Mr J Johnson v Newark Youth London Ltd and Others: 3200726/2023 and 3200727/2023
EMPLOYMENT TRIBUNALS
Case No 3200726/2023, 3200727/2023
Between
Mr J JohnsonClaimantNewark Youth London Ltd and OthersRespondent
Before
Employment Judge Howden-EvansIn person for claimantMs Rafique (instructed by Solicitor) for respondentDate 6 June 2024
JUDGMENT
[1]The claim is struck out under Employment Tribunal Rule 37(1)(a) because it has no reasonable prospect of success. JUDGMENT having been sent to the parties on 14th June 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]At the public preliminary hearing on 6th June 2024, the employment judge determined the claim should be struck out under Employment Tribunal Rule 37(1)(a) because it had no reasonable prospect of success.[2]The Claimant has presented claims of direct discrimination, harassment, victimisation, breach of contract (seeking petrol and phone expenses) and is seeking unpaid wages from the Respondents. The First Respondent was his former employer; the Second and Third Respondents were his managers; the Fourth, Fifth, Sixth, Seventh and Eighth Respondents are trustees of the First Respondent, who considered the Claimant’s grievance and his appeal against the grievance outcome.[3]I note the unpaid wages that are being sought are wages for a second person that the Claimant says ought to have been employed by the First Respondent. Essentially the Claimant is trying to seek a second salary from the First Respondent during the period he worked for the First Respondent. It is agreed the Claimant has been paid his own salary and there have not been any deductions from his salary.[4]In relation to the phone and petrol expenses, despite repeatedly having been ordered to provide further information about the phone and petrol expenses, the Claimant has repeatedly ignored this order. The claim does not specify how or when any expenses have been incurred.[5]Turning to the claims of direct discrimination, harassment, victimisation, the following facts are agreed by the parties:a. The First Respondent is a charity that aims to enhance capacity / build community engagement for young people through leisure sports and learning.b. The Claimant was employed as a full time (35 hours per week) Youth Engagement Manager by the First Respondent during the period 3rd January to 25th April 2023.c. When the Claimant presented this claim, the Employment Tribunal identified that the Claimant was also bringing multiple discrimination claims against Ja Nailah Limited (and various personnel associated with that organisation) asserting that he was employed full time by Ja Nailah Limited during the same period he was employed full time by the First Respondent.d. The Claimant accepts he was employed full time for Ja Nailah Ltd for the period 14 February to 21st March 2023 which is a period of 5 weeks in the middle of his 4-month employment with the First Respondent.e. The First Respondent was not aware that the Claimant was working full time for another organisation in the middle of his full-time employment with the First Respondent.f. The Claimant has previously presented at least three different series of litigation against former employers, under 14 different claim numbers, including extensive allegations of discrimination.[6]For today’s hearing I had the benefit of an agreed List of Issues (this having been discussed at length at a previous case management hearing) and a bundle of documents of 355 pages, which helpfully included extensive contemporaneous documents.[7]As the Claimant was a litigant in person, the Respondent had provided a written note of their submissions and expanded upon this note with oral submissions. Mindful that the Claimant was a litigant in person, I checked the Claimant felt he had been provided adequate time to consider the Respondent’s submissions. He confirmed he had and made his own oral submissions.[8]I started by re-reading Rule 37 of the Employment Tribunal Rules of Procedure 2013 which provides: “(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable, or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal; ….”[9]I noted from the key authorities:a. Anyanwu v South Bank Student Union (Commission for Racial Equality intervening) [2001] ICR 391: the employment tribunal should be slow to strike out discrimination claims without consideration of the meritsb. Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 - Maurice Kay LJ accepted a submission that the standard set by this part of Rule 37(1)(a) would be met if the prospect of success on a matter (be it fact or law) was “merely fanciful”c. Ahir v British Airways [2017] EWCA Civ 1392 Underhill LJ Para ‘16 … Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary for liability being established, and also provided they are keenly aware of the danger of reaching such conclusion in circumstances where the full evidence has not been heard and particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, …Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for making of a deposit orderd. Mechkarov v Citibank N.A [2016] ICR 1121 – Principles of strike-out(1) Only in a clear case should a discrimination case be struck out;(2) Where there are core issues of fact that may require a decision to be made based on oral evidence then decisions should not be made without hearing oral evidence(3) A strike out hearing should not turn into a mini trial of disputed facts (and oral evidence about disputed facts is not usually appropriate at a strike out hearing).(4) On the contrary, the claimant’s case should be taken at its highest.(5) It is only if the claimant’s case is conclusively disproved or is totally and inexplicably inconsistent with undisputed contemporaneous documents that the strike out decision should be made on the basis that the Claimant has no reasonable prospect of proving the disputed primary facts.e. In Land Registry v Grant [2011] ICR 1390 – on harassment the Court of Appeal stated that the language used in the statute to describe what amounts to harassment, emphasises the gravity of the conduct necessary and that those words must be given their ordinary meaning so that their significance should not be cheapened (per Elias LJ, at paragraph 47).[10]Applying the law to the agreed facts of this case and considering the contemporaneous documents in front of me, I reminded myself to take the Claimant’s evidence at its highest and asked myself does the Claimant have any prospect of establishing facts from which a tribunal could infer there has been race discrimination. I concluded he could not, as his case is totally and inexplicably inconsistent with the undisputed contemporaneous documents.[11]For instance, in an email of 14 March 23 the Claimant’s line manager (with the First Respondent) explains he needs reasons why the Claimant is not able to attend his supervision meetings as these meetings “have to happen” so the line manager is rescheduling them. He is also very concerned the Claimant is not attending staff meetings and needs to see the Claimant’s timetable to work out when the claimant is working and what the Claimant is doing for the First Respondent.[12]The Claimant provides a vague response to this email saying he couldn’t attend due to meetings and session delivery (without providing any specific details). It is now agreed the Claimant was working full time for another employer at this point in time.[13]The Claimant’s line manager responds on 17th March 2023 explaining this reply was not good enough and instructs the Claimant to answer and action the matters the line manager has asked the Claimant to complete. The line manger also again asks the Claimant to confirm he will attend a supervision meeting the following week and raises another concern that the Claimant has not yet booked himself on to upshot training, training that every other staff member has attended or booked. The line manager explains the Claimant must attend upshot training the following week.[14]On 20th March 2023, the line manager explains he has had to speak to trustees about his concerns that the Claimant is refusing to meet in general and refusing to attend supervision meetings….the line manager invites the Claimant to attend a meeting at 10am the following day and explains if there is a continued refusal to meet, the First Respondent would have no option other than to dismiss the Claimant.[15]The Claimant responds by raising a grievance against the line manager alleging the line manager’s refusal to hire a second person to work alongside the Claimant is a campaign of racial discrimination. The Claimant refuses to meet the line manager.[16]The Claimant was invited to attend a grievance meeting on 3rd April 2023. He chose not to attend but submitted a written presentation.[17]In the meantime, the First Respondent needed to report on the work the Claimant was undertaking. Contemporaneous emails note the Claimant was supposed to be working at least 35 hours per week and should have been working in the office 1 or 2 days per week; working in schools 1 or 2 days per week and working from home 1 or 2 days per week. Emails note that other than delivering two 1-hour sessions per week, the First Respondent and its staff had no idea what the Claimant was doing for the remaining 33 hours per week that he was supposed to be working for the First Respondent.[18]I had the benefit of considering the grievance outcome letter and the grievance appeal outcome letter, both of which appear to be completely fair and professional letters.[19]On 18th April 2023, the First Respondent wrote to the Claimant explaining its decision to dismiss the Claimant. This recorded his employment was being terminated as his performance in the role had been unsatisfactory and this included not carrying out reasonable instructions from his line manager, not providing reports on his activities and refusing to attend supervision meetings and other meetings as required for the role. This document also explains the supervisor had made several attempts to meet the Claimant to discuss the issues but the Claimant had refused to attend any meetings. This reason for dismissal is exactly what the contemporaneous documents portray. I am satisfied that the Claimant has no prospect of proving that the reason for dismissal was anything other than the reason that has been provided. There is no evidence whatsoever to establish a link to the Claimant’s race.[20]I determined it was appropriate to strike out the discrimination and victimisation claims in their entirety as the Claimant has no reasonable prospect of succeeding with these claims. Even taking the Claimant’s case at its highest there is nothing from which a Tribunal could infer discrimination. The Claimant’s allegations are completely inconsistent with the contemporaneous documents and the agreed fact that the Claimant was working for another employer full time for 5 weeks of this short employment with the First Respondent.[21]I determined it was appropriate to strike out the unpaid wages claim. I note from the schedule of loss the Claimant is not alleging that he has not been paid for his own wages; instead, he is seeking £7,120 for wages for a second person that he says should have been employed during the period January 2023 to April 2023. There is no possible contractual entitlement to be paid another person’s wages – this is a completely fanciful claim that has no basis in law, and I am satisfied it has no reasonable prospect of success.[22]I determined it was appropriate to strike out the claim for phone and petrol expenses as having no reasonable prospect of success. Despite numerous opportunities to explain when and how expenses have been incurred, the Claimant has not provided this further information. A vague assertion of being entitled to phone and petrol expenses has no reasonable prospect of success.[23]Further and in alternative, I would have struck out the claim as being vexatious for 2 reasons –a. I have been referred to a number of other claims where the Claimant has brought very similar discrimination allegations against multiple people, including a claim against the other employer that he was contracted to work full time for during the same period he was contracted to work full time for the First Respondent.b. In these proceedings the Claimant has acted in a manner that was unreasonable and vexatious and abusing the tribunal process as explained below.[24]The first preliminary hearing was listed for two hours on 9th October 2023. On 24th July 2023, the two-hour listing was converted to a full day hearing to be able to consider the strike out application. The Claimant did not attend the hearing on 9th October 2023. The case was relisted and on 14th of March 2024, Employment Judge Reed spent considerable time going through the allegations with the parties to create a detailed list of issues. In his Order, Employment Judge Reed set out extensive further information that the Claimant needed to provide, explaining this in accessible language. Instead of providing that information, the Claimant responded with 4 lines of vague assertions, completely ignoring the instructions to provide specific information. For instance, the Claimant made no attempt to explain what the false allegation was that was said to have occurred on the 14th March 2024. Employment Judge Reed had ordered the Claimant to set out exactly what had been said by Mr Islam that were false comments, when the false comments were made and to whom the false comments were made. None of this information is referred to in the Claimant’s response to that order.[25]The schedule of loss tries to claim wages for a second person and the Claimant is seeking £70,000 injury to feelings and an ACAS uplift of 25%. The Claimant views employment tribunal proceedings as a means to get rich fast, rather than this being somebody seeking compensation for genuine harm caused by acts of discrimination.[26]As a final example of the unreasonable manner in which the Claimant is conducting himself in these proceedings, the Claimant deliberately left the hearing during the reading of these oral reasons. This meant I was not able to consider the Respondent’s application for a costs order and the Respondents face incurring further costs to attend a separate costs hearing.