Mr S Brown v Kingspan Timber Solutions Ltd: 3325687/2017
[1]I set up this open preliminary hearing at a closed preliminary hearing before me on 27 October 2017. The purpose of this hearing was: -1.1 To identify the legal and factual issues in the case.1.2 To consider whether the claimant’s claims should be struck out as being out of time.1.3 To consider whether the claimant’s claims should be struck out as having no reasonable prospects of success.1.4 To consider whether a deposit order should be made in respect of any of the claimant’s claims, on the basis that they have little reasonable prospects of success.1.5 To make any necessary further case management orders, and1.6 To provide Judicial Assessment if appropriate. Case Number: 3325687/2017 ph judgment + cm Nov 2 2014 wip version Documents Before me Today[2]From Mr Brown I had:2.1 A witness statement relating to whether it is just and equitable to extend time, if his claims are out of time.2.2 The claimant’s list of issues and particulars.2.3 The claimant’s written submission on the strike out application.2.4 The claimant’s schedule of loss.2.5 The claimant’s further particulars.[3]From the respondent I had:3.1 Written submissions.3.2 A short bundle of documents running to page 17.3.3 Copy legal authorities. The Issues[4]Drawing together the documents prepared by Mr Brown, having regard to his particulars of claim and in extensive discussion with the parties, I identified the issues in this case as set out below. In so far as is necessary, Mr Brown has leave to amend his claim so as to include the allegations as set out in the issues below. The respondent has already filed amended Grounds of Resistance. Direct Age Discrimination 4.1 Has the respondent subjected the claimant to the following treatment falling within s.39 of the Equality Act 2010, namely:4.1.1 On 6 January 2016 Mr Stevenson, (Managing Director) asked the claimant to accept a junior role relating to the production of 25 houses annually, (the role of Custom Build Manager) which did not involve management of staff, coupled with a junior contract manager’s role. The respondent’s position is that the claimant was offered such a role but it was not a junior role.4.1.2 Mr Stevenson suggested at a meeting on 18 February 2016 that the claimant should retire and/or wind down, despite his having made it clear that he intended to continue working past the age of 65. The respondent’s position is that the claimant was unhappy he had not been successful in his application for a senior role, that of Operations Director and therefore in discussion, Mr Stevenson had explored with him an alternative role (that of Custom Build Manager) which the claimant had declined and he further discussed a series of options with the claimant, including early retirement or winding down leading to retirement. Case Number: 3325687/2017 ph judgment + cm Nov 3 2014 wip version4.1.3 Excluding the claimant without consultation, from senior management meetings, (meetings attended by three directors, the Head of Accounts, the Head of Design as well as the claimant as Head of Construction). The claimant says that these meetings were intrinsic to his role and he had previously attended such meetings between September 2006 and 2015. He says that these meetings were held on a monthly basis. The respondent’s position is that senior management team meetings did not take place after November 2014, that they were replaced by operational meetings on site, attended by those as appropriate, on an ad hoc basis and that the claimant attended many such meetings.4.1.4 Arranging meetings with the claimant’s team without his knowledge or involvement by Mr Ward, (Head of Operations) between January 2016 and 16 March 2017, including meetings held on: 6/5/2016 4/10/16 25/11/2016 13/1/2017 10/2/2017 27/2/2017 The claimant says that he does not currently possess the dates of all such meetings, others may be discovered upon disclosure. The respondent’s position is that Mr Ward did not arrange and attend meeting with the claimant’s team from which the claimant was excluded.4.1.5 Mr Ward issuing operational instructions to the claimant’s staff without his knowledge or involvement during the period January 2016 to 16 March 2017. He gives the follow[5]Having spent a good deal of time identifying the issues as set out above, Ms Gale indicated that the respondent had decided, (wisely) not to proceed with its application for either a strike out or a deposit order. Time[6]I have indicated above in the list of issues, the respondent accepts the unfair dismissal claim is in time. The time issue in respect of the claimant’s discrimination case will be whether any of the later allegations of discrimination are upheld and if they are, whether there can be said to be a continuing course of conduct to bring them in time or whether it is just and equitable to extend time. The continuing course of conduct question ought properly to be decided by the tribunal which hears the case. I therefore declined to determine the issue as to whether or not the discrimination claim or any part of it, is out of time.[7]I noted and explained to Mr Brown that he had prepared a witness statement, as I had directed, relating to whether it is just and equitable to extend time but unfortunately, if I had been required to rely upon that witness statement, it would not have been helpful. The statement does not give an explanation as to why there was any delay in the issue of these proceedings such as to render it just and equitable to extend time, in the event the tribunal were to find that any of the allegations were out of time. I suggested he made sure that he dealt with that in his witness statement at the final main hearing. Judicial Assessment[8]I record here simply that I proceeded to provide the parties with a judicial assessment of this case. Case Number: 3325687/2017 ph judgment + cm Nov 8 2014 wip version Case Management Orders[9]In discussion with and with the agreement of the parties, I made the case management orders set out below.[10]I record here that I explained to Mr Brown the way that a tribunal hearing is conducted, that documents relevant to the issues only should be included in the bundle, such documents must of course be disclosed in advance and that the witness statement should set out all of the evidence he wishes to put before the tribunal, relevant to the issues. ORDERS Made pursuant to the Employment Tribunal Rules 2013 DISCLOSURE OF DOCUMENTS[1]On or before 19 February 2018 each party shall send to the other a list of the documents in their possession or control relevant to the issues in this case.[2]If either party requests a copy of any document on the other party’s list, that other party shall provide a clear photocopy within 7 days of the request. BUNDLE OF DOCUMENTS[3]For the Hearing, the parties shall agree a bundle of documents limited to those which are relevant to the determination by the Tribunal of the issues in the case. The Respondent shall create the bundle.[4]On or before 12 March 2018 the Claimant shall notify the Respondent of the relevant documents to be included on behalf of the Claimant.[5]On or before 26 March 2018 the Respondent shall provide to the Claimant a clear, indexed, page-numbered copy of the bundle.[6]The Bundle is to be assembled in chronological order (save in respect of formal policies or procedures, which may be placed together) with each page numbered consecutively.[7]Copies may be double-sided provided they are readily legible. Copies of threads of emails are to be edited so that, as far as possible, each email is reproduced only once.[8]By 9.15 a.m. on the day, or first day, of the Hearing, the Respondent shall bring 4 copies to the Hearing (3 for the Tribunal and one for the witness table). WITNESS STATEMENTS[9]On or before 9 April 2018 the parties shall exchange written witness statements (including one from a party who intends to give evidence). The witness Case Number: 3325687/2017 ph judgment + cm Nov 9 2014 wip version statement should set out all of the evidence of the relevant facts, set out in chronological order, which that witness intends to put before the Tribunal. The Claimant’s statement should contain evidence relevant to the remedy claimed, including financial claims and losses. Such statements should consist of facts only and should not consist of argument, hypothesis or supposition. A failure to comply with this order may result in a witness not being permitted to give evidence because it has not been disclosed in a witness statement; or in an adjournment of the hearing and an appropriate order for costs caused by such adjournment.[10]The statement should be typed if possible and should be set out in short, numbered paragraphs. If reference is made to a document, it should include the relevant page number in the agreed bundle.[11]Each party shall bring 4 copies of any such statement of each of their own witnesses to the hearing. CONSEQUENCES OF NON-COMPLIANCE[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.[2]The tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative. ____________________ Employment Judge Warren Date: 13/3/2018 Sent to the parties on: ……………………………. For the Tribunal: …………………………..