Mr W Waithaka v Barclays plc and Others: 3311380/2022
EMPLOYMENT TRIBUNALS
Case No 3311380/2022
Between
Mr W WaithakaClaimant(1) Barclays Plc (2) Barclays Bank Plc (3) Barclays Execution Services LtdRespondent
Before
Employment Judge EeleyMr A Johnston (instructed by counsel) for claimantMs O Dobbie (instructed by counsel) for respondentDate 2 October 2024
JUDGMENT
[1]The first and second respondents (Barclays Plc and Barclays Bank Plc) are dismissed from the proceedings leaving Barclays Execution Services Ltd as the sole respondent in the proceedings.[1]The claims for pre-termination race discrimination, pursuant to section 13 of the Equality Act 2010, were brought out of time and it is not just and equitable to extend time;[2]The claim for pre-termination harassment related to race, pursuant to section 26 of the Equality Act 2010, was brought out of time and it is not just and equitable to extend time;[3]The claims for pre-termination victimisation, pursuant to section 27 of the Equality Act 2010, were brought out of time and it is not just and equitable to extend time;[4]The Tribunal does not have jurisdiction to hear these claims, and they are therefore dismissed.
REASONS
[1]This case was scheduled for a preliminary hearing to determine the following: 1.1. Whether the claimant’s contention that the pre-termination acts of discrimination formed part of a continuing act with the post-termination acts of discrimination has no reasonable prospects of success and should be struck out (rule 37(1)(a) Employment Tribunal Rules of Procedure 2013.) 1.2. Whether, in the alternative, the claimant’s contention that the pretermination acts of discrimination formed part of a continuing act with the post-termination acts of discrimination has little reasonable prospect of success and should be made the subject of a deposit order (rule 39 Employment Tribunal Rules of Procedure 2013.)[2]In advance I was provided with: 2.1. An electronic bundle of 239 pages – documents within this included: 2.1.1. The Claimant’s 17-page witness statement [184-2-1]; 2.1.2. His particulars of claim [17-35]; 2.1.3. His grievance dated 31 October 2021 [89-99] 2.2. A table of allegations produced by the Respondent[3]In relation to the table of allegations, item 26 had no date. Having identified that this was said it have taken place in March 2019, this was relocated to ‘minus 1’ on the table, so the allegations were correct chronologically.[4]I heard oral submissions from both representatives in relation to the issue of continuing acts and delivered an oral judgment on that aspect. In that regard, reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing, or a written request is presented by either party within 14 days of the sending of this written record of the decision. However, I will set out a summary of the decisions below as far as they are relevant to the second stage of determining whether it is just and equitable to extend time.[5]With reference to the table of allegations provided by the Respondent, I determined the following: 5.1. Allegations minus 1 to 12 – there are no reasonable prospects of success of establishing that these are part of a continuing act as they predate the Claimant’s first complaint (his case is presented as being 5.2. Allegations 14 to 16, 18 to 21, 27 & 28 - there are no reasonable prospects of success of establishing that these are part of a continuing act as they are individual events that flow from protected acts (as set out in the Claimant’s ET1 and particulars of claim) 5.3. Allegation 17 - there are no reasonable prospects of success of establishing that this is part of a continuing act as it is isolated in nature and the individual involved 5.4. Allegation 22 to 25 - there are no reasonable prospects of success of establishing that these are part of a continuing act as the last act by this alleged discriminator is May 2021, and neither they, nor the nature of the complaints are said to continue beyond that point 5.5. Allegation 13 - Allegation 17 - there are no reasonable prospects of success of establishing that this is part of a continuing act as it is isolated in nature and the individual involved[6]Having determined that the Claimant’s contention that his pre-termination claims formed part of a continuing act with the post-termination claims had no reasonable prospects of success, those complaints were therefore prima facie out of time and potentially fell to be struck out. Whether time should be extended in relation to those complaints remained outstanding.[7]I heard oral evidence from the Claimant, who was cross-examined by Ms Dobbie. There was insufficient time to deal with that matter in the allocated hearing time, so parties made written submissions on whether it was just and equitable to extend time. The submissions I received are discussed below. Facts Timeline[8]The first pre-termination allegation relied on by the Claimant is said to have happened in 2019. The last pre-termination allegation is said to have taken place in October 2021, with the EDT being 31 October 2021.[9]The Claimant took the following steps internally: 9.1. On 11 October 2021, sent an email raising concerns of racial exclusion (which was passed to the Raising Concerns Team (RCT)); 9.2. On 31 October 2021, responded to the RCT (the grievance) 9.3. Responded to the RCT on 14 December 2021 [100], referring to ACAS guidance on time limits for investigations, and the possibility of victimisation. 9.4. Attended grievance investigation meetings on: 9.4.1. 28 January 2022; 9.4.2. 9 February 2022; 9.4.3. 16 February 2022 9.4.4. 23 February 2022 9.5. Agreed minutes of the meetings by the end of March 2022. 9.6. Communicated with the investigator and HR support [27 – 28 & 196], including to provide additional documents. 9.6.1. The Claimant says that “on 28th April 2022, the investigating manager advised that they still had some outstanding interviews scheduled for the next couple of weeks” - that communication is not in the bundle provide to me or referenced in the chronology within the Respondent’s grievance outcome letter [170]. 9.6.2. In May 2022, the nature of the Claimant’s emails were in relation to delay, and chasing a reponse 9.7. Appealed the grievance outcome on 9 December 2022[10]The Claimant took the following steps in relation to litigation 10.1. Got legal advice in May 2022; 10.2. Entered early conciliation with Barclays and subsidiaries on 9 June 2022, with a certificate issued on 18 July 2022 10.3. Got new representation in August 2022 10.4. Entered into ACAS conciliation in relation to the Respondent on 12 August 2022, with a certificate issued on 5 September 2022 10.5. Presented his claim to the Tribunal on 5 September 2022.[11]Outside of the internal grievance and external litigation, the Claimant started a new job on 2 November 2021. He told the Tribunal that his new manager deferred him taking on responsibilities until January 2022, so that in November and December 2021 he was simply meeting the team and getting to know the people and job. Just and equitable extension[12]The primary reason relied on by the Claimant for the delay in presenting his claims is his health at the time. It is submitted on his behalf that “on the evidence available to the Tribunal, the reason for the delay was primarily attributable to C’s poor mental health and, as a result of the same, his prioritisation of the internal grievance process (which he indicated that he initially had faith would result in the proper investigation of his concerns)”. The evidence before the Tribunal in relation to this was: 12.1. Occupational Health (OH) report dated 25 October 2021; 12.2. Claimant’s witness statement, dated 26 June 2023 (primarily paragraphs 40 – 43); 12.3. Claimant’s oral evidence[13]I note that in his witness statement the Claimant refers to the OH report as being a psychiatric report, and a psychiatric evaluation having been carried out [199]. The report itself refers to the Claimant being “absent from the workplace due to psychological illness” and reporting that “his psychological health has been declining” [86], and it was prepared by an Occupational Health Adviser who was an RGN (Registered General Nurse) [88], not a psychiatrist, psychologist, or similar specialist.[14]The OH report records: 14.1. “The employee tells me that his psychological health has been declining over the last 15 months and he attributes this solely to significant concerns and stress in relation to work.” 14.2. “The employee reports impairment to his mood, emotional tolerance, sleep, concentration, motivation, energy levels and social functioning. He suggests managing basic day to day activities, provided they do not require prolonged concentration or stamina. He relayed little inclination to participate in exercise or enjoyable activities and he has not felt like socialising for some time now.”[15]It concludes that “this employee is currently medically unfit to return to work, due to the reported level of psychological symptoms and impairment to functional capability”.[16]At the time of the report, the Claimant had been “absent from the workplace since the 10th of September 2021” [85].[17]In his witness statement [192], the Claimant: 17.1. Describes his engagement with the Employee Relations team and investigating manager between December 2021 and April 2022 [paragraph 25]. 17.2. Says “this was a challenging period for me because it meant to having to revisit traumatic events as part of these meetings. Reviewing the meeting minutes, which required significant editing to capture details that I had provided at the meetings but had been omitted, made this even more draining. It required considerable periods of adjustment to recover my mood and emotional balance. This was an enduring effect of the substantial and long-term mental health impairment suffered due to the campaign of racial discrimination I suffered while employed at Barclays” [paragraph 26]. 17.3. States that “having to go through this legal process, to prepare the grievance appeal, prepare and participate in the appeal meetings and process meant having to revisit these traumatic events multiple times. This required and continues to require considerable time for recovery” and “my mental health continued to be impaired after I left employment” [paragraph 34].[18]The Claimant’s evidence also suggested that his wife’s poor mental health, and the associated effect of this on their family life and his responsibilities, had a further impact on his ability to present his claims in time. He says, at paragraph 33 of his witness statement, that “around this time, my wife unfortunately was diagnosed as having become severely depressed”, and that this led to additional caring responsibilities for her and their children. This is mentioned in relation to the period when ACAS issued the first certificate on 18 July 2022, and securing new representation in August 2022.[19]A Doctor’s letter dated 11 July 2022 [101] records :“Although it is unquestionable that your mood has improved, I still do not feel that you are fully recovered” and advises “to carry on taking sertraline 50mgs”. The Claimant’s assertion that his wife was diagnosed around the July/August period cannot be correct, when the July 2022 letter refers to an improvement in her condition. The diagnosis, and the most severe part of her ill health, must have been at an earlier point, but no supporting evidence regarding this, or the effects, has been provided by the Claimant. In any event, the Claimant’s wife’s health does not form part of the written submissions made on his behalf.[20]Alongside his (and his wife’s) health, the Claimant refers to a reliance on the internal grievance resolving his issues as a reason for delay. He says: 20.1. “In October 2021, after failing to receive a reasonable response or hearing from my line manager and the HR team after I contested the unlawful redundancy, I reached out to Kathryn for assistance. Kathryn escalated the matter to the Raising Concerns team (RCT). The formal logging of the issues by the RCT as RC458872, gave me a level of confidence that finally, they would be properly and transparently assessed and investigated.” [191: WS24] 20.2. “I appreciated that the Respondent would need adequate time to investigate thoroughly, and I wanted to give it this opportunity, as opposed to just commencing litigation. What I had not appreciated at the time, however, was that it would take around 18 months to conclude the investigation. I had blindly placed my trust in the Respondent to provide me outcomes that were fair and which acknowledged the discriminatory treatment I had suffered” [191: WS25] 20.3. “Having not heard from the investigations team during May 2022, I reached out for an update on 25th May 2022. Their response provided on 30th May 2022, caused me, for the first time, to doubt the commitment of the Respondent to progress the investigation in a timely manner” [191: WS28] 20.4. “Until this point, I had been very hopeful and had confidence that the Respondent would follow through with the investigation of a concern logged by the Raising Concerns team (RCT)” [191: WS29][21]In oral evidence, the Claimant confirmed: 21.1. All the allegations within his ET claim were contained within his 31 October 2021 grievance; 21.2. He was aware of his rights when he sent an email on 14 December 2021 [100] referring to ACAS guidance on time limits for investigations, and the possibility of victimisation. 21.3. When he got legal advice in May 2022, he was given guidance about time limits, including that an ongoing internal grievance had no effect on those; 21.4. Before May 2022 he was relying on the Respondent wanting to resolve the issues through the grievance and had confidence in this process.[22]The Claimant disagreed with Ms Dobbie’s suggestion that his faith in the grievance process was inconsistent with his position that all the alleged acts against him were part of an institutional failure by the Respondent to deal with complaints of race discrimination. He said that the contact from RCT in October 2021 was the first time his issues had been captured in a way that could be tracked, and that he thought it was unlikely that the Respondent would fail again.[23]The Claimant conceded that he didn’t need legal help to present his claim but said that he didn’t think he would have been able to because of where he was mentally at the time.[24]In relation to his health, although he provided no evidence related to the period after the OH report, the Claimant says that he was still suffering the symptoms detailed in that report. He said his GP recommended anti-depressants but the Claimant preferred not to take them and confirmed that he had not had any counselling.
The law
[25]Section 123 Equality Act 2010 provides: “Time limits (1) ...a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.”[26]Robertson v Bexley Community Centre [2003] IRLR 434 The burden of proof is on the claimant to establish that it is just and equitable to extend time. The Court of Appeal said, at para 25: “When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. So, the exercise of discretion is the exception rather than the rule.”[27]This does not, however, mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The only requirement is that the extension of time should be just and equitable.[28]In British Coal Corporation v Keeble [1997] IRLR 336 the EAT indicated that task of the Tribunal, when considering whether it is just and equitable to extend time, may be illuminated by considering section 33 Limitation Act 1980. This sets out a check list of potentially relevant factors, which may provide a prompt as to the crucial findings of fact upon which the discretion is exercised, such as:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had cooperated with requests for information;(d) the promptness with which the claimant acted once they knew of the facts giving rise to the cause of action; and(e) the steps taken by the claimant to obtain appropriate professional advice once they knew of the possibility of taking action.[29]In London Borough of Southwark v Afolabi [2003] IRLR 220 the Court of Appeal confirmed that, whilst that checklist provides a useful guide for Tribunals, it does not require to be followed slavishly.[30]Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 15 640, the Court of Appeal confirmed this, stating that it was plain from the language used in s123 EqA (‘such other period as the Employment Tribunal thinks just and equitable’) that Parliament chose to give Employment Tribunals the widest possible discretion and it would be wrong to put a gloss on the words of the provision or to interpret it as if it contains such a list. 30.1. In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, the Court of Appeal approved the approach set out in Afolabi and Morgan and, at paragraph 37, Underhill LJ confirmed, that ‘rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion, and confusion may also occur where a tribunal refers to a genuinely relevant factor but uses inappropriate Keeble-derived language. The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular “the length of, and the reasons for, the delay”. If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking.’[31]In Kumari v Greater Manchester Mental Health NHS Foundation Trust a litigant in person presented complaints out of time. In reaching its decision not to extend time, the Tribunal weighed in the balance its view that the merits of the complaints appeared to be weak (although not so weak that they had no reasonable prospect of success). The EAT dismissed the claimant’s appeal. The EAT noted: “It is permissible, in an appropriate case, [for a Tribunal] to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based on the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn into a complex analysis which it is not equipped to perform.”[32]The Tribunal also considered the following cases referred to on behalf of the Claimant: 32.1. Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298 - Whether or not to grant an extension is “a question of fact and judgment, to be answered by the tribunal of first instance which is empowered to answer it” 32.2. Robinson v Post Office [2000] IRLR 804, EAT - Missing a primary time limit because there is an ongoing internal grievance will not normally be a good reason “of itself and without more” to exercise the just and equitable discretion to extend time. 32.3. Wells Cathedral School Ltd v Souter EA-2020-000801 (previously UKEAT/0836/20) - the EAT pointed out that Robinson had not established any rule of law and that each case would turn on its facts regarding reliance on an internal process as the reason a claim was late. Thus, consideration would be required of the extent of the lateness and the prejudice, if any, caused to a respondent. 32.4. Miller v Ministry of Justice UKEAT/0003/15 (15 March 2016, unreported) - Laing J identified two types of prejudice which a respondent may suffer if the limitation period is extended. The first is the obvious prejudice of having to meet a claim which would otherwise have been defeated by a limitation defence; the second is the “forensic prejudice” caused by such things as fading memories, loss of documents and losing touch with witnesses. The former will necessarily arise in every case; the later, where it exists, will be “crucially relevant” and may well be decisive. However, the converse plainly does not follow: the mere absence of forensic prejudice to the respondent is not decisive in favour of an extension.[33]The Tribunal also considered the following cases referred to on behalf of the Respondent: 33.1. Palmer and Saunders v Southend-on-Sea Borough Council [1984] 1 All ER 945, - May LJ noted (in the context of the not reasonably practicable extension) that the potentially relevant factors to be considered are many and various, and cannot be exhaustively described, but will depend on the circumstances of each case. He nonetheless listed a number of considerations, collated from the authorities, including:(a) whether the employer's conciliatory appeals machinery had been used;(b) the substantial cause of the claimant's failure to comply with the time limit;(c) whether there was any physical impediment preventing compliance, such as illness, or a postal strike;(d) whether, and if so when, the claimant knew of their rights;(e) whether the employer had misrepresented any relevant matter to the employee;(f) whether the claimant had been advised by anyone, and the nature of any advice given; and(g) whether there was any substantial fault on the part of the claimant or their adviser which led to the failure to present the complaint in time. 33.2. Mechkarov v Citibank NA [2016] ICR 1121 - the EAT stated that when considering whether it is just and equitable to extend time, Tribunals must weigh up the relative prejudice that extending time would cause. 33.3. A v Choice Support (formerly MCCH Ltd) 2022 EAT 145 - Prejudice can include the fact that key persons (including alleged discriminators) have left the respondent (see for example ). 33.4. Lupetti v Wrens Old House Ltd 1984 ICR 348, EAT - The strength of the claim may be a relevant factor when deciding whether to extend time. The EAT noted that Tribunals may, if they think it necessary, consider the merits of the claim, but if they do so they should invite the parties to make submissions. However, even if the claimant is deemed to have a strong case, the Tribunal may legitimately refuse to extend time. 33.5. Ahmed v Ministry of Justice EAT 0390/14 - Even though a Tribunal found the Claimant had been treated less favourably because of race, they considered that it was not just and equitable to extend time to allow the claim given that he had given no satisfactory explanation for why the claim was not presented in time and given the difficulty some witnesses had in recollecting what had happened. The EAT upheld the Tribunal’s decision. 33.6. Apelogun-Gabriels v Lambeth London Borough Council and anor 2002 ICR 713, CA The fact that a complainant has awaited the outcome of an internal grievance procedure before making a complaint is just one matter to be considered by a Tribunal. Submissions[34]Each representative provided written submissions as ordered.[35]It is submitted on behalf of the Claimant that: Length and reason for delay[36]It is acknowledged that the claims were presented substantially out of time: 36.1. Even if all of the pre-termination allegations formed part of conduct extending over a period culminating in dismissal, the primary limitation would have expired on 30 January 2022. The Claimant started early conciliation in relation to Barclays plc and its subsidiaries over 4 months after that date (on 9 June 2022), and in respect of the Respondent 6.5 months after (on 12 August 2022)[37]It is also acknowledged that, during the course of his oral evidence at the preliminary hearing, the Claimant made certain concessions that might have a material bearing upon the Tribunal’s determination about the appropriateness of extending time on just and equitable grounds: 37.1. Notwithstanding the mental health issues described in his witness statement, he had been able to undertake work in his new employment from one week after his EDT, albeit that he indicated that this was a remote role and his manager had been able to defer him taking on additional responsibilities until 1 January 2022; 37.2. He had been able to participate in a number of grievance invesgation meetings from the later part of January 2022 onwards; 37.3. He had been on the ACAS website in or around December 2021 and had possibly conducted some research in relation to his legal rights (e.g. in relation to victimisation) prior to sending the email on 14 December 37.4. He had consulted employment solicitors in May 2022 and had learned then of the time limits which are applicable in respect of Employment Tribunal claims.[38]The 15-month decline in the Claimant’s mental health, referenced in the OH report, correlates very directly with the pretermination allegations[39]The exacerbation of his mental ill health related specifically to revisiting what had happened to him during his employment with the Respondent, so his ability to hold down a different job from November 2021 was not relevant to that.[40]Once the Claimant realised his faith in the internal process was misplaced, he explored bringing legal proceedings.[41]Between getting initial legal advice in May 2022 and presenting the claim on 5 September 2022, the Claimant was actively engaged in seeking to pursue his claim. His claim complex, so his desire to have his case presented to a Tribunal by experienced employment lawyers is entirely understandable.[42]Whilst he may have decided after May 2022 that the internal process was not going to address his concerns satisfactorily, that cannot be equated with there no longer being any impact upon his mental health in having to revisit his treatment during the later part of his employment with the Respondent. Prejudice[43]The Claimant will be significantly disadvantaged if the merits of his pretermination complaint aren’t determined by the Tribunal, as they form the relevant background to the post-termination allegations.[44]The Respondent wouldn’t suffer any significant forensic prejudice. They were aware of the substance of the pre-termination allegations before termination as they were raised as part of the grievance, and they have been investigated, including collation of evidence and interviewing witnesses.[45]It is submitted on behalf of the Respondent that: Length of delay[46]The delay is lengthy – item -1 is 3 years 2 months out of time, through to items 27 and 28 which are out of time by 7 months. Effect of delay/prejudice[47]Many main protagonists have left the Respondent’s employment, including Mr. Davis who is implicated in item 17 - the only claim with an alleged link to race. He left in February 2021, and Ms McLelland left in or around April 2022. Their involvement won’t be the same as if they were employees.[48]The cogency of the evidence (including the Claimant’s) is likely to have been affected due to witness memory fading as witnesses will have to recall facts and events from March 2019. Similarly, retention of documents is also likely to have been prejudiced by the delay.[49]The prejudice suffered by the Claimant if his claims are struck out is reduced by the fact that he will still have live claims for direct race discrimination and victimisation (arising from the grievance process). Extent to which Claimant knew facts[50]The Claimant was aware of the matters at the time they occurred – this is not a case of later discovery. Awareness of the right to claim[51]The Claimant accepted during cross-examination that he was always aware that there is a right to bring claims for acts of race discrimination at work. He hasn’t suggested that his failure to progress the matters was due to ignorance of the right to claim. Promptness of acting[52]Despite the Claimant knowing facts and being aware of his rights, he didn’t start ACAS conciliation against the Respondent until 12 August 2022. The fact that he did not advance his legal claims until September 2022 has no adequate explanation. Steps taken to get advice[53]The Claimant was aware of ACAS and had researched legal concepts as early as December 2021, 8 months before commencing ACAS EC against the Respondent.[54]He could afford legal advice (given his salary) and did so in May 2022, when he was given accurate advice about time limits. This information was also easily identifiable on-line. Reasons for delay[55]Health of Claimant and wife: 55.1. Medical records don’t support the extent / severity of illness that the Claimant asserts. The letters are snapshots in time as to their medical conditions and don’t detail the symptoms suffered. 55.2. The Claimant says he started suffering the effects of stress approximately 15 months before the Occupational Health (OH) report produced in October 2021 (i.e. in July 2020), but didn’t need any time off from work until September 2021, so doesn’t excuse his failure to litigate the matters at some earlier time, from March 2019 onwards. 55.3. The Claimant started a new senior role the week after his employment with the Respondent ended. He was able to do so without the need for any medication or counselling. 55.4. He brought a detailed grievance from 31 October 2021. Even if he was impaired by stress, he was functioning well enough to advance claims during this time and failed to do so.[56]Use of internal processes: 56.1. The Claimant’s position that he trusted the process to resolve his concerns, is untenable because: 56.1.1. His continuing act argument was predicated on the basis that the Respondent repeatedly overlooking complaints rather than dealing with them; 56.1.2. By 14 December 2021 (6 weeks after the EDT), when he got the response to his grievance and learned of legal concepts on the ACAS website, he can’t have fully trusted the internal process. Even if he did retain some trust, he must have thought it would take some time to resolve so would/should have known it would prejudice time limits; 56.1.3. The Claimant accepts that from May 2022, he did not fully trust the internal process, therefore there is no good explanation for his continuing delay beyond this date. Merits of claims[57]Only item 17 has any link to race. The Claimant hasn’t advanced any facts from which inferences could be drawn that the other matters were in any way due to race.[58]The Claimant must either show that all of the alleged discriminators acted together and “conspired”, or that this number of people coincidentally all independently acted because of racial prejudice. His claims are therefore inherently weak. Conclusions Reasons for delay
Conclusions
[59]I accept that the Claimant’s belief in the internal process was genuine when he was contacted by the RCT in October 2021. It is surprising that he wasn’t concerned by the delay receiving a response after his email of 31 October 2021, but there was no evidence before me that he raised any issues about the time it was taking until 14 December 2021.[60]After that, he was engaged with the investigator across four meetings in January and February 2022, then agreed the minutes up until the end of March 2022. It is therefore not unreasonable that he maintained faith in the process during that time, and for a short period following this.[61]However, he was aware of his rights and the ACAS website as early as December 2021. Whether through ignorance of the need to claim regardless of an internal process, or an active choice not to claim, this is not a good reason “of itself and without more”.[62]The ‘more’ relied on by the Claimant is his mental health. This was the only explanation for not acting sooner after May 2022, once faith in the internal process was damaged.[63]The supporting evidence provided by the Claimant relates solely to the position in October 2021, with reference to a decline over the preceding 15 months (from around July 2020). Allegations minus 1 to ten pre-date these issues. The allegations that follow occurred, on the Claimant’s own account, over a period when his mental health deteriorated. As the Claimant attributed his symptoms “solely to significant concerns and stress in relation to work”, but he continued to work, even if the symptoms worsened over that period, the significant tipping point must only have been reached when he was too ill to attend work from 10 September 2021. The allegation prior to being signed off relates to 26 August 2021, almost 3 weeks before. Just one allegation - having the termination of his employment treated as a redundancy rather than an agreed exit – is said to have occurred after the point he was deemed too unwell to work. That is on 31 October 2021 – the same date he was able to submit a lengthy grievance email to RCT.[64]He has provided no supporting evidence about the specific effects of his mental ill health between May and September 2022. He must have been sufficiently well to hold down his new job – he has not suggested any time off sick, or any performance issues. He was not engaged in any therapy or treatment.[65]I accept that it can’t have been easy for the Claimant to deal with everything that the investigation entailed, going over the alleged events multiple times. However, that points more strongly to it being easier for him to have completed the initial Tribunal process at the same time. Using the documentation created and provided for the internal proceedings as the basis for the Tribunal claim would have ensured he did not have to go over it again. He could even have done this in May 2022, after the legal advice.[66]Similarly, in relation to the practicalities of prioritising the internal grievance process, it seems to me that there was little added burden to replicating what was provided for that.[67]The bulk of the Claimant’s involvement with the internal process had concluded by March 2022, when the minutes of the investigation meetings had been agreed. After this, his involvement with the process was confined to correspondence with the investigator and HR support.[68]At the latest, he was aware of his rights in May 2022, and whilst he began early conciliation on 9 June 2022 (in relation to Barclays plc and its subsidiaries), he could have simply asked for an early conciliation certificate to be issued so that he could present his claim.[69]When a Claimant informs ACAS of their intention to claim, they are asked if they want early conciliation or just want a certificate. The Claimant should also have been aware of this, having had legal advice. There was no need to engage in conciliation and wait for the certificate to be issued on 18 July 2022. This was a period of unnecessary delay.[70]This was further exacerbated by the need to then obtain a certificate for the Respondent, which only happened on 5 September 2022. When he approached ACAS on 12 August 2022, in full knowledge of the lateness of his claims, again he would have been prompted to simply ask for an early conciliation certificate to expedite matters. This was a period of unnecessary delay.[71]The Claimant’s reasons for delay are therefore weak in all the circumstances. Length of delay[72]The final pre-termination allegation was the Claimant having the termination of his employment treated as a redundancy rather than an agreed exit, on 31 October 2021. The primary limitation period would therefore have expired on 30 January 2022 – the claim was presented just over seven months later. This is not a reasonable period in all the circumstances, where the Claimant’s reasons for delay are not strong.[73]If the Claimant had submitted the claim in May 2022, after legal advice, although it would still have been out of time, the delay for this allegation would have been halved.[74]Having found that seven months is an unreasonable length of delay, the Claimant’s position weakens for the older allegations.[75]The oldest allegation from March 2019 occurred over three years after the primary limitation period expired. This, and all allegations up to number ten, also pre-date the Claimant’s mental ill health beginning around July 2020. The gap between the primary limitation period and date of claim for these allegations is around two years. This period of delay is completely unreasonable in all the circumstances, where the Claimant’s reasons for delay are not strong.[76]Having occurred over a period of declining mental health, but not significant illness, the delay of one to two years in presenting allegations 11 – 27 is also unreasonable. Knowledge of facts[77]The Claimant was aware of all the facts when he submitted his grievance on 31 October 2021. This is not a situation where, for example, the details of the alleged discrimination were only revealed to him during the course of the grievance process. Awareness of rights[78]The Claimant was aware of ACAS as early as December 2021. As he was able to locate information about time limits for investigation, he would have easily been able to find details of Tribunal time limits and the need to claim regardless of the status of an internal process.[79]At the latest, he was definitely aware of his rights in May 2022, when he received legal advice on time limits.[80]When he began early conciliation on 9 June 2022 (in relation to Barclays plc and its subsidiaries), ACAS would have prompted the Claimant to indicate if he wanted early conciliation or just wanted a certificate. Having received legal advice, and been aware that he was already out of time, he could (and should) have elected to receive a certificate.[81]When he began early conciliation in relation to the Respondent on 12 August 2022 , ACAS would have prompted the Claimant to indicate if he wanted early conciliation or just wanted a certificate. Having received additional legal advice, and been aware that he was already out of time, he could (and should) have elected to receive a certificate. Advice[82]As referred to above, the Claimant sought and received legal advice in May 2022, when he was specifically told of the strict time limits in the ET, and that the internal process didn’t stop these time limits. Promptness in acting[83]The Claimant seemingly acted promptly in relation to approaching ACAS after receiving legal advice in May and August 2022, but not with regard to getting a certificate.[84]In any event, is promptness in acting after being aware of facts that is relevant. He knew of all the facts at the time of his grievance on 31 October 2021 and had compiled them all into one place at that point. The claim was presented nearly a year later. Having determined that the Claimant’s reasons for delay are weak, he plainly did not act at all promptly in the circumstances. Merits[85]Item 17 is the only allegation that contains a specific reference to race. Of course, not every claim of discrimination will be able to identify and rely on an inherently discriminatory act, so the absence of this in the Claimant’s complaints does not automatically make them weak. In the less obvious cases, it is necessary to explore the mental processes of the alleged discriminator to discover what facts operated on his or her mind.[86]The full extent of the evidence was not before me at the preliminary hearing, but I have the Claimant’s original particulars of claim and his grievance. There is no specific reference to race in any of the pleaded claims (aside from item 17 above), although I note that there are some references within the grievance. For example, item 11 is presented as “...in or about July 2020, unfairly criticising the Claimant for the manner in which he had raised the issue of a proposed handover of the PRA 110 project to the funding assessment team” [29], which appears to reflect ‘f)’ in the grievance which states “...he seemed to find fault with my assertiveness on the call. Though he did not say this, I walked away from the call feeling like I had been told to stop being ‘an angry black man.’” [92].[87]The Claimant’s complaints are therefore about subjectively discriminatory acts, and he will need to present facts that although the Tribunal to infer that any behaviour was because of his race. I note that the alleged discriminator in item 17 does not appear in any other allegations to allow the Claimant to use the alleged statement as evidence that other acts were because of race.[88]The final paragraph of the Claimant’s witness statement says” “The Respondent’s investigation into my concerns culminating in my final appeal outcome on 28th April 2023 was tainted by institutional racism”. There is no similar allegation of institutional racism in relation to the allegations that led to the grievance and investigation. As such, it is the motivation of the individual alleged discriminators that the Tribunal would need to consider. On what the Claimant has presented, the prospects of those claims succeeding are low. Prejudice[89]In all cases where claims fall to be dismissed, the Claimant suffers the prejudice of his complaints not being brought before the Tribunal. In this case, the number of complaints is significant – 28 separate allegations relating to pre-termination acts.[90]In comparison, there are only six post-termination allegations. These all relate to the Respondent's alleged failure to handle the Claimant’s grievance appropriately. On that basis, the factual background to the grievance will have at least some relevance to the determinations the Tribunal will need to make. The details of the Claimant’s complaints would therefore be ventilated, even if they didn’t form distinct allegations of race discrimination.[91]In relation to the prejudice claimed on behalf of the Respondent, because Mr. Davis left before the grievance was made, and Ms McLelland just after the minutes of the meetings with the Claimant had been agreed, it is correct that their engagement with any final hearing is not certain. Additionally, because of the timing of the internal grievance there are no formal written accounts from these witnesses. However, I note that Mr Davis is implicated in one allegation (item 17), and Ms McLelland only specifically referenced in one also (item 14). Having said this, I recognise that the Claimant’s particulars of claim, witness statement and grievance include more detail in relation to Ms McLelland, and that item 14 relates to another alleged discriminators response to the preceding items that the Claimant raised with Ms McLelland, so her involvement is potentially greater than the table would suggest.[92]In addition to prejudicing the Respondent, the Claimant will also be negatively affected by incomplete witness evidence from the Respondent’s side as he must establish facts from which the Tribunal can decide that an unlawful act of discrimination has taken place, before the burden can shift. Summary[93]Taking account of all the relevant factors, the Claimant has failed to satisfy the burden of persuading the Tribunal that it is just and equitable to extend the time for presentation of the claim from expiration of the primary limitation period until 5 September 2022, in relation to each of his pre-termination complaints.[94]Therefore, the Tribunal does not have jurisdiction to consider those claims, and they are struck out. Case management[95]Case management orders to progress the remaining claims to a full merits hearing will be sent separately.[96]Finally, I am aware that the Regional Employment Judge has written to the parties in general terms about the delay in this judgment being completed. I would like to take this opportunity to apologise to the parties and their representatives for the time that this has taken. I am grateful for the patience of all involved. The delay has been caused by my ill health, and I have finalised and promulgated the judgment as soon practicable. JUDGMENT having been sent to the parties on 7 October 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013 (now Rule 60(3) of the Employment Tribunals Rules of Procedure 2024), the following reasons are provided:
Background
[1]This case was scheduled for a preliminary hearing to determine the following: 1.1. Whether the claimant’s contention that the pre-termination acts of discrimination formed part of a continuing act with the post-termination acts of discrimination has no reasonable prospects of success and should be struck out (rule 37(1)(a) Employment Tribunal Rules of Procedure 2013.) 1.2. Whether, in the alternative, the claimant’s contention that the pretermination acts of discrimination formed part of a continuing act with the post-termination acts of discrimination has little reasonable prospect of success and should be made the subject of a deposit order (rule 39 Employment Tribunal Rules of Procedure 2013.)[2]In listing this preliminary hearing, EJ Eeley had provided that the just and equitable extension element would be dealt with at the hearing “if deemed appropriate by the Judge hearing the matter. The parties are at liberty to make representations at the start of the hearing as to whether it would be appropriate to determine the ‘just and equitable’ extension as a preliminary issue or whether the evidence on this issue is too inextricably bound up with the substantive evidence in the case so as to render this impracticable or undesirable” [69].[3]Mr. Johnston submitted that even if I determine that there were no/little prospects of success of establishing that the pre- and post-termination allegations formed part of conduct extending over a period, it would be undesirable to then go on to deal finally with the issue of whether a just and equitable extension should be granted. His position was twofold: 3.1. A Tribunal’s assessment of the substantive merits of the pretermination complaints (the subject of the later grievance) would be highly relevant in determining whether it would be appropriate for time to be extended – this should only be done after hearing all the evidence; 3.2. The Claimant relies on his poor health as part of the case to extend time. Documentation shows poor mental health, and the Claimant refers to a deterioration over the same period of the pre-termination allegations – they are therefore inextricably linked.[4]I determined that it was practical and desirable to deal with both aspects. The Claimant had provided a comprehensive witness statement (in addition to very detailed amended particulars) dealing with all aspects, along with medical evidence, and was able to supplement this with oral evidence. The potential impact on time and resources also favoured the resolution of both preliminary aspects, given the number of pre-termination allegations.[5]There was only time within the allotted hearing time to hear evidence, submissions from both representatives in relation to the issue of continuing acts, and deliver an oral judgment on the first element. The judgment on the second element was therefore reserved, and completed after written submissions were received from representatives.[6]The reserved judgment, dated 2 October 2024, was sent to parties on 7 October 2024. The delay is explained in paragraph 96. Within that judgment the first element of the hearing was referred to as: “I heard oral submissions from both representatives in relation to the issue of continuing acts and delivered an oral judgment on that aspect. In that regard, reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing, or a written request is presented by either party within 14 days of the sending of this written record of the decision.“[7]A request for written reasons in relation to that element was then requested on 14 October 2024. Therefore, these reasons deal only with that element. They can then be read in conjunction with the reserved judgment of 2 October 2024, for a complete picture. Procedure, documents, and evidence[8]In advance of the hearing, I was provided with: 8.1. An electronic bundle of 239 pages – documents within this included: 8.1.1. The Claimant’s witness statement [184-202], with two documents appended: 8.1.1.1. A table described by him as “Appendix I – Reportable concerns not tackled in accordance with legal and regulatory requirements” [203]; 8.1.1.2. A diagram described by him as “Appendix II – How institutional racism has infected the Control Environment and impaired the efficacy of control processes, including those for handling of employee concerns and grievances (pre & post Oct 2021)”, with and added note “Source: Appendix 3, ISA 315 issued by the Financial Reporting Council. This is the same internal framework applied in BCBS 40 Framework for Internal Control Systems in Banking Organisations” [204] 8.1.2. His particulars of claim, as amended [207-227]; 8.1.3. His grievance dated 31 October 2021 [89-99] 8.2. A table of allegations produced by the Respondent 8.3. Opening note from Respondent counsel; 8.4. Opening note from Claimant counsel; 8.5. Joint authorities bundle[9]In relation to the table of allegations, item 26 had no date. Having identified that this was said it have taken place in March 2019, this was relocated to ‘minus 1’ on the table, so the allegations were correct chronologically. Facts[10]By way of a claim form presented on 5 September 2022 [5], following early conciliation between 9 June 2022 and 18 July 2022 with “Barclays PLC and its subsidiaries” and “Barclays Bank PLC”, and then between 12 August 2022 and 5 September 2002 with the Respondent [55], the Claimant brought claims of direct race discrimination, harassment related to race, and post-termination victimisation.[11]The table of allegations set out: 11.1. A chronology; 11.2. The allegation; 11.3. The person/people involved; 11.4. The category of complaint[12]The first pre-termination allegation relied on by the Claimant is said to have happened in 2019. The last pre-termination allegation is said to have taken place in October 2021, with the EDT being 31 October 2021.[13]The table is replicated below for ease and will be referred to in the findings of fact. There was one amendment agreed in the hearing - allegation 26 had no date, but was identified to have taken place in March 2019, so was nominally relocated to ‘minus 1’ on the table, so the allegations were correct chronologically. Summary of allegations[14]The first pre-termination allegation relied on by the Claimant is said to have happened in 2019. The last pre-termination allegation is said to have taken place in October 2021, with the EDT being 31 October 2021.[15]In July 2020, the Claimant first emailed Kathryn McLeland (Group Treasurer) in order to raise his and his team's concerns that they were being subjected to exclusion and unlawful discrimination. Allegations minus 1 – 12, therefore pre-date submission of this complaint.[16]On 11 October 2021, the Claimant emailed Kathryn McLeland raising concerns about racial exclusion. This was passed to the Respondent's ‘Raising Concerns Team and was treated as a grievance. Following a request for more information, the Claimant replied on 31 October 2021, [89] which formed the basis of the grievance.[17]All of the pre-termination allegations are expressed as complaints of direct race discrimination [220-222].[18]Some of the pre-termination allegations are also expressed as detriments in relation to complaints of victimisation [224-225].[19]All of the post-termination allegations are expressed as complaints of direct race discrimination, and as victimisation detriments [223 & 225-226.[20]All of the post-termination allegations relate to the Respondent’s failure to deal with the Claimant’s grievance appropriately. None of the pre-termination allegations relate to the handling of the grievances.[21]None of the alleged perpetrators of pre-termination allegations are indicated in the post-termination allegations. Direct race discrimination[22]Allegation minus 1 has the same alleged perpetrator as allegations 1, 2, 3, 6, 8, 9, 10 – 16, and 18 – 21. Across those allegations, there are five different categories of matter: 22.1. Matters categorised as “being repeatedly subjected to unfair and/or unwarranted criticism by members of the Respondent’s senior management” 22.2. Matters categorised as “being repeatedly excluded by senior management and/or undermined in his role” 22.3. Matters categorised as “being repeatedly unsupported by senior management.” 22.4. Matters categorised as “being required to undertake additional onerous tasks falling outside his team’s remit” 22.5. Matters categorised as “being repeatedly undermined and/or unsupported in his attempts at career progression”[23]Allegations 3 and 6 have the same secondary alleged perpetrator, who is also indicated in allegation 10. Those cover: 23.1. Matters categorised as “being repeatedly subjected to unfair and/or unwarranted criticism by members of the Respondent’s senior management”; 23.2. Matters categorised as “being repeatedly unsupported by senior management.”[24]Allegations 14, 15 16, 18 to 21, 27 & 28 are duplicated as victimisation detriments. In relation to race discrimination, the following is relevant: 24.1. 14, 15 and 20 involve the same alleged perpetrator and are all categorised as “being repeatedly subjected to unfair and/or unwarranted criticism by members of the Respondent’s senior management”; 24.2. 16 and 25 are both categorised as “being repeatedly undermined and/or unsupported in his attempts at career progression”, but involve different alleged perpetrators; 24.3. 19 and 21 – 24 are all categorised as “being repeatedly excluded by senior management and/or undermined in his role” 24.3.1. 19 and 21 relate to the same alleged perpetrator 24.3.2. 22 – 24 relate to the same alleged perpetrator 24.4. 25 relates to the same alleged perpetrator as 22 –24 but is isolated in nature as categoried as “being repeatedly undermined and/or unsupported in his attempts at career progression” 24.5. Allegation 17 is isolated nature – harassment – and alleged perpetrator 24.6. No individual is identified for allegations 27 and 28. They are both categorised as “the manner in which his departure from the Respondent was handled”. Victimisation[25]Some of the pre-termination allegations are also expressed as detriments in relation to complaints of victimisation.[26]The Claimant relies on the following protected acts [224]: 26.1. The Claimant raising concerns with Kathryn McLeland in July 2020 that he and his team were being excluded and/or discriminated against because of his race. 26.2. The Claimant subsequently reiterating the same concerns to Kathryn McLelland in August 2021. 26.3. The Claimant's email to Kathryn McLeland of 11th October 2021 in which he raised concerns about being subjected to less favourable treatment because of his race, which was subsequently treated as a grievance by Barclays' Raising Concerns team. 26.4. The Claimant’s email to Barclays' Raising Concerns team of 31st October 2021 in which (within the attachment to his email) he provided specific examples of less favourable treatment to which he alleged he had been subjected because of his race[27]The Respondent admits that each of these constitute protected acts pursuant to section 27(2) EqA 2010 [238] but denies subjecting the Claimant to any detriments.[28]In relation to the first and second protected acts, the Claimant relies on the following pre-termination allegations as detriments: 14; 15; 16; 18; 19; 20; 21; 27; and 28. 28.1. Allegation 28 is the only pre-termination allegation that is said to have occurred after the second protected act.[29]In relation to the third and fourth protected acts, the Claimant relies on all of the post-termination allegations (29 – 34) as detriments. Harassment[30]Allegation 17 is the only pre-termination allegation categorised in this way and is the only allegation against this individual.[31]None of the post-termination allegations relate to harassment. General[32]Aside from allegation 17, the Claimant does not allege any inherently discriminatory act(s).[33]The Claimant describes the Respondent company as institutionally racist, and refers to the following in support of this: 33.1. A report commissioned by the Barclays Bank UK (BBUK) PLC board in 2018/2019 on the issue of race, which he says “revealed the organisation to be institutionally racist. The report indicated that the prejudice was particularly acute towards black employees, who as a result reported significantly depressed engagement scores” [187] 33.1.1. This was not specifically quoted or provided 33.2. Race at Work Action plan, which was launched in October 2020 33.2.1. An un-referenced screenshot of a table/chart is provided showing in the Jnr-Snr category, White colleagues are 3.4 times more likely to be promoted than Black colleagues 33.3. The exclusion of Black employees from senior leadership positions at the Respondent 33.4. The Respondent’s underpayment of Black employees – he says. “they earn 20% less per hour and 50% less in bonus pay” [197][34]Aside from allegation 17, the Claimant does not allege any inherently discriminatory act(s).[35]The Claimant states “the foundation of all my claims is that there was an institutional failure on the part of the Respondent to address my concerns which I had consistently raised about the treatment to which I was subjected and, indeed, I was subjected to further detriments because I had raised such concerns” [197; C/WS:36]. This is maintained by his representatives.
The law
[36]I reminded myself of the relevant legislation and caselaw. Strike out[37]Rule 37 of the Employment Tribunal Rules of Procedure 2013 (at the time of oral judgment) “(1) At any stage of proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of claim or response on any of the following grounds –(a) that it is scandalous or vexatious or has no reasonable prospect of success; … (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.”[38]Sharma v NewCollegeNottingham EAT 0287/11 The EAT held that an employment tribunal had erred in concluding that the claimant’s race discrimination claims had little reasonable prospect of success, solely on the basis that the contemporaneous documentation was inconsistent with the claimant’s account, when there were underlying factual disputes. Deposit orders[39]Rule 39 of the Employment Tribunal Rules of Procedure 2013 (at the time of oral judgment) “(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. (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.”[40]Van Rensburg v Royal Borough of Kingston-upon Thames UKEAT/0095/07 When determining whether to make a Deposit Order a tribunal is not restricted to a consideration of purely legal issues, but is entitled to have regard to the likelihood of the party being able to establish the facts essential to his case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward.[41]Mr. Johnston also referred me to Tree v South East Coastal Ambulance Service NHS Foundation Trust UKEAT/0043/17 (4 July 2017, unreported). Continuing acts[42]Commissioner of Police of the Metropolis v Hendricks 2003 ICR 530, CA The Court of Appeal made it clear that it is not appropriate for employment tribunals to take too literal an approach to the question of what amounts to ‘continuing acts’ by focusing on whether the concepts of ‘policy, rule, scheme, regime or practice’ fit the facts of the particular case. Those concepts are merely examples of when an act extends over a period and should not be treated as a complete and constricting statement of the indicia of ‘an act extending over a period’. The focus should be on the substance of the claimant’s allegations and whether there was an act extending over a period, as distinct from a succession of unconnected or isolated specific acts for which time would begin to run from the date when each specific act was committed.[43]Lyfar v Brighton and Hove University Hospitals Trust [2006] EWCA Civ 1548, CA The Court of Appeal confirmed that the approach in Hendricks is correct. In deciding whether there is ‘conduct extending over a period’ the Tribunal should look at the substance of the complaints in question — as opposed to the existence of a policy or regime — and determine whether they can be said to be part of one continuing act by the employer.[44]Aziz v FDA [2010] EWCA Civ 304, CA In considering whether separate incidents form part of an act extending over a period, ‘one relevant but not conclusive factor is whether the same or different individuals were involved in those incidents’.[45]E v X and ors EAT 0079/20 It is not essential that a complaint of a continuing discriminatory state of affairs be explicitly stated, either in the claim form, or in the list of issues. Such a contention may become apparent from evidence or submissions. The question at the preliminary stage is whether the Claimant has established a reasonably arguable basis for the contention that the various acts are continuing acts or constitute an ongoing state of affairs.[46]The parties also referred me to the following case law: 46.1. Ma v Merck Sharpe & Dohme Limited [2008] EWCA Civ 1426 46.2. Sougrin v Haringey Health Authority [1992] ICR 650, CA 46.3. Robinson v Royal Surrey County Hospital NHS Foundation Trust UKEAT/0311/14/MC 46.4. Sridhar v Kingston Hospital NHS Foundation Trust UKEAT/0066/20/LA 46.5. Caterham School Limited v Mrs K Rose UKEAT/0149/19/RN[47]In relation to grievance processes specifically, Ms Dobbie referred me to: 47.1. Eke v Commissioners of Customs and Excise 1981 IRLR 334, EAT 47.2. Conteh v Parking Partners Ltd 2011 ICR 341, EAT 47.3. Reynolds v CLFIS Ltd 2015 ICR 1010, CA 47.4. Alcedo Orange Ltd v Ferridge-Gunn 2023 EAT 78 Prospects of success[48]A v B and anor 2011 ICR D9, CA, The Court of Appeal held that an employment tribunal was wrong to strike out an employee’s claims of sex discrimination on the basis that they had no reasonable prospect of success. The Court concluded that there was a ‘more than fanciful’ prospect that the employer would not be able to discharge the ‘reverse’ burden of proof to show that the employee’s dismissal was not sex discriminatory.[49]Anyanwu and anor v South Bank Student Union and anor 2001 ICR 391, HL The House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases, because discrimination claims are generally fact-sensitive, and it is a matter of public interest that they should be fully examined to make a proper determination.[50]Ezsias v North Glamorgan NHS Trust [2007] ICR 1126 The Court stressed that it will only be in an exceptional case that an application 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 are totally and inexplicably inconsistent with the undisputed contemporaneous documentation.[51]Balls v Downham Market High School and College [2011] IRLR 217 (EAT) This expanded on the guidance given in Ezsias, stating that where strike-out is sought or contemplated on the ground that the claim has no reasonable prospect of success, the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospect of success. The test is not whether the claim is likely to fail; nor is it a question of asking whether it is possible that the claim will fail. It is a high test.[52]Ms Dobbie also referred me to the following specific case law: 52.1. HM Prison Service v Dolby [2003] IRLR 694, EAT (at paragraph 15) 52.2. Jaffrey v Department of the Environment, Transport and the Regions [2002] IRLR 688 at paragraph 41, (EAT) 52.3. Croke v Leeds City Council UKEAT/0512/07 52.4. Sivanandan v Independent Police Complaints Commission and another UKEAT/0436/14 52.5. Silape v Cambridge University Hospitals NHS Foundation Trust EAT 0285/16 52.6. Ahir v British Airways plc 2017 EWCA Civ 1392 Submissions[53]Parties’ positions were set out in their opening note/skeleton argument and supplemented by oral submissions. I do not replicate them here, but a summary is set out below. Claimant[54]It is accepted on behalf of the Claimant that: 54.1. There is no overlap between the individuals who feature in the posttermination allegations and any of those who feature in the pre-termination allegations; 54.2. He cannot draw any direct links between any of the individuals involved in the post-termination allegations and any of those involved in the pre-termination allegations[55]The complaints cover that there was an institutional failure and an institutional way that people were dealt with when they raised a complaint. As these are the subject of the grievance and appeal, and the handling of these, it is reasonably arguable for the Claimant to say that conduct extending over a period.[56]There is a proper evidential basis from which a Tribunal could conclude that the handling of Claimant’s grievance amounted to a continuation of unfavourable/less favourable treatment to which he had been subjected within the pre-termination allegations. Respondent[57]The pre-termination allegations and the Post-Termination Allegations are wholly distinct strands with no crossover.[58]All of the pre-termination allegations relate to day-to-day treatment by various individuals, and don’t relate to the Claimant’s overarching complaint that the Respondent failed to deal with race discrimination when raised.[59]Allegations minus 1 to 12 are further distinguished in that they pre-date the complaint in July 2020, so can’t be a continuing act. Conclusions General
Conclusions
[60]The specific issue to be determined was whether the pre-termination acts of discrimination formed part of a continuing act with the post-termination acts. It was not a question of whether the pre-termination acts themselves formed part of a continuing course of conduct. Although inevitably some consideration of their own connection is inevitable, particularly when considering prospects of success.[61]It was put forward on the Claimant’s behalf that his claims relate to a failure to deal with complaints and treatment experienced after a complaint. Therefore, a complaint is a pre-requisite. This is not a situation where an unrepresented Claimant has not expressed himself clearly, and he’s unwittingly ended up with a narrow argument. It is a position that he has put forward, which has been maintained and relied on within documents and submissions prepared on his behalf.[62]Whilst a Tribunal may be able to draw inferences from evidence suggesting institutional racism, taking the Claimant’s case at its highest, he makes no specific assertion that any of alleged perpetrators was motivated by race. This is particularly relevant when there are no inherently discriminatory act(s) alleged, aside from within allegation 17. This is not a situation where an allegation of a discriminatory act or comment is made, and denied by an alleged perpetrator, and witness evidence (whether in statement form or as a result of cross-examination) will therefore be determinative of what happened. The primary evidence in relation to the individual allegations is the Claimant’s, and he has provided a detailed account already.[63]Similarly, none of the post-termination allegations relate to inherently discriminatory acts.[64]Taking his evidence at its highest, the Claimant relies on the assertion of institutional racism within the Respondent company support that his allegations must be because of his protected characteristic, and that this is sufficient to connect pre-termination allegations with the post-termination allegations which arise from the handling of a grievance that considered the earlier allegations. From the available material, it is not reasonably arguable that the various acts are continuing acts or constitute an ongoing state of affairs. Allegations[65]As the first complaint by the Claimant was in July 2020, anything that pre-dates this cannot be connected to the fundamental basis of the Claimant’s claims, let alone to the post-termination acts. Those allegations are relevant in that they form the basis of the complaint in July 2020 but are not examples of a failure to deal with a complaint or of treatment following a complaint. 65.1. Therefore, there are no reasonable prospects of success of establishing that allegations minus 1 to 12 are part of a continuing act with the post-termination acts. 65.2. These allegations are therefore out of time and may be struck out, unless an extension of time is just and equitable.[66]As the Claimant accepts that there is no overlap or direct link between the individuals who feature in the post-termination allegations and any of those who feature in the pre-termination allegations, the nature of the connection has to be considered for the remaining allegations. In relation to personnel, I also note that there is no assertion that any of the individuals named in the pre-termination were linked or colluded together.[67]The only nexus appears to be that the complaints relate to grievance and appeal complaints which is insufficient.[68]In light of the findings in relation to allegations minus 1 to 12 above, allegation 13 stands alone within the pre-termination matters. This is because it is isolated in person and nature, being the only pre-termination matter relating to being required to undertake additional onerous tasks falling outside of the Claimant’s team’s remit (the only other was allegation 4). 68.1. This further disconnects it from the post-termination allegations; 68.2. It is therefore not reasonably arguable that this can be part of a conduct extending over a period, and there are no reasonable prospects of success of establishing it is part of a continuing act with the post-termination acts. 68.3. This allegation is therefore out of time and may be struck out, unless an extension of time is just and equitable.[69]Allegations 14 to 16, 18 to 21, 27 & 28 are expressed as dual allegations of race discrimination and victimisation detriments. Those elements are connected to each other in that, the detriments are alleged to have occurred after the Claimant raised complaints of racial exclusion. As race discrimination complaints, they span a range of categories. On the basis of this, and the general conclusions above, they are more clearly individual events that flow from protected acts, and it is not reasonably arguable that this can be part of a conduct extending over a period. 69.1. There are no reasonable prospects of success of establishing that these are part of a continuing act with the post-termination acts. 69.2. These allegations are therefore out of time and may be struck out, unless an extension of time is just and equitable.[70]Allegation 17 does allege an inherently discriminatory act (the only allegation to do so), but is isolated nature in nature and person. 70.1. This further disconnects it from the post-termination allegations; 70.2. It is therefore not reasonably arguable that this can be part of a conduct extending over a period, and there are no reasonable prospects of success of establishing it is part of a continuing act with the post-termination acts. 70.3. This allegation is therefore out of time and may be struck out, unless an extension of time is just and equitable.[71]Allegations 22 to 25 are clearly connected by person, and aside from 25 are connected in nature. However, last alleged act is May 21, even if there were a continuing state of affairs it’s clearly not persisting for many months before the termination in October 2021. 71.1. This further disconnects then from the post-termination allegations; 71.2. It is therefore not reasonably arguable that these can be part of a conduct extending over a period, and there are no reasonable prospects of success of establishing it is part of a continuing act with the post-termination acts. 71.3. These allegations are therefore out of time and may be struck out, unless an extension of time is just and equitable. Summary[72]The claimant’s contention that each of the pre-termination allegations formed part of a continuing act with the post-termination allegations has no reasonable prospects of success.[73]All of these allegations are therefore individual acts which are out of time and will be struck out unless it is just and equitable to extend time. In relation to this element, representatives must provide written submissions within 14 days of the date of the preliminary hearing, and a determination will then be made.