Employment Judge AhmedIn person for claimantMr D Piddington (instructed by Counsel) for respondentDate 26 February 2019
JUDGMENT
[1]The application by the Claimant to amend his claim is refused.[2]The application to strike out the complaints of discrimination and an unlawful deduction of wages as being out of time is refused.[3]The application to strike out the complaints of race and discrimination by reason of religion and/or belief as having no reasonable prospect of success is refused.[4]The Claimant is ordered to pay a deposit of £500 as a condition of continuing the proceedings save in relation to the allegation of race and religious discrimination concerning the events of 27 November 2017.[5]Case management orders in relation to the final hearing are set out below.
REASONS
Background
[1]This Preliminary Hearing has been listed to deal with the issues identified by Employment Judge Heap in her order made on 21 June 2018 and sent to the parties on 22 June 2018.[2]The Claimant brings complaints of direct race discrimination, direct discrimination based on the protected characteristic of religion or belief (hereinafter ‘religious discrimination’), harassment because of race, harassment because of religion or belief and an unlawful deduction of wages.[3]Mr Ullah continues to be employed by the Respondent. He is now based at the Leicester branch where he appears to be well settled. His complaint are in respect of matters whilst he was working at the Loughborough Store under the line management of Ms Angela Peel. At the earlier Preliminary Hearing Mr Ullah indicated an intention to apply for an amendment of his present claim. He made the application to amend on 19 July 2018. He wishes to add three further incidents which he says took place on 7 September 2017, 26 January 2018 and 28 February 2018. The application to amend is resisted. The Respondent makes applications to have the complaints struck out as out of time or not having any reasonable prospects of success. In the alternative it applies for a deposit order.
Issues
[4]Having regard to the guidance in Selkent Bus Company v Moore [1996] IRLR 836, the application for an amendment is refused. My reasons are as follows:-4.1 The amendment seeks to add significantly new matters to the present claim. It is not a re-labelling exercise. Mr Ullah is seeking to add entirely new causes of action, in particular of victimisation;4.2 The Claimant would now be out of time for all of the allegations if he was to bring a fresh claim. Two of the allegations predate the presentation of the ET1. There is no satisfactory explanation, despite the Claimant being given every opportunity to provide one today, as to why he did not include the alleged incidents on 7 September 2017 and 26 January 2018 when he could easily have done so. The ET1 was presented on 27 February 2018;4.3 The application for an amendment has been made late without any satisfactory explanation for the delay. The Claimant was told by Employment Judge Heap at the hearing on 22 June 2018 to make any amendment application as soon as possible. He did not do so until 18 July thus compounding earlier delays. There is no explanation for the delays. The Claimant was advised by a trade union representative throughout an internal grievance. He is well aware of time issues. Despite a fairly lengthy and detailed ET1, these new allegations were not included in the earlier claim when they could have been. To allow the amendment will put the full merits hearing, which is listed for January 2019, in jeopardy as there may not be enough time to consider new and extensive allegations. The balance of hardship clearly favours the Respondent. The application to strike out the discrimination and unlawful deduction of wages complaints as out of time[5]The claim for unpaid wages is on the face of it out of time. The discretion to extend is under the “not reasonably practicable” test. The Claimant claims he has not been paid outstanding wages owed some time ago and the deduction is continuing. Mr Piddington argues that this cannot be a continuing act as any deduction would have been a long time ago. I am not certain that it is as clear cut as that. It is possible that the deductions, if any, are continuing or an act extending over a period. The issue requires more detailed consideration after evidence. I shall not strike out the wages claim. Any out of time point in relation to the wages claim shall be dealt with at the final hearing.[6]There are 8 allegations of discrimination which are alleged to have taken place on the following dates: 14 October 2016, 1 August 2016, 25 August 2016, 24 August 2016, 30 August 2016, 6 September 2017, 7 September 2017 and 27 November 2017. They are helpfully set out in a table at paragraph 17 of Mr Piddington’s submissions. It is unnecessary to set them all out here.[7]In relation to the complaints of discrimination, it would not be appropriate to strike those out at this Preliminary Hearing. There are a number of authorities which make it clear that discrimination complaints should not be struck out at a preliminary stage without appropriate findings of fact.1 The facts are not agreed. I do not consider it appropriate to make the decision on the out of time point today including the allegation as to 27 November 2017 which appears on the face of it to be just one day out of time without more detailed facts at this preliminary hearing. The time point will therefore be determined at the final hearing after hearing all the relevant evidence. Striking out the discrimination complaints as having no reasonable prospect of success[8]There is also considerable authority to the effect that discrimination complaints should not be struck out at Preliminary Hearings if there are factsensitive issues to determine.2 In particular it would not be appropriate to strike out the central allegation in this case which relates to 27 November. The complaint there is that Mr Ullah had a job interview as a Trading Manager for the Loughborough store. The interview was undertaken by Ms Peel. Mr Ullah covertly recorded the interview on his mobile. His transcript in the bundle today is not agreed. I make no finding as to whether the transcript is accurate. Mr Ullah alleges that in the interview Ms Peel used the word ‘terrorist’ in relation to the Claimant. The context as to how that word was used will be a matter to determine at the final hearing. Deposit order[9]Whilst I am satisfied that the claim should not be struck out as having no reasonable prospect of success, it is proper to make a deposit order as the complaints (with the exception of the allegation relating to the events of 27 November 2017 set out in paragraph 8 above) have little reasonable prospect of success. It is appropriate to make an order for a deposit for the remainder of the discrimination allegations of both race and religious discrimination.[10]Having read the relevant documents and heard submissions today, it seems to me that the nub of the Claimant’s case relates to the interview on 27 November 2017 with Ms Peel. The rest of the allegations appear to have little or no connection with the Claimant’s race or religion. At this stage it is difficult to see how the Claimant will be able to establish a prima facie case of discrimination.[11]As to the amount of the order, Mr Ullah’s financial means are limited. He does not have any savings other than a small sum he has earmarked for a deposit on a house he is in the process of buying. He is hoping to exchange contracts very shortly. It would not be appropriate to take that into account since that would act as a deterrent to him continuing these proceedings. He confirms that he would be able to pay a deposit of £500 quite apart from the deposit on the house. I take into consideration the guidance in Hemdon v Ishmail [2017] ICR 486 that a deposit should not have the potential to restrict right of access to a fair trial. An order of £500 will not have that effect in my view. 1 See for example: Arthur v London Eastern Railway Limited [2007] IRLR 58, paragraphs 33- 35 2 See for example: Ezsias v North Glamorgan NHS Trust [2007] IRLR 603.[12]The deposit orders are apportioned as follows:-13.1 Direct race discrimination: £150.13.2 Direct religious discrimination: £100.13.3 Racial harassment: £150.13.4 Religious harassment: £100. Total: £500.[13]I make it clear that the allegation in relation to 27 November 2017 is not the subject of the deposit order.[1]By a Claim Form dated 27 February 2018, Mr Ullah brings claims for unlawful deduction from wages, direct race discrimination, direct religious discrimination and harassment related to religion and race.[2]The tribunal spent the first day reading in this case. We heard evidence over the second day and the morning of day 3. We heard evidence from the Claimant (Mr Ullah) along with the following witnesses for the Respondent:• Angela Peel• Richard Taylor• Dave Drewett• Matt Knibbs• Tom Dallison Each witness adopted their witness statement as their evidence-in-chief and were cross-examined. We had an agreed bundle which we have taken account of.[3]At a preliminary hearing on 17 August 2018, Mr Ullah was ordered to pay a deposit as a condition of continuing a number of other claims for discrimination. Claims relating to discrimination in relation to the events of 27 November 2017 were exempted from the deposit order. In the event, Mr Ullah indicated that he would not be paying the deposit and therefore the claims we are left with relate to the unlawful deductions and the incident which took place at a meeting on 27 November 2017 between Mr Ullah and Ms Peel and the fact that Mr Ullah was not given a particular job. Finally, Mr Ullah says that what Ms Peel said at the meeting on 27 November 2017 amounts to harassment related to his religion and/or his race. Issues Unlawful deductions[4]In relation to unlawful deductions, the issues in this case are as follows:4.1 Were any deductions made from Mr Ullah’s wages?4.2 If there were deductions, were they unauthorised?4.3 Is the claim for unlawful deductions in time?4.4 If it is not in time, should the tribunal extend time on the basis that it was not reasonably practicable for Mr Ullah to bring the claim in time and the extra time taken was reasonable. Direct discrimination[5]In relation to the claim for direct discrimination on both grounds of race and religion, the issues are:5.1 Was Mr Ullah treated less favourably than the Respondent did or would treat a comparator who is not in materially different circumstances than Mr Ullah?5.2 If so, was that treatment because of his race or religion?[6]The particular acts of less favourable treatment complained of under this heading are:(a) Ms Peel describing Mr Ullah as either a terrorist or a B & Q terrorist, and(b) not giving him the internal promotion he was applying for. Harassment[7]In relation to harassment, the issues are whether Ms Peel using the term ‘terrorist’ or ‘B & Q terrorist’ in relation to Mr Ullah amounted to unwanted conduct, relating to in this case religion or race which had the purpose or effect set out in section 26(1)(b) of the Equality Act 2010. Time limits[8]In relation both to the direct discrimination claim and the harassment claim, there is an issue as to whether the claim was brought in time and if not, whether the tribunal should exercise its discretion to allow the claim to be heard out of time on the basis that it is just and equitable to do so.
The law
[9]In relation to the claim for unlawful deductions, we have considered sections 13 and 23 of the Employment Rights Act 1996.[10]In brief, section 13 says that an employer shall not make a deduction from the wages of a worker unless the deduction is authorised, either by law, by contract or by prior written agreement or consent by, in this case, Mr Ullah.[11]By virtue of section 23, a worker may present a complaint to an employment tribunal that his employer has breached section 13 of the 1996 Act and must do so within 3 months of the alleged unlawful deduction or, where it was not reasonably practicable for him to bring the claim within the normal time limit, within such further time as the tribunal considers reasonable. I should add of course that the 3 month time limit may be varied by reason of early conciliation but that is not a matter which this case is concerned with given the timings.[12]In relation to direct discrimination, we have considered section 13 of the Equality Act 2010, which is essentially that it is unlawful to discriminate against an employee because of a protected characteristic. In this case, the protected characteristics relied on are religion and race.[13]In relation to harassment, we have considered section 26 of the Act, which for the purposes of this case says that harassment occurs where the employer engaged in unwanted conduct towards Mr Ullah related to religion or race where the conduct has the purpose or effect of violating Mr Ullah’s dignity or which creates an intimidating, hostile, degrading, humiliating or offensive environment for him.[14]For reasons which follow, we have not found it necessary to deal with any specific case law.
Findings of fact
[15]We make the following findings of fact relevant to the claims before us.[16]Mr Ullah commenced employment with the Respondent on 15 November 2010.[17]On 27 November 2017, Mr Ullah was interviewed by Ms Peel for the role of Trading (Replenishment) Manager.[18]The Claimant was informed that he had been unsuccessfu in his application on 13 November 2017.[19]On 6 December 2017, Mr Ullah was signed off sick with work related stress.[20]On 12 December 2017, Mr Ullah raised his grievance.[21]Following the raising of his grievance, there followed an investigation. A number of witnesses were spoken to. The outcome of Mr Ullah’s grievance was sent to him in writing on 26 January 2018. Mr Ullah appealed against that on 31 January 2018 and his grievance appeal meeting took place on 26 February 2018. The outcome of that appeal was sent to him in writing on 28 February 2018.[22]As we have said above, Mr Ullah brought his claim before the employment tribunal on 27 February 2018 having sought early conciliation on the same date.[23]In relation to overtime, the Respondent’s policy is that anyone who works fewer than 39 hours per week and who then works overtime hours so that their total working hours in a week is up to a maximum of 39, receives overtime pay at their basic hourly rate. Anyone who works overtime for any hours over 39 per week, receives overtime pay at time and a half for those hours.[24]The Claimant worked overtime from 2 February 2015 until 29 May 2017 at various times during that period.[25]In order to receive his overtime pay, Mr Ullah completed on each occasion he worked overtime, an overtime authorisation form. All of these can be found at pages 514 – 542 of the bundle. Each form shows Mr Ullah agreeing to receive basic pay for the overtime hours he worked, save for one where he was in receipt of time off in lieu.[26]At his interview for the manager role with Ms Peel, which took place on 27 November 2017, there is an exchange which appears in the transcript at pages 262 and 263 of the bundle and which is the subject, and indeed the central issue, in this hearing. The exchange is as follows: Ms Peel says: “Yeah I said there would be times when you seemed very engaged and very up for it and there’s other times you have almost been verging on being, I hate to say it because it’s such an inappropriate word, but being a terrorist. And do you know that is an old B&Q word don’t you” Mr Ullah says: “Yeah” and is heard on the recording which he made of this interview laughing.[27]Ms Peels goes on: “That is not me saying another kind of terrorist, I am not saying that”. Mr Ullah responds: “You’re calling a Muslim guy a terrorist”. Again, he is heard on the recording laughing. Ms Peel then says: “No, no, no, no, I know that’s why it sounds so ridiculous I’m not saying anything”. Mr Ullah responds: “OK”. Ms Peels then says: “You understand what I mean by a B & Q terrorist”. Mr Ullah responds: “Yep, yeah”.[28]As we have set out above, Mr Ullah says that that exchange amounted to Ms Peel calling him a terrorist and he says that that amounts to discrimination because of race and because of religion. Discussion Unlawful deductions
Discussion
[29]In relation to the unlawful deductions claimed, we have considered the evidence presented. The first finding we make is that the claim was considerably out of time, by at least 6 months. We have therefore considered whether we should extend time. In order to do that we would have to be satisfied that it was not reasonably practicable for Mr Ullah to bring the claim in time. We do not accept Mr Ullah’s evidence that he was unable to bring the claim in time and indeed at best his strongest argument was that he was unwilling to do so. That, it seems to us is neither a physical nor a mental impediment to him being able to bring a claim in time. On balance considering his evidence, he gave no cogent or credible reason why he waited so long to bring this claim.[30]It follows from that that we do not need to consider whether the extra time taken to bring the claim was reasonable. We simply find that given that it was practicable, or to put it in the words of the statute, it was not “not reasonably practicable” to bring the claim in time, the claim is out of time and we decline to extend time in the circumstances in which case we have no jurisdiction to hear it.[31]However, we should add for the sake of completeness that even if this claim was one we could hear, we would find in the Respondent’s favour. It was suggested during the hearing that Ms Peel may not have authority to vary the contract – that is to pay basic rate for overtime rather than time and a half - but the evidence was not as clear as that and our analysis is simply as follows: first, either Ms Peel did have the authority to agree with Mr Ullah that he would receive basic pay for the overtime hours worked or even, if she did not, in fact Mr Ullah agreed to receive basic pay. So, either there were no deductions or there were deductions but they were authorised in writing by Mr Ullah prior to payment. On that basis, he could not possibly succeed in this claim.[32]That leaves the discrimination claims. The time limit for bringing a claim for either direct discrimination or harassment is 3 months from the date of the act complained of. If a claim is not brought within the normal time limit, the tribunal has what is termed a just and equitable jurisdiction, that is to say we can entertain the claim if we consider that it is just and equitable to do so. We have given very careful consideration to whether it is just and equitable to extend time in this case but on balance, we find that it is not.[33]Mr Ullah felt that he had been discriminated against on the ground of his race and/or his religion either during or immediately after the meeting on 27 November 2017. He gave no clear reason why he did not bring his claim in time. He again seemed to rely on lack of knowledge and also incorrect advice given by a non-professional adviser. We find it difficult to believe that somebody as intelligent as Mr Ullah with access to a computer and the internet, and the belief that he had suffered discrimination of the grossest kind at the hands of Ms Peel, did not have the wherewithal to go on the internet and find out what the normal time limit was for bringing a claim and meeting that time limit. He was clearly able to do that on 27 February so it somewhat beggars belief that he could not do it on 26 February or anytime between 27 November 2017 and 26 February 2018.[34]We are mindful, however, that notwithstanding the jurisdiction difficulty, Mr Ullah remains an employee of the Respondent and it will leave both Mr Ullah and indeed Ms Peel, who has been the subject of some discussion during this tribunal, in a very invidious position if we do not set out our views on the merits of the claims Mr Ullah brings.[35]The first issue is in relation to Mr Varnam getting the replenishment manager role rather than Mr Ullah.[36]In relation to that, in essence we accept entirely the case put forward by Mr Piddington on behalf of the Respondent. In evidence, Mr Ullah accepted that Mr Varnam had the better CV and more relevant experience than he, and it seems to the tribunal that Ms Peel took that into account when reaching her decision. Ms Peel’s reasoning for preferring Mr Varnam related entirely to his skill set and experience and following her interviews with both candidates. In essence, there is no evidence that she did not choose the best candidate for the job and therefore no evidence from which we could possibly conclude that there was discrimination in relation to her choice of Mr Varnam.[37]That leaves the issue of the words used during the interview, which we have set out above.[38]We have asked ourselves the basic question whether Ms Peel would have treated a comparator in the same way she treated Mr Ullah. A comparator must be somebody whose circumstances are not materially different from Mr Ullah’s and therefore in this case the comparator would be somebody not of his race or religion but of the same seniority, the same experience and with the same relationship with Ms Peel that Mr Ullah enjoyed, if that is the right word.[39]We have concluded from all of the evidence that Ms Peel is what we would describe as a plain speaking manager and it is clear from the evidence that her relationship with Mr Ullah is not an easy one. Having said that, it is also clear from the evidence that she spends as much time praising him as she does criticising him and our view of the evidence is that she can be very praising and criticising. We also note that there are a number of examples where she has sought to push Mr Ullah forward in his career, including for example trying to persuade him to remain on the manager’s WhatsApp group, which he left, whether that be right or wrong because she felt it was in his best interests.[40]We have also considered the context in which the comment was made. The terrorist comment was made almost halfway through a lengthy interview. At no point during the interview does the Claimant say he was upset or indeed even indicated that he was upset by the comment. It does not seem to us to be an answer to the question for Mr Ullah why he did not criticise Ms Peel for her comment, to say that in effect she is senior to him and he would not do so, because it is quite clear from the rest of the interview that he can be and has been critical of her to her face, and therefore we question why he was not critical of the terrorist comment if he was upset by it. We are also mindful that reading the transcript, the way Mr Ullah conducted himself before the comment and after the comment did not seem to change and we conclude that if he was as upset as he said, or indeed upset at all, he would have behaved rather differently after Ms Peel made the comment which she did.[41]In fact, Mr Ullah only complained about this comment after he failed to be appointed to the manager role.[42]We take on board Mr Ullah’s evidence that his laughter was a way of him dealing with an uncomfortable situation but being uncomfortable is not the same as being the subject of race and religious discrimination or harassment. It also does not explain why, when Ms Peel asks him “You understand what I mean by B&Q terrorist”, he says that he does.[43]We find that the reason Mr Ullah raised his grievance was his disappointment in the literal sense, which is that he did not get the Trading (Replenishment) Manager job. We find that Ms Peel would have said the same words to a comparator not of Mr Ullah’s race or religion and we find that the use of that word did not amount to race or religious discrimination and is a very long way from amounting to harassment within the meaning of the Equality Act 2010.[44]So, had the claim made by Mr Ullah been in time or had we extended time, we would not have found in his favour in any event and would have dismissed the claim.[45]Finally, in relation to harassment, as we have said it must follow from our findings that nothing Ms Peel did amounted to conduct which had the purpose or effect set out in section 26 of the Equality Act 2010 even if it was unwanted by Mr Ullah, and we can well imagine that it might be, but given our findings we do not need to make a decision about that.[46]For all of those reasons, all of the claims fail and are dismissed.