appear from the file that the Tribunal administration implemented my instruction.[8]The written reasons were subsequently sent to the parties on 21 March 2024.[9]The claimant wrote a further email to the Tribunal cc respondent dated 24 March 2024 in which he repeats his application for a reconsideration and sets some further information in support of that request.
Conclusions
[10]The claimant’s email of 10 January 2024 sets out the reasons for the reconsideration as follows: “For a reconsideration of the decision under section 43. Most of the things today were misinterpreted and the way put out was not in the manner (sic). It was a salary based contract. I had sent everything in writing to the courts and the respondent but seems like the only thing taken into consideration was the work environment and how unhappy I was but a lot of things and statements of witnesses were overlooked. I only decided to bring the tax avoidance, cash in hand and illegal employees hired by Leo once I was certain. Employment public disclosure bill 43 clause G and H.”[11]As far as I am aware I considered all of the documents that were provided to me and nothing was overlooked.[12]The claim was essentially struck out because it did not contain and the claimant did not identify any cause of action over which the Tribunal had jurisdiction.[13]The reference to section 43 appears to be a reference to the provisions within the Employment Rights Act 1996 relating to protected disclosures.[14]I considered this matter carefully at the hearing but on the evidence before me I was unable to identify such a complaint and could not construct this from his claim without effectively taking over as his representative and putting words into his mouth.[15]The claimant’s concern was about the way in which other members of staff were being treated. He did not identify any basis for a complaint falling within any of the categories under section 43B. The only issue that he did raise which was clearly in the public interest was the alleged non-payment of income tax and fraudulent claims for Social Security. However, these were not the reason for his complaints to the respondent and were only made after his employment ended.[16]The claimant’s email of 11 January 2024 appears to be referring to the matters contained in an earlier email beneath it which is dated 17 April 2023. I had this email before me and indeed I used it during the hearing in order to determine what complaints the claimant was bringing.[17]The claimant’s email of 26 March 2024 states as follows: “I am still in India and it’s been over 2 months . My mother is unwell and still recovering. I will be bringing along all the relevant medical certificates and itinerary to prove my absence from the country. I have read the written reasons behind courts decision.. The first preliminary hearing I missed isn’t mentioned in the letter sent and the three hours I missed in the hearing hasn’t been stated and what transpired or occurred were neither Cc’d or mentioned As I am unaware of the legal process and the functioning of it in cases like mine I do believe that a lot of it was misinterpreted and missing . I would request the Honourbale (sic) court to please allot me some more time in seeking help or Hiring legal representatives . I believe by promising me my salary based contract and then backing off because I spoke against the way he was running the business and the harassment claims not just faced by me but others too were overlooked hiring illegal immigrants and people claiming benefits and paying them cash in hand is cheating the System whether it falls under employment tribunal or criminal offence is what I would like to find out and proceed against it through the right mediums and channels and not just waste the courts time . I do apologise for anything that seems rude or out of line . Thanking you[18]I have taken this email to be raising further reasons in support of his application for reconsideration. But having read it, I cannot see that it raises any matters over and above those that were already raised or could have been raised at the hearing. Indeed, it does appear from the wording that the claimant is under the misapprehension that he has some further opportunity to attend the hearing at which the matters that have already been decided will be dealt with. He also raises questions that fall outside the Tribunal’s functions.[19]The claimant has referred to the failure to mention the original preliminary hearing which was set for 18 August 2023. My understanding is that this did not go ahead because the claimant was unable to attend by video link from India due to an unforeseen power cut and that Employment Judge RiceBirchall who conducted the hearing wrote to the parties on 12 September 2023 apprising the claimant of the position. The preliminary hearing was subsequently rescheduled for 10 January 2024 and the claimant was advised if needs be of the requirement to seek confirmation of his ability to give evidence from India. I cannot see that this has any bearing of the decision that I made.[20]Having considered all of his correspondence I cannot find any grounds on which it is in the interests of justice to vary or revoke my decision. I therefore find that the application has no reasonable prospect of success.