Mr C Oliveira v The City of Edinburgh Council and others: 4101091/2022

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4101091/2022

Venue Edinburgh

Hearing 31 January 2023

Between

Mr C OliveiraClaimant

The City of Edinburgh Council and othersRespondent

Before

Employment Judge A Jones

Date 14 September 2023

JUDGMENT

The claimant’s claims are struck out in accordance with Rule 37 Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Background 1 . A preliminary hearing was listed in this case to consider two matters: 1 ) an application by the claimant to amend his claim which was opposed by the respondents, and 2) an application by the respondents for strike out of the claimant’s claims or in the alternative deposit orders to be made in relation to his claims.

[2]The hearing had previously been listed for 2 December 2022 but this was postponed on the morning of the hearing because the claimant indicated he did not feel well enough to proceed.

[3]In accordance with the Order of the Tribunal a bundle of documents was lodged by the respondents in advance of the hearing. A skeleton argument in respect of their applications had also been lodged in advance of the postponed hearing.

[4]On the morning of the hearing, the respondents’ agent produced a further bundle which included in the main authorities to which reference was to be made in the skeleton arguments which had been lodged. The bundle also included ACAS conciliation certificates which had been omitted from the original bundle. Finally, the respondent sought to lodge an email exchange between the claimant and the respondent which was said to be relevant to the claimant’s application for amendment.

[5]The claimant refused to accept any of these documents from the clerk in advance of the hearing.

[6]At the commencement of the hearing, I outlined what I understood to be the issues to be determined. I asked the claimant to clarify if he had refused to accept documents from the clerk. While initially the claimant appeared to deny he had done so, he acknowledged that he did not have the documents in front of him and after a number of attempts to understand by me his position on the matter, he confirmed that he did wish to have the documents. The respondent’s agent then provided him with the documents.

[7]The claimant then informed me that he had a number of issues he wished to raise. I reiterated that the hearing was listed to consider the issues I had outlined. The claimant had additional documentation he wished to lodge. I asked the claimant to clarify to which application the documentation related. The claimant explained that while some of the documentation related to his ability to pay any deposit order, he also wished to raise two separate matters.

[8]In the first instance, he sought to make allegations that he was being intimated by the respondents and their agents. He referred to an email which had been sent to him on 19 January by a recruitment agency with whom he worked, who he referred to as clients of the respondent. I indicated that the email exchange did not involve any of the respondents to this claim or their representative, it appeared only to attach a policy which was said to be applicable to him and therefore I had some difficulty in understanding what he was alleging. I asked the claimant what he was seeking from the Tribunal in relation to this matter. He said he wanted it noted that he was being intimated by Ms Sutherland and the respondents. I reiterated that the email did not involve Ms Sutherland or the respondents but confirmed that I would note his position.

[9]The claimant then suggested that the respondents’ agents, Harper Macleod LLP were going to be involved in the Judicial Inquiry into the Covid 19 pandemic and that this was a conflict of interest. Again. I asked the claimant to clarify what he was asking the Tribunal to do in this regard. He said that he wanted the respondents’ agents removed from representing the respondents. He said that this amounted to a conflict of interest as he was going to give evidence at the Inquiry. I explained that the Tribunal did not have the power to remove representatives of parties in this manner. I indicated that I would note his position, that he could raise any concerns at the Inquiry itself, but that I wished to turn to address the issues for determination.

[10]At this point the claimant stood up and said that he was leaving and he would not be taking part in the hearing. His demeanour was somewhat aggressive towards the respondents’ representative and I had already been required to ask him to stop pointing at Ms Sutherland when. he was referring to her. The claimant continued standing despite my request that he sit down and address me. He said that he would not be intimidated by the respondents and that he would leave. I explained that if he left, I would continue the hearing in his absence and that I would not have the benefit of hearing from him. He went on to say words to the effect of “I’m too busy for this, I’ve got other cases and a case at the EAT. I’ve got family in Brazil who are unwell and where there is unrest and I need to go there. I am not well and I have an appointment at the doctor this afternoon.’

[11]I indicated that he had not asked for a postponement of the hearing and he then suggested that he was going to do so. I again asked him to sit down if he was going to request a postponement and I would listen to his application. I explained that the hearing had been set down for a full day and expressed some surprise that he had arranged a doctor’s appointment on the day. He said that in his experience hearings set down for a full day did not last that long. I explained that the hearing had been set down for a full day because there were two issues for determination and I may be able to give an oral judgment in respect of either or both these matters. The claimant reiterated that he was not staying and would leave. He said he could pay a deposit order and had provided evidence of his earnings. He said he had intended to give evidence but would not now do so. The claimant then left. Respondent’s submissions

[12]I asked Ms Sutherland whether she was in a position to continue. I asked her some questions regarding the claimant’s application to amend and to clarify the respondents’ position. The respondent’s position was essentially that the amendment was a new claim, it did not have prospects of success, it had not been lodged timeously and the claimant had not advanced any reason why the it would be just and equitable for the Tribunal to consider the claim.

[13]The respondent then went over the written submission in relation to the application for strike out and indicated that if that application was not successful then a deposit order was sought in relation to each allegations made by the claimant. In addition, it was said that the claimant’s conduct today in refusing to participate in the hearing, while consistent with his refusal to answer questions in a way which provided specification of his claim, was unreasonable and/or vexatious conduct. Application to amend

[14]In the first instance, I considered the ciaimant’s application to amend his claim. The claimant had initially raised the issue set out in his application to amend in a response to a request for further particulars. The respondent had indicated that this was not further particulars, but was a new claim. The claimant was then ordered to make any application to amend his claim by 31 October 2022. Although the claimant did correspondence with the Tribunal on 31 October, he was informed that this did not meet the requirements of the Tribunal’s order that he make an application to amend his claim as it did not set out the exact terms of the amendment sought. The claimant then submitted an application to amend on 14 November 2022. That application did not include any reference to the basis on which it might be just and equitable to extend any time limit which might have applied. The incident referred to in the application was said to have taken place ‘between 24/1 1/21 and 24/12/21 and then in December 202V. The application did not specify the statutory provisions relied upon. It made reference to complaints having been made against him by colleagues ‘as members of women sex group’. The claimant’s original claim had been lodged on 17 February 2022.

[15]It is well established that any application to amend a claim must be clearly expressed (see for instance Scottish Opera Ltd v Winning EATS 0047/09 and Chief Constable of Essex Police v Kovacevic EAT 0126/13). The claimant’s amendment does not meet that test. It does not explain the nature of the claim made. It appears at least on the face of it to be out of time and the claimant has not set out on what basis it would be just and equitable to extend the time limit. The claimant has been given a number of opportunities to set out in clear terms any amendment sought. He has failed to do so. As currently drafted, the amendment has no reasonable prospects of success. The application for amendment is therefore refused. Application for Strike Out

[16]Rule 37 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 provides that: '(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds — (a) that it is scandalous or vexatious or has no reasonable prospect of success: (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

(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.

(3) Where a response is struck out, the effect shall be as if no response had been presented, as set out in rule 21 above.

[17]The respondent’s application for strike out was set out in an email of 13 September. The respondent relied on both Rule 37 a) and b). In particular, it was said that the claimant in his response to request for further particulars had simply raised lots of claims in relation to the same set of circumstances in the hope that one might be successful. This was said to amount to unreasonable conduct and further it was clear that his claims had no reasonable prospects of success.

[18]The respondent had lodged a detailed written submission which was also provided to the claimant in advance of the hearing setting out the basis for its application.

[19]I will deal with each claim in turn.

[20]The claimant had made the following claims: He had been subjected to a detriment/s in terms of section 47B Employment Rights Act 1996. 21 . The protected disclosure on which the claimant relied was not at all clear to me. His claim form did not set out the nature of a protected disclosure in any manner which was understandable. His concerns appeared to relate to a colleague who worked alongside him who was also said to work in a bar and whom the claimant was concerned posed a risk of infecting others with COVID-19. While the claimant made some reference to emails having been sent and a letter dated 9 December 2021 which was attached to his claim form, it was very difficult to discern from that information the nature of the protected disclosure or to whom it was said to have been made. As the claimant did not attend the hearing on the matter, he could not provide any clarification or further information.

[22]It was also difficult to discern what detriment the claimant said he had been subjected to or by whom or in what way it related to a protected disclosure. At best it appeared that the claimant said that he had not been paid his full sick pay. The respondent’s position, which did not appear to be contradicted, was that the claimant erroneously thought that entitlement to sick pay was calculated on the basis of the annual leave calendar rather than absences which arose on a rolling year basis.

[23]The Tribunal had sympathy with the respondent’s position that the claimant simply repeated various factual matters alleging that this amounted to unlawful conduct under various heads of claim. Unlawful deduction from wages

[24]The claimant claimed that he had not been paid the appropriate level of sick pay. The claimant did not point to a contractual provision which he said had been breached. Disability discrimination

[25]The claimant claimed that the respondent had discriminated against him on various statutory bases on the grounds of a disability . The respondent does not accept that the claimant was a disabled person at the material times and/or they did not know and could not reasonably have known that he was a disabled person. For present purposes I will assume that the claimant was a disabled person at the material times. Section 15 claim, discrimination arising from a disability.

[26]The claimant complains of the respondent’s failure to rearrange a job interview for him after ‘infecting/exposing me with COVID-1 9 at their Balgreen 'potential outbreak of COVID-19 at the nursery at which he worked. It is understood the claimant was then absent on grounds of illness from 6 December. An interview was due to take place on 7 December. The respondent’s position was that it was not at the time aware of any request by the claimant to reschedule the interview, that interviews took place on 7 December, and someone else had been nominated for the position. The claimant in his further particulars did not make any reference to the disability he says he had at the material time, what the something arising from the disability was, or in what way he alleged that a failure to reschedule an interview arose in any way from a disability. Sections 20 and 21 claim - a failure to make reasonable adjustments

[27]The claimant’s claim appears to be that he was required to work at schools Infected with COVID-19’ and that the job interview referred to above was not rearranged. He has not set out what the provision criterion or practice he relies upon was or how it put him at a substantial disadvantage because of an alleged disability. He also alleges that adjustments ought to have been implemented before he was signed off sick (even though the interview was listed before he was signed off sick). He does not offer to prove any facts from which it coda be established that any disability was in any way related to these matters. Section 13 and 15 ~ Direct and Indirect discrimination because of a disability and/or religion

[28]The claimant appears to claim that the failure to rearrange the interview referred to above and asking him to work in nurseries which he says were Infected with COVID-19’ amounted to indirect discrimination or direct discrimination. He says that this was either because of a disability or his religion. He is Roman Catholic. He has not set out any facts he offers to prove from which an inference of direct discrimination either on the basis of a disability or religion could be drawn. He has not set out on what basis the allegations could amount to indirect discrimination. Section 26 Harassment - on grounds of disability, age, religion, sex and race

[29]The claimant repeats the allegations in relation the interview and working in workplaces said to be infected with COVID-19 and says that these allegations also amount to harassment on the various grounds. He does not offer to prove any facts from which a Tribunal could conclude that such treatment amounted to harassment or that it was in any way related to any of the alleged protected characteristics. Section 27 - Victimisation.

[30]The claimant suggests that he brought discrimination proceedings against the respondent and that this amounted to a protected act. He also says that the failure to rearrange the interview was a detriment because of the protected act The claimant raised the Tribunal proceedings after the alleged detriment. Discussion and decision on strike out 31 . It is well established that strike out of a claim is a draconian step. Particular caution should be used by a Tribunal where the claimant is a litigant in person (see for instance Mbuisa v Cygnet Healthcare Ltd EAT 0119/18 and Cox v Adecco and ors

2021 ICR 1307

). In particular, where there are factual issues in dispute, strike out should rarely be appropriate. A Tribunal needs to understand the nature of the claim before it in order to understand whether it has reasonable prospects of success. A claimant ought to be given an opportunity to set out the particulars of a claim and not be required to provide that detail during the stresses of a hearing. The test as to whether a claim has no reasonable prospects of success is a high test (see for instance Balls v Downham Market High School and College

2011 IRLR 217

[32]In the present case, the Tribunal has borne in mind that the claimant is unrepresented. It has also taken into account that there have been two preliminary hearings in this case as well as today’s hearing and the hearing which was adjourned in December 2022. The claimant was asked specific questions of the respondent in order to seek to clarify his claim. His answers appear, on the whole, to reiterate the same allegations under different heads of claim without any attempt to specify on what basis the specific allegation will be proved. The Tribunal is satisfied that the claimant has been given sufficient opportunity to set out his case. He has known since September that the respondent was of the view that his claim was hopeless. He received the skeleton argument in advance of the hearing which was adjourned in December. He was given the opportunity to put forward his position before the Tribunal today but chose not to do so. He has been given every opportunity to address the respondent’s clear concerns. He has failed to do so. No material facts have been identified as being in dispute. Even at its highest, each of the claims set out above have no reasonable prospects of success. On that basis the Tribunal is satisfied that all claims should be struck out on the basis that they have no reasonable prospects of success. The Tribunal is satisfied that the claimant has had a reasonable opportunity to make representations in this regard. Claimant’s conduct at preliminary hearing

[33]However, even if the Tribunal is wrong in relation to the striking out of any or all of the claimant’s claims as having no reasonable prospects of success, the Tribunal, is of the view that the entire claim should be struck out on the basis of the claimant’s conduct in not participating in the hearing today. The Tribunal is of the view that the conduct of the claimant was unreasonable in terms of Rule 37 (1) (b) and/or that his failure to participate in the hearing today amounts to a failure to actively pursue his claim in terms of Rule 37 (1 )(d).

[34]The claimant said that he had come to the hearing prepared to give evidence on his means (in relation to the application for a deposit order) and in relation to why his amendment should be accepted even if out of time. The Tribunal did not accept that the claimant was genuine in that regard. It appeared to the Tribunal that the claimant did not intend to participate in the hearing. In particular, the Tribunal took into account the claimant’s refusal to accept the additional bundle of documents from the clerk in advance of the hearing. Further, while the claimant said that he was not going to be intimated by the respondent on the basis that he had been sent an email by a recruitment agency, that email was dated 19 January. If the claimant had genuinely been of the view that he was being intimidated (and the Tribunal could not see on what basis an email from a different organisation from the respondent enclosing an Information and Communications Technology Acceptable Use Policy of the City of Edinburgh Council which included agency staff, could be intimidation by the respondent) could amount to intimidation), he would have raised this before the hearing itself.

[35]Moreover, the claimant’s conduct in suggesting he was ‘too busy' for this and that he had arranged a doctor’s appointment for the afternoon during which this hearing was listed amounted to unreasonable conduct and/or a failure to actively pursue his claim in terms of Rule 37(1) (b) or (d). While the Tribunal appreciated that representing oneself in Tribunal proceedings is a stressful matter, his conduct in for instance pointing at the respondent’s solicitor when he was referring to her, refusing to sit down when asked by the Tribunal and standing in front of the bench indicating he was leaving but continuing to make allegations against the respondent was contumelious conduct,

[36]Moreover, refusing to take part in the hearing, while failing to make an application for a postponement of the hearing, was unreasonable conduct. 5 37. The claimant displayed disrespect and contempt for the Tribunal and the Tribunal was satisfied that the claimant’s conduct in that regard was deliberate.

[38]Therefore, for all these reasons the claimant’s claims fall to be struck out. EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4101091/2022 Preliminary hearing Held in Edinburgh On 5 September 2023 Employment Judge A Jones Mr C Oliveira Claimant No appearance The City of Edinburgh Council and others Respondents Represented by Ms Sutherland, Solicitor Judgment The claimant is ordered to pay to the first respondent expenses in the sum of £5523.

REASONS

[1]The claimant presented a claim to the Tribunal on 17 February 2022 alleging that he had been discriminated against on various grounds and had been subjected to detriments for having made a protected disclosure. There were two preliminary hearings for the purpose of case management at which the claimant was ordered to provide further specification of his claims and various orders made. A further preliminary hearing was listed to consider the respondent’s application for strike out of the claimant’s claims or that the claimant be required to lodge a deposit to continue with his claims.

[2]While the hearing on the respondent’s application had been due to take place on 2 December, it was postponed on the application of the claimant who said he did not feel fit enough to continue with the hearing.

[3]That hearing was then rescheduled to take place on 31 January 2023. Prior to that hearing commencing the claimant refused to accept documents from the clerk which had been provided by the respondent. At the commencement of the hearing, the claimant sought to raise matters not relevant to the issues to be determined by the Tribunal at the hearing. Prior to the Tribunal being able to address the various matters for determination, the claimant announced to the Tribunal that he was leaving. Despite efforts to encourage the claimant to remain and participate in the hearing, the claimant left. I had informed the claimant that if he left the hearing then I would determine the issues before me on the information available.

[4]Having considered the information available, a judgment was promulgated on 2 February 2023 and sent to parties on 6 February striking out the claimant’s claims. This was on the basis that the claims were hopeless and alternatively that his conduct at the hearing was such that justified the striking out of his claims. The claimant appealed that decision, but his appeal was dismissed at the sift stage.

[5]The respondent had made an application for expenses incurred in defending the claims which was not dealt with until the claimant’s appeal had been determined. The application was made only on behalf of the first respondent as the other respondents to the claim did not incur any expense in addition to that of the first respondent. The claimant did not respond either to the application for expenses, nor correspondence from the Tribunal in relation to whether the application should be determined following a hearing in person. As the claimant has been unrepresented throughout the proceedings, a hearing was listed to consider the respondent’s application. The claimant did not attend the hearing and did not provide any reason why he was unable to do so. The clerk sought to contact the claimant by email on the morning of the hearing but did not receive a response. Therefore, the application was considered on the information available. The respondent had provided written submissions and vouching in relation to the expenses sought which were in the sum of £5,523. Discussion and decision

[6]The respondent’s application was made in terms of Rule 76(1)(a) and/or (b) on the alternative bases that the claimant had acted vexatiously or unreasonably in submitting his claim and the way it was conducted, and/or that his claim had no reasonable prospect of success.

[7]In determining whether an award of expenses should be made against a party, the Tribunal should adopt a two-stage approach. In the first instance, it should determine whether a party’s conduct has been such as to come within the ambit of Rule 76, and if so, whether it should exercise its discretion to make an award against that party. It is not enough that the conduct complained of comes within the terms of Rule 76, the Tribunal must consider even if that is established, whether it would be appropriate to exercise its discretion to make an award of expenses. If the Tribunal decides to exercise its discretion to make such an award, it should then go on to consider the extent of any award. The ability of a party to pay any award may be taken into account in that regard.

[8]The Tribunal found in its judgment of 3 February 2023 that the claimant’s claims had no reasonable prospect of success in terms of Rule 37(1)(a). The Tribunal is satisfied that for the reasons set out in that judgment, the claimant’s claims also had no reasonable prospects of success in terms of Rule 76. Briefly put, the case put forward by the claimant even at its highest, had no reasonable prospect of success. He had not offered to prove any facts which if established might allow a Tribunal to find that he had established the claims he advanced. The claimant’s claims were incoherent and wideranging. Despite efforts by the Tribunal to focus the claims being made, the claimant simply appeared to keep repeating the same set of facts and attaching different labels to those facts alleging that they amounted to unlawful treatment on various grounds without specifying on what basis he was making such allegations.

[9]The Tribunal also found in its judgment of 3 February that the claimant’s conduct in refusing to continue to participate in the hearing of 31 January and his conduct towards the Tribunal at that hearing amounted to unreasonable conduct. As set out in that judgment, the Tribunal concluded that his conduct was contumelious.

[10]However, as set out above, even in such circumstances where the terms of Rule 76 are engaged in such a manner, the Tribunal must also consider whether to exercise its discretion to make an award of expenses. The Tribunal notes that the claimant has not put forward any submissions in this regard. Indeed, he has failed to communicate with the Tribunal whatsoever in relation to arrangements for this hearing on expenses or the respondent’s application.

[11]The Tribunal is mindful that an award of expenses should be compensatory and not punitive (see Lodwick v Southwark London Borough council

2004 ICR 884

, CA).

[12]The Tribunal is also conscious that in terms of Rule 84 it may have regard to the paying party’s ability to pay when deciding whether to make an award. The only information the Tribunal has in that regard is that during the claimant’s attendance at the hearing on 31 January, he had indicated that he had come willing to give evidence on his means to pay a deposit order and was able to do so if necessary.

[13]The Tribunal was also informed that the claimant is no longer in the employment of the first respondent and it has no knowledge as to whether he is in employment or indeed if he is in the UK. The claimant had made a comment during the hearing on 31 January that he was going to Brazil to deal with family issues. It may therefore be the case that the claimant is not in the country at present. The Tribunal simply has no information in that regard. Communications with the claimant have been sent by email and the Tribunal is not aware of any reason why the claimant would not have been able to deal with such email correspondence even if he is not presently in the country.

[14]An award of expenses is an exceptional step for a Tribunal to make. Careful consideration should be given to whether an award is appropriate and to ensure that an award is simply being made to compensate the other party. Prior to exercising its discretion as to whether to make an award, a Tribunal must be satisfied that the conduct of the paying party has been established to be within the ambit of Rule 76.

[15]In the present case, the Tribunal is mindful that the claimant had been put on notice by the respondent that it was of the view that his claims had no reasonable prospects of success. He was aware of this at an early stage and the respondent had sent its written submissions on the matter to the claimant prior to the hearing which had been due to take place in December 2022. The claimant appeared to be an intelligent individual and it appeared to the Tribunal that the wide-ranging nature of his claims, which appeared to be made with no evidence to substantiate them demonstrated that the claimant had lost all sense of proportion of any difficulties he may have perceived that he had encountered during his employment with the first respondent. The Tribunal appreciates that evidence of discrimination is often difficult to find and may only become apparent during the substantive hearing itself. However, the claimant’s claims were so vague in their nature, for instance alleging that he had been subjected to discriminatory conduct because of his religion (in that an interview was not rearranged for him) without putting forward any basis on which it could be said that the respondent knew what his religion was or how it was in any way relevant to making arrangements for an interview. He also alleged that he was harassed on grounds of disability, age, religion, sex and race without in any way seeking to specify why he thought any of these protected characteristics were at all relevant to any unfavourable treatment he may have been able to establish had taken place.

[16]The claimant’s conduct throughout the proceedings has been such that the respondent has had to attempt to defend allegations of discrimination which were vague, wide-ranging and largely incoherent. Various hearings have taken place and the claimant’s conduct at the hearing on 31 January demonstrated a disregard for the Tribunal process and certainly gave no indication that he was pursuing his claims in good faith.

[17]For all these reasons, the Tribunal has determined that it should exercise its discretion to make an award of expenses. The Tribunal went on to consider the extent of the award which should be made. The respondent had provided vouching for the award being sought and the Tribunal could see no reason why the respondent should not be compensated in full for the expenses incurred by it in defending these proceedings. In these circumstances, and on the basis that the Tribunal can only speculate as to the claimant’s ability to pay any award, the respondent is entitled to be compensation for the entire amount of expenses incurred in defending the claimant’s claims. An award of £5523 is therefore appropriate.