Mr S Fertal v Gi Group Recruitment Ltd and BMW Park Royal: 3309732/2022
EMPLOYMENT TRIBUNALS
Case No 3309732/2022
Between
Mr S FertalClaimantGi Group Recruitment Ltd and BMW Park RoyalRespondent
Before
Employment Judge SmeatonMrs Simak (instructed by counsel) for claimantDate 11 September 2023
JUDGMENT
[1]The Claimant’s claim against the Second Respondent of direct discrimination because of race contrary to s.13 Equality Act 2010 is out of time and the Tribunal has no jurisdiction to hear it. The claim is struck out accordingly.[2]Further or alternatively, the Claimant’s claim against both Respondents of direct discrimination because of race contrary to s.13 Equality Act 2020 has no reasonable prospect of success and is struck out accordingly.
REASONS
[1]The Claimant commenced ACAS Early Conciliation (‘EC’) on 13 June 2022. ACAS. The prima facie last date that any claim could be in time is 14 March 2022. The Respondents made a joint application for strike out and/or a deposit order on the basis that some or all of the claims were out of time and, in any event, have little or no reasonable prospect of success.[2]The parties were all represented at the hearing, but the Claimant did not attend personally. I am satisfied that he was aware of the hearing and of the potential consequences of not attending. He had the opportunity to attend in order to provide evidence on matters relevant to limitation and on his means. Mrs Simak, on his behalf, said that the Claimant had difficulties in attending given his job. The Second Respondent’s position[3]The last act of discrimination relied upon against the Second Respondent is that, between 15 February 2022 and 14 March 2022, the Claimant was watched all the time, including being supervised by Mr J Dowie when gathering his belongings and tools at the end of his employment.[4]It is the Second Respondent’s case that the Claimant’s last day of work was 11 March 2022 so that he cannot have been watched by anyone at the Second Respondent, including Mr Dowie, after that date. Accordingly, Ms Gynae submits that the claim against the Second Respondent is out of time. In order to bring a claim of discrimination against the Second Respondent, the Claimant will need to establish(a) that it is just and equitable to extend time and(b) that the allegations of discrimination form a continuing act. Ms Gynae submits that no reasons have been put forward to justify an extension of time on a just and equitable basis.[5]As to the merits of the claims against the Second Respondent more generally, Ms Gynae submits that the last allegation against the Second Respondent (of being watched), in particular, has no reasonable prospect of success. The Claimant was subject to a final written warning arising out of two incidents of poor performance. In the circumstances, it is not surprising that he was being watched (or felt as if he was being watched) on his return to work. Nothing has been identified to link those actions to race or religion, no comparator has been identified, and a plausible, non-discriminatory reason has been identified for the Second Respondent’s actions.[6]In respect of the earlier allegations of discrimination made against the Second Respondent: 6.1. The Claimant says he was prevented from returning to work between 28 November until 3 December 2021, despite providing a negative PCR test and confirming his availability for work. As shown in the bundle of documents, however, the Claimant had surgery on 2 December relating to his knee and the COVID-19 test he took on 28 November 2021 makes clear that he was required to self-isolate straight after that test until the date of his surgery. Ms Gynae submits that it is clear, from the documentary evidence, that he was prevented from returning to work for non-discriminatory reasons. 6.2. The Claimant was alleged to have been negligent on two occasions. The allegations of poor workmanship were set out in writing, as seen in the bundle of documents. At the investigation meeting, it was the Claimant’s own position that those facing allegations of poor workmanship are suspended and investigated. The Claimant did not raise any allegations of discrimination in respect of this issue during the disciplinary process. 6.3. The Claimant says that, between January and February 2022, Mr Affleck and Mr Andreopolous failed to make available video evidence relevant to the disciplinary investigation. Ms Gynae submits that the evidence in the bundle makes clear that nobody had the video evidence until just before the meeting on 14 February 2022 and that the Claimant himself did not request that evidence until 11 February 2022, at which point he was told he could watch it once back on site. The Claimant was given a copy of the video evidence by 16 February 2022. There is no evidence to suggest he had been singled out and nothing to link any delay to his race or religion. 6.4. The Claimant says that, in early 2022, the Second Respondent failed to issue him with Amazon vouchers and only did so after he requested them from Mr Parker in March 2022. There is nothing to link this allegation to the Claimant’s race or religion. He requested the Amazon voucher bonus in his resignation letter and was clearly expecting it to be paid in his final salary, which it was. 6.5. The Claimant says that, after the final written warning was imposed, he was told by Mr Andreopolous that his every move would be watched for the next 12 months. As above, Ms Gynae says this was a natural consequence of the final written warning and was entirely unrelated to the Claimant’s race or religion.[7]Accordingly, Ms Gynae submits that the entirety of the discrimination claim against the Second Respondent has no or little reasonable prospects of success. The First Respondent’s position[8]Mr Green adopted Ms Gyane’s submissions in respect of the allegations of discrimination. He emphasised that the Claimant had failed to describe any difference in treatment with any appropriate comparators and had not identified anything to link the allegations with his race or religion.[9]As to the additional claims of discrimination against the First Respondent, and the claim of constructive unfair dismissal, he submitted that there was a clear distinction in respect of time arguments between the allegations pre-the disciplinary investigation and those arising out of the disciplinary investigation. He accepted that the constructive unfair dismissal claim was in time but submitted that the allegations preceding the allegation of negligence ought to be separated and considered distinctly. Those allegations are: 9.1. An allegation that the First Respondent deducted wages of £900 from the Claimant’s salary on 23 September 2021 9.2. An allegation that the First Respondent deducted payment from the Claimant for a period during which he was preventing from working whilst awaiting a COVID-19 test result (and following that negative test result) (the Claimant relies on Mr Dowie as a comparator for this allegation).[10]Mr Green also submitted that the final allegation against the First Respondent, namely an allegation of direct discrimination in respect of the appeal, was out of time. The appeal outcome was sent to the Claimant on 3 March 2022. No arguments have been identified which would justify an extension of time on just and equitable grounds and, as the appeal was dealt with by a different individual, there are no grounds for showing that it forms part of a continuing act.[11]As to the constructive unfair dismissal claim, whilst he accepted that it was in time, Mr Green submitted that the claim had no reasonable prospect of success on the substantive merits. The Claimant was paid sick pay when off sick in accordance with the Respondent’s policy. He was accused of negligence and properly investigated in accordance with the Respondent’s policy. The final written warning was imposed fairly following a fair procedure. The Claimant has had ample opportunity to set out what, he says, was unfair about that disciplinary process. Save as to the complaints about the video evidence (in respect of which he adopted Ms Gynae’s submissions), the Claimant has not shown anything which could properly amount to a breach of the implied term of trust and confidence. The Claimant’s position[12]In response to the applications, Mrs Simak, on behalf of the Claimant, submitted that the Claimant was relying on a series of events which culminated in an allegation that the Claimant was negligently performing his duties. She submitted that the allegations could not be separated in the way proposed by Mr Green and that the Claimant’s view was that he was being treated differently to others.[13]No explanation was given for how the Claimant linked his treatment with his race or religion. Mrs Simak pointed to remarks made by the Claimant during the disciplinary investigation process (i.e. before the final written warning was imposed), when he said that he was aware of other cases where technicians had been suspended for potential negligence issues, investigated, and then been allowed back at work. The Claimant was recorded as saying he wanted to be treated exactly the same as everyone else. As was pointed out, however, that is exactly how the Claimant was being treated at that point. There was no difference in treatment. The Claimant was also suspended, investigated and allowed back to work.[14]Mrs Simak accepted that, in respect of the claim against the Second Respondent, there was a time point but submitted that there was no clear evidence to show that the Claimant’s last day of work was 11 March 2022, as suggested by Ms Gynae, and maintained that it was a matter on which evidence should be heard. She did not identify any arguments to justify an extension on just and equitable grounds.
The law
[15]The Tribunal has the power to strike out a claim where it has no reasonable prospects of success under rule 37(1)(a) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013[16]The Claimant’s case must ordinarily be taken at its highest. As made clear in Cox v Adecco UKEAT/0339/19/AT(V), if the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate.[17]A Tribunal should not, however, be deterred from striking out claims involving disputes of fact if it is entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established (Ahir v British Airways Plc [2017] EWCA Civ 1392, CA).[18]The power to grant a deposit order is contained in rule 39 of Sch 1 of the Rules which provides, so far as is relevant: 39(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim…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. 39(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.[19]Although a less draconian step than striking out the claim, there must be a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response before a deposit order can be made (Jansen Van Rensburg v Royal Borough of Kingston-upon-Thames and ors EAT 0096/07).[20]If satisfied that a particular allegation or argument has little reasonable prospects of success, I must only make a deposit order if also satisfied that it would be in accordance with the overriding objective to deal with cases fairly and justly to do so.[21]I bear in mind that the purpose of such an order is not to restrict access to justice disproportionately. Any order made must be for an amount that is affordable by a party and can be realistically complied with (Hemdan v Ishmail and anor [2017] IRLR 228). Conclusions and reasons[22]The claim against the Second Respondent is out of time. The date given for the last act relied upon (that the Claimant was watched all the time between 15 and 14 March 2022) cannot be correct. The evidence in the bundle demonstrates that the Claimant had booked 14 March 2022 off as holiday and that he was intending to pick up his belongings on Saturday 12 March 2022. There is no evidence to suggest that the Claimant did in fact work on 14 March 2022.[23]Although the claim is only out of time by two days, no grounds have been identified which could justify an extension of time. The Claimant was told that this issue would be determined at today’s hearing and had the opportunity to attend the hearing and give evidence on this issue. He failed to do so. The Claimant has not established a prima facie case that the claims against the Second Respondent are in time or that time ought to be extend. Accordingly, the Tribunal has no jurisdiction to hear that claim and it must be dismissed.[24]On that basis, the claims can proceed against the First Respondent only.[25]Even if I am wrong about that, I find that the claims of discrimination (against both Respondents) have no reasonable prospect of success (so that the entire claim against the Second Respondent must be dismissed in any event).[26]In summary, I find that the Claimant has failed to identify any basis for linking the allegations with his race or religion and, even taking his case at its highest, the allegations themselves disclose no reasonable argument of differential treatment because of race or religion. There is no reasonable prospect of the facts necessary to find liability being established. In reaching that conclusion, I remind myself that discrimination claims should only be struck out in the clearest of cases. Acknowledging that the full evidence has not been explored, I am entirely satisfied that there is no reasonable prospect of the facts necessary to find discrimination being established. The Claimant has not identified any facts from which the Tribunal could infer discrimination.[27]I find that the claim of constructive unfair dismissal has little reasonable prospect of success. I am unable to say that it has no reasonable prospect of success, given that there are some, albeit minor, disputes of fact which ought reasonably to be the subject of evidence at a final hearing, but I have significant reservations about the merits of the claim, which appears to amount to no more than a disagreement with decisions made by the First Respondent in accordance with its policies and procedures.[28]Addressing the claims in turn: 28.1. Deductions from the Claimant’s wages in September and December 2021 appear to have been made in accordance with the Respondent’s policies. On the face of it, it appears that the Claimant was paid sick pay simply because he was not at work. Nothing has been identified which could link those deductions to the Claimant’s race or religion. The comparator identified was not in the same position; 28.2. The Claimant appears to have been the subject of allegations of negligence, and subjected to a disciplinary procedure, because two vehicles were recovered in the same week due to suspected poor workmanship. It is not in dispute that the Claimant carried out the relevant work on both vehicles. Unless the Claimant can establish that Mr Andreopoulos, who raised those allegations in an email, had fabricated them (he does not make that allegation and there is nothing on the documentary evidence to support such an allegation), the Respondent will have acted entirely properly in investigating the issue. As to discrimination, the only point referred to in Mrs Simak’s submissions of differential treatment (namely the points raised by the Claimant in the investigation meeting) suggest, in fact, that the Claimant was treated in the same way as all other individuals suspected of negligence in the workplace. The Claimant was suspended and investigated in the same way as other employees. Nothing has been identified which could link the disciplinary process to the Claimant’s race or religion; 28.3. The Claimant’s challenge to the final written warning amounts to no more than a disagreement that he was found to be at fault. In my view, having considered the disciplinary hearing notes, any challenge to the reasonableness of that sanction has little reasonable prospect of success. Nothing has been identified which could link that sanction to the Claimant’s race or religion; 28.4. Given that a final warning was (likely fairly) imposed by the First Respondent, it is not at all surprising that the Claimant was warned that he would be watched carefully for the next 12 months. Evidence will need to be heard on what message exactly was conveyed to the Claimant to determine whether this is capable of contributing to a fundamental breach of contract but, on the face of it, it is a very weak claim. Similarly, it is not surprising that the Claimant was then watched carefully once he returned to work although, again, evidence will need to be heard as to whether the manner of that observation was capable of contributing to a breach of the implied term of trust and confidence. As above, the Claimant has not identified any basis for suggesting that this was less favourable treatment because of his race or religion; 28.5. There is a dispute of fact between the parties about when the Claimant first requested video evidence and when that evidence became available. Even if the Claimant is correct that the Respondent failed to provide that evidence when requested, it is unlikely to have contributed to a fundamental breach given that the evidence was available by the time of the disciplinary hearing. As above, there is no basis for linking this to the Claimant’s race or religion; 28.6. There is a dispute of fact between the parties about when the Claimant ought to have been provided with Amazon vouchers. Again, even if the Claimant is correct that the Respondent delayed in doing so, that is unlikely to contribute to a fundamental breach. There is no evidence to suggest that the Claimant was chasing those vouchers prior to his resignation. As above, there is no basis for linking this to his race or religion; 28.7. On the face of the documentary evidence, it appears that the Claimant’s appeal was dealt with fairly and properly. The points he raised in the appeal were addressed in detail in the outcome letter. The Claimant challenged the final written warning on the basis that the Respondent had applied the balance of probabilities rather than having categoric proof of his guilt. The balance of probabilities was the correct standard. He disagreed with the conclusion as to his guilt more generally but provided no new evidence to challenge the decision. The appeal appears to amount to no more than a challenge to the First Respondent’s views of the evidence. There is a dispute of fact as to what the video evidence shows, which will need to be resolved at a final hearing. There is no basis for linking the handling of the Claimant’s appeal (or the outcome) to his race or religion.[29]In the circumstances, I am satisfied that, taking the Claimant’s case at its highest, the allegations of discrimination have no reasonable prospect of success (whether on a time points as against the Second Respondent, or on the substantive merits) and ought to be struck out.[30]The constructive unfair dismissal claim suffers from many of the same issues, given that the claim is based on the same allegations but as there are some minor disputes of fact about potential fairness (in particular the provision and interpretation of video evidence), I am unable to say that the claim has no reasonable prospects of success.[31]Accordingly, the only claim that will proceed to a final hearing is the claim of constructive unfair dismissal (against the First Respondent only), subject to the payment of a deposit as set out below. Deposit order[32]In light of my findings above, I find that it would be in the interests of justice and in accordance with the overriding objective to deal with cases fairly and justly to make a deposit order. A separate order is made in this respect.[33]The Claimant did not attend the hearing or provide evidence of his means. He has had a reasonable opportunity to provide evidence in this respect.[34]In his ET1 claim form he indicated that he was earning £2,916 per month (gross). Mrs Simak confirmed that he remained employed at that level of pay. No details were provided of his outgoings.[35]Having regard to the Claimant’s means as best I can on the available evidence, I consider £750 to be an appropriate sum.