Mr V Pareek v Department for Work and Pensions: 3201614/2017

EMPLOYMENT TRIBUNALS

Case No 3201614/2017

Between

Mr V PareekClaimant

Department for Work and PensionsRespondent

Before

Employment Judge Prichard

In person for claimant

Date 17 January 2019

JUDGMENT

The judgment of the Employment Tribunal is that:-(1) The claimant’s current claim in respect of having his chair moved from the 5th to the 4th floor of the building in which he worked on 3 July 2017 is hereby struck out under Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013 as having no reasonable prospect of success.

(2) Of the claim in respect of delays in provision of the claimant’s sick records by the DWP to the Home Office, thereby blocking his promotion for some 5 months, no strike out or deposit order is made. It shall proceed to a final 3-day hearing on the merits on 7 to 9 November 2018.

(3) 6 and 13 November 2018 are now vacated as hearing days.

(4) The remainder of the complaints in 3201614/2017 are dismissed as an abuse of process under Rules 51 and 52 of the Employment Tribunals Rules of Procedure 2013 following from the dismissal upon withdrawal of an identical claim - 3201254/2017.

REASONS

INTRODUCTION

[1]The claimant has brought 4 disability discrimination claims against the DWP and now other respondents. They are all brought from within employment. I must give the full history and chronology.

[2]Claim 1 which is 3200788/2016 was presented on 27 August 2016 and was dismissed following a withdrawal, by a judgment on 13 October 2016.

[3]The same claim re-emerged as Claim 2 with extra allegations on 30 September 2017 (3201254/2017) which, as the judgment states, was dismissed upon withdrawal by the claimant on 3 November 2017.

[4]Unlike Claim 1, Claim 2 was dismissed so soon that the respondent was not put to the trouble of presenting an ET3 response. In the first claim I am given to understand that the respondent actually attended for a case management preliminary hearing, needlessly as it turned out.

[5]The claimant stated that the reason he withdrew Claim 2 was that he considered it might be better to take an internal process up instead. However he says his grievance was effectively ignored which is why he brought Claim 3 (3201614/2017) in an identical form on 28 November 2017.

[6]From the passages I have seen (on careful manual comparison of the pages, with minor additions and some omissions), the claims are more or less identical i.e. a copy and paste. Several pages are wholly copy and paste. The differences seem merely for the sake of clarification, or later updating information.

[7]When the Claim 2 was dismissed Ms Morjaria for the Government Legal Department asked the tribunal several times for details of the notice of withdrawal and the tribunal studiously ignored those. A copy will be given to the respondent’s representative today. But it was by email of 26 October 2017 and I quote it in full from file 3201254/2017: “Hi I wish to withdraw the captioned case (case number 3201254/17) with immediate effect. Please close the case. Kind regards Vivek Pareek” And that was all that was written there. It was simple enough.

[8]Despite the fact I have been shown case precedent authorities on issue estoppel, res judicata, and Henderson v Henderson, I am not going to rely upon or cite those cases. The most recent was Thomas v Devon County Council

UKEAT/0513/07

and Johnson v Gore Wood & Co

[2002] 2 AC 1

. The reason I do not do so is the Tribunal Rules underwent a substantial change for the better and the less complex in 2013. I can deal with this without resort to the difficult and quite tedious appeals in the EAT and above on res judicata under the 2004 rules. There have been no such cases since the Rules were reformed.

[9]The rules are very simple now. Rules 51 & 52 of the 2013 rules state simply: “End of claim 51. Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order. Dismissal following withdrawal 52. Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall [my emphasis] issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless –(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or

(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.”

[10]The practice in all tribunals now is that dismissal is the default position unless some ambivalence is shown in the notice of withdrawal e.g. distress, duress and conscionable conduct by the other side etc. If this is the case the tribunal corresponds with the would-be withdrawers of the claims asking them to clarify the position and if they really do wish to withdraw the claim. In the above short notice of withdrawal there was absolutely no hint of ambivalence or reserving of a right.

[11]The Rules have not caused injustice in practice and have saved an enormous amount of parties’ and tribunals’ time. It could not be easier for a claimant to indicate ambivalence or caution in the notice of withdrawal, but that was not done. The claim seemed to be withdrawn confidentially and cheerfully.

[12]The claimant told this tribunal today that he withdrew the claim in circumstances where he thought it preferable to pursue an internal grievance. That is undoubtedly true, but if he had asked anyone who any remote idea of employment tribunal procedure, the difficulty with time limits, and the difficulty with res judicata, and now these Rules, he would have been advised under no circumstances to withdraw his claim but to ask for a stay of the claim instead, in order to pursue an internal process.

[13]The tribunal (and any respondent) is entitled to take correspondence such as this email of 26 October at face value. And so we did. Judge Jones signed a dismissal judgment very soon thereafter, given that otherwise the respondent would have had to submit an ET3 response.

[14]This was one of two ways in which I was asked to deal with the claims in Claim 3 and I have no hesitation in doing it. The claimant’s sickness records

[15]The claimant’s background is complicated. He worked continuously for the DWP from 15 December 2008 to 10 September 2017 when he was given a transfer to Defra. The background is complicated here. He had had a good deal of unhappiness at DWP centring on poor performance assessments and difficulties in particular with 3 managers within the disabled benefits section. He worked then in Basildon. The managers with whom he had problems were Dorinda Sexton the Senior Executive Officer, Sarah Hole and Lisa Mahoney. As a result of various grievances he transferred. They all worked on the 4th floor.

[16]Having brought a grievance one resolution was that he was transferred out of that team to a different team on the 5th floor who undertook disability workplace assessments for disabled people with a view to getting them back into work. There he had a different line manager, Peter Morgan, with whom he was perfectly happy. He still wanted to apply for jobs elsewhere in the civil service and, on 18 August, he was informed he had been successful in an application to work for Defra, at a higher grade with more pay.

[17]The next move was that he had to provide certain documentation. He had filled out various forms and he needed to provide or obtain the provision of a salary slip, and his sickness record with the DWP. That proved extraordinarily difficult to obtain in circumstances which nobody in this room today understands. As far as the claimant was concerned he could only telephone HR who simply gave him a reference number for his call to them and say that they would set the enquiry in train after which he heard absolutely nothing. It was not until November apparently that the sick records were provided. When that happened he had already booked annual leave to take the whole month of January off to stay in India. He went ahead with that holiday, still on his existing lower salary.

[18]As an Executive Officer, as he was in Basildon, he was earning £25,000 per annum. When he moved across to Defra on a level transfer that salary persisted. The role to which he was promoted for the Home Office was as an HEO, a Higher Executive Officer, which attracts an extra £11,000 per annum i.e. from £25,000 to £36,000 per annum. It is a substantial difference. Had his sick record come through earlier it is likely he would have got his feet under the table at the Defra / Home Office before he took a month’s leave at the higher rate of holiday pay. It is not the way it turned out.

[19]That is now a new claim in this Claim 3 which did not feature at all in Claim 2 which was dismissed on withdrawal. I simply do not know enough about this claim to make any order striking it out or dismissing it, or ordering a deposit on it. Relative to the date of ACAS reference for early conciliation which is 30 September 2017 it is obviously in time. He requested the records in mid-August 2017 as soon as he heard that he was eligible for promotion on 18 August. That claim is not struck out and, as the judgment states, must go to a final hearing before a full tribunal panel.

[20]It is put as a claim of victimisation. To say that the claimant has established protected acts under section 27 of the Equality Act 2010 would be an understatement as, at the time, he had had 3 disability discrimination claims before the tribunal, under the Equality Act.

[21]The claimant also has a money claim for arrears of pay. It would be a head of discrimination, but the way it is coded on the tribunal file and claimed in the ETI claim form it is also expressed as a claim for arrears of pay, reflecting the stalling of his promotion from August to February which would represent approximately 4½ months at an annual rate of £11,000 gross. It is part of the same sick records complaint.

[22]The claimant informs the tribunal that now he is at the Home Office he is happy. That is extraordinarily good news given the duration and the intensity of his previous unhappiness. The claim about the 4th / 5th floor

[23]The other claim about moving floors in Basildon is troublesome and this is struck out as having no reasonable prospect of success. I take some courage from a recent Court of Appeal authority which reminds tribunals that the power to strike out in Rule 37(1)(a) of the Employment Tribunals Rules of Procedure 2013, is simply expressed as a claim may be struck out if it “… has no reasonable prospect of success”. The hurdle is lower than “no prospect of success” (as it was in previous Rules) but higher than “little reasonable prospect of success” which is the level appropriate to make a deposit. (See Ahir v British Airways

2017 EWCA Civ 1392

). I consider that there is no reasonable prospect of this succeeding. Why so?

[24]As a result of his grievance, the claimant had been moved up to the 5th floor to the disability assessment section. The claimant informed the tribunal today that there were later moves between the floors, due to overcrowding on the 5th with the effect that he ended up back on the 4th floor in the same open plan office with the 3 managers who had allegedly given him so much stress and anxiety - Dorinda Sexton, Sarah Hole and Lisa Mahoney.

[25]At the time the claimant stated that he never raised a query or complaint about this. It strikes me that any tribunal would ask if Peter Morgan was made aware of how strongly the claimant allegedly felt that even to be in an open plan office with these managers would make this workplace a “.. an intimidating, hostile, degrading, humiliating, or offensive environment” for the purpose of s 26 of the Equality Act 2010.

[26]The claimant puts his case that the respondent should simply have been aware from an old occupational health assessment, without his raising it, that this would be a humiliating workplace environment for him notwithstanding that he was not working on the same section as these managers and that they would have no part in his line management. I cannot see how any tribunal would accept that argument. I would go further to say I consider if a tribunal accepted such an argument on the facts it might be vulnerable to appeal on perversity grounds. It would be a bizarre conclusion. The claimant contends that somehow the respondent had a proactive duty to be omniscient about his case history without him raising even a hint of a query or a complaint.

[27]It strikes me from what he has told the tribunal today that if the claimant had raised it with Peter Morgan, some way might have been found to accommodate him. For instance he might have let him work on the ground floor. Apparently there were disabled Executive Officers within that team who were working on the ground floor by reason of mobility problems. The respondent had been accommodating before in moving him away from these managers.

[28]Further, from what he told the tribunal today, the claimant worked there for some 2 months from 3 July to his move to Defra during which time he had absolutely no problems with any of the 3 managers whom he dreaded being in the same room as. (It must anyway have been a lot easier for him knowing that his time in that section anyway was limited as he had been informed on 18 August that his application for promotion to the Home Office had been accepted).

[29]As a claim of “victimisation”, which usually involves some sort of singling out, it is a bizarre claim, when all the other Executive Officers within that section were moved down to the fourth floor from where the claimant had originally come.

[30]The claimant mentions reasonable adjustments but it is important to appreciate that this is put as a claim for(1) harassment and

(2) victimisation. It is too late to change it again. There is no indication that the move back to the 4th floor with those managers was conscious or deliberate at all.

[31]Even if it was put as a reasonable adjustments claim. I find the fact that the claimant did not raise any suspicion of a complaint or concern tells against it very strongly and I would not consider it had a reasonable prospect of success before any tribunal panel I can imagine.

[32]Conceptually, reasonable adjustments might have been a better fit for a claim but at this stage of the proceedings it is too late. The case has already been managed extensively including the hearing on 19 February 2018 before Judge Hyde. That was not the way he put at that hearing. Ms Robinson attended then, and the claimant was in person, both as today. Judge Hyde asked that her draft list of issues be amended to incorporate everything that the claimant had said at that hearing, which did not include enlarging the 4th floor allegation to a claim of failure to make reasonable adjustments. There comes a time when a party is expected to be committed to its statement of case. Claim 4

[33]Claim 4 is truly bizarre. It was presented on 9 February 2018. It is a disability discrimination claim, again. The primary respondent is the Department for Work & Pensions. The address of the Department is given as Tothill Street, Westminster, SW1.

[34]There is a secondary respondent cited - Civil Service Resourcing in Benton Park View, Newcastle-Upon-Tyne. The claim, of course, being a claim relating to a workplace in SW1 is now pending before Central London Employment Tribunal. Its number is 2200477/2018. Case numbers that start “22” are Central London Tribunal case numbers. A request has been made to transfer it to this tribunal which, for whatever reason, has not yet been actioned. There is actually a copy of the ET1 claim and an ET3 response to the claim in the bundle for this hearing. The problem is that the claimant did not fill out box 2.4 where he should have stated his place of work, if different from Tothill Street. As I understand the claimant never has worked in Tothill Street. It is just an administrative headquarters of the DWP in London. Civil Service Resourcing in Newcastle appears to handle all civil service staffing - internal transfers, promotions, and external recruitment.

[35]It appears from the face of the ET1 that there is only one early conciliation certificate on Claim 4 and that EC certificate probably relates, as I surmise, to the DWP. If there was to be a second respondent there would have needed to be a second EC certificate as the rules provide. That is the usual reason that a tribunal will not accept a claim – no EC certificate.

[36]The claimant unhelpfully has objected to the claim not being accepted. He has also objected to the claim being transferred to this region which I cannot understand at all. It would have been easier for me to have had that claim before me today officially. I know quite a bit about it now and I have done a rough textual comparison between it and Claim 3.

[37]Claim 4 was presented on 9 February 2018. It is possible now that it will not need to be transferred particularly if the Central London tribunal is referred to a copy of this judgment in Claim 3. No detailed analysis has been asked of me today as to what is new in claim number 4. I take it that the main burden of it is the claim which I have just allowed to proceed to trial, namely the delay in the provision of the sick records which stalled the promotion process which is currently shrouded in mystery. Disability

[38]The claimant says he has a disability. I am virtually ignoring an earlier heart condition. He had a collapsed lung in 2012 secondary to TB. I would have anyway held that this relatively circumscribed episode was extremely out of time and should not be allowed to count as a dis. There is no telling which of the people accused of discrimination is still employed by the DWP anyway and see no good reason to argue continuing acts arising out of that.

[39]The current alleged disability relied upon is more borderline - stress and anxiety. “Stress” is utterly notorious. It is not a diagnosis. It might be a symptom.

[40]On a few of my researches today and upon examining the medical records the claimant is prescribed an extremely low dose 20mg of Amitriptyline, a tricyclic antidepressant, which has a major function controlling pain and anxiety. He has to take 2 x 10mg pills at night because it could make him drowsy. As I state this is a low dose, several patients are prescribed something like 250mg. That may or may not mean that the claimant’s alleged anxiety is borderline.

[41]I have been shown some sickness details from a letter from the respondent to the tribunal dated 17 April indicating the longest period of absence related to “stress” was 6 September to 24 October 2016 - 1½ months. It is quite likely that there would be a quite strongly contested hearing anyway on disabled status, but the claims are out of time.

[42]I cannot accept the claimant’s generalised assertion that there is continuing act of discrimination. He attempts to draw some sort of golden thread through Civil Service Resourcing to the DWP. They both actually occupy offices in Benton Park View in Newcastle but the thought of there being collusion between these departments strikes as fanciful and far-fetched. They are not in the same room as the claimant contended today. I cannot see how they would be when they are given different room numbers and different post codes. These are all weaknesses.

[43](It is possible that the DWP may have to obtain records and information from other parts of the organisation e.g. Civil Service Resourcing so indirectly they may become involved when the respondent properly investigates this claim with a view to its being tried).

[44]As I say I am not seized of claim number 4. That will be for the respondent to deal with, probably elsewhere.

[45]The sick record delay is the only claim that is now surviving in this region after today. Consequential case management orders

[46]The final hearing has now been adjusted from 5 days down to 3. The dates 13 and 6 November have been cancelled. It is now a 3 day trial from Wednesday to Friday 7 to 9 November 2018 at East London Tribunal Service, 2nd Floor, Anchorage House, 2 Clove Crescent, London, E14 2BE starting at 10am.

[47]The parties have to understand that that time estimate must include time for the tribunal panel to deliberate upon and give a judgment on liability and quite possibly remedy because it is only injury to feelings and an easily calculable pay differential claim limited to a finite period.

[48]Judge Hyde made case management directions on 19 February sent to the parties on 28 March. I vary those as follows for now.30.1 There is no need for an updated schedule of loss at all.

30.2 Disclosure originally set for 17 May will now take place on 14 June 2018, allowing the respondent more time to investigate and prepare their response to this claim arising from the sickness records.

30.3 Copy documents by 28 June 2018.

30.4 Witness statements are still to be exchanged on 9 October 2018.

[1]The Claimant has brought four separate claims against the Respondent. The first claim (3200788/2016) was presented on 27 August 2016 and subsequently dismissed upon withdrawal. The second (3201254/2017) was presented on 30 September 2017 and was also dismissed upon withdrawal. They both included complaints of disability discrimination. This judgment relates to the third (3201614/2017) and fourth (2200477/2018) claims presented on 28 November 2017 and 9 February 2018 respectively. Following a preliminary hearing on the 3 May 2018, all of the complaints in Claim 3 were struck out by a judgment sent to the parties on the 9 July 2018 except for a complaint of victimisation (set out below) and a complaint of unauthorised deduction from wages.

[2]At a preliminary hearing on 10 September 2018, Employment Judge Jones noted that Claim 4 was identical to Claim 3, except for a number of new allegations made against Civil Service Resourcing (“CSR”, formerly Government Recruitment Service). The claim against CSR was rejected because the Claimant had not obtained an early conciliation certificate in relation to CSR. Employment Judge Jones rejected the Claimant’s application for reconsideration of that decision.

[3]The Claimant confirmed at the start of the hearing that there was no separate complaint of unauthorised deduction from wages; the claim for loss of wages arose from the victimisation complaint. The consequence is that the only live complaint to be determined is the victimisation complaint made in Claim 3 (repeated in Claim 4) against the Respondent relating to the process of pre-employment checks for the Claimant’s promotion to his current role in the Home Office.

[4]The agreed issues to be determined are as follows:-4.1 The Respondent accepts that the Claimant did protected acts by presenting his first three Employment Tribunal claims.

4.2 Did the Respondent subject the Claimant to a detriment by failing to provide sickness absence details in September/October 2017 to allow preemployment checks to be completed for the Claimant’s new role in the Home Office?

4.3 Was any such detriment because the Claimant had undertaken a protected act?

4.4 (Relevant only to remedy) But for the victimisation, when would the Claimant have been appointed to his role in the Home Office and what would his salary have been?

[5]We heard evidence from the Claimant and, on behalf of the Respondent, from Michelle Peacock and Peter Morgan.

THE LAW

[6]Sections 27 and 136 of the Equality Act 2010 (“EqA”) provide: 27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because-- (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) 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. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision. …

[7]As to proving the reason for the treatment, a number of propositions have been established by Section 136 and the case law (in particular Igen Ltd v Wong

[2005] ICR 931

, CA). To summarise, so far as relevant for the present case:7.1 It is for the claimant who complains of discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Section 39 of the Equality Act 2010.

7.2 If the claimant does not prove such facts he or she will fail.

7.3 It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination, even to themselves.

7.4 In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

7.5 It is important to note the word “could” in Section 136 of the Equality Act 2010. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

7.6 In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

7.7 Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably because of a protected act, then the burden of proof moves to the respondent.

7.8 Where the claimant has proved such facts, the burden of proof moves to the respondent who must show that the treatment was in no sense whatsoever motivated by the protected act.

FACTS

[8]The Claimant commenced employment at the DWP on 15 September 2008. Sometime in 2017 he applied for a role in the Home Office at a higher grade. On the 28 July 2017 he was informed that he had been placed on a reserve list for the position. On 1 September he was issued with a provisional offer subject to pre-employment checks. Where a Civil Servant successfully applies for a role in another government department pre-employment checks are undertaken by CSR, previously called the Government Recruitment Service (“GRS”). For roles in the Home Office there are broadly three aspects to the process:(i) identity and right to work checks,

(ii) security checks which, for the role the Claimant was offered, involved a counter terrorism check (“CTC”) and

(iii) checks relating to the Claimant’s employment history, salary, holidays, sickness record, etc.

[9]The Claimant’s identity and right to work checks were completed by 6 September and GRS informed the Home Office that pre-employment checks would now commence. The first stage was for the Claimant to complete some forms, which he did by 11 September 2017.

[10]Unrelatedly, the Claimant was transferred to DEFRA on 11 September 2017. This was a level transfer and does not appear to have required the same level of preemployment checks.

[11]On 19 September Laura McKeswick of GRS emailed Peter Morgan, the Claimant’s line manager at DWP, requesting specific information about the Claimant’s employment history and terms and conditions. This included his sickness record for the past two years. Immediately on receipt of the email Mr. Morgan telephoned Shared Services Connected Limited (“SSCL”), a contracted-out HR function used by a number of government departments including the DWP, DEFRA and the Home Office. Mr. Morgan was told that such requests for information should be sent to SSCL, so he forwarded GRS’s email to them that morning.

[12]There seems to have been some confusion about whether SSCL required the Claimant’s permission to release the information requested. The DWP team within SSCL said that they needed the Claimant’s permission and asked GRS to get the Claimant to call them. The Claimant then appears to have telephoned the DEFRA team in SSCL who said they do not need permission to respond to such request from GRS. On 27 September, Ms. McKeswick emailed SSCL (DWP) again to request the information in her original email.

[13]By 5 October Ms. McKeswick had not received a response and asked the Claimant to chase up SSCL. She told the Claimant that what she was waiting for was the “staff data form”.

[14]On 6 October SSCL (DWP) wrote to Peter Morgan to request a reference for the Claimant. Mr. Morgan returned the reference the same day.

[15]On the 9 October the Claimant asked Ms McKeswick for a copy of the staff data form so that he could chase the matter up with SSCL. She replied saying that she could not provide this because it has to go between HR departments. The Claimant therefore asked her to re-send the request to Annique Gauton at SSCL (DEFRA), the person who had sent him his contract of employment at DEFRA.

[16]On 10 October Christine Davidson of SSCL sent Ms. McKeswick the document she described as the “completed checklist”. It would appear that the document was missing the 2-year sickness record so Ms. McKeswick replied on the 12 October asking for that information. She also on the same day emailed the Claimant asking for his line manger’s email address so that she could obtain the sickness record. The Claimant initially queried whether this was really required but when told that it was, on 14 October he emailed Ms. McKeswick setting out what he believed were the dates of his sickness absence at the DWP. He had not been off sick since the transfer to DEFRA.

[17]On 28 October Gavin Wilson of GRS (now CSR?) emailed the Claimant in response to the Claimant’s email of 14 October asking him to get his manager to confirm his sickness record. The Claimant replied explaining that because of his recent transfer to DEFRA his manger could only confirm his sickness record after 11 September 2017.

[18]The Claimant’s CTC was completed on 30 October 2017.

[19]On the same date the Claimant emailed Christine Davidson at SSCL requesting details of his sickness leave for the last 12 months. The request was passed to Gareth Taylor who emailed the Claimant later that day saying that his sickness record had not been sent to CSR: “because we are not permitted to release absence data for the purposes of preemployment checks. The only circumstance we are permitted to release this data is if a transfer is confirmed and it is to build a historical pay record. In addition, as far as I am aware it is unlawful to ask pre-employment questions about a person’s absence history under the Equality Act 2010.” The Claimant forwarded that email on the same date to Ms. McKeswick and Mr. Wilson.

[20]Ms. McKeswick emailed the Claimant on 1 November asking for his line manger’s email address so that she could confirm his sickness record. The Claimant responded re-iterating the reply he had had from SSCL about sickness records and querying why the information was required when it was not requested for his transfer to DEFRA. Ms. McKeswick replied saying that she did need the information and that all departments complete different checks. She works in the Home Office pre-employment checking team and could not advise about other departments.

[21]The Claimant also responded to Gareth Taylor of SSCL asking whether the DWP had sent them his absence record for the last 24 months, and asking for it to be provided to him. Christine Shann of SSCL responded on 1 November saying that their payroll section (for DEFRA) had never received his sickness absence details from DWP.

[22]On or around 5 November (the email chain is not entirely clear), the Claimant provided Ms. McKeswick with the email address of his line manager at DEFRA.

[23]On 13 November Jack Holding of CSR emailed the Claimant’s line manager at DEFRA requesting his sickness record for the last two years. The Claimant’s line manger replied saying that he could not provide the information because the Claimant had only been with DEFRA since 11 September.

[24]On 17 November, Kieran Richardson of CSR emailed the Claimant asking for the email address of his previous line manager at DWP. Later the same day Mr. Richardson emailed the Claimant again saying, “Please disregard this email as I have been able to find the information from DWP”. On the same day Mr. Richardson emailed the Home Office to say that the Claimant had completed pre-employment checks and they could now contact him to agree a start date and confirm his working pattern.

[25]The only witness from CRS who gave evidence to the Tribunal was Michele Peacock. Her job title is Campaign Manager and she oversees the delivery of preemployment checking for a number of government departments including the Home Office. Her evidence was that a “staff transfer data form” was received by CRS on 17 November, which included all information except for the two-year sickness record. There is no evidence of such a document being sent or received on that date. We note that Ms. Peacock had no direct involvement in the matter and her evidence is based only on a review of the documents and correspondence, all of which is before the Tribunal. We find that the bulk of the information requested was sent to CRS by SSCL on 10 October (“the completed checklist”). The only information missing was the twoyear sickness record, and that had still not been provided by 17 November. Ms. Peacock’s oral evidence was that CRS decided that because the payroll provider, SSCL, was the same for all three departments, they would be able to find the information in due course and the Claimant’s appointment could proceed. She did not dispute SSCL’s explanation for refusing to provide the sickness record and said that the system has now been changed.

[26]It appears, therefore, that all that changed on 17 November was that CSR decided to give up on obtaining the two-year sickness record. Contrary to Mr. Richardson’s second email to the Claimant, he had not obtained the information from DWP. An email of 16 January 2018 from SSCL to the Claimant suggests that the sickness absence details were only obtained from DWP shortly before 16 January.

[27]By the time the pre-employment checks had been completed on 17 November the Claimant had booked a four-week holiday in India from 31 December 2017. He had booked it on 21 October. Sometime in the two weeks following 17 November, the Claimant discussed his start date with the Home Office and it was agreed that it would not be sensible for him to start before his trip to India. A start date of the 5 February 2018 was agreed.

[28]The Claimant says that if his pre-employment checks had been completed sooner, before the CTC clearance had been received, he would have agreed an earlier start date. He said his line manager at DEFRA was happy to release him earlier than the 30-day notice period.

CONCLUSIONS

[29]We accept that the issue about obtaining the Claimant’s sickness record did cause a delay in the pre-employment checks being completed. There were three periods in particular that caused the delay. The first was between 19 September when SSCL received the request for the employment history data and 10 October when they provided the “completed checklist”. This was partly because of the confusion about whether the Claimant’s consent was required.

[30]The second period was between 10 October when SSCL sent the “completed checklist” to CSR omitting the sickness record and 30 October when SSCL confirmed that they could not provide the information because it would be unlawful to do so. SSCL failed to respond to CSR’s email on 12 October specifically asking for the two year sickness record until the Claimant chased them on 30 October. As is happens, it would appear that they did not have the sickness record at the time but that is irrelevant. Even if they had it, they would not have provided it. We also note that it took CSR two weeks (from 14 to 28 October) to respond to the Claimant’s email in which he provided his own recollection of his sickness absence, informing him that he needed this to be confirmed by his line manager. This is what prompted the Claimant to chase SSCL on 30 October.

[31]The third delay was between SSCL confirming that they would not provide the information on the 30 October and 17 November when CSR decided to proceed without it. That was caused by CSR attempting to obtain the information directly from the Claimant’s line manager. There was more than a week for example between the Claimant providing the email address of his line manager at DEFRA on 5 November and CSR emailing him on the 13 November.

[32]We find that the primary responsibility for the delay therefore lies with CSR. It had all of the employment-related information on which it eventually proceeded by 10 October. It could have been decided on 30 October, after CTC had been issued, to complete the process. Instead it decided to pursue the matter for a further 17 days before giving up and deciding to proceed without the sickness record. There is no claim against CSR but for the avoidance of doubt we note that the Claimant has not alleged that anyone in that department knew about his Employment Tribunal claims and there is no evidence that they did. They cannot therefore have been motivated by them.

[33]The only way in which DWP or SSCL acting on its behalf could be said to have contributed to the delay was in the periods up to 30 October. There is simply no basis on which we could find that any delay by SSCL was motivated by the Claimant’s Employment Tribunal claims. The Claimant’s only evidence that anyone at SSCL was even aware of his claims is the fact that his first ET1 brought against the DWP was sent to SSCL’s postal address. That is nowhere near sufficient to establish that any individuals at SSCL, and we note that there were several different individuals who dealt with this matter, were aware of the claims, let alone that they were motivated by them.

[34]There was a dispute about whether, but for the delay, the Claimant would have started at the Home Office any earlier than he did. The earliest the process could have been completed was 30 October when CTC clearance was received. In light of our findings above, it is unnecessary for us to make a finding on this issue but we consider it unlikely, if the discussions about start date had occurred 17 days sooner than they did, that the Home Office would have agreed an earlier start date in light of the Claimant’s booked holiday in India.

[35]The correspondence in this case paints a rather depressing picture of bureaucracy and failure of government departments or even divisions within the same contracted-out service to share information appropriately and efficiently. But there is simply no evidence that anyone involved knew or was motivated by the fact that the Claimant had brought Employment Tribunal claims. The claims are therefore dismissed.