Mr Y Mohamed v Abbatt Dual Management Ltd: 3220343/2020
JUDGMENT
[1]All claims of race discrimination are dismissed on withdrawal by the claimant.[2]The claimant was a disabled person by virtue of migraines during his employment with the respondent.REASONS
[1]This preliminary hearing was ordered to consider the following issues:-a. Whether or not the claimant was a disabled person by virtue of the condition of migraines during his employment with the respondentb. Whether the claim form contains a pleaded claim of race discrimination; alternativelyc. Whether the claimant should be given permission to amend his claim form to include a claim of race discriminationd. Whether any race claim has little or no reasonable prospect of success 1 of 6[2]The claimant was employed for 6 months as a security officer, He claims race and disability discrimination; the latter the claimant confirmed as claims of disability-related harassment and direct discrimination. He states that he was dismissed twice, the first time he was reinstated; the 2nd time he was dismissed for misconduct. The respondent says that the principle reason for his dismissal was his conduct and that he was not confirmed in post at the end of his probation. Withdrawal of claim of race discrimination[3]During the Hearing, there was a discussion about the legal issues in a direct race discrimination claim. We discussed the requirement to show less favourable treatment than an actual or hypothetical comparator, and the legal test for direct discrimination. We discussed the three outstanding allegations of race discrimination.[4]Following this discussion, the claimant expressed doubts as to whether he wished to continue with this claim. I gave the claimant a break to consider his position on this claim. After a ½ hour break, the claimant accepted that his main claim was dismissal because of his disability. The claimant stated that he had decided to withdraw his race discrimination claim, and this claim is dismissed on withdrawal. Was the claimant a disabled person during his employment?[5]The respondent accepts that the claimant has a long-term condition, that he suffers from migraine headaches. In determining that the claimant was disabled, I took into account that there is limited medical information (37-38, 41 & 44) and a short disability impact statement (91-2). I heard evidence from the claimant under oath.[6]The claimant’s evidence was than whenever he suffers from a migraine he needs to lie down in a quiet room, he is unable to eat, he feels sick and he feels dizzy, he loses his sense of smell and he is unable to communicate. He has had migraines for over 10 years, and while some months are better than others, on a bad month he may have several migraines. His medical records state that the claimant told his GP his migraines can last from a few hours to a few days and require medication, that they ‘restarted a few months ago” (as recorded in the GPs notes on 8 June 2020). The notes on 29 July 2020 they refer to sleep disturbance (including calls from his manager when he is sleeping during the day) causing migraines; that he is on medication for his migraines “which are working well”.[7]The entries prior to this are before his employment commenced; in January 2019 the records refer to worsening migraines because of stress. In his evidence he described trying to manage his migraines by a good sleep pattern, exercise and cutting down on certain food. There are intermittent records back to 2011 referring to headaches once a month, both blurred vision and vomiting.[8]I accepted that the medical records show long gaps between events; the claimant’s evidence is that he did not always attend his GP when he had attacks, 2 of 6 which I accepted. I also concluded that his migraines were not always severe enough for him to attend his GP.[9]The claimant described his migraines as “very random”, and that they occur even when he is eating well and getting regular sleep. He stated that they were “… sometimes four times in a week or it might be for four days in a row or it could be every other week it just it's so unpredictable; I could have sometimes a month and a half of no migraines no issue but then the following month it can be the complete opposite”. He stated that when he gets migraines the first symptom was his “eyes getting blurry … and I'm not able to look at my phone … it becomes very difficult to see and … I need to be in a dark room … my senses get heightened, smell becomes intense and normal food bothers me … noise lights all of it affects me and the only thing I can do is go into a darkroom and just wait for it to go away…”.[10]Mr Crow argued that there is not evidence that migraines had a substantial adverse impact on his ability to undertake day to day activities; in addition they occur intermittently and, it appears, at times of particular or acute stress.[11]I accepted the claimant’s evidence of the effect of his migraines on his day to day activities. I accepted that they were intermittent but unpredictable, that he claimant may go months without a migraine, but could also have several in a short space of time.[12]I concluded that the claimant has the intermittent but long-term condition of migraine, and that when suffering from this condition it has a substantial effect on his ability to undertake day to day activities. Disclosure[13]During the hearing, the claimant produced what he said was a further medical letter dated 26 June 2021.[14]Mr Crow for the respondent said that no weight should be attached to this letter; in addition he raised concerns as to its validity, pointing out that it was a rtf. file, which would not be the usual format for a Doctor’s letter and that the letterhead appears not to be the proper letterhead of the claimant’s GP, also it is unsigned. Mr Crow sought specific disclosure of the GP record which relates to this letter, i.e. the consultation which led to this letter being written. I granted this order, set out below.The hearing
[1]The case has already been listed for a Hearing on 29-30 June and 1 July 2022.[2]The hearing will deal with liability only, i.e. whether the claimant's case succeeds or not. It will not deal with remedy, although the Tribunal may address matters such as contributory fault, if relevant. A remedy hearing will be listed on a later occasion, if the claim succeeds. 3 of 6 Timetable for the hearing[3]To ensure that the hearing, once begun, proceeds efficiently, it is necessary to set out a timetable. The parties will be expected to follow that timetable and may have their time cut short if they exceed it. The timetable ultimately adopted will be a matter for the Tribunal hearing the claim. Without seeking to limit the Tribunal's decision in that regard, and while recognising that the time allocated to the hearing may have to be reduced, the parties can expect the timetable to look something like this (and they should prepare accordingly): ½ days for the tribunal to read the parties' witness statements and required) important documents from the bundle and then discuss matters arising with the parties; 1½ days for evidence from witnesses and questions of those witnesses 2 hours for the parties to present their closing submissions; ½ day for the Tribunal to deliberate, prepare and (ideally) deliver an oral judgment with reasons.[4]The parties must inform the Tribunal as soon as possible if they think there is a significant risk of the time estimate being insufficient and/or a significant risk of the case not being ready for the final hearing and/or if they reach a settlement of the case or believe such a settlement to be imminent.The Issues
[5]EQA, section 13: direct discrimination because of disabilitya. It is not in dispute that the respondent dismissed the claimant on two occasions (he was reinstated after the first dismissal):b. Was that treatment "less favourable treatment", i.e. did the respondent treat the claimant less favourably than it treated or would have treated others ("comparators") in not materially different circumstances?c. If so, was this because of the claimant's disability and/or because of the protected characteristic of disability more generally?[6]EQA, section 26: harassment related to disabilitya. Did the respondent engage in conduct as follows: i. Dismiss the claimantb. If so, was that conduct unwanted?c. If so, did it relate to the protected characteristic of disability?d. Did the conduct have the purpose of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? 4 of 6 Did the conduct have the effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant? (Whether conduct has this effect involves taking into account the claimant's perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.)[7]Remedy If the claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the claimant is awarded compensation and/or damages, will decide how much should be awarded. Specific remedy issues that may arise and that have not already been mentioned include: i. if it is possible that the claimant would still have been dismissed at some relevant stage even if there had been no discrimination, what reduction, if any, should be made to any award as a result? ii. Have regard to the Pensions Principles when deciding any orders relevant to the calculation of pension loss. Sources of information and support[8]As the claimant/respondent is not legally represented, I take the opportunity to provide links to further information that may be of assistance:a. At this link, https://www.gov.uk/courts-tribunals/employment-tribunal, the parties will find a copy of the Tribunal's Rules of Procedure.b. Guidance has been prepared by the President of Employment Tribunals for England & Wales on managing cases generally, including preparing for a hearing, disclosure of documents and preparing and exchanging witness statements: https://www.judiciary.gov.uk/wp-content/uploads/2013/08/presidentialguidance-general-case-management-20180122.pdf.c. Judicial mediation and judicial assessments are explained in further detail here: https://www.judiciary.gov.uk/wp-content/uploads/2013/08/presidentialguidance-rule-3-adr-20180122.pdf.d. Three short guides, produced by BPP Law School, about what to expect at an ET hearing, can be found here: https://www.youtube.com/playlist?list=PLWanRQtvOInjUFiP1JnK0wEyNKC hpx0ys.[9]The Tribunal produces leaflets setting further information on sources of advice and support. Further copies are available on request. 5 of 6 Online publication of judgments and reasons[10]The tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has recently been moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions.[11]The tribunal has no power to refuse to place a judgment or reasons on the online register, or to remove a judgment or reasons from the register once they have been placed there. If a party considers that a judgment or reasons should be anonymised in any way prior to publication, they need to apply to the tribunal for an order to that effect under Rule 50. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted. Other matters[12]As the claimant is representing himself, I would recommend he watches (either in person or online) a Tribunal hearing, so he can get an idea of how a hearing proceeds. The claimant can contact the Tribunal and ask for information on how to do so.[13]The parties are reminded of Rule 92: "Where a party sends a communication to the Tribunal (except an application under rule 32) it shall send a copy to all other parties, and state that it has done so (by use of "cc" or otherwise)…". If, when writing to the Tribunal, the parties do not comply with this rule, the Tribunal may not consider what they have written.[14]The parties are reminded of their obligation, under Rule 2, to assist the Tribunal to further the "overriding objective" of the Rules, which is to deal with cases fairly and justly. It also means that the parties should co-operate with each other and with the Tribunal.[15]The following case management orders and directions were uncontentious and effectively made by consent.The Issues
[1]At the outset of the hearing, the issues in the case were identified as follows: The Claimant was subject to this direct disability discrimination by virtue of migraines:1.1 by being dismissed on the 12 June 2020. The Claimant was subsequently reinstated; and1.2 by being dismissed on 11 August 2020.[2]The Claimant also advanced alternative claims of disability related harassment in relation to the dismissals outlined above.[3]Having clarified the issues, Mr Hignett on behalf of the Respondent, applied to strike out the Claimant's claims on the basis of non-compliance with orders of the Tribunal pursuant to Rule 37(1)(c) of the 2013 Employment Tribunal Rules.[4]Rule 37 of the 2013 ET rules states: Striking out 37. —(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;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.[5]The focus of the strike out application was the Claimant’s non-compliance with Tribunal orders and the effect of his non-compliance on continued proceedings.[6]The legal and factual issues in this matter are relatively limited. A preliminary hearing took place before Employment Judge Emery to consider the issue of disability on 9 December 2021. EJ Emery concluded the Claimant was disabled by reason of migraines and made case management orders for the parties to comply with.[7]The case management order for the provision of a bundle was to take place on 11 February 2022 and witness statements were to be exchanged by both parties on the 25 March 2022. In respect of the witness statements the relevant parts of paragraph 5 of the order stated as follows:5.1 The Claimant and the Respondent shall prepare full witness statements containing all of the evidence they and their witnesses intend to give at the final hearing and must provide copies of their witness statements to each other on or before 25 March 2022.5.2 No additional witness evidence will be allowed at the final hearing without the Tribunal's permission.5.3 The witness statements must: have numbered paragraphs; include page numbers from the bundle when referring to a document; contain only evidence relevant to the issues in the case.[8]There was difficulty in finalising the hearing bundle following lack of cooperation from the Claimant and the date for finalising the bundle was not met. However, the Claimant was confirmed that he received a bundle of 567 pages was accepted on 25 April 2022.[9]Following receipt of the bundle, the parties sought to agree between themselves a date to exchange witness statements bearing in mind that the date witness statement exchange had passed. The parties agreed a date for exchange of witness statements for 6 June 2022, given that the order made by EJ Emery had passed. The Respondent sent its 3 witness statements to the Claimant on 6 June 2022. The Claimant did not do so. He informed the Respondent in various correspondence replying to their attempts to secure his witness statement that he was abroad; he lost his electronic devices, he did not have a laptop; he did not have private internet facility and he was suffering from ill-health.[10]On 16 June 2022, the Claimant’s witness statement still had not been sent and the Respondent applied to the Tribunal for an unless order asking for, amongst other things, that the claimant provides a witness statement in relation to his case by 17 June 2022.[11]Employment Judge Gardiner considered the respondent's application and by letter dated 20 June 2022, the Claimant was ordered to respond to the Respondent's application for an unless order by 21 June 2021.[12]On 21 June 2022, the Claimant responded to EJ Gardiner’s order writing: ‘Unfortunately, as a result of the transport strikes, I am unable to send my full witness statement. However I have signed notes. [As an aside the signed notes that was sent to the Tribunal were illegible] I can confirm that the 3 witness statements have not played any role in my notes nor my witness statement. Nor will they form any part in my full witness statements when I am able to send it in its entirety tomorrow. Please do tell me should you need to do anything further regards signing and dating my notes.’[13]The implication therefore from the Claimant’s email was that his witness statement or statements would be sent to the respondent by 22 June 2022. However, still no statements were provided by the Claimant.[14]On 21 June 2022, the Respondent renewed its application for an unless order.[15]By letter dated 23 June 2022, Regional Employment Judge Taylor sent a strike out warning to the Claimant stating that she was considering striking out the claim because he has failed to comply with paragraph 5 of the order of EJ Emery relating to provision of witness statements. The Claimant was informed that if he wished to object to the proposal, he should give his reasons in writing or request the hearing at which he could make them by 28 June 2022. REJ Taylor also sent a separate letter in any event that the strike out application would be considered at the outset of the final hearing.[16]The Claimant responded to REJ Taylor’s letter on the 27 June 2022. He stated: I understand that Judge Taylor is considering striking out my disability claim against Abbatt Dual Management. I do not believe this should happen. I believe I should be entitled to a full tribunal on the facts presented prior to an outcome on this very difficult case, that has left me incredibly upset stressed and overwhelmed. Considering whether I should have ever challenged powerful companies and people for discriminating. Made more difficult because of Covid19 Because the Respondent stated I failed to comply with para 5 of the order sent to the parties on 2 February 2022 (provide witness statement). This attachment was made on 23 June sent to me on 24 June 2022. The sickening accusation they make is in relation to the order made by Employment Judge Emery. Employment Judge Emery understood I was representing myself and was very kind. The order he made was now I understand that both parties to submit their witness statements by 25 March. Unfortunately I have not. And I can confirm the respondents nor the representatives complied with this order, … I find it incredibly sickening that the Respondents and those that represent them have a wish to have my claims [struck] out albeit they failed to follow the order themselves. Professionals and experts in this. Whilst I am a layman with no money to get legal instructions despite seeking legal aid. I do not wish Judge Taylor to strike this very serious discrimination out, that I have been waiting over two years (12 June 2020) since my first experience of being discriminated against because of disability under the Equality Act. Should Judge Taylor have any further questions or concern I wish this to go to a hearing.[17]Still the Claimant did not provide a witness statement. The Tribunal considered that it may have been easier for the Claimant to have drafted a simple witness statement setting out his position in respect of the issues than send the responses he did.[18]By letter dated 28 June 2022, EJ Lewis informed the Claimant that he was in default of the order to provide his written witness statement; the notes he provided were illegible; and if he wished to rely on any witness evidence, including his own, he must provide a written statement and send a copy of it to the Respondent in advance of the hearing. EJ Lewis informed the Claimant that the Tribunal would consider whether to strike out the claim for failure to comply with the Tribunal’s orders and if the Claimant wished to refer to any period of ill health or unexpected absences from the UK e.g. for an emergency he must provide evidence in support in the form of GP or other medical evidence.[19]At 1.50am on 29 June 2022, the Claimant sent the Respondent and the Tribunal an email setting out an extensive commentary of documents in the bundle. This does not amount to a witness statement. However, the Tribunal spent some time reviewing narrative to consider whether it was possible to distil any accusations and allegations from it for the Respondent’s witness to consider. We concluded that it was not able to do so. The Claimant’s email is a lengthy narrative of the documents within the bundle without specifically identifying who was alleged to do what and when. If it was possible to edit the email to a more manageable length of relevant comments, Mr Hignett and the Respondent’s relevant witnesses still would not know the scope of the allegations being advanced to be able to fairly address them given no prior warning and the time that has elapsed since the events in question. Submissions[20]The Respondent’s submissions on strike out veered into the extent to which a fair hearing was still possible pursuant to Rule 37(1)(e) but for the avoidance of doubt the Tribunal concludes that the claim, which involve limited factual issues, could ultimately be considered fairly in future, if an adjournment was permitted to allow the Claimant to provide a witness statement focusing on the relevant issues. However, given the Claimant’s inaction, inconsistent reasons for failing to provide a witness statement, delays and the representations from both parties concerning the effect of an adjournment it would not be fair, appropriate or in accordance with the overriding objective to adjourn the case. This would result in continued delay, stress on the people involved, costs and uncertainty.[21]The Claimant stated that the fair and just way to proceed would be for all the evidence to be heard and not for his case to be struck out on a technicality. His case was a serious case of multiple acts of disability discrimination over his short period of employment. He apologised for not providing a witness statement but stated that he was awaiting the final bundle (which he received on 28 June 2022) to finalise his statement. He stated that he is a litigant in person unaccustomed to Tribunal proceedings. He stated that he could now draft a statement of 300 – 500 words to set out his case on the two factual issues.Conclusions
[22]The Claimant has continued to fail to comply with EJ Emery’s order dated 2 February 2022 to provide a witness statement.[23]When considering our discretion to strike out on this basis the Tribunal considered whether it would be appropriate for the Claimant to effectively start again and give focused evidence on the two particular factual issues that the Tribunal was required to consider. We concluded that whilst this would have been possible it would not have been able to have undertaken in the hearing time allotted and an adjournment was likely for the Respondent’s witnesses to be able to review and give instructions. Both parties agreed that further delay would be unfair in this matter in particular witnesses memories fade and it has been unresolved, hanging over the Respondent's witnesses; and also the Claimant for a significant period of time. It was not considered to be in accordance with the overriding objective to adjourn.[24]The Tribunal also considered whether there could be any other workable adjustments to the hearing timetable to allow the Claimant to provide his evidence within the time allotted and concluded that this would also run the serious risk of the case not being decided in the time allowed.[25]We considered whether it was reasonable to take a less draconian step instead of striking out the Claimant’s claim, depriving him of the ability to ventilate his claim and pursue a possible remedy. We concluded that it is not appropriate in this case given the Claimant's failures to provide a witness statement which could, on his own submission, have been easily provided in a condensed way and still had not been done.[26]The Claimant failed to give a consistent or credible explanation as to why he could not provide a witness statement.26.1 Before us, the Claimant stated that there was further discussion about other further pages being added to the bundle which resulted in an updated bundle consisting of 648 pages on 28 June 2022. The Claimant submitted that he did not think he had to submit a witness statement until he had received the final updated bundle. This was inconsistent with the representations he was previously making to the Respondent and the Tribunal in his correspondence sent throughout June 2022; and the Tribunal do not accept this submission in view of the clear wording of the orders made from the Tribunal.26.2 The Claimant gave differing, and at times baseless, reasons for not providing witness statements. No medical evidence was provided in respect of his ill health. In respect of his transport strike excuse the Tribunal was unable to comprehend how this would prevent him sending his witness statement by email.26.3 Finally, the Tribunal concludes that as the Claimant was able to provide focused responses providing reasons objecting to strike out he could also have simply drafted his witness statement. The Tribunal therefore conclude that there was an element of deliberate obstruction underpinning the Claimant’s failure to provide a witness statement.[27]In these circumstances the Tribunal conclude that this is an appropriate case to strike out. There were a number of opportunities the Claimant could have taken to avoid his case being struck out. If he had provided a composite focused account event as late as 1.50 on 29 June 2022, it is possible that the Tribunal may have taken a different view. However, what he sent on that occasion did not assist the Respondent in identifying the actual basis of his disability discrimination allegations were or highlight to the Tribunal what it should consider.[28]The Claimant's claims are therefore struck out for non-compliance with Tribunal orders to provide a witness statement and are therefore dismissed.