Employment Judge Adkinson sitting aloneIn person for claimantMs J Laxton (instructed by Counsel) for respondentDate 5 July 2023
JUDGMENT
Upon considering the respondent’s application that the claimant’s claims be struck out because they have no reasonable prospect of success, or alternatively that the claimant pay a deposit as a condition of pursuing particular allegations on the grounds that the allegations have little reasonable prospect of success And upon hearing from the parties It is the Tribunal’s judgement that:[1]The following claims are struck out because they have no reasonable prospect of success: 1.1. procedurally unfair dismissal; 1.2. automatically unfair dismissal pursuant to Employment Rights Act 1996 section 104; 1.3. breach of contract relating to flexible working.[2]The following claims are not struck out because they have a reasonable prospect of success: 2.1. Breach of contract relating to notice pay; 2.2. Victimisation; 2.3. Harassment related to race; 2.4. Direct discrimination because of race; 2.5. Direct discrimination because of religion. Page 1 of 16[3]No deposit is ordered in respect of the following claim because they have more than little reasonable prospect of success: 3.1. Breach of contract relating to notice pay.[4]The claimant must pay a deposit as a condition of pursuing these claims in respect of the following claims because they have little reasonable prospect of success. The details of the allegations and deadline for payment are set out in the separate deposit order: 4.1. Victimisation – 1 allegation – deposit of £25 ordered; 4.2. Harassment related to race – 1 allegation – deposit of £25 ordered; 4.3. Direct discrimination because of race – 6 allegations – deposit of £12.50 per allegation ordered; 4.4. Direct discrimination because of religion – 6 allegations – deposit of £12.50 per allegation ordered.
REASONS
[5]I am asked to decide whether some or all of Mr Ali’s following claims should be struck out because they have no reasonable prospect of success: 5.1. Procedurally unfair dismissal (i.e. the respondent did not dismiss for a potentially fair reason or did not follow a fair procedure); 5.2. Automatic unfair dismissal for asserting a statutory right (i.e. the respondent unfairly dismissed the claimant because he asserted the statutory right to flexible working); 5.3. The respondent directly discriminated against the claimant because of either race or religion; 5.4. The respondent harassed the claimant and that was related race; 5.5. The respondent victimised the claimant; 5.6. The respondent breached the claimant’s contract by failure to follow the flexible working policy; and 5.7. The respondent failed to pay to the claimant his notice pay.[6]I am in the alternative to decide if some or more allegations have little reasonable prospect of success so that I should order the claimant to pay a deposit as a condition of pursuing that allegation.[7]The hearing was ordered by Employment Judge Clark at the case management hearing on 30 September 2022 pursuant to the claimant’s application. Both parties attended. At that hearing he expressly decided that obvious substantive preliminary issues (e.g. did the claimant resign or did the respondent dismiss him, at what date did the employment end, are the claims in time and if not should the Tribunal extend time) were not to be Page 2 of 16 considered: case management summary paragraph 12. The claimant did not apply for them to be determined. I have therefore not determined them.
The hearing
[8]The hearing was attended by Mr Ali and Ms Laxton, Counsel for the respondent. I am grateful to them for their help.[9]Mr Ali gave oral evidence about his financial circumstances so that I could consider them if I felt that a deposit was justified, and the respondent crossexamined him about it. The respondent also adduced 2 witness statements: Mr G Michalopoulos (a respondent’s team manager at the place of the claimant’s work) and Mr N Fendick (also a team manager and Mr Ali’s line manager). They were not called to give evidence because Employment Judge Clark indicated there would be no oral evidence about events unless the Tribunal gave permission and the respondent did not seek permission. I have taken the witness statements into account but I concluded I should attach no weight to them. They are in effect their respective versions of events. They are untested. There are clear factual disputes between them and the claimant. I do not believe disputed, untested evidence about factual matters really assists to show there are no reasonable prospects of success except in the clearest of cases. I do not see their evidence demonstrates that.[10]There was an agreed bundle of documents totalling 183 pages. I have taken into account the bundle.[11]I have also had regard to the Tribunal file, but it did not contain any material relevant to the issues before me that was not already in the bundle.[12]Each party made oral submissions. Ms Laxton also had prepared a skeleton argument. I have taken those oral submissions and written arguments into account.[13]Mr Ali required an adjustment of breaks every hour or 90 minutes. This was accommodated.[14]Mr Ali did not arrive for the 10am start. Reasonable efforts to contact him failed. Therefore I began to hear the case.[15]Mr Ali in fact arrived at 10.30am. His delay was caused by him going to the wrong building. I indicated to the parties that everything that had gone before would be set to one side and I would start the hearing from new. Noone objected to this course of act. Therefore this is what I did.[16]During the hearing Mr Ali referred to his illnesses as being reasons he had delayed sending documents to the respondent and engaging in the process. However this does not appear to have had any obvious impact on the case or the hearing being able to progress. Therefore I put it to one side.[17]During his submissions however he started to set out his claim in a way that differed from that in the list of issues that Employment Judge Clark prepared at the case management hearing, at which Mr Ali was present and at which he clarified his claim. The Learned Judge had indicated that the list of issues annexed to his order would be relied on and that if it were wrong in Page 3 of 16 any material respect (not including a claim is a material matter) then the party concerned had to write to the Tribunal within 14 days of the order being sent out. It was sent out on 6 October 2022. No party has indicated there was any error.[18]Mr Ali then indicated he wanted to amend his claim and wanted an adjournment to facilitate its preparation. I heard from both parties on the issues. I refused the adjournment. Whatever Mr Ali’s health there is no reason to believe it stopped him pointing out errors in the list of issues that Employment Judge Clark drafted at the hearing with him and with his input and in discussion with him. 8 months have elapsed since then. There is no evidence his illness has meant for 8 months he could not consider the document or write to point out the error. He had engaged in preparation for this hearing. He had had plenty of time both to apply to amend his case and/or to seek to correct the list of issues. Any adjournment would increase expense, require more of the Tribunal’s resources, and delay proceedings. There were no exceptional circumstances that fell within rule 30A to justify an adjournment. I concluded that the hearing would proceed and I should determine the issues Employment Judge Clark identified for me to decide. If the claimant wanted to amend his claim then he is free to apply to the Tribunal. For the avoidance of doubt I have expressed no view on the merits of any such application.[19]I reserved my decision. This is that decision.[20]Neither party alleged the hearing was unfair. I am satisfied it was a fair hearing. Law on strike out and deposit orders generally Strike out[21]Rule 37 of the Tribunal’s rules of procedure sets out the relevant powers of a Tribunal to strike out a claim. It provides that (among other circumstances not applicable here) a Tribunal may strike out a claim if it has no reasonable prospects of success.[22]I have considered the following cases: Tayside Public Transport Co Ltd v Reilly [2012] IRLR 755 CSIH, Balls v Downham Market High School and College [2011] IRLR 217 EAT, Anyanwu v South Bank Student Union aor [2001] ICR 391 UKHL, Cox v Adecco Ltd [2021] ICR 1307 EAT and Shestack v Royal College of Nursing UKEAT/0270/08. From them I derive the following principles: 22.1. Whether to strike a claim out for no reasonable prospect of success must not involve a mini-trial, and so must pre-empt what the outcome will be; 22.2. The Tribunal must consider all the available, relevant material before it (including any on the file which it must draw to the parties’ attention to invite comment); 22.3. Most unfair dismissal claims and discrimination claims are fact sensitive and rarely are amenable to being struck out as disclosing no reasonable prospects of success except in the most obvious cases; Page 4 of 16 22.4. However if it is demonstrable that the central alleged facts of the claim are untrue, the Tribunal is entitled to strike the claim out as having no reasonable prospects of success; 22.5. Where there is undisputed factual or documentary evidence that shows that the claim, taken at its highest cannot succeed, then a strike out for no reasonable prospects of success is justified. 22.6. Were parties represent themselves, one must read the documents carefully to discern a claim. 22.7. In short, where there is a factual dispute, only if there is an absence of reality can the claim be struck out for having no reasonable prospect of success (compare the comment on the essentially identical process under the Civil Procedure Rules 1998 by Lord Hobhouse at [158] in Three Rivers DC v Bank of England [2003] 2 AC 1 UKHL. Deposit order[23]Rule 39 empowers the Tribunal to make a deposit order where an allegation has little reasonable prospect of success. This is a lower threshold that “no reasonable prospect” (Van Rensberg v Kingston-on- Thames RBC UKEAT/0095/07 EAT). I must have regards to the claimant’s means. Any deposit must be proportionate to the issues and have regard to all the circumstances of the case (Hemdan v Ishmail and anor [2017] ICR 486 EAT). A deposit must not be at such a level so that it the claimant cannot afford it and, in effect, the order is in fact a strike out order in all but name. Application to the cases before me Procedurally unfair dismissal[24]There is no dispute Mr Ali’s employment with Marks and Spencer began on 26 July 2021. Assuming Mr Ali is correct and his employment ended on 11 December 2021, he lacks 2 years continuous employment immediately before the effective date of termination. The Employment Rights Act 1995 section 108 says that an employee must have 2 years continuous employment immediately before the effective date of termination in order to have the right not to be procedurally unfairly dismissed. He does not, and therefore his claim will fail. There is no reason not to strike out. Therefore I strike it out because it has no reasonable prospect of success. Automatic unfair dismissal for asserting a statutory right[25]It is common ground that, 25.1. during his employment, Mr Ali made a request for flexible working in September 2020, October 2020 and on 26 September 2021, 25.2. and that a right to request flexible working is a statutory right which the Employment Rights Act 1996 section 80F, 25.3. Mr Ali has not brought proceedings to the Employment Tribunal to enforce a right under section 80F. Page 5 of 16[26]The Employment Rights Act 1996 section 104 provides (so far as relevant): “(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee— “(a) brought proceedings against the employer to enforce a right of his which is a relevant statutory right, or “(b) alleged that the employer had infringed a right of his which is a relevant statutory right. “(2) It is immaterial for the purposes of subsection (1) — “ (a) whether or not the employee has the right, or “ (b) whether or not the right has been infringed; “but, for that subsection to apply, the claim to the right and that it has been infringed must be made in good faith.”[27]Marks and Spencer dispute whether he had the right in October 2020 and on 26 September 2021 but that is irrelevant in light of sub-section 2. Marks and Spencer do not allege in their response Mr Ali has acted otherwise than in good faith.[28]Section 104(1)(a) does not apply. Mr Ali’s claim can only therefore fall in section 104(1)(b). For a claim to succeed the employee must have alleged the infringement of the right by his employer – merely seeking to exercise the right is not enough: Mennell v Newell and Wright (Transport Contractors) Ltd 1997 ICT 1039 EWCA; Adams v Kingdom Services Group Ltd UKEAT/0235/18 EAT). Whether an employee has alleged his employer has infringed a right is a factual question, but it does not require the employee to spell out the exact right since context is important: e.g. Albion Hotel (Freshwater) Ltd v Silva [2020] IRLR 200 EAT.[29]In the claimant’s claim and his later response to a strike out warning the Tribunal sent relating the procedurally unfair dismissal, Mr Ali does not allege that he ever asserted that Marks and Spencer had infringed his statutory rights. While he labels section 104 in box 8.1, in the details of claim he asserts, rather:[30]“Bullying took place when [the respondent’s employee] used his position to unlawfully stop the claimant’s change of contract from Full-time Fixed term contract to the Part-time Permanent contract in Aug-Sept 2020 “… “For automatic unfair dismissal, the Vento middle band of £10,000… caused by automatic unfair dismissal by not handling of the claimant statutory flexible working request fairly and in line with the respondent’s own company policy as well as disregarding the statute, “For dismissal for the assertion of a statutory right, the Vento Middle Band of £15,000... following the discrepancies within the respondent’s Front Line and Team managers, and injury to feelings due to sudden notification of the termination of employment.” Page 6 of 16[31]In his response to strike out warning, Mr Ali wrote (so far as relevant) 2. In September 2021, the Claimant made a Formal Flexible Working Request under s.80F of the Employment Rights Act 1996. 3. The Flexible Working Request was rejected, and the Claimant appealed against the decision as per the company policy and the Claimant specifically mentioned within the appeal that unless the appeal has been dealt with, the Claimant will not be able to return to work. … “7. The Claimant replied to Mr Turner confirming that the Claimant only expressed that he would resign but in fact has never resigned and that this was one of the many reasons for wanting to raise a grievance against line management. The Claimant clarified that if he were to resign, he would have never appealed against the decision to refuse his Flexible Working Request. The Claimant added that previously he had made several requests to update his address and that if any correspondence has been sent to his previous address, he would not have received it. The Claimant, again requested to confirm his employment status with M&S, the Respondent. … “12. The Claimant strongly believes that to avoid considering the appeal against decision to refuse the Flexible Working Request made by Claimant and the risk of having formal grievances against its Management, Nick Fendick on behalf of the Respondent tactfully sent the letter dated 30 November 2021 to the Claimant’s previous address with the view to terminating the contract based on no response received to that letter. “13. The overall conduct of the Respondent in regard to handling the Claimant’s Flexible Working Request and subsequent appeal against the decision to refuse the request contradicts its own company policy…. “17… The Claimant commenced his employment with M&S – the Respondent, on 26th of July 2020, as such the Claimant would not have acquired the statutory right to make a Flexible Working Request under s.80F of the Employment Rights Act 1996, so any request made could not have been deemed as statutory Flexible Working Request at that point of time. As a matter of fact, the Claimant strongly denies of making any request or in fact any application for a part-time fixed term contract.”[32]As an aside, I note that the claimant in his response to strike out identified he relied on section 104C (automatic unfair dismissal for making a flexible working request). However his claim is clear that he relies on section 104, he never applied to amend his claim and at the hearing before Employment Judge Clark, it was confirmed he relied on section 104. Therefore this passing reference to section 104C does not affect things since it is not part of his claim as presented. The reply to warning is not labelled as an application to amend, and he cannot simply change his claim at will. I also note he sought to add in other grounds in that reply (e.g. the Employment Rights Act 1996 section 100(1)(d)). Again there was no application to amend and at the case management hearing they were not identified as claims by him. Page 7 of 16[33]The claim, taken at its highest, does not anywhere assert that he had alleged that Marks and Spencer had breached his statutory right, and they dismissed him for doing so. Rather the complaint is that they did not grant his flexible working request.[34]Taking the claim at its highest, there is no allegation of facts that would make out a claim under section 104. Therefore the claim has no reasonable prospect of success. In my view there is no other reason the claim should continue. Therefore I strike it out. Breach of contract – re flexible working[35]In short Mr Ali alleges the respondent breached their own flexible working policy. He asserts this is contractual. He therefore says the respondent thereby breached his contract.[36]The respondent cannot find a copy of his employment contract. Mr Ali does however have a copy, as he admitted at the hearing. He did not disclose it to the respondent in preparation for the hearing. If he alleges a breach of contract, the contract is a relevant document. Employment Judge Clark ordered the parties to disclose documents they wanted to rely on to each other by 24 February 2023.[37]I infer that Mr Ali’s decision not to disclose what is otherwise a relevant document, and what one would expect him to rely on when he alleges breach of contract, is an indication that he does not consider the document supports his case. I recognise that he represents himself and that he is not a qualified lawyer. However it was plain he was an intelligent man and he knows he is alleging a breach of contract because he uses the words himself in his claim and response to strike out warning, and the issue was clarified at the hearing he attended. I do not accept that he did not understand or appreciate that where he was alleging that Marks and Spencer had breached his contract, that the contract itself was relevant.[38]That inference is not enough to say however there is no reasonable prospect of success. I am satisfied that is enough though when coupled with the policy itself. The details of the policy do not matter except to note: 38.1. At the foot of each page is written “This policy is not part of your formal terms and conditions of employment, and we may review, amend or withdraw the policy from time to time” 38.2. Nothing else in the policy suggests the policy itself is contractual.[39]In my opinion these three things show that Mr Ali’s allegation of breach of contract has no reasonable prospect of success. Therefore I strike it out because there is no other reason the claim should be allowed to continue. Resigned or dismissed[40]There is a dispute between the parties about when Mr Ali’s employment ended and whether he resigned or was dismissed. The positions are: 40.1. Claimant: dismissed on 11 December 2021, and 40.2. Respondent: resigned on 7 November 2021. Page 8 of 16[41]The importance is that it affects the time limits for presenting the claims and impacts on the claim for notice pay (if he resigned, he is not entitled to it in any event). As noted, the hearing is not to decide time limit issues or how the employment ended. Therefore I look at it purely from the question of what is or is not arguable.[42]Marks and Spencer relies on a note of the meeting between Mr Ali and Mr Michalopoulos. It records: “Mr Michalopoulos (GM): Gentlemen thank you for coming back. I’ve made the decision and I’ve decided to decline the request. I have done that for 3 main reasons. The first one is that the SC contract was created to cover for breaks hence why you start at 21:30 when people start going on their breaks. The second reason is because it creates another operational problem. If I grant your request we would lose another person when we lose the other part timers. The third reason is that you wanted this to be a permanent change. Based on the policy the flexi working request is only a temporary change reviewed at maximum every 12 months. Based on the business needs this cannot be a permanent change. Based on this I’ve declined the request. You will receive a copy of the notes and the outcome letter via email and by post during this week. Is there anything you would like to say? You can appeal this within 5 working days. “Mr Ali (EA): No that’s everything thank you. I would like to know how pensions work when I resign. “MP: How long have you worked here? “EA: 1yr 4 months “MP: If you’ve worked here for 2 years or less you can recover all the money. “GM: No one wants you to resign. Take your time to think about it before making these decisions. “EA: I was emotionally prepared for this as we spoke about it yesterday. “GM Meeting closed 05:28.”[43]It is common ground that after the meeting on 7 November 2021, Mr Ali did not attend work.[44]On 10 November 2021, Mr Michalopoulos wrote: “However, I would like to offer you two alternative arrangements which may meet your needs, and I would be able to accommodate. The first alternative is to work on current short contract (SC3) but on day shifts. The second alternative is to work on a different Short Contract like the ones that were mentioned at the meeting. If you would like to discuss this option further, or any option, please contact me via Teams.” It was sent to Mr Ali’s old address. He asserts he did not receive it. He asserts he had told Marks and Spencer of his then current address.[45]On 15 November 2021, Mr Ali emailed Marks and Spencer at the address they had provided for appeals to be sent to, seeking to appeal the decision. Page 9 of 16[46]Mr Fendick asserts he tried to call the claimant on 20, 21 and 26 November 2021 but could not reach him.[47]On 26 November 2021, a Mr Rehman (another team manager) emailed Mr Fendick saying “Never told me [Mr Ali] has officially resigned.”[48]On 30 November 2021 Mr Fendick wrote to Mr Ali at his old address in the following terms: “You spoke to me at the end of your shift on Sunday 7 November 2021 and stated that you would like to resign with immediate effect. I informed you that I require your resignation in writing however I have not received this nor have you contacted me since that date. I tried to call you on 26 November 2021 to discuss whether this was still your intention however I have been unable to contact you. “If I do not hear from you by Wednesday 8 December 2021, I will assume you wish to proceed ahead with your resignation and will administer this from Saturday 11 December 2021. “It is your responsibility to return any company property, i.e uniform, employee pass card, discount card. As you have not given/worked your contracted notice period, you are not suitable to re-employ with M&S. “If you have any queries please call me on ….”[49]There is a letter of 3 February 2022 that explains the respondent’s position following enquiry from the claimant about his appeal. Neither take this case further forward.[50]The respondent has not at all persuaded me that Mr Ali has no reasonable prospects of successfully showing he was dismissed on 11 December 2021, rather than resigned on 7 November 2021. For the same reasons the respondent has not begun to persuade me his allegation has little reasonable prospect of success. When one looks the documentary evidence it suggests the following: 50.1. Words used in a meeting on 7 November 2021 that are on their face ambiguous. I am not persuaded the only conclusion must be that Mr Ali’s words were to resign. The document suggest Mr Michalopoulos clearly did not see them as unequivocal resignation because he told Mr Ali to take his time and think about it. It suggest he recognised the words as used in haste. Oral evidence is necessary to provide context. 50.2. Mr Ali lodged an appeal against Mr Michalopoulos’s decision which suggests he had taken Mr Michalopoulos’s counsel to think carefully before resigning, and was not doing so. 50.3. The email from Mr Rehman suggests Mr Fendick and Mr Michalopoulous did not see it as a resignation either because they had not told him Mr Ali had officially resigned. Page 10 of 16 50.4. If Mr Ali had resigned then the letter of 30 November 2021 requires explanation. An explanation is needed about why a clear resignation required confirmation from Marks and Spencer. 50.5. There is also the issue of whether the failure to respond means 50.5.1. Marks and Spencer dismissed the claimant, rather than treating it as a resignation, 50.5.2. Can really say that the resignation took effect on 7 November 2021 when they give him the deadline of 11 December 2021 to reply.[51]I appreciate he did not attend work in the period. That may justify a dismissal or be evidence of resignation. However the documents suggest that the picture is far from clear.[52]I conclude that there is a real prospect of Mr Ali arguing successfully that he was dismissed on 11 December 2021 when Marks and Spencer effectively treated his employment at an end. Breach of contract – notice pay[53]As a result of the above, the respondent cannot persuade me that there are grounds to strike out the claim for notice pay or to order a deposit in lieu of strike out. Equality Act 2010 claims – time limit[54]For similar reasons, these claims may be in time if they are a continuing act and his employment ended on 11 December 2021. It follows that the respondent has not persuaded me that there is no reasonable prospect of the claimant’s claims failing because they are out of time. I see no justification for a deposit order either in respect of this issue either. It is a factual question and nothing shows there is little reasonable prospect of successfully showing either a continuing act or persuading the Tribunal to extend time.[55]I now turn to the individual remaining claims. Victimisation[56]There is no dispute that the respondent subjected the claimant to a detriment – and only one detriment is relied on (refusal of the flexible working request submitted on 27 September 2021).[57]In relation to the protected disclosure, Mr Ali identified it as this (taken from Employment Judge Clark’s order): “Did the claimant do a protected act? The claimant relies upon the communications to Ms Markham, Mr Fitzpatrick and Mr Fendick as set out in paragraph 9 above.[58]That paragraph 9 says: “Dates and incidental facts provided by way of further particularisation are set out in the issues below. In respect of the claim of victimisation, the protected acts are intimated in the third paragraph of box 8.2 of the ET1. After explaining the requirements of a “protected act”, the claimant Page 11 of 16 explained the content of his discussion with the individuals in the following terms: - “’In respect of the discussion with Faye Markham in or around September 2020 the claimant will say that he explained to her the effect of the request to change his shifts and the cancellation of it by Mr Rehman and suggested why he had cancelled 8 and asked her to reconsider the application. “In respect of his discussion with Mr Fitzpatrick in or around November 2020 - the claimant will say that he explained how he found Mohammed Rehman behaviour to be inappropriate when he asked for the change of the [shifts]; That he felt that he had shrugged off his request to change shifts. he said to Mr Fitzpatrick that he would raise a formal grievance due to Mr Rehman’s decision. Mr Fitzpatrick said that Mr Raymond might have been upset because the claimant had gone straight to Mr Fitzpatrick and suggested just to leave things as they were. “In respect of his discussions with Mr Fendick, first in or around December 2020 and then again on various occasions through until the formal escalation in or around March/April 2021, Mr Ali will say he did say to Mr Fendick that he would like to escalate a formal complaint because of the way Mr Rehman had been dealing with him. He explained that Mr Rehman was on a different shift yet had still conspired with some others to escalate matters against the claimant[59]There is no email or other written evidence of these discussions. The claim or response to strike out warning disclose nothing that adds or clarifies the above statements.[60]The Equality Act 2010 section 27(2) says: “Each of the following is a protected act— “(a) bringing proceedings under this Act; “(b) giving evidence or information in connection with proceedings under this Act; “(c) doing any other thing for the purposes of or in connection with this Act; “(d) making an allegation (whether or not express) that A or another person has contravened this Act.”[61]Because of the guidance in Anyanwu, and recognising that it is factually sensitive, I do not believe it safe to conclude that the victimisation claim has no reasonable prospects of success. Oral evidence may put into context what Employment Judge Clark noted to show there is a protected act. However what is currently identified as a protected act taken at its highest does not appear to meet the definition set out above. Therefore I think the claimant has little reasonable prospect of successfully showing there was a protected act and so that he was victimised, and accordingly a deposit is justified. Page 12 of 16 Harassment[62]There is only one alleged act of harassment related to race, that Employment Judge Clark recorded as follows: “Shortly after beginning his employment, (i.e., in or around August 2020), Mohammed Rehman (team leader) “taking the claimant away from his normal workplace and asked him how he was settling in and where the claimant was from and how long has the claimant been living in the UK full dash which the claimant found inappropriate but went ahead with answering the queries”.[63]The respondent says that there is nothing in the material to support such an allegation. I believe nothing turns on that. His own oral evidence is material that will be before the Tribunal and the Tribunal can evaluate.[64]The respondent also alleges that the evidence shows a complainant who (and I paraphrase) who does not comply with the requirements of his job and does what he can to get his own way, whereas the claimant treats him properly and fairly. I do not consider that allegation, even if true, shows that Mr Ali has no or little reasonable prospect of success in this allegation. It is possible and plausible for both to be true. The allegation can only be relevant if the respondent’s case is that this is part of his attempts to manipulate things. That has not been alleged. It takes me no further forward.[65]I am not persuaded that he has no reasonable prospects of success on this allegation because it happened at the commencement of his employment and he did not raise the issue then. People can choose not to raise things like this for all sorts of reasons. Whether there is a delay that helps to inform on what happened and the reasons for it is a matter that requires evidence. I am also conscious such allegations are fact-sensitive. Applying Anyanwu, a strike out would not be safe.[66]I am however persuaded on the evidence before me the claimant has little reasonable prospect of successfully showing he was harassed as alleged. If I assume the alleged conduct happened, I am of the opinion that there is little reasonable prospect that the Tribunal will conclude it had the purpose or effect proscribed by the Equality Act 2010 section 26. This is because it is pertinent to note the documentation before the Tribunal tends to show the claimant is a person well prepared to raise to his employer his wishes, and complaints. It is difficult to conceive and appears unlikely he would raise all of those while not being prepared to raise the issues of harassment because of race. It simply has the air of an absence of reality. In my view this justifies a deposit. Direct discrimination[67]The direct discrimination claims are set out as both allegations of direct discrimination because of race or of religion (or conceivably both). While in the list of issues Employment Judge Clark referred the issue as: “If so, was this because of the claimant’s [protected characteristic] and/or because of the protected characteristic of [protected characteristic] more generally?” Page 13 of 16 It is apparent from both context and the headings “[protected characteristic]” are slips and should refer to race and religion respectively. No party has taken issue with this.[68]Employment Judge Clark set them out in these terms after discussion with the claimant (and no party has suggested he was wrong in what he recorded): “i) In August / September 2020 - Mohammed Rehman used his position to unlawfully stop the climate change of contract from full time fixed term contract to one of part time permanent contract. “ii) From February 2021 until the disciplinary hearing concluded - Mohamed Rehman went out of his way to conspire against the claimant and escalated a minor issue to a formal investigation leading to a full disciplinary hearing” “iii) In October 2021 – despite knowing the claimants health condition and being aware of “no formal action“ judgement for a similar allegation, Nick Fendick raised another, in this case false, allegation leading to a formal investigation of the same nature. “iv) On 26 October 2021- Damien Gregory went out of his role of minute taker an used his position to aggressively interrupt the claimant [during the meeting] with Charlotte on 24 Oct 21 “v) At various times between April and September 2021, Nick Fendick ignored/refused the claimant’s request for unpaid break on 4-hour shift and/or to split the 30-minute break on the 8-hour shift into two 15-minute breaks “vi) On 26 Sept 2021 - Damien the new shift manager suggested the claimant work for an agency. “b) Was that treatment “less favourable treatment”, i.e. did the respondent treat. The claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances? The claimant relies on the following comparators :- “i) hypothetical comparators generally “ii) In respect of claims relating to his breaks and absences during shifts, the claimant is not able to identify an actual comparator but will refer in evidence generally to the employer’s practice of permitting others (white/non-Muslims) a degree of flexibility in taking extra breaks or toilet breaks during their working shifts.”[69]The submissions made about the direct discrimination claims by the respondent, and my observations about them, are as good as identical to those made earlier in relation to harassment.[70]I do not consider that the following shows no or little reasonable prospect of success: that the allegations are unsupported by any other evidence.[71]I do not consider in light of the previously decided cases I can conclude safely that there is no reasonable prospect of successfully showing there was no direct discrimination. It is a fact sensitive issue and requires evidence to decide. That will include evidence from which the claimant says Page 14 of 16 it could properly conclude there was discrimination. I consider the lack of contemporary complaints does not either alone or with other factors does not show there is no reasonable prospect of success. It is just a factor.[72]I note that there is however no explanation proffered or material referred to that points to the case being anything more than the claimant has a particular race or religion (as may be) and he was treated detrimentally than others may have been or were. In Efobi v Royal Mail [2021] ICR 1263 UKSC at [46] the Supreme Court approved what the Court of Appeal had earlier said in Madarassy v Nomura International plc [2007] ICR 867 CA at [56]: “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 … the respondent had committed an unlawful act of discrimination.”[73]Mr Ali’s case is, as it stands and taken at its highest, no more than a bare assertion he has been discriminated against. Given the test in Efobi I am of the opinion therefore it has little reasonable prospect of success. I therefore conclude a deposit is justified. Amount of deposit[74]Mr Ali is of limited means. His income is £1,540 per month in salary after deductions. He also earns an addition £1,500 each year irregularly through self-employment (equivalent to £125 per month). He owes £11,800 in loans and an additional £11,700 or thereabouts on credit cards. He owes £2,750 to the student loan company for an overpayment but that will be set off against the loan he would otherwise have been entitled to in the new academic year, when he returns to university. He has no other debts or arrears. He rents and house-shares. He has no savings. His outgoings pretty much consume his income.[75]While I acknowledge he has significant debts, he receives a healthy, regular income. I am of the opinion that a low deposit amount can properly be ordered without it amounting to a strike out by other means.[76]The deposit I order is as follows: 76.1. For the allegation of victimisation, a deposit of £25; 76.2. For the allegation of harassment, a deposit of £25; 76.3. For each allegation of direct discrimination, £12.50 per allegation of race discrimination (of which there are 6) and £12.50 per allegation of religious discrimination (of which there are another 6). The total per factual allegation for both types of direct discrimination would again be £25. I have split them to maintain the overall proportionality but to reflect the fact that each set of facts actually reflects two claims: one for race and one for religion.[77]If he paid the whole deposit, the total would be £200. While I appreciate he has debts, I consider that this is an affordable amount out of his take-home income. Mr Ali is unrepresented and does not intend to become Page 15 of 16 represented. I do not consider the deposit jeopardises his access to the Tribunal or to paid-for lawyers, should he choose to pursue that option.[78]I also bear in mind that the amount is intended to prompt the paying party (here Mr Ali) to think carefully before pursuing these claims. If he loses at trial on these claims, then he will be taken to have acted unreasonably and will be at risk of being ordered to pay some or all of the respondent’s costs.