Mr Mohammed RahmanClaimantSerco Limited RECORD OF A PRELIMINARYRespondent
Before
Employment Judge BartlettMr Chowdhury for claimantMs T Crane for respondentDate 13 October 2025
JUDGMENT
[1]The claimant’s unfair dismissal claim is strikeout for want of jurisdiction.[2]The claimant’s claim in respect of 39.81 hours of unpaid holiday as an unlawful deduction from wages is subject to a deposit order of £50 see separate order.[3]The claimant’s claim in respect of any amount beyond 39.81 hours of unpaid holiday as an unlawful deduction from wages claim is struck out.[4]The direct race discrimination claims are in time and no further orders are made in respect of them.
REASONS
[1]This was a one day preliminary hearing which had been scheduled at the case management hearing which took place on 4 March 2025. The summary of that hearing set out that the issues to be decided at this hearing were as follows:[2]This hearing was originally listed for 1 July 2025 but was postponed due to the claimant’s illness. It set out that the purpose of this preliminary hearing was as follows:[3]I considered that the same issues are in essence listed in both documents quoted above.[4]The first part of this hearing was spent trying to clarify the claims as I considered that I would not be able to make my decision until the claims were clear.[5]It was confirmed that all of the claimant’s race discrimination claims were direct race discrimination.[6]It was agreed that section 1.2 of the 4 March 2025 case management orders sets out all the claimant’s race discrimination claims. Mr Chowdhury confirmed that all of the issues from 1.2.4 inclusive onwards post dated 29 September 2023. I double checked it that it was agreed that the allegations against Mr Paul Cox were in relation to events which occurred after 29 September 2023. Mr Chowdhury confirmed they were[7]The claimant and Ms Sarah Doughty of the respondent appeared as witnesses. They were asked a number of questions and their evidence is recorded in full in the record of the hearing. I made it clear that as a time point had been raised I needed to consider if the issues were in time and if they were not if I should extend time. This involves considerations of whether it was reasonably practicable (unfair dismissal) and just and equitable (discrimination) in relation to the timing of the claimant’s claim and that evidence from the claimant would be needed on this. The claimant’s witness statement did not address these issues. Mr Chowdhury said he had only been instructed the week before. This hearing took place on a Wednesday and I consider that this was time to prepare a supplementary witness statement on the issues. The witness statement presented was dated 16 June 2025 which was some time before this hearing. However, as this had not been done I agreed that the claimant could be asked these questions at the hearing as evidence in chief and that is how the hearing proceeded. Strike out Orders – the law[8]Under r.38 of the ET Rules of Procedure 2024 the Employment Tribunal may strike out all or part of a claim or response:8.1 If the claim or response is scandalous, or vexatious or has no reasonable prospect of success;8.2 If the manner in which the proceedings have been conducted by or on behalf of a claimant or respondent (as the case may be) has been scandalous, unreasonable or vexatious;8.3 If a party has not complied with an order of the Tribunal or one of the Rules of Procedure 2013;8.4 If the claim has not been actively pursued;8.5 If it is no longer possible to have a fair hearing in respect of the claim or response (or relevant part of it).[9]Strike out at a hearing is a summary determination of the claim or a response (more usually the claim) based on an assessment of the case advanced taken at its highest.[10]As Allan v Wandsworth LBC UKEAT/0049/13 EAT sets out, I must adopt a two stage process: first are the grounds made out and second should the claim or response be struck out.[11]In the case of Anyanwu v South Bank University [2001] I .R .L .R . 305 HL, the House of Lords emphasised that, in discrimination claims, the power to strike out should only be used in the plainest and most obvious of cases. “… vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”[12]Maurice Kay LJ in Ezsias v North Glamorgan NHS Trust [2007] I.C.R. 1126 CA accepted reasonable prospects of success as meaning that the claim had “a realistic as opposed to merely a fanciful prospect of success”. He went on to add in para.29: “It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”[13]Cox v Adecco UKEAT/0339/19 sets out that, before considering whether or not to strike out a claim or to make deposit orders, reasonable steps should be taken to identify the claims and the issues in the claims. Where there is a litigant in person, this may involve consideration of documents other than the claim form and to whether an amendment should be permitted. Deposit Orders – The Law[14]The applicable test for deposit orders is set out in r40(1): “40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.”[15]This test of “little prospects of success” is a less rigorous test than “no reasonable prospects of success” but plainly the test must still be satisfied. Burden of Proof in discrimination cases[16]S136 of the Equality Act 2010 sets out the burden of proof which applies to discrimination issues: “(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.”[17]In Igen Ltd v Wong the Court of Appeal approved the guidance given in Barton v Investec Securities Ltd [2003] IRLR 332 concerning the burden of proof in discrimination cases which is that: ''(1) Pursuant to s 63A of the SDA 1975, it is for the claimant who complains of sex 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 Part II or which by virtue of s 41 or s 42 of the SDA 1975 is to be treated as having been committed against the claimant. These are referred to below as “such facts”. (2) If the claimant does not prove such facts he or she will fail…. (9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. (11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the Burden of Proof Directive.”[18]In Madarassy v Nomura International plc 2007 ICR 867, CA Lord Justice Mummery stated: “The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” 19. Unlawful deduction from wages - time[20]There is no time issue in relation to the unlawful deduction from wages claim because the claim is that it was a continuing deduction even at the date on which the ET1 was submitted.[21]Unlawful deduction from wages – Strike Out and Deposit Orders[22]The claimant’s position was that he had accrued 228 hours of unpaid holiday pay. He accepted that the respondent had paid him 108 hours of this. It was said that he was owed 120 hours of holiday pay.[23]I asked Mr Chowdhury how this was calculated and he was unable to provide any calculation about either the total amount claimed or the amount the claimant said he was owed after the payment by the respondent. Mr Chowdhury said the claimant would be able to explain and the claimant was asked some questions about this but he could not identify how he had made the calculations. He said that some of the payslips were missing. I said that there were a number of payslips in the bundle. He said that payslips before March 2023 were not included in the bundle. I will deal with this later but it is the respondent’s position that he did not have an employment relationship with them before that date. The claimant accepts that before 17 March 2023 he was not paid by the respondent but he was in fact paid by Berkely Scott.[24]I made it clear that it was incumbent on the claimant to set out how he calculated his unlawful deduction from wages claim.[25]Ms Crane stated that the respondent did accept that the claimant had accrued 180.81 hours of holiday pay however he had lost 72.81 hours because he had not been permitted to carry those hours over into the next holiday year i.e. after 31 December 2023. The respondent’s position was that the 120 hours had been paid to the claimant. It was not accepted that the claimant had accrued anything more than 180.81 hours of holiday pay.[26]I find that the claimant has failed to particularise his unlawful deduction from wages claim. I repeatedly asked Mr Chowdhury how he was putting his claim in terms of the legal label attached to it because some of what he was saying could conceivably be put as a discrimination claim or under the working Time Regulations. He confirmed that he was bringing it as an unlawful deduction from wages claim. However, I find that the claimant has failed to set out how he has calculated the 220 hours of holiday pay. I accept that he has set out how the 180.81 hours of holiday pay calculation has been made as he has taken this from the respondent’s documents in the bundle. It also appears to me that the 39.81 hours of holiday pay (the difference between 220 hours and 180.81 hours) relates to a period when, as I have found below, the claimant was not employed by the respondent and that part of the claim as no prospect of success.[27]I have decided to make a deposit order in respect of the remaining part of the holiday pay claim. Mr Chowdhury was not able to explain how the way he pleaded this claim fits within the statutory wording relating to unlawful deduction from wages and I find that there is little prospect of success of it being established that the claimant’s claim will succeed as an unlawful deduction from wages claim.[28]I have decided to make a deposit order in the amount of £50 in relation to this claim. The claimant did not provide evidence on his ability to pay however the documents before me set out that as well as working for the respondent he also works for Tesco and I have no evidence before me that that employment has ended. I accept that the claimant will be of limited financial means and therefore I have made the deposit order in the amount of £50. The unfair dismissal claim – strike out and deposit orders[29]The claimant’s position is that he was employed by the respondent from 11 October 2022 until he resigned on 10 December 2024.[30]The respondent’s position is that the claimant worked through an agency, Berkely Scott, before 17 March 2023. Therefore, the claimant’s employment with the respondent did not commence until 17 March 2023. Therefore even taking the claimant’s end date of employment he does not have two-years’ service.[31]The claimant’s ET1 was submitted on 7 March 2024. On that form the claimant ticks the box for unfair dismissal and set out in the box in section 9.2 “give me my job back” and “no job”. The ET1 also set out at section 5.1 the employment start date as 11 October 2022 and the employment end date as 21 September 2023. The claimant ticked the box that said no to the question is your employment continuing.[32]The respondent’s position was that by 7 March 2024 at the latest the claimant’s employment had ended and the claimant accept this by the information set out in the ET1.[33]Alternatively, the respondent claimed that the claimant’s employment ended on February 2023 when they issued the claimant with a P45. The claimant said he did not see that P45 until disclosure relating to this case because he was unable to access the P45 in the respondent’s system. He accepted that he had logged onto the system on 3 March 2024 but he said he could not see documents within it. The respondent’s position was if that was correct he should have contacted them and steps would have been taken to grant him access to all the documents but he did not.[34]I raised the issue that the ET1 was submitted on 7 March 2024 and events which postdate that date cannot form part of the claim. Therefore, the claimant’s claim that he resigned on 10 December 2024 and there was an unfair dismissal on that date cannot be part of this claim. I repeatedly raised this is a legal issue with Mr Chowdhury and he was unable to offer any coherent response to this.[35]I have decided to strike out the claimant’s claims relating to unfair dismissal because they have no reasonable prospect of success because he does not have two-years’ service. There are multiple reasons for this and I will set these all out below:35.1 I find that the claimant’s employment with the respondent commenced on 17 March 2023. I find that before that date the claimant’s employment relationship was with the agency Berkely Scott and not with the respondent. Therefore, even taking the latest date of the end of the claimant’s employment as 10 December 2024 he could not have two-year service;35.2 I find that the claimant’s claim that his employment ended on 10 December 2024 and therefore he was constructively unfairly dismissed after that date is not within the jurisdiction of the Employment Tribunal because these events occurred after the submission of the ET1.[36]When did the claimant’s employment relationship with the respondent commence?[37]I find that the claimant’s relationship with the respondent commenced on 17 March 2023. I find that from 11 October 2022 until 16 March 2023 the claimant was engaged through the agency Berkely Scott and did not have an employment relationship with the respondent. I have applied the principles set out in James v Greenwich LBC [2008] EWCA Civ 35. An Employment Tribunal should only imply an employment relationship between an agency worker and an end-user where it is necessary to give effect to the reality of the relationship between them. I find that the claimant was paid by Berkeley Scott. The claimant accepted that around 17 March 2023 there was a transition to Serco and that he signed new documentation with it. He said that in October 2023 he had signed an NDA with Serco and completed a conflict of interest form with Serco. This is accepted by the respondent but I find that they do not establish an employment relationship. Due to the nature of the work carried out by the claimant, which was a housing officer at so-called Asylum hotels, I accept the respondent’s evidence that Serco had contractual obligations to the Home Office and it required people, including those who were not employees, to comply with certain confidentiality requirements. I do not consider that those documents require there to be an employment relationship between the claimant and Serco. I accept that the claimant worked on a Serco site, that signs etc on that site were Serco and that some of the other staff were employees of Serco however there is nothing unusual about those relationships or the claimant’s relationship that make it different from one of agency and end-user. The claimant was paid by Berkely Scott and employment type issues such as leave and disciplinary/investigation processes were carried out by them. There is no necessity for me to imply an employment contract between the claimant and Serco and I consider it would be incorrect to imply such a relationship.[38]When did the claimant’s employment relationship with the respondent end?[39]I consider that there are several possibilities about the date on which the claimant’s employment relationship with the respondent ended. I consider that the last possible date on which the claimant’s employment relationship with the respondent ended was 7 March 2024. I accept it may well have ended before that date. However, by 7 March 2024 the claimant was clearly of the opinion that he was no longer employed by the respondent.[40]The claimant’s evidence was that despite what is said in the ET1 he did not mean to claim that his employment had ended and that he had been unfairly dismissed in the ET1 all he meant was give me back my hours of work. His evidence was that to complete the ET1 he had to say unfair dismissal. I do not accept that evidence. The tone of the ET1 is quite clear that by 7 March 2024 the claimant accepted that his employment relationship with the respondent had come to an end, he said he had no job and no money, he ticked the box and remedies for unfair dismissal and he made statements that indicated he thought he had lost his job. There is no reasonable alternative interpretation of the ET1 other than the claimant setting out that his employment relationship with the respondent had ended by that date. Race Discrimination Claims - Time[41]The core of the claimant’s claim is that the respondent carried out the management investigation into him arising from the two complaints made by two residents of the Asylum hotel because of his race and that complaints were made against white colleagues and no action was taken against them. He also claimed that on 21 September 2023 he was suspended.[42]The respondent’s submission was that there was no race discrimination, that allegations were made and it was appropriate to investigate them, that the claimant was not suspended because under his agreement as a casual worker the respondent was not obliged to provide him with any work and so they simply ceased to provide him with shifts until the investigation was concluded, at the end of the investigation the respondent decided that the claimant should not return to work at the same site for the protection of himself and residents of the Asylum hotel and they offered him work elsewhere which the claimant refused for a variety of reasons.[43]The bundle includes the respondent’s internal investigation dated 28 September 2023. It was not clear from the documents in the bundle when this was sent or communicated to the claimant and so I asked him some questions about this. He stated he had not been sent that document and only saw it as part of these proceedings. He was told about the outcome on 29 or 30 September 2023 by Mr Paul Cox in a telephone call.[44]In response to my questions the claimant said that on 21 September 2023 Mr Bradley White telephoned the claimant and told him that he was suspended due to a serious allegation. On 24/25 September Mr Paul Cox telephoned the claimant and the claimant was asked a number of questions relating to the allegations. Then on 29/30 September 2023 he was told the outcome of the investigation which was that the allegations were not upheld but that he could not work at the same location.[45]Mr Chowdhury did not accept that any of the claims were out of time, all of the acts of discrimination were part of a continuing course of conduct. The case management summaries to which I have referred above set out that claims before 29 September 2023 would be out time.[46]The ET1 was lodged on 7 March 2024. ACAS conciliation started on 28 December 2023 and ended on 8 February 2024.[47]All the claims identified by Mr Chowdhury starting before 29 September 2023 relate to 21 September 2023 at the earliest and the suspension and investigation. I find that these are part of a continuing act which commenced on 21 September 2023 and continued with various actions arising from that date including after 29 September 2023. This is because they are all connected to the investigation and outcome. I therefore consider that all the race discrimination claims are in time.[48]Even if I were wrong in the above conclusion, I would extend time on the basis that it is just and equitable to do so. This is because the claims are out of time by a very short period of time namely eight days at the most. It is important that discrimination claims are heard by the tribunal. The claimant was acting for himself. In response to my questions he gave considerable evidence about what he thought ACAS told him and I concluded that his memory was unclear and that even now he seemed confused by the information he was given by ACAS. In these circumstances, I consider that it is just and equitable to extend time. Race discrimination – strikeout and deposit orders[49]I find that it cannot be established that the claimant’s race discrimination claims have no prospects of success. The claimant claims that allegations against white colleagues were not investigated and no action was taken against them. He may also be claiming that behind this there was behaviour that also constituted discriminatory acts. I note that these claims are vague and he has failed to identify how these circumstances are comparable to his own. I also note that the investigation found that he had not committed any wrongdoing but that he was over familiar with the residents of the Asylum hotel which could lead him into difficulties, that this had been mentioned previously with the claimant and there is therefore a concern that he did not understand the limits and constraints of the role he carried out. However, he was not permitted to work at that Asylum hotel again. I recognise the respondent’s case is that this was for the claimant’s protection as well as for the residents and that he was offered other work. I also recognise that the respondent was permitted not to offer him any shifts but if it did not offer him shifts because of a discriminatory reason this would be discrimination and therefore adds little to the respondent’s case.[50]In conclusion though I recognise that there are some concerns about the claimant’s race discrimination allegations the general rule is that they should be decided only after airing at the tribunal and I have decided not to make a strikeout or deposit order.
Conclusion
[51]The claimant’s unfair dismissal claim is strikeout the want of jurisdiction.[52]The claimant’s claim in respect of 39.81 hours of unpaid holiday as an unlawful deduction from wages is subject to a deposit order of £50.[53]The claimant’s claim in respect of any amount beyond 39.81 hours of unpaid holiday as an unlawful deduction from wages claim is struck out.[54]The direct race discrimination claims are in time and no further orders are made in respect of them. Approved by: