Ms O Obasa v African Carribbean Association and Others: 3308182/2023
EMPLOYMENT TRIBUNALS
Case No 3308182/2023
Between
Ms O ObasaClaimant(1) African Carribbean Association (2) WACA Administrators and Directors (3) North Northamptonshire County Council RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge TynanIn person for claimantMr C Ocloo (instructed by Solicitor) for respondentDate 14 November 2024
REASONS
[1]By a Claim Form presented to the Employment Tribunals on 18 July 2023, the Claimant pursues complaints against the Respondents that she was unfairly dismissed and discriminated against on grounds of race and disability. She completed section8.1 of form ET1 on the basis that she was making other claims that the Tribunal could deal with - section8.2 of form ET1 refers to “DEFORMATION OF CHARACTER, liable and slender”. The Claimant 1 of 7 additionally refers in paragraph 15 of the five-page addendum to her claim form to being a whistleblower.
The hearing
[2]The Claimant had prepared a pack of documents for the hearing, though at a couple of points in the hearing seemed to suggest that there might be other unspecified materials that she might have thought to have placed before the Tribunal. However, she did not elaborate, The parties were notified by the Tribunal on 31 July 2024 that the hearing today would be to consider whether the claim should be struck out, alternatively whether the Claimant should be ordered to pay a deposit as a condition of continuing with the claim. I am satisfied therefore that Claimant has had a reasonable opportunity to think about what evidence, materials and arguments she might wish to put forward at today’s hearing. Indeed, I understand that she may have taken advice in the matter from the Citizen’s Advice Bureau. Given her reliance upon the Employment Appeal Tribunal’s decision in Murray below, that evidences to me that she understood the purpose of today’s hearing and was able to prepare for it accordingly.[3]Having heard detailed submissions from the Claimant, I adjourned the hearing at 11.20am to afford the Claimant a further 30 minutes in which to gather her thoughts, in case there were any further submissions she wished to make. I was mindful during the hearing that she has dyslexia which could affect her ability to marshal her thoughts and arguments, and respond immediately to points being raised by the Respondents or questions posed by the Tribunal. When the hearing resumed, the Claimant made various further submissions, including as to the effect of the Employment Appeal Tribunal’s judgment in Murray v Newham Citizen’s Advice Bureau [2000] UKEAT 1096_99_0607. I also drew the parties’ attention to the Employment Appeal Tribunal’s more recent judgment in Groom v Maritime and Coastguard Agency EA-2022- 000623-AS, since it includes a helpful review of various cases concerning the status of volunteers.[4]At my request, Mark Wilkes briefly gave evidence on behalf of the Respondent. Mr Wilkes served as a director of the First Respondent for approximately seven years, stepping down recently, I understand having served the maximum term for a director.[5]I record that the Claimant interrupted me a number of time when I was giving my judgment, notwithstanding my requests of her that she allow me to do so without interruption or distraction. I consider her conduct to have been disrespectful, including her comment, “I love you too” when I observed that her conduct had become increasingly quarrelsome. Throughout the judgment, the Claimant vocalised her unhappiness and disagreement with my decision, challenged my findings and conclusions as I endeavoured to communicate these, and also made audible comments in the course of the judgment that were distracting, including stating that that Mr Walkes had lied. On the basis that she immediately expressed her intention to pursue an appeal, I have thought it prudent to provide written reasons for my decision although these were not specifically requested by the Claimant. 2 of 7[6]Whilst I was giving judgment, the Claimant asserted that I had not allowed her to make representations. Save that I explained to the Claimant that I would not be assisted by hearing evidence or submissions as to whether the First Respondent has served the African and Caribbean community in accordance with its Articles of Association, I did not prevent the Claimant from making any potentially relevant submissions. More than once during the hearing, including when the hearing resumed towards midday, I invited the Claimant to make whatever submissions she wished to make. When Mr Walkes gave evidence, I specifically asked the Claimant whether there were any further questions she would like to ask him before cross examination concluded. Whether the claim has no or little reasonable prospects of success[7]The Tribunal’s powers to strike out all or part of a claim or response are contained in Rule 37 of the Employment Tribunals Rules of Procedure. Rule 37 provides: 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) … (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. (1) Rule 39 of the Employment Tribunals Rules of Procedure provides as follows: 39.—(1) Where at a Preliminary Hearing (under Rule 53) 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.[8]The essential question that arises in this case is whether the claims have no or little prospect of success because the Claimant has no or little prospect of establishing that the Tribunal has jurisdiction to hear them.[9]Employment Tribunals are creatures of statute. Employment Judges’ powers and jurisdiction are conferred by Parliament. As an Employment Judge, I have no inherent powers or jurisdiction, for example under the common law to consider and determine claims in tort. I shall therefore dismiss the complaints of defamation, libel and slander on the basis that the Claimant has no reasonable prospect of establishing that the Employment Tribunal has any jurisdiction to hear and determine them.[10]For the purposes of the hearing I took the Claimant’s case at its highest, namely on the assumption that if the case were to forward to a substantive hearing she would establish that she was appointed as a director of the First Respondent with effect from 16 December 2022, rather than as the First Respondent contends merely nominated for appointment. I also assumed that the Claimant 3 of 7 would establish that she was removed from office on 20 April 2023, potentially in contravention of the First Respondent’s Articles of Association.[11]I shall first deal with the claim for unfair dismissal. S.94 of the Employment Rights Act 1996 provides that an employee has the right not to be unfairly dismissed by their employer. S.103A of the Act separately provides that it is automatically unfair to dismiss an employee for making a protected disclosure i.e, for blowing the whistle. The Claimant accepts that she was not an employee of the First Respondent, which has no employees, just volunteers. Her complaint relates to her appointment or otherwise as a director of the First Respondent and alleged subsequent removal from office. There is no suggestion of any employment relationship with any of the Second Respondents or with the Third Respondent. The Claimant completed section 4 of form ET1 on the basis that she was not employed, merely a volunteer. I shall dismiss her unfair dismissal complaint (whether pursued under s.98, s.103A or otherwise under Part X of the Employment Rights Act 1996) on the basis that it has no reasonable prospect of success as the Claimant was not, and does not claim to have been, employed by any of the Respondents at any time. 12. ‘Workers’ can pursue complaints under the Equality Act 2010. They also have rights as ‘whistleblowers’ not to be subjected to detriment because they have made a protected disclosure. Although s.39 of the Equality Act 2010 is concerned with ‘employees and applicants’, s.83 of the Act confirms that employment in this regard has a wider meaning and includes those who are employed under a contract personally to do work. That broadly corresponds with the definition of a ‘worker’ in s.230(3) of the 1996 Act.[13]I conclude that the Claimant has no reasonable prospect of establishing that the First Respondent’s directors are workers within the meaning of s.230(3) of the Employment Rights Act 21996 or employees within the meaning of s.39 of the Equality Act 2010, and accordingly that she has no reasonable prospect of establishing that she had the requisite status to bring claims pursuant to s.47B of the Employment Rights Act 1996 or s.39 of the Equality Act 2010. She has adduced no evidence whatever regarding the legal status of the First Respondent’s directors. Her claim form and addendum are silent on the matter. Instead, she simply relies upon Murray as authority for the proposition that a volunteer may be found to be a worker or employee, as the case may be. To my mind the proposition is uncontroversial: however, it does not of itself answer the question whether the First Respondent’s directors are (or even arguably are) workers or employees. Mr Walkes’ unchallenged evidence at Tribunal was that the First Respondent’s directors are volunteers and lend their support informally to the organisation from time to time in a variety of ways, for example by tending to the bar, cleaning the premises and volunteering in fund raising and other activities. The Claimant did not suggest either to Mr Walkes or in the course of her various submissions that the First Respondent’s directors are under any obligation to undertake any specific duties. In my judgement, the fact it may reasonably be assumed that the directors are involved at some level in the Association’s activities does not take the matter further or point to them being employed under a contract of employment or personally to do work. 4 of 7[14]The Claimant asserts that the directors are entitled to claim reimbursement of their expenses. Mr Walkes’ evidence is that during his time as a director no such claims were made by any director. At paragraph 10 of his judgement in Murray, HHJ Wilkie QC confirmed that the absence of pay is just one of a number of factors to be weighed in the balance and that the focus ultimately is whether the parties entered into contractual arrangements with mutually binding obligations. The Claimant has not suggested or put forward any evidence, and did not question Mr Walkes on the basis, that the First Respondent’s directors enter into any form of contractual arrangement with the Association, let alone one involving mutually binding obligations, such that the directors could be said (or arguably be said) to have obligations over and above those imposed upon them by the Companies Acts or other legislation governing the duties and responsibilities of directors. Although the Claimant seeks to rely upon the provisions of the Articles of Association in a somewhat general way, in my judgement they govern the First Respondent’s activities, including those of its Board acting collectively, but do not regulate the relationship between the First Respondent and the individual directors. The Claimant reviewed the Articles during the hearing but did not point me to any provisions that might support the existence, including the inference, of a contract of employment or a contract personally to do work. On her own case, when the Claimant asked for information to understand her potential responsibilities as a director, she was told that the Constitution and the Articles of Association were all that she would get (see paragraph 3 of the addendum to form ET1). That casual arrangement is significantly removed from the detailed mutual arrangements identified in paragraphs 5 to 8 of HHJ Wilkie QC’s judgment in Murray and those explored in some detail by Mr Gavin Mansfield KC, sitting as a Deputy High Court Judge in Groom.[15]This is not a case that falls within the ambit of the further scenario identified in Murray, namely that even if Mr Murray was not employed under a contract of employment or to personally do any work, whether the training programme to which he had applied to be admitted was capable of being an arrangement for the purpose of deciding to whom the Citizen’s Advice Bureau should offer employment. The Claimant does not suggest that her appointment as a director with the First Respondent might have led to some form of employment.[16]In the circumstances I consider that there is no reasonable prospect of the Claimant establishing that appointment as a director of the First Respondent amounted to or involved employment under a contract of employment or a contract personally to do work. The Claimant has not advanced any evidence or arguments to support the existence of any contract between the First Respondent and its directors and officers. Accordingly, I shall dismiss her discrimination complaints in so far as these are brought pursuant to the employee and applicant provisions in s.39 of the Equality Act 2010, as well as any whistleblowing claim she might seek to bring pursuant to s47B of the Employment Rights Act 1996. As regards the latter, I would add that it is not in any event clear on the face of the Claimant’s claim form that she does pursue such a claim. Although she refers to herself as a whistleblower, she has not identified any relevant protected disclosures relied upon or, more importantly, any detriments to which she says she was subjected because she blew the 5 of 7 whistle. Putting aside the jurisdictional considerations, there is no discernible or arguable whistleblowing complaint on the face of the claim form and addendum.[17]I have also considered with the parties whether the discrimination claims might alternatively be brought pursuant to s.49 of the Equality Act 2010 which deals with appointment etc to personal offices. The Claimant agrees that the appointment in question was not to a public office and accordingly was not covered by s.50 of the 2010 Act. In order for appointment to a personal office to fall within the ambit of s.49 it must be an office or post in respect of which an appointed person is entitled to remuneration. In my judgement, there is no reasonable prospect of the Claimant establishing that any right she might have had to reimbursement of expenses was an entitlement to remuneration. The distinction between expenses and remuneration was explicitly recognised by HHJ Wilkie QC in Murray. Refence was made in Groom to the Employment Appeal Tribunal’s decisions in South East Sheffield Citizens Advice Bureau v Grayson [2004] 353 and Melhuish v Redbridge CAB [2005] IRLR 419 in both of which cases the EAT rejected the argument that an obligation to reimburse expenses amounted to remuneration. Accordingly, I shall also dismiss the Claimant’s discrimination complaints in so far as these are brought pursuant to s.49 of the Equality Act 2010 on the basis that these too have no reasonable prospect of success.[18]For completeness, I would add that the Claimant has failed to identify those matters in her claim form that she says amounted to acts of discrimination and, furthermore, which were allegedly acts of race discrimination and which were acts of disability discrimination. Likewise, she does not state whether she is pursuing claims of direct or indirect discrimination, harassment or victimisation and in respect of which matters. In the case of any disability discrimination claim, this extends to failing to identify whether she is pursuing s.15 and/or s.20/21 complaints. She did not bring any further clarity to bear in respect of any of these matters during the hearing.[19]The Claimant’s claims against the Second Respondent’s shall be dismissed for the same reasons that the claims against the First Respondent are dismissed. Although the Claimant did not articulate the basis upon which the Second Respondents have been named as respondents, I proceed on the assumption that, were she to take further advice in the matter, she might seek to hold them liable for any discrimination pursuant to s.110 of the Equality Act 2010 because they acted as the First Respondent’s agents in respect of any matters about which complaint is made. Any such claim depends for its success on the thing complained about amounting to a breach of the Act by the employer or principal. I have set out above why there is no reasonable prospect of the Claimant succeeding in her claims against the First Respondent, in which case there is nothing in respect of which the Second Respondents might be liable as its agents.[20]Finally, it is entirely unclear to me on what basis the Third Respondent has been named as a respondent. The Claimant was unable to offer any further explanation in this regard, whether with reference to the Equality Act 2010 or otherwise. The Third Respondent owns the premises used by the First Respondent, but the Claimant makes no complaint as to the condition or 6 of 7 configuration of those premises in terms of any physical impairments or condition of hers. She does not suggest that the Third Respondent acted as the First Respondent’s agent, but even had she asserted a claim against the Third Respondent pursuant to s.110 of the Equality 2010, this would be bound to fail for the reasons set out above in relation to the claim against the Second Respondents. She refers to one of the Second Respondents being a local councillor. Putting aside that this does not mean that they acted in the capacity if or when they voted to remove the Claimant from office as a director of the First Respondent, that does not alter the fact that there is nothing in respect of which the Third Respondent might be liable as an agent of the First Respondent given that her claims against the First Respondent have no prospect of success.