Mr A Pirzada v Ms S Viswarajan: 3200514/2020
JUDGMENT
The Tribunal does not have jurisdiction consider the Claimant’s claims against the Respondent. The Claimant’s claims are therefore dismissed.REASONS
[1]The open preliminary hearing was listed to address the following jurisdictional issues were raised.(1) The Claimant has named a different Respondent in his claim form (Ms Viswarajan) to the name of the prospective Respondent (UEL) on the ACAS EC certificate;(2) The Claimant has not presented an ACAS EC certificate in the name of the Respondent. It is contended that the ET one should have been rejected.(3) The Claimant was not an employee of the Respondent, nor the University of East London.(4) The University of East London is not a relevant qualification body for the purposes section 53 - 56 section 56 EqA.(5) If the Claimant is alleging he is undertaking vocational training, section 56(5) EqA puts the matter outside the jurisdiction of the Employment Tribunal(6) If the Claimant were an employee, he lacks the relevant 2 year qualifying period to pursue a claim of unfair dismissal(7) The claims appear to have been brought out of time(8) There are no factual allegations made which might disclose unlawful discrimination complaints[2]If the jurisdictional hurdles are overcome the Respondent sought to apply to have the claim struck out or a deposit order made on the basis that it had no or little reasonable prospect of success.[3]At the outset of the hearing I directed that I would hear submissions on jurisdictional issues (1) to (6) above. No evidence would be required and there was no need to consider the detail of the specific legal claims or consider any potential amendment at this stage. Hearing[4]The Claimant expressed, a number of times, his deep unhappiness with the conduct and of the previous preliminary hearing before Employment Judge Massarella on 6 July 2020 and the orders that he made. I informed the Claimant that I was not an appeal forum for Employment Judge Massarella’s hearing and confirmed that I would be discussing the preliminary matters afresh. Importantly, it was necessary for me to be satisfied that the Tribunal had jurisdiction before any claims could proceed. I informed the Claimant that his concerns about the previous preliminary hearing would have to be addressed by following the appropriate processes.[5]The Claimant stated that he had multiple disabilities namely, musculoskeletal problems, bronchitis, chronic asthma, chronic astigmatism and mental health issues that he had since January 2013. Breaks in the hearing were provided for the Claimant on request and when he sought to reflect what further submissions he wished to make.[6]The Claimant interrupted Mr Roberts submissions and refused to accept my directions regarding repeating submissions that he already made or making submissions on matters that were not relevant to the issues I had to decide. He expressed his discontent with me when I did not allow him to raise complaints and concerns about the Respondent’s ET3, which were not relevant to the matters I was considering at that stage.[7]The Claimant was unhappy about the way in which the Respondent had prepared for this preliminary hearing. He did not accept the content of the bundle or Mr Nathan’s skeleton argument for the hearing. He maintained that the Respondent was malicious and vindictive and the bundle was prepared in order to present a false narrative. When questioned on which documents the Respondent had not included in the bundle the Claimant referred to an email of 15 November 2019 specifying the date of his termination. No other documents were mentioned. I did not accept the validity of the Claimant’s concerns in this regard.[8]The Claimant sought to emphasise the detail of his allegations against the Respondent despite being informed that this was not necessary for me when assessing the jurisdictional issues.[9]The submissions concluded at 12.35 and I informed the parties that we would reconvene 14.30 for judgment. When I commenced giving judgment the Claimant insisted on making 5 further submissions. I initially declined to hear any further submissions. The Claimant stated that he believed his disabilities put him at a disadvantage. I therefore allowed him to make the 5 further submissions on condition that they were not matters already raised and that they were relevant to what I had to decide. The 5 points the Claimant made were repetitions of matters he had already raised 2 of which were irrelevant.[10]The Claimant interrupted me when I was delivering judgment and refused to abide my instruction not to interrupt. I called security to attend the Tribunal room so I could complete giving judgment. Security attended and the Claimant did not make any further interruptions. Issues[11]The Claimant claims unfair dismissal, disability discrimination, contractual claim for notice pay and defamation.[12]The Respondent is a senior lecturer employed by the University of East London (UEL). She was the personal tutor for the Claimant until she ceased involvement with him on 8 October 2019. The Claimant is deeply aggrieved by the fact that she ceased being his tutor and the reasons she gave to others about his conduct. He asserts that they were untrue, malicious and defamatory.[13]The Claimant entered into a contract with the UEL on 11 June 2019 with UEL which states: Thank you for your application to study at the University of East London we are the University which prepares its students for the jobs of the future. With London campuses in Stratford and Docklands, UEL is a heart of the industrial creative shift East, and a powerful global gateway. UEL is careers lead and dedicated to ensuring its students have the skills, emotional intelligence and creativity necessary to adapt to a constantly evolving world and its technology. We are delighted to confirm this conditional place which has been reserved for you as follows: Course – PGCE secondary science – physics Mode of attendance – full-time Start date – week commencing 9 September 2019 Tuition fee for 2019/ 20 academic year – £9250 The Claimant was required to pay UEL £9250 for this course.[14]The Claimant received a Government bursary of £26,000 per annum in connection with his studies. This was administered by UEL and paid monthly.[15]Much time was spent considering the Claimant’s status. The Claimant made repeated submissions which were able to be summarised. He maintained that notwithstanding the student agreement of 11 June 2019 he was an employee or apprentice because15.1 He was an apprentice under the Apprenticeship, Skills, Children and Learning Act 2009 (ASCLA). He referred me to Part 4 and sections following section 81.15.2 He had to abide by a dress code.15.3 He had to comply with the school guidelines.15.4 He was paid as a teacher subject to his attendance on the course.15.5 His performance was audited by staff of the school and one member from the UEL.15.6 He was paid internally tax system at placement and believes it was a trade course.15.7 The student agreement was subject to the implied agreement supplemented by him being an apprentice under the ASCLA.[16]The difficulty with these arguments is none of them apply to bring the Respondent, as an individual into the frame for liability. Whilst they may have been pertinent to the status of his relationship with UEL such arguments could not apply to the individual Respondent, who the Claimant seeks to bring a claim against.[17]Clarification was sought from the Claimant as to who he actually sought to claim against. He was adamant that his claim was against Ms S Viswaranjan in her personal capacity. He stated that he had no intention of bringing a claim against UEL, which is a charity and, he says, has sound procedures in place. However, he does criticise UEL for protecting, harbouring and hindering him from securing justice against the Respondent. He stated that he mentioned UEL to ACAS as he did not have the personal details of the Respondent as she refused to provide them. However, he always intended to bring a claim against the Respondent. He stated that he is exempt from the ACAS certificate due to his disability and the fact that ACAS did not mention the Respondent was their mistake and not his responsibility.[18]I indicated that I would have readily accepted an application to amend claim to substitute UEL as the Respondent, given the content of the ACAS certificate and content of ET1. I still considered whether, in the event that the Claimant was mistaken as to whether he wanted to claim against UEL, he could have been an employee or apprentice of UEL given the arguments he advanced. It is conceivable that If he was an employee or apprentice of UEL he may be able to continue with a discrimination claim against the Respondent as a fellow employee or agent of UEL.[19]However, having considered the matter I concluded that the Claimant was not an apprentice or employee of UEL.[20]First, the ASCLA provides at sections 83 to 85 apprenticeship to persons aged 16 to 18 and certain young adults. This includes reference to apprenticeship offer at section 83A and 83B – none of which apply to the Claimant.[21]Sections 86 to 90 provide for education and training to persons aged 19 or over. This allows the Secretary of State to make provision for payment of tuition fees. This may have applied to the Claimant to allow the Secretary of State to pay a bursary of £26,000 per annum.[22]Section 91 – 99 ASCLA provides the terms for the apprenticeship offer, none of which apply to the Claimant. Therefore, as far as the Claimant is concerned (over 26 years old), the ASCLA provides for training, not an apprenticeship. Further, the relevant formalities necessary for an apprenticeship agreement have not been completed. I therefore conclude that the Claimant is not an apprentice of UEL.[23]Second, whilst I accept that the Claimant has to comply with school rules and guidelines, I do not consider this undermines the meaning and effect of the student agreement he entered into. He was a student with UEL and agreed to pay £9250 for the course he commenced. The Employment Tribunal does not have jurisdiction to consider education discrimination complaints.[24]Third, whilst the Claimant’s payments were administered by UEL, UEL did not fund the payment. The Government did as part of the bursary the Claimant received.[25]Fourth, UEL audit of the Claimant’s performance was consistent with him undertaking a student training course and being required to meet relevant standards.[26]Therefore the Claimant was not an apprentice or employee of UEL and even if he had brought claims against UEL the Tribunal would not have had jurisdiction to hear them.[27]When considering whether the claim should have been accepted, I considered rule 12 of the 2013 ET rules. 12.—(1) The staff of the tribunal office shall refer a claim form to an Employment Judge if they consider that the claim, or part of it, may be—(a) one which the Tribunal has no jurisdiction to consider;(b) in a form which cannot sensibly be responded to or is otherwise an abuse of the process. [(c) one which institutes relevant proceedings and is made on a claim form that does not contain either an early conciliation number or confirmation that one of the early conciliation exemptions applies; (d) one which institutes relevant proceedings, is made on a claim form which contains confirmation that one of the early conciliation exemptions applies, and an early conciliation exemption does not apply; (e) one which institutes relevant proceedings and the name of the Claimant on the claim form is not the same as the name of the prospective Claimant on the early conciliation certificate to which the early conciliation number relates; or (f) one which institutes relevant proceedings and the name of the Respondent on the claim form is not the same as the name of the prospective Respondent on the early conciliation certificate to which the early conciliation number relates] (2) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraphs (a) (b), (c) or (d) of paragraph (1). [(2A) The claim, or part of it, shall be rejected if the Judge considers that the claim, or part of it, is of a kind described in sub-paragraph (e) or (f) of paragraph (1) unless the Judge considers that the Claimant made a minor error in relation to a name or address and it would not be in the interests of justice to reject the claim.][28]In this case there was an ACAS early conciliation (“EC”) certificate issued on 15 November 2019 naming UEL as the prospective Respondent. However, the Claimant maintained that he did not make an error at all and it was ACAS that did so. The rationale of the EC scheme is to encourage the settlement of employment disputes at an early stage and so avoid the institution of Tribunal proceedings. The ACAS certificate clearly demonstrates that the Respondent had not been given the opportunity to participate in the EC conciliation process. The Claimant did not seek to correct the ACAS error by asking for the certificate to be reissued with the correct name of the prospective Respondent, he simply presented his complaint to the Tribunal naming the Respondent and provided the UEL address in the Stratford campus. I noted that the narrative the Claimant’s claim refers to UEL not providing support UEL and its partner school failing to make adjustments and as such I could have appreciated that there would be a minor mistake if the Claimant was seeking to claim against UEL, however he is adamant that this is not his intention.[29]Mr Roberts referred me to the case of Chard v Trowbridge Officer Cleaning Service Ltd UK/EAT/0254/16/DM and the cases referred to within it. In this case Mr Justice Kerr stated, at paragraph 61, that the issue of minor error is one of fact and judgement for the tribunal; that the words are ordinary English words; and that is for the Employment Judge determine the issue.[30]On the facts of this case I do not consider this to be a minor error at all. Aside from the fact that the Claimant does not accept that there has been an error by him, he did not contact ACAS to inform them of their mistake but simply continued with his claim against the individual. The Respondent has not been named in an ACAS certificate, and as such she has been denied the statutory opportunity to be involved in trying to settle the claim.[31]If I had found it was a minor error, I would not have considered it to have been in the interests of justice to consider the claim. In the ET1 claim whilst Ms Viswarajan appears as the Respondent, the limited narrative provided to the claim highlights matters that she could not be liable, for example shunning and prolonging the promised investigation; UEL not providing support; a claim for full contractual arrears of amounting to £20,800; UEL failing to make adjustments and removing the Claimant from the register without provable offences. On the bare facts none of these matters are matters that the Respondent could have been said to have done.[32]In these circumstances the Claimant against the Respondent should have been rejected. The Claimant is required to follow the ACAS process before any such claim can be progressed against the Respondent.[33]Further, and in any event the Claimant would be unable to bring a defamation or libel claim as the Employment Tribunal does not have jurisdiction to deal with such matters. The Claimant disagrees with this position and asserted notions of the common law fairness.[34]The Tribunal would not be able to consider any claim for unfair dismissal as, even if he was held to be an employee, he does not have the relevant two-year qualifying period of employment required by section 108 of the Employment Rights Act 1996.[35]I did not hear any evidence to consider whether any claims were actually brought out of time.[36]Given my findings the Tribunal does not have jurisdiction consider the Claimant’s claims against the Respondent.[37]The Claimant’s claims are therefore dismissed.