Mr E McClung v Doosan Babcock Ltd and others: 4110538/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4110538/2019

Between

Mr E McClungClaimant

Doosan Babcock Ltd and othersRespondent

Before

Employment Judge L Wiseman

Ms L Miller (instructed by Solicitor) for respondent

Mr Livingston for respondent

Director for respondent

Ms L Finlayson (instructed by Solicitor) for respondent

Date 4 September 2023

JUDGMENT

The tribunal decided:-(i) the claim presented to the Employment Tribunal on the 2 September 2019 does not include a complaint under section 104 Employment Rights Act; ETZ4(WR)

(ii) the claimant’s application to amend the claim to include a complaint under section 104 Employment Rights Act is refused and

(iii) the respondents’ application to have the claim (or any part of it) struck out for having no reasonable prospect of success, or to have a deposit ordered is held over to a later date to give the claimant time to prepare.

REASONS

This preliminary hearing was arranged to determine the following issues:(i) does the claim presented on the 2 September 2019 include a complaint under section 104 Employment Rights Act;

(ii) if the claim does not include a complaint under section 104 Employment Rights Act, should the claimant’s email of the 25 February 2020 be treated as an application to amend the claim to include such a complaint;

(iii) if the email of the 25 February 2020 is to be treated as an application to amend the claim, should that application be accepted or rejected;

(iv) whether the claim, or any part of it, should be struck out as having no reasonable prospect of success and

(v) if not struck out, should a deposit order be made in respect of the claim or any part of it.

Background

[1]The claimant presented a claim to the Employment Tribunal on the 2 September 2019. The claimant indicated in box 8 of the claim form that his claim was for unfair dismissal and discrimination because of religion or belief. The claimant, at box 9, set out the details of his claim which made reference to alleged direct discrimination and harassment.

[2]The first respondent entered a response to the claim in which it explained the first respondent operates in the area of supply of skilled labour and supervision within the power generation business, petrochemical plants and refineries. The first respondent asserted the claimant was engaged as a self employed contractor via a limited company (McClung Strategy and Projects Ltd) which was paid via an employment agency, NRL Ltd (the second respondent). The first respondent argued the claimant, as a self employed contractor, and as a person who had only worked between the 21 January and 8 June 2019, could not proceed with a claim of unfair dismissal. The first respondent denied the allegations of discrimination and requested further specification of that complaint.

[3]The second respondent entered a response to the claim in which it explained the claimant was not an employee of the second respondent, and that he had been engaged via his company, on a contract for services to work on a short term contract for their client, the first respondent. The contract ended and the claimant’s services were no longer required.

[4]The third respondent entered a response to the claim denying the allegations of discrimination.

[5]The case was considered by an Employment Judge at Initial Consideration, following which the Employment Judge directed that a letter be sent directing the claimant to set out(i) the date, nature and perpetrator of each and every allegation of discrimination or harassment;

(ii) the basis on which he alleged he is entitled to claim unfair dismissal given that he has less than 2 years service and

(iii) whether he accepts that he was not employed by NRL Ltd and the basis upon which he alleges they are liable for breaches of the Equality Act 2010. The letter concluded by inviting the unrepresented parties to seek legal advice.

[6]The claimant responded to that direction by letter of the 18 December 2019 and attached a table with “each event listed for ease of understanding”.

[7]A case management preliminary hearing took place on the 10 January 2020. The Note issued after the hearing clarified the claimant relied on section 10 Equality Act (religion or belief). The claimant relied on both religion (being a protestant Christian) and his philosophical belief in support for Rangers Football Club. The claimant’s primary case was against Doosan Babcock as a principal under section 41 Equality Act (contract workers); alternatively he argued that Doosan Babcock was his employer for the purposes of section 39 of that Act. Either way, he argued he was employed by the recruitment agency NRL Ltd for the purposes of section 39 of the act.

[8]The Note also confirmed the claimant accepted he did not have 2 years’ service necessary to proceed with an unfair dismissal claim, and did not allege he fell within any of the listed exceptions to that requirement as set out in section 108(3) Employment Rights Act. The Employment Judge decided a preliminary hearing should be arranged to determine whether any or all claims should be struck out under section 37 of the ET Rules of Procedure 2013 as having no reasonable prospect of success, or whether a deposit order should be made under rule 39 of the ET Rules of Procedure on the basis that some or all of the allegations or arguments in the claim have little reasonable prospect of success.

[9]The claimant sent an email to the tribunal on the 25 February 2020 in the following terms: “For clarity of case to be passed to another office/judge I confirm the following claims that are on the ET1 and further and better particulars will be taken forward: section 104(5) of ERA as Principal; section 39 (1 and 3) of Equality Act; section 41 (1a,b,c,d,2,3,5,6,7 but not 4) of Equality Act. I trust this lets all know the case before the tribunal”.

[10]A second telephone preliminary hearing took place on the 29 June 2020 at which I confirmed an in person preliminary hearing would be arranged to determine the points identified at the previous preliminary hearing.

[11]The claimant, by email of the 29 June, confirmed his claim included a section 104 Employment Rights Act.

[12]There has been delay in progressing this matter to an in-person preliminary hearing because of Covid restrictions and the fact the claimant appealed the President’s decision not to grant his application to have the case transferred from Glasgow. The preliminary hearing Point 1 – does the claim presented on the 2 September 2019 include a complaint under section 104 Employment Rights Act?

[13]The claimant argued that he was an unrepresented layperson and that he had not, in his claim form, referred to any section of either the Employment Rights Act or the Equality Act. In his experience the bones of the claim were set out in the claim form, and preliminary hearings were used to flesh out the details. This is what he expected to happen. He had ticked the box to indicate a claim of unfair dismissal was being brought and he had attached his email of the 3 June 2019 to Drew Halley entitled “Complaint and Facts”. The email set out (alleged) details of an interaction between the claimant and Donald Ross where Mr Ross challenged the claimant about the length of the breaks he had been taking and was alleged to have said “are you calling me a fucking liar? I will bag you!...” The claimant went on to say he had been “bagged” as he had been given his notice on the Friday after this event. The claimant submitted this fleshed out his unfair dismissal complaint. He had been told by the previous Employment Judge to seek legal advice and this is what he had done. The claimant suggested the Employment Judge had erred in making reference to section 108 Employment Rights Act when he should have referred to section 104. The claimant believed he had been given a chance to include it and it would now be perverse to deny it.

[14]Ms Miller, for the first respondent, submitted the claim as presented did not include a claim that the claimant had been dismissed for asserting a statutory right. There was reference to alleged direct discrimination and harassment, but no reference to a statutory right being asserted. Ms Miller referred to the Note issued following the first preliminary hearing, and to paragraph 12(a) of that Note where the Employment Judge briefly set out his reasons for ordering a preliminary hearing to determine strike out of the claim or ordering a deposit order. It was said “the claimant accepts that he lacks 2 years’ continuous service, does not argue that he falls within any of the exceptions in section 108(3) ERA 1996, but argues that he is nevertheless entitled to claim unfair dismissal on a basis which has no clear legal foundation.”

[15]Mr Livingston for the second respondent reiterated his position that the claimant was not an employee of the second respondent, had only worked for a period of 5 months, and could not therefore proceed with a claim of unfair dismissal.

[16]Ms Finlayson, for the third respondent, submitted a complaint of unfair dismissal was not a valid complaint against an individual respondent who was not his employer. Point 2 – if the claim does not include a complaint under section 104 Employment Rights act, should the claimant’s email of the 25 February 2020 be treated as an application to amend the claim to include such a complaint?

[17]The claimant referred to his email of the 25 February and submitted it had made clear the claim was section 104 Employment Rights Act and none of the respondents had questioned at the time whether this was an application to amend the claim. The claimant further argued that he did not need to amend the claim because the complaint was already in it (as confirmed by his email of the 29 June). In short, the claimant argued the section 104 ERA claim was in the claim form, but if I disagreed, then the email of the 25 February should be taken as an application to amend the claim to include it.

[18]Ms Miller submitted the email of the 25 February was not an application to amend the claim to introduce a complaint under section 104 ERA. The email referred to “section 104(5) of ERA, as Principal Is as per 63a”. Ms Miller submitted section 104(5) ERA was a reference to an “employer” being defined to include a principal as defined by section 63 ERA. This was something which had been discussed at length during the first preliminary hearing (that is, whether the claimant regarded the first and/or second respondent as his employer or as principals).

[19]Ms Miller submitted the email had gone on to refer to sections 39 and 41 Equality Act, which deal with the liability of an employer and principal respectively in the context of discrimination. Ms Miller had not read or understood the email to be an application to amend his claim.

[20]Mr Livingston and Ms Finlayson adopted what had been said by Ms Miller.

[21]Mr McClung submitted the respondents had not been right to “assume”. He had had legal advice by the time of writing this email. Point 3 – if the email of the 25 February is to be treated as an application to amend the claim, should that application be allowed or refused?

[22]The claimant submitted the application to amend should be allowed: it had been in for months before the respondent challenged it and it would not now be fair to deny it. The claimant considered he had provided more fleshing out of the claim in his email of the 29 June. The claimant confirmed that when asked by Employment Judge Whitcombe regarding the basis upon which he said he was able to proceed with a claim of unfair dismissal, he had refused to answer and this was the reason he was given time to seek legal advice.

[23]Ms Miller referred to the cases of Cocking v Sandhurst (Stationers) Ltd

1974 ICR 650

; Selkent Bus Company Ltd v Moore

1996 ICR 836

; Ali v Office of National Statistics

2005 IRLR 201

and Chandhok v Tirkey

2015 ICR 527

. Ms Miller noted that in the Chandhok case the EAT said “the claim as set out in the ET1 is not something just to set the ball rolling as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely upon their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond. A respondent is not required to answer a written statement, nor a document but the claims made (meaning under the Rules of Procedure 2013, the claim as set out in the ET1). It followed that if a claimant wished to argue a claim which was not set out in the ET1 they should make an application to amend. In principle, it is not permissible to expand the scope of a claim or response through for example further particulars or party to party correspondence, a list of issues or witness statements, although it is accepted the tribunal has a degree of discretion.”

[24]Ms Miller referred to the case law and submitted the tribunal is required to carry out a careful balancing act of all the relevant factors having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment requested. In the Selkent case, it was said these factors would include:• the nature of the amendment;

• applicability of any time limits and

• the timing and manner of the application.

[25]Ms Miller submitted the nature of the amendment was an attempt to introduce a completely new claim: it was not simply the addition of factual details to an existing claim or the substitution of labels for facts already pled. If the application to amend was accepted there would need to be further details provided by the claimant regarding the nature of the statutory right alleged to have been breached by the respondent, and the factual basis for that allegation. This would cause further delay in an already much delayed case.

[26]There would clearly be hardship to all respondents if the application was permitted and further delay in this case.

[27]The issue of time limits would also require to be considered and the 25 February 2020 is far outside the timescale for lodging a complaint in this case, where dismissal was said to have occurred on the 7 June 2019. The test to be applied by the tribunal is that of reasonable practicability and whilst Ms Miller acknowledged the claimant had not had the benefit of legal advice until after the 10 January and may not have been aware of automatically unfair dismissal claims, he was specifically asked by EJ Whitcombe on the 10 January if he sought to bring himself within any of the exceptions in section 108(3) ERA, and said no at that time. The claimant did not submit his email of the 25 February for around a further 6 week period, raising the question whether, once he had had the chance to take legal advice, he acted within a reasonable period to notify his claim. Ms Miller submitted 6 weeks was not a reasonable timeframe and was excessive.

[28]Ms Miller submitted the application had been made late in the day, despite having previously confirmed there was no such claim. The application was devoid of any detail of the new claim and further details would be required to enable the respondents to understand the claim and respond to it, thus leading to further delay in this case.

[29]Ms Miller submitted that for all of these reasons any application to amend the claim should not be accepted or permitted by the tribunal.

[30]The second and third respondents adopted Ms Miller’s submission. Point 4 – whether the claim, or any part of it, should be struck out as having no reasonable prospect of success

[31]Mr McClung noted that he was unsure of the test for whether there is a reasonable prospect of success: he had simply followed the Employment Judge’s guidance at all times. Mr McClung reiterated he was an unrepresented claimant and had taken legal advice and then clarified the basis of his claim.

[32]Mr McClung, having heard the submissions of the respondent, noted he was surprised the issue of employee status had been raised because he had not appreciated it was a matter for today’s hearing. He also noted he was not prepared to deal with the issue of strike out of the discrimination claim because he had not understood it was an issue for today.

[33]Ms Miller submitted the issues in respect of the unfair dismissal claim were(i) whether the claimant had two years’ service to bring the claim or whether he fell within one of the exceptions to the requirement to have two years’ service under section 108(3) ERA;

(ii) whether the claimant was employed by the first respondent or whether he was a self employed contractor and therefore whether he was entitled to bring a claim for unfair dismissal against the first respondent and

(iii) whether the claimant was ever employed by the second respondent.

[34]The claimant accepts he had under two years’ service with any of the parties including the first respondent.

[35]The first respondent’s position was that they did not ever employ the claimant. The claimant was engaged as a third party contractor via NRL Ltd, an agency. The first respondent had no contract with the claimant direct and any contract they did have was with NRL Ltd. Ms Miller directed the tribunal to pages 46, 47, 48, 49, 50, 51, 52, 53, 54, 55 and 56 of the bundle.

[36]Ms Miller submitted the claimant did not have qualifying service to bring a claim of unfair dismissal. None of the exceptions in section 108(3) ERA applied to the claimant and he did not appear to argue that they applied to him. Further the claimant was not employed by the first respondent: he had no contract of employment with the first respondent, but rather was a self employed contractor. The claimant was unable to bring a claim for unfair dismissal against the first respondent and accordingly the claim should be struck out as having no reasonable prospect of success.

[37]Ms Miller also invited the tribunal to strike out the discrimination claim. Ms Miller referred to the claim form and questioned whether there was sufficient reference to religion or philosophical belief in the pleadings, and consequently whether there was sufficient material upon which an Employment Tribunal could conclude that the allegations of direct discrimination and/or harassment were because of (or related to) a protected characteristic. Could support for Rangers Football Club ever amount to a philosophical belief and taking the claimant’s case at its highest, what was the link between the alleged treatment and the alleged discrimination?

[38]The claimant was ordered by the tribunal to expand upon his pleadings and to identify his claims of discrimination. The claimant did this in his letter of the 18 December and in the attached table (pages 58 – 64). At the preliminary hearing which took place on the 10 June there was extensive discussion about this and when asked by the Employment Judge, the claimant confirmed on several occasions that the table at pages 62 – 64 represented all of the matters about which he wished to complain.

[39]The pleadings (ET1 and the table referred to) make no reference at all to religion, nor to Protestant or Christian. There is only one specific reference to the claimed philosophical belief and that was a comment that Ian Chisholm was “unusually ok for a Rangers fan”. This was a comment made to and not about the claimant. It was submitted there was sparse reference to the claimed protected characteristic or any link between the treatment described in the table and the protected characteristic itself.

[40]Ms Miller submitted that when considering whether to strike out a claim a tribunal must consider whether any of the grounds set out in rule 37(1)(a) to (e) have been established and having identified any established grounds, the tribunal must then decide whether to exercise its discretion to strike out. Ms Miller referred to the points set out above and invited the tribunal to strike out the unfair dismissal claim.

[41]Ms Miller referred to the cases of Ezsias v North Glamorgan NHS Trust

2007 EWCA Civ 330

and Anyanwu v South Bank Students’ Union

2001 IRLR 305

where it had been held that discrimination claims should not be struck out except in the plainest and most obvious cases. The EAT in Mechkarov v City Bank NA

2016 ICR 1121

summarised the approach to be taken by a tribunal when faced with an application to strike out a discrimination claim. It was said that only in the clearest case should a discrimination claim be struck out; where there are core issues of fact that turn to any extent on oral evidence they should not be decided without hearing oral evidence; the claimant’s case must be taken at its highest and the tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputes of fact.

[42]Ms Miller submitted that for the reasons set out above the discrimination claim had no reasonable prospect of success and should be struck out.

[43]Mr Livingston, for the second respondent, submitted the claimant had at no time been employed by the first or second respondent. He had been engaged via a contract for services via his own company and the second respondent. He was not an employee and had no right to claim unfair dismissal.

[44]Mr Livingston adopted the submissions of the first respondent regarding striking out the discrimination claim. He noted there were no allegations of discrimination made by the claimant against the second respondent.

[45]Ms Finlayson, for the third respondent, invited the tribunal to strike out the claim of unfair dismissal against the third respondent because it was not competent. Ms Finlayson adopted Ms Miller’s submissions regarding strike out of the discrimination claim, and added that even if the claimant was successful in his position that support for Rangers Football Club was a philosophical belief, that still did not get him home with his claim. The claimant asserted the third respondent subjected him to a detriment (not offering sub contract work) but the claimant had not explained the causal link between the treatment and the protected characteristic, particularly when the issue of offering sub contract work was not a decision for the third respondent. Point 5 – if not struck out, should a deposit order be made in respect of the claim or any part of it

[46]The claimant had prepared an Income and Expenditure statement which demonstrated he did not have funds to pay a deposit order.

[47]Ms Miller invited the tribunal to make a deposit order should the claims not be struck out. The test for whether a deposit order should be made was not as rigorous as the no reasonable prospects of success test (Jansen Van Rensburg v Royal Borough of Kingston upon Thames

EAT/0096/07

). Ms Miller referred to her earlier submissions and relied on the same points to justify why a deposit order should be made.

[48]Mr Livingston and Ms Finlayson adopted the submissions of the first respondent. Decision and Discussion

[49]I firstly considered the question of whether the claim form presented on the 2 September 2019 included a complaint under section 104 ERA. There was no dispute regarding the fact the claimant had, at box 8 of the claim form, ticked the box to indicate his claim was one of unfair dismissal and discrimination because of religion or belief. The claimant set out details of his claim: there was one reference to unfair dismissal and a reference to two incidents involving Donald Ross, in the following terms: “7/6 I left Doosan. DD (direct discrimination). Unfair Dismissal.” “22/5 DR said take lunch 1 til 1.30 not fucking 45 minutes. I said I do not taken break in morning. I had done this for previous 4 months no issues. Harassment and DD. 29/5 11.15am DR called me over to car and torrent of abuse “ripping the piss … are you calling me a fucking liar … I will bag you … don’t you call me a fucking liar” all shouted at the top of his voice. I merely defended his wrong accusations. See full email breakdown sent 3/8. DD and Harassment.”

[50]I was satisfied the claim did not include a complaint of automatically unfair dismissal for asserting a statutory right in terms of section 104 ERA. I say that because there was no hint of any such complaint in the claim form. There was nothing to suggest the claimant had asserted a statutory right or that he believed he had been dismissed for doing so. I acknowledge the email dated 3 June 2019 which was attached to the claim form did make reference to Mr Ross saying he would “bag” the claimant and that that subsequently happened. However, this incident was described in the claim form as direct discrimination and/or harassment and there was nothing in the claim form or in the email to point to this being a section 104 ERA claim.

[51]The claim form and responses were considered by Employment Judge Whitcombe at Initial Consideration, and he directed that a letter be sent to the claimant directing him to set out in writing the date, nature and perpetrator of each and every allegation of discrimination or harassment; the basis upon which he alleges he is entitled to claim unfair dismissal given that he has less than 2 years’ service and whether he accepts that he was not employed by NRL Ltd and the basis upon which he alleges that they are liable for breaches of the Equality Act. This letter was sent to the claimant because he did not have 2 years’ qualifying service to bring a claim of unfair dismissal. The claimant was asked to explain the basis upon which he alleged he was entitled to proceed with an unfair dismissal claim in order to establish precisely whether the claimant sought to argue a case of automatically unfair dismissal for which he did not require 2 years’ qualifying service.

[52]The claimant did not reply to that letter to say either that he was bringing a claim under section 104 ERA, or that such claim was set out in the claim form. In fact the claimant, in his response (letter of the 18 December 2019) responded to question 2 as follows: “On question 2, I have the right to claim unfair dismissal with less than 2 years’ service when it is discrimination. The Equality Act 2010 has the clear purpose to deny an employer who treated an employee less favourably than others on grounds of their perceived religion or belief and lack of holding the recruiting manager’s religion/belief from using a sham, “fair” reason claim when in fact they have unfairly dismissed the employee within the first 2 years of a contract”.

[53]I considered my conclusion that the claim form did not include a section 104 ERA complaint was supported by the above points which demonstrate the claimant, when given the opportunity to explain he was claiming automatically unfair dismissal under section 104 ERA, did not do so but instead made reference to his dismissal being unfair because it was discriminatory.

[54]I next considered whether the claimant’s email of the 25 February 2019 should be treated as an application to amend the claim to include a section 104 ERA complaint. The email was in the following terms: “For clarity of case to be passed to another office/judge I confirm the following claims that are on the ET1 and further and better particulars will be taken forward: Section 104(5) of ERA, as Principal Is as per 63a …”

[55]I did not consider this email was an application to amend the claim form to include a complaint brought under section 104 ERA. The email does not say it is an application to amend the claim form; it does not provide details of the statutory right said to have been asserted and it does not provide details of the causal link said to demonstrate that any assertion of the statutory right led to dismissal. I also had regard to the fact there was discussion at the preliminary hearing on the 10 January 2020 regarding the issue of whether claims were being pursued against the first and second respondent in their capacity as employer or principal. I noted the claimant referred to section 104(5) ERA and made reference to “principal”. No further clarification of why this had been done was provided by the claimant.

[56]I decided, having had regard to the above points, that the email of the 25 February was not an application to amend the claim form.

[57]I however recognised that whilst the email may not have been an application to amend the claim form, it was clear that the claimant wished to make such an application. His position was that either the claim form included a section 104 ERA complaint, or that there should be an amendment to allow this claim to be included. I therefore considered it appropriate to proceed to determine whether an application to amend the claim form to include a section 104 ERA complaint should be allowed.

[58]The tribunal has a broad discretion to allow amendments, and such discretion must be exercised in accordance with the overriding objective of dealing with cases fairly and justly. I was referred by Ms Miller to the case authorities which have provided tribunals with guidance regarding the approach to be adopted to applications for leave to amend. In the case of Cocking v Sandhurst (Stationers) Ltd (above) it was said that the key principle was that in exercising their discretion, tribunals must have regard to all the circumstances, in particular any injustice or hardship which would result from the amendment or a refusal to make it. This test was approved by the EAT in Selkent Bus Company Ltd v Moore (above) and by the Court of Appeal in Ali v Office of National Statistics (above).

[59]An employment tribunal must, when determining whether to grant an application to amend, carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment. In the Selkent case it was said that relevant factors to consider would be:-• the nature of the amendment – whether it is an application to add factual details to existing allegations, or relabel facts already pled or introduce entirely a new cause of action;

• the applicability of time limits – if a new claim is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that claim is out of time and if so whether the time limit should be extended;

• the timing and manner of the application – it is relevant to consider why the application was not made earlier and why it is now being made.

[60]The first point to which I had regard was the fact that when considering an application to amend, the tribunal should have before it the terms of the proposed amendment. The information which I have before me is that the claimant made reference to section 104(5) ERA in his email of the 25 February. The claimant was informed, at the preliminary hearing on the 29 June, that if he wished to introduce a section 104 ERA complaint, he could seek permission to amend his claim. The claimant responded to confirm he did not consider an amendment was necessary because of his email of the 25 February. The claimant subsequently sent a further email on the 29 June in which he confirmed he was making a claim under section 104(1)(b) ERA as his rights to a peaceful work break were infringed by Donald Ross.

[61]I next had regard to the nature of the amendment. I have set out above the fact the claimant did, in the claim form, refer to the alleged conversation with Donald Ross on the 29 May where Mr Ross was alleged to have said “..are you calling me a fucking liar …ripping the piss …I will bag you … don’t you call me a fucking liar ..” The claimant described this as direct discrimination and harassment. The claimant did also attach a copy of his email of the 3 June where he set out details of this conversation.

[62]I have also set out above my conclusion that the claim form did not include a complaint under section 104 ERA. I considered there was no hint of any such claim in the claim form. The thrust of the claim form was that there had been discrimination and harassment. I, in the circumstances, could not accept the application to amend was a relabelling of facts already pled. I say that because there was nothing in the claim form or the claimant’s email to suggest the issue was one of asserting a statutory right and being subjected to a detriment because of having done so. This was not a situation where the claimant was being denied the right to a break: it was a situation where there was alleged to have been a discussion about when the claimant took his breaks and the length of those breaks. I concluded, in the circumstances, that the application to amend sought to introduce an entirely new claim.

[63]I next had regard to the applicability of time limits. The claimant’s position was that his contract ended on the 7 June 2019. The claimant presented a claim to the Tribunal on the 2 September 2019. The question of whether a new cause of action contained in an application to amend would be time barred falls to be determined by reference to the date when the application to amend is made. I decided, above, that the claimant’s email of the 25 February 2020 was not an application to amend. I further decided it would be appropriate to treat the claimant’s email of the 29 June 2020 as the application to amend.

[64]The application to amend (email of the 29 June 2020) was made over a year after the termination of the claimant’s contract, and some 8/9 months after the time limit for bringing such a claim. I must accordingly consider whether time falls to be extended under the appropriate test, which is that of reasonable practicability. The onus of proving that presentation of a section 104 ERA claim was not reasonably practicable rests on the claimant. This means it is for him to show precisely why he did not present his complaint.

[65]The claimant made a number of points in connection with this matter:(a) he is an unrepresented party;

(b) the complaint was in his claim form;

(d) the Employment Judge should have identified this and

(e) he was told to take legal advice and did so.

[66]The claimant is indeed an unrepresented party, but he is someone who has had experience of taking a case to an employment tribunal. I accept the claimant, as an unrepresented party, may not have included reference to the statutory basis of the complaints being brought, but he was well able to provide details of the complaints and explain why he believed the dismissal to have been unfair. The claimant did not however do so.

[67]The claimant argued the original claim included the section 104 ERA complaint, but I have dealt with this point above and do not repeat it here. Suffice to say the claimant had every opportunity to include details of a section 104 ERA complaint in the claim form but he did not do so.

[68]The claimant also argued the purpose of the case management discussion is to flesh out the claims, and that the Employment Judge should have identified the section 104 ERA complaint at the first preliminary hearing. The claimant is correct in stating the case management preliminary hearing may be used as an opportunity to flesh out the complaints which are being made and to, for example, confirm the statutory basis of the claims and whether any further information or specification is required. This however is different to an Employment Judge suggesting to a party what their claim may be (which is what the claimant appeared to suggest ought to have happened).. There was nothing in the claim form to hint at a section 104 ERA claim and no criticism can be made of the Employment Judge or the respondents for failing to identify this. The claim is being made by the claimant and it is for him to set out and identify the complaints being made.

[69]The claimant was given ample opportunity to explain why he believed he could proceed with an unfair dismissal claim when he did not have 2 years’ qualifying service. The claimant provided no explanation and it was for precisely this reason that Employment Judge Whitcombe directed that a preliminary hearing be arranged to determine whether the unfair dismissal claim should be struck out.

[70]Employment Judge Whitcombe did encourage the unrepresented parties to seek legal advice. The claimant asserts he did so, and it was after receipt of that advice that he sent the email of the 25 February. I make two points regarding that position: firstly, it supports the earlier conclusion that there was no section 104 ERA complaint prior to the claimant taking legal advice and secondly, it raises the question why the claimant did not take advice regarding the making of an application to amend the claim.

[71]I, having addressed the points raised by the claimant, concluded the section 104 ERA complaint could have been included in the claim form. If the claimant was ignorant of the right to bring a complaint of automatically unfair dismissal then it is reasonable to expect he could have investigated his rights or sought advice, within the time limit and claimed in time. I decided it was reasonably practicable for the claim to have been made in time. The fact the new claim (section 104 ERA) is out of time is not fatal to the amendment application: it is but one of the factors to be considered.

[72]I next considered the timing and manner of the application, and in particular why the application was not made earlier. I had regard to the fact the Employment Judge who carried out the Initial Consideration of the claim, asked the claimant to explain why he believed he could proceed with a claim of unfair dismissal when he did not have 2 years’ qualifying service. The claimant’s response to this (18 December) was to suggest the dismissal was discriminatory. The claimant’s focus in the claim form, and at this time, was very much on the alleged discrimination and harassment. The claimant’s correspondence at about this time emphasised his desire for a preliminary hearing to determine whether support for Rangers Football Club was a philosophical belief.

[73]The terms of the claimant’s email of the 25 February are set out above and referred to here. The claimant’s position was that this email made it clear what he was claiming. I, for the reasons set out above, could not accept that.

[74]The claimant sent the email of the 29 June because I had explained to him (at the preliminary hearing that day) that if he wished to introduce a section 104 ERA complaint, he could seek permission to amend his claim. The claimant’s response to this had been to confirm he considered an application to amend the claim was a duplication of work for him because he had already “told” the tribunal of this claim in his email of the 25 February.

[75]The email of the 29 June was the first time the claimant made reference to a claim under section 104(1) ERA and the first time he suggested the statutory right which had been asserted was the “right to a peaceful break”. I do not know why the claimant had not previously explained the nature of the alleged statutory right which had been asserted. This must have been information known to him.

[76]The claimant took issue with no-one having told him his email of the 25 February was not an application to amend the claim. I could not accept this because the claimant’s position clearly was that there was no need to make an application to amend because the complaint was in the claim form. The email of the 25 February was not described as an application to amend the claim.

[77]I concluded that it was not until the 29 June email from the claimant that it became clear that he wished to argue he had asserted a statutory right (right to a peaceful break) and to proceed with a section 104 ERA claim. I considered all of that information could have been clear to the tribunal and the respondent at a much earlier stage.

[78]I next had regard to the relative hardship caused to the parties by the granting or refusing of the application to amend the claim. The hardship to the claimant of refusing the application to amend is that he will not be able to pursue the section 104 ERA complaint. I balanced this with the fact the claimant has brought other complaints which may proceed to be heard by a tribunal (at either a preliminary or substantive hearing).

[79]The hardship to the first and second respondent is that they will require to seek further information, interview additional witnesses and amend their response to the tribunal. In addition to this, it is likely there would need to be another preliminary hearing to determine the employment status of the claimant. The right to proceed with a complaint under section 104 ERA applies to an “employee”. The first and second respondents deny the claimant was an employee, and assert he was an independent contractor. The respondent referred me to a number of documents which appear to support their position. The claimant’s position on this was unclear; and, he also made reference to section 104(5) ERA. The issue of the employment status of a person is an issue for a tribunal to determine.

[80]I concluded the balance of hardship lay with the respondents because allowing the amendment would mean not only having to defend the claim, but also having the time and expense of another preliminary hearing to determine the issue of employment status.

[81]I next stepped back to consider overall the interests of justice and the above factors. I concluded above that the application to amend sought to introduce a new claim, which was time barred. I further concluded the balance of hardship, if I allow the amendment, lay with the respondents. I had regard to the fact the claimant is an unrepresented party, but I balanced this with the fact he is a litigant with some experience of making and pursuing a claim to the Employment Tribunal. I decided, having balanced these factors, to refuse the application to amend to introduce a section 104 ERA complaint. Point 4 – whether the claim, or any part of it, should be struck out as having no reasonable prospect of success

[82]I have decided (above) not to allow the claimant’s application to amend the claim to introduce a section 104 ERA complaint. I accordingly did not consider it necessary to determine the respondents’ application to have the unfair dismissal claim struck out. I should make clear that if I had not decided to refuse the application to amend the claim, I would have(a) continued the application of the first and second respondent to have the unfair dismissal claim struck out pending a determination of the employment status of the claimant and

(b) struck out the unfair dismissal claim against the third respondent because the third respondent was not the employer of the claimant.

[83]The claimant had not understood from the above wording that consideration could be given to striking out any part of the claim. The claimant had focussed on the striking out of the unfair dismissal claim. I acknowledged the focus, from the time the preliminary hearing was ordered, was on the unfair dismissal claim and whether it should be struck out. I understood why the claimant had not come prepared to address the tribunal on why the discrimination claim should not be struck out. I decided, in all fairness to the claimant, that he would require time to prepare to address the tribunal on this point. I accordingly decided to hold over consideration of whether the complaints of discrimination should be struck out and to reserve to the respondents the right to seek strike out of the discrimination claim at a later date. Point 5 – whether a deposit order should be made in respect of the claim or any part of it

[84]I also decided it would be appropriate to hold over consideration of this point because the claimant had not been prepared for the respondents’ arguments that this should apply to the discrimination claims.

[1]The claimant presented a claim to the Employment Tribunal on the 2 September 2019 in which he complained of unfair dismissal and discrimination because of religion or belief. The claimant noted on the claim form that his period of service was from 21 January 2019 to 7 June 2019.

[2]An Employment Judge, during Initial Consideration, asked the claimant to explain the basis upon which he believed he could proceed with an unfair dismissal claim when he did not have the qualifying service to do so. The issue was subsequently listed for a preliminary hearing on the 10 January 2020 to determine whether the claim of unfair dismissal should be struck out, failing which a deposit ordered.

[3]The preliminary hearing did not take place because the claimant confirmed his claim was brought under section 104 Employment Rights Act. A hearing subsequently took place at which it was decided the claim did not include a complaint under section 104 Employment Rights Act, and the application to amend the claim to include this claim was refused. The claimant appealed that decision to the EAT and has subsequently appealed the EAT decision to the Inner House.

[4]The complaint of ordinary unfair dismissal remained outstanding and this preliminary hearing was arranged (in person at the claimant’s request) to determine whether the claim should be struck out because the claimant does not have the necessary qualifying service to bring such a claim.

[5]The respondents provided written representations which had been copied to the claimant prior to this hearing. The claimant provided a skeleton argument on the morning of the hearing, which was copied to the respondents. Claimant’s submissions

[6]The claimant accepted he does not have 2 years’ service but argued the tribunal should not strike out the claim before hearing from the witnesses. This was particularly so because, on the balance of probabilities, the fair reason for dismissal was in doubt. Mr McClung referred to the “Drew Halley email” which indicated Donald Ross had told him he and the claimant had had words, but that he knew nothing of the claimant being paid off. Mr McClung submitted it was the tribunal’s job to hear from witnesses and to throw out his case before hearing any witness evidence was perverse.

[7]The claimant referred to the cases of C White v Plymouth City EAT/2012; Balls v Downham Market High School

2011 IRLR 217

; Tayside Public Transport v Reilly

2012 IRLR 755

and Ezsias v Glamorgan NHS Trust 20017 EWCA Civ 330.

[8]The claimant submitted the Employment Judge was misdirecting herself and being perverse in striking out the unfair dismissal claim. First Respondent’s submissions

[9]Ms Miller submitted that in determining whether the claim should be struck out, the tribunal would require to consider whether the claimant meets the service requirement to bring such a claim against the first respondent or whether the claimant falls within one of the exceptions to that requirement in terms of section 108(3) Employment Rights Act.

[10]There was also a dispute as to whether the claimant was employed by the first respondent or whether he was a self-employed contractor and therefore whether he is entitled to bring a claim of unfair dismissal against the first respondent, but that issue would not need to be considered if the tribunal find the claimant has less than 2 years’ service. The first respondent reserved its position to pursue that argument if the unfair dismissal claim is not struck out.

[11]The claimant accepts he had under 2 years’ service with any of the parties including the first respondent. Section 108(1) Employment Rights Act requires that in order to claim unfair dismissal an employee must have been continuously employed for 2 years ending with the effective date of termination. The claimant began undertaking work for the first respondent on the 21 January 2019, and ceased to do work for the first respondent on the 7 June 2019. Therefore, the claimant does not meet that requirement.

[12]Section 108(3) Employment Rights Act contains a list of exceptions, none of which apply to the claimant and which he does not appear to argue apply to him.

[13]The claimant lacks the necessary 2 years’ qualifying service and does not fall within one of the exceptions listed in section 108(3), accordingly the claimant is unable to bring a claim for unfair dismissal against the first respondent.

[14]Ms Miller submitted the ordinary unfair dismissal claim should be struck out because it has no reasonable prospect of success (rule 37(1)(a) of the Employment Tribunal Constitution and Rules of Procedure Regulations 2013). Alternatively the tribunal should consider making a deposit order. Second Respondent submissions

[15]Mr Livingston submitted the claimant’s contract for services commenced on the 21 January 2019 and ended on the 7 June 2019. He does not meet the 2 years’ service criteria to bring a claim of unfair dismissal, therefore the claim should be dismissed.

[16]Mr Livingston further submitted the claimant had provided his services through his personal services company, McClung Strategy and Projects Ltd, and was neither an employee of the second respondent or the first respondent. Third Respondent submissions

[17]Ms Finlayson submitted the claimant had, on the claim form, stated he had been employed from the 21 January 2019 to the 7 June 2019. The claimant accepted at the preliminary hearing on the 10 January 2020 that he did not have 2 years’ continuous service. Section 108(1) Employment Rights Act requires that in order to claim unfair dismissal an employee must have been continuously employed for 2 years ending with the effective date of termination. The claimant does not meet that requirement.

[18]The claimant is unable to bring a claim for unfair dismissal and the claim should be struck out in terms of rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

[19]Ms Finlayson further submitted the third respondent is an individual employed by the first respondent. The claimant had never been employed or engaged directly with the third respondent. An unfair dismissal claim is not a valid claim against the third respondent and should be struck out for this reason.

[20]Ms Finlayson made an application for expenses incurred in the defence of the claim. It was submitted the claimant had acted unreasonably in continuing with a claim of ordinary unfair dismissal when he acknowledged he does not have 2 years’ service. The claimant admitted at the preliminary hearing on the 10 January 2020 that he did not have 2 years’ service and was advised by the Employment Judge that 2 years’ service was necessary to pursue the claim. The claimant has acted unreasonably in the conduct of the proceedings by not agreeing for the matter to be dealt with on the basis of written submissions already made by the respondents to the tribunal on the matter in November 2021, which has resulted in further legal expenses being incurred. The sum of £709.32 was sought. Discussion and Decision

[21]I referred to section 94 Employment Rights Act which provides that an employee has the right not to be unfairly dismissed by his employer. This section is subject to section 108 Employment Rights Act which provides that section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.

[22]The claimant worked from the 21 January 2019 until the 7 June 2019. The claimant does not have a period of two years’ service. Accordingly, the claimant cannot proceed with a claim of ordinary unfair dismissal.

[23]I explained to the claimant that I did not have any discretion in this matter and that a tribunal does not have jurisdiction (that is, power) to hear a claim of unfair dismissal where the person does not have 2 years’ continuous service.

[24]I also explained to the claimant that his submissions were only relevant to the situation if his claim was allowed to proceed.

[25]I decided to strike out the claim of ordinary unfair dismissal because it has no reasonable prospect of success in circumstances where the claimant does not have two years’ qualifying service necessary to bring the claim.

[26]The application for expenses made by the third respondent will be determined at the next preliminary hearing listed for the 1 June 2022.

[1]This hearing was a preliminary hearing to determine whether support for Glasgow Rangers Football Club is a philosophical belief in terms of section 10 of the Equality Act. I heard evidence from the claimant, and I was referred to a small number of documents produced by the claimant. I also heard submissions from the claimant and the representatives of the first and third respondents. Mr Livingston, for the second respondent, adopted the submissions made by the other respondents.

Findings of fact

[2]The claimant has been a supporter of Glasgow Rangers Football Club (hereinafter referred to as Rangers) for around 42 years, that is, most of his life. He was taken to a Celtic v Rangers game by his father when he was around 8 years old, and has been “hooked” since then. He attended the supporters club in Grangemouth from around the age of 11 until late teens.

[3]The claimant is a member of Rangers. He receives a birthday card from them each year (page 13) and was recently invited to visit Ibrox to see the Scottish Cup. He is also a member of MyGers (page 7). MyGers is a charitable organisation which focusses on building a foundation for Youth and Senior teams for the future.

[4]There was no fan attendance at games during the lockdown in 2020 and 2021.

[5]The claimant spends most of his income (after paying basic house and car bills) on games. The claimant normally attends at least one or two home games every month, with the odd away game and cup game.

[6]The claimant buys his ticket a couple of weeks in advance so he has something to look forward to. He believes this gets him out to work with a spring in his step, so he is working to pay bills and attend as many games as he can afford.

[7]The claimant wakes up “buzzing” on match days and enjoys the build up to the game. The claimant believes this is a way of life and creates lasting memories, for example, with him and his father, and with him and his son.

[8]The claimant subscribes to Sky Sports and watches matches, pre and postmatch interviews and podcasts. He never misses a match and considers it a “massive” part of his life. It motivates him to do/be the best he can.

[9]The claimant referred to the photographs he had produced in the bundle of documents which included the Everyone Anyone Rangers FC Charter (page 1); photographs taken at various matches (pages 3, 5, 6, 8, 9, 10); Rangers’ legends (page 14 and 15) and Rangers A Way of Life banners (page 11 and 12).

[10]The claimant acknowledged there was a serious aspect to Rangers which made fans the subject of attack by anti-Rangers people. He described himself, and most Rangers’ fans, as caring passionately about the UK and having loyalty to Northern Ireland and the Queen. He had heard sectarian mocking of the Rangers Ibrox disaster in 1971 where 66 people died, knew of violence on Old Firm match days and had heard sectarian comments and songs.

[11]The claimant believed there were 1.4 million Rangers fans in the UK and 8 million worldwide.

[12]The claimant considered supporting Rangers was a way of life and that it was as important to him as it was for religious people to go to Church. First Respondent submissions

[13]Ms Miller acknowledged the claimant was clearly a devoted fan and wished it noted that nothing she said was intended to belittle that or the enjoyment he got from it.

[14]Ms Miller referred to section 10 of the Equality Act and to the case of Grainger plc v Nicholson

2010 IRLR 4

where the EAT had set out the legal tests to be applied when answering the question whether something qualified as a philosophical belief. Ms Miller referred the tribunal to paragraph 10 of the Judgment where reference was made to a passage from Hansard which related to the then Equality Bill where the Attorney General, Baroness Scotland, was recorded as saying, in relation to the deletion by amendment of the word “similar”: “… it was felt that the word “similar” added nothing and was, therefore, redundant. This is because the term “philosophical belief” will take its meaning from the context in which it appears; that is, as part of legislation relating to discrimination on the grounds of religion or belief. Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of the Regulations, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights … I hope that provides some assurance on the change of the definitions of “religion or belief” being adopted and I hope that the noble Baroness will therefore feel content to withdraw the amendment.”

[15]Ms Miller referred to paragraph 24 of the Judgment where the Judge indicated the limits or criteria which have to be implied or introduced by reference to previous jurisprudence, and these were as follows: 1. the belief must be genuinely held; 2. it must be a belief and not an opinion or viewpoint based on the present state of information available; 3. it must be a belief as to a weighty and substantial aspect of human life and behaviour; 4. it must attain a certain level of cogency, seriousness, cohesion and importance and 5. it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with fundamental rights of others.

[16]Ms Miller noted the above criteria were also set out at paragraph 2.59 of the Equality and Human Rights Commission Code of Practice on Employment 2011 as the correct means of determining whether a philosophical belief can be protected under the Act. Ms Miller submitted a belief in the support of Rangers Football Club did not meet these requirements and therefore could not qualify as a philosophical belief which amounted to a protected characteristic under the Equality Act 2010.

[17]Ms Miller, in particular, submitted that support for Rangers was “support” and not a “belief” (and therefore did not meet the requirements of point 2 above). “Support” in this context may be defined as “be actively interested in and concerned for the success of (a particular sports team). “Belief” may be defined as “an acceptance that something exists or is true especially one without proof” or “something one accepts as true or real; a firmly held opinion”. The two, it was submitted, were not the same thing.

[18]Ms Miller further submitted that it did not relate to a weighty and substantial part of human life and behaviour (and therefore did not meet the requirements of point 3 above), and that it did not reach the required level of cogency, seriousness, cohesion and importance required by point 4, nor was it worthy of respect in a democratic society (and therefore did not meet the requirements of point 5 above) because support for a football club, whilst not objectionable in any way, did not hold much importance to society when compared with weightier issues such as national independence, ethical veganism or gender critical beliefs (per the case law referred to below).

[19]Ms Miller referred to the tribunal judgment in McEleny v MOD UK/ET/4105347/2017. The tribunal in that case held that belief in a political party (SNP) did not qualify as a belief worthy of protection under the Equality Act, whereas a belief in Scottish Independence was found to meet the required standard. The tribunal judge found the claimant’s belief in Scottish independence was underpinned by fundamental questions regarding sovereignty and self-determination and that it was philosophical in nature and capable of protection. Conversely the tribunal found his support for the SNP itself was linked to his desire to achieve independence rather than a meaningful belief in the party itself or their policies. It was accepted he spent a lot of time campaigning for the party, however, this was not sufficient to satisfy the Grainger test. The tribunal Judge said, at paragraph 27 “I agree with the Respondent that support or active membership of a political party does not of itself amount to a philosophical belief for the purposes of claiming direct discrimination under the Equality Act 2010”.

[20]Ms Miller submitted support for a football club should be dealt with in a manner similar to the support of a political party and as such the current case should be decided in line with the reasoning given by the tribunal judge in McEleny. The claimant’s attendance at football matches was akin to the campaigning for the SNP carried out by Mr McEleny. Ms Miller acknowledged that whilst this showed a level of support, it was not sufficient to amount to a philosophical belief. Furthermore, the claimant had not provided any compelling articulation of his belief in Rangers FC or any meaningful underpinning of such a belief worthy of being considered a philosophical belief.

[21]Ms Miller referred to the case of Lisk v Shield Guardian Co Ltd and others ET/3300873/2011 which considered whether wearing a poppy could constitute a philosophical belief. Ms Miller referred the tribunal to paragraph 10 of the Judgment, where it was said that “It is not simply a question of whether somebody’s choice to wear a poppy is a choice that should be respected but whether, underpinning that choice, there is a belief that is capable of being regarded as a philosophical belief”. The tribunal held that the belief in wearing a poppy did not relate to a weighty and substantial aspect of human life and did not have cogency, cohesion and importance. Ms Miller submitted the present case should be dealt with in the same way because the claimant had failed to show that his choice to support Rangers FC, while it should be respected, was underpinned by any worthwhile belief, capable of being considered philosophical in nature.

[22]Ms Miller next referred the tribunal to Casamitjana Costa v League Against Cruel Sports ET/3331129/2018 where it was decided that ethical veganism satisfied all five criteria set out in Grainger and as such, was eligible for protection under the Equality Act. The tribunal in that case considered the concept was centered around the interaction of human and non-human species, with the primary aim being to avoid the exploitation of the latter. It was found that this clearly related to a weighty and substantial aspect of human life and behaviour. Ethical veganism was held to be a belief rather than a viewpoint and the principle was rooted in morality and was prevalent in all aspects of the employee’s life. The tribunal found that ethical veganism possessed a high level of cogency, cohesion and importance as the concept had attracted a clear following amongst businesses and individuals, as it focused on many aspects such as diet, clothing, consumption, travel and relationships. The tribunal had no difficulty in determining that veganism did not offend society because it was recognized nationally for its merits.

[23]Ms Miller referred the tribunal to paragraph 35, where it was stated “The relationship between humans and other fellow creatures is plainly a substantial aspect of human life, it has sweeping consequences on human behaviour and clearly it is capable of constituting a belief which seeks to avoid the exploitation of fellow species.”

[24]Ms Miller submitted the above reasoning showed ethical veganism was capable of constituting a philosophical belief as the relationship between humans and other creatures was of inherent importance to humanity. The desire not to harm or exploit other creatures was intrinsic to humanity and as such, the belief had the ability to impact greatly on human behaviour. Ms Miller submitted that whilst the claimant’s support of Rangers FC may be subjectively important to him, it did not represent a weighty or substantial aspect of human life and had no larger consequences for humanity as a whole, as described by the Judge in the Casamitjana case. It was therefore submitted that the support of a football club was fundamentally incompatible with this strand of the Grainger test.

[25]Ms Miller also referred to the Conisbee v Crossley Farms Ltd ET3335357/2018 case which concerned whether vegetarianism was a concept amounting to a philosophical belief. The tribunal held that the Grainger test was only partially satisfied and therefore did not amount to a philosophical belief protected by the Act. It was decided the criteria of “concerning a weighty and substantial aspect of human life and behaviour”, attaining a certain level of cogency, seriousness, cohesion and importance” and “possessing a similar status or cogency to religious beliefs” were not attained. Vegetarianism was, in essence, a lifestyle choice.

[26]Ms Miller submitted the reasoning given in the Conisbee case was directly applicable to the facts of the claimant’s case. Similarly to vegetarianism, the support of a football team is merely a lifestyle choice and does not relate to a substantial aspect of human life and behaviour. In Conisbee it was pointed out there were many different reasons behind vegetarianism without a single cohesive underpinning or belief. It was submitted this applied to the claimant’s case as there was a wide array of Rangers’ football fans who will all have varying reasons behind their support and will show their support in different ways. It was further submitted that it was nonsensical to claim the support of a football team had a similar status or cogency to religious beliefs which substantially impact the lives of those who support a particular team. Those belonging to a particular religion have to practice their religion and alter their life to live in a way which is consistent with their religious beliefs. Ms Miller submitted the claimant’s support of Rangers FC did not require any degree of dedication, practice or commitment akin to those who belong to a religion.

[27]In the case of Forstater v CGD Europe and others

UKEAT/0105/2020

it was decided that gender critical beliefs against the idea of biological sex and gender identity being conflated were capable of being a philosophical belief protected by the Act. The Judge considered that, while the belief was controversial, it was held by many others worldwide, including academics. Therefore, the EAT decided the principles of Grainger were satisfied.

[28]Ms Miller submitted that in consideration of the reasoning in Forstater, the claimant’s support of Rangers FC cannot amount to a philosophical belief. Unlike gender critical beliefs, the support of the football club is not the focus of academic interest. This reaffirmed the position that the claimant’s belief (if it is a belief rather than support) does not relate to a weighty and substantial aspect of human life and behaviour and lacks the level of cogency, seriousness, cohesion and importance required to satisfy legs 3 and 4 of the Grainger test.

[29]The last leg of the Grainger test required that the belief “must be worthy of respect in a democratic society, be not incompatible with human dignity and not in conflict with fundamental rights of others”. It was submitted that the claimant’s support of Rangers FC also does not satisfy this leg. Ms Miller invited the tribunal to give consideration to the aforementioned case law and the corresponding beliefs which satisfied this leg, such as ethical veganism, and gender critical beliefs. These beliefs hold importance in a democratic society and are widely respected among the population. The support of Rangers FC does not invoke the same respect in a democratic society and as such, the claimant’s belief fails further on leg 5 of the Grainger test.

[30]Ms Miller noted the claimant had referred to the singing of certain songs, support for the Union and the Monarchy, attendance at as many games as can be afforded etc, but these were not prerequisites of being a Rangers fan: these simply represented how the claimant personally chose to express his support. It was submitted that it would be sufficient (to be a supporter of Rangers FC) for an individual to prefer that they won matches rather than other teams, whether or not you actually watched them in person or on the television, without more. The Rangers “Everyone – Anyone” campaign shown on their website does not suggest that any of the factors listed by the claimant, were in any way necessary to be a supporter of the club.

[31]Ms Miller acknowledged the claimant was clearly a devoted supporter of Rangers FC, but submitted that support was not worthy of protection under the Equality Act, and did not amount to the protected characteristic of a philosophical belief.

[32]Ms Miller invited the tribunal to find support for Rangers FC was not a philosophical belief entitled to protection in terms of section 10 of the Equality Act. Second Respondent submissions

[33]Mr Livingston adopted the submissions of the first and third respondent. Third Respondent submissions

[34]Ms Finlayson referred to section 10 of the Equality Act and noted the Act did not define the term “philosophical belief”. However guidance was provided by the Equality and Human Rights Commission Statutory Code of Practice on Employment, which included the criteria derived from the Grainger case.

[35]Ms Finlayson noted the Explanatory Notes to the Equality Act 2010 also reproduced the Grainger criteria and explained how to determine whether a particular belief qualified as a “philosophical belief”. Ms Finlayson invited the tribunal to note the inclusion of the following statement that “Beliefs such as humanism and atheism would be beliefs for the purposes of this provision but adherence to a particular football team would not be”.

[36]Ms Finlayson referred to the relevant case law of McClintock v Department of Constitutional Affairs

2008 IRLR 29

; McEleny v Ministry of Defence ET/4105347/2017 and Casamitjana Costa v League Against Cruel Sports ET/3331129/2018. Ms Finlayson submitted that in the more recent case of Forstater v CGD Europe

UKEAT/0105/20

the EAT had given guidance on how employment tribunals should approach the preliminary assessment of whether a particular belief qualifies under the Grainger criteria as a protected philosophical belief. The first matter was to identify the claimant’s belief. Ms Finalyson submitted that whilst the claimant had demonstrated he is an avid supporter of Rangers FC, he had failed to precisely identify what his actual belief is. The claimant, in his statement, had referred to Rangers fans having other “strong beliefs” such as “allegiance to the Queen; being strong Unionists for Northern Ireland” and “some Orange Order involvement or attendance”. It was submitted that these matters are separate to the issue to be determined which was whether support for Rangers FC is a protected characteristic. Further, these are other beliefs that individuals may have in addition to being Rangers fans, however they were not a necessary component of being a Rangers fan. Ms Finlayson submitted that the case pled was essentially a case about the claimant being a Rangers fan only, and it was not a case in relation to his allegiance to the Queen or him being a Unionist, for example: these were entirely separate issues.

[37]The tribunal should, once the belief has been identified, determine whether that belief amounts to a philosophical belief within the meaning of section 10 of the Equality Act. Ms Finlayson referred to the Grainger criteria and submitted in relation to criterion 1 that it was not disputed that the claimant’s support for Rangers FC was genuine and that he was a keen fan and supporter of Rangers FC.

[38]In relation to criterion 2 it was submitted the claimant had failed to meet this criterion. There needs to be a religious or philosophical viewpoint in which the individual actually believed (McClintock). The cases of Grainger and McEleny noted that support for a political party does not constitute a philosophical belief, there must be that belief in a philosophy or doctrine. Support for a football team, however fervent, did not meet this test. This was supported by the Explanatory Notes (above) which gives examples of a philosophical belief and states “adherence to a particular football team would not be” a philosophical belief. Ms Finlayson acknowledged the Explanatory Notes do not have statutory effect, but they were produced to assist the reader in understanding the Equality Act.

[39]Ms Finlayson submitted the claimant’s stated belief did not meet the test of criterion 3 because support for a football club could not fairly be described as relating to a weighty and substantial aspect of human life and behaviour. The case law (Gray, Forstater) had shown that what is required to satisfy this criterion is a matter of great seriousness and importance which has a great deal of influence on decisions and behaviour. Support for a football club does not determine how someone lives their life or have a substantial influence on their day to day activities and decisions.

[40]The claimant’s stated belief also did not satisfy criterion 4 because it lacked the required level of cogency, seriousness, cohesion and importance that was required. The claimant had referred to other matters such as Unionism, support for the Queen and “a good Protestant Christian set of values” in order to try to establish that support for a football club reaches the required level of cogency, seriousness, cohesion and importance. However, it was submitted that these matters are separate from support of Rangers FC and they are not a requirement for supporters. Support for a football club, however strong, was not a belief system that meets the required level and accordingly this criterion had not been met.

[41]Ms Finlayson submitted the respondent did not intend to argue that support of a certain football club was not worthy of respect, was incompatible with human dignity or conflicts with the fundamental rights of others.

[42]Ms Finlayson, in conclusion, submitted that being a supporter of Rangers FC did not meet the Grainger test: there was a significant difference in law between support for a football club and a philosophical belief. Ms Finlayson invited the tribunal to conclude that being a supporter of Rangers FC was not a philosophical belief that amounted to a protected characteristic under the Claimant’s submissions

[43]Mr McClung referred to the terms of section 10 of the Equality Act, the Grainger case and the Equality and Human Rights Commission Code of Practice on Employment, at paragraphs 2.55 – 2.59 where it sets out that for a belief to be protected under the Act it must:• be genuinely held;

• be a belief not an opinion or viewpoint, based on the present state of information available;

• be a belief as to a weighty and substantial aspect of human life and behaviour;

• attain a certain level of cogency, seriousness, cohesion and importance;

• be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.

[44]Mr McClung noted the reference in the Explanatory Notes to support for a football team not being a belief, but argued this was just a “steer” and the world had moved on since these Notes were issued.

[45]Mr McClung submitted his belief was genuinely held. He attended 12 games and spent all his income (once basic bills were paid) on Rangers games. It was a key part of his life and he strived to be the best just as Rangers did. It was a way of life for him. Mr McClung referred to the 1.4 million UK Rangers FC fans and submitted the vast majority of them held strong beliefs genuinely regarding spending their surplus discretionary income supporting the team, allegiance to the Queen, being strong Unionists for Northern Ireland to remain part of the UK (and Scotland too), some Orange Order involvement or attendance at marches during the marching season. Their red, white and blue colours (or orange colours) worn proudly, their committed vocal support at home with attendances averaging 49,564 and away from home too. Mr McClung submitted that if you watched your team weekly for decades and participated in other related activities, like Rangers Foundation or other charitable work then you are doing as much as a protected religious group member does.

[46]Mr McClung submitted fans socialise with other Rangers Supporters Clubs worldwide, and they have a hostile rivalry with Celtic. Mr McClung referred to “anti-Rangers feeling” and suggested it was significant.

[47]Mr McClung believed being a Rangers fan was about respecting others, being part of a supportive, enjoyable group, with top athletes, coaches and managers who can be looked up to by all. There is support for charity (Rangers Charitable Foundation) and support for the UK Union and the Queen. Individuals go to Northern Ireland to watch matches, support or participate in Orange Order marches and stay with local families. This also happens when fans travel to Scotland and are put up in fans’ homes. Mr McClung submitted this demonstrated a commitment and belief in the philosophy of being a Rangers FC fan.

[48]Mr McClung considered support for Rangers FC was a weighty aspect of human life and behaviour. He described being a fan as setting an example to others in terms of striving to be the best, giving respect, commitment, spending money and time to travel to see games and going for it. Memories were created when family members attended games together. There were over 8 million supporters worldwide.

[49]Mr McClung submitted that traditionally Rangers fans were described as Unionists (Scotland and Northern Ireland), Orange Order participants or supporters or Protestant Christians. He acknowledged that support for the Queen and/or being a Unionist were not prerequisites of being a fan, but suggested 95% of fans did support the Queen and being a Unionist. He suggested that decades of supporting Rangers FC equaled any religious beliefs or groups which were protected today. He referred to churches closing, merging or losing congregations every year, but Rangers fans continued to grow in number.

[50]Mr McClung submitted supporting Rangers FC was a way of life: it kept him going, gave him the drive to work so he could attend games, be charitable, support the team and be positive. Rangers FC has been established and supported for 150 years. The Everyone – Anyone Charter was about respect for all. It was democratic to support your team: it was a way of life.

[51]Mr McClung referred to the cases of Grainger plc v Nicholson; Casamitjana v The League Against Cruel Sports; McEleny v The Ministry of Defence; Hashman v Milton Park (Dorset) t/a Orchard Park ET/3105555/2009 and Williamson v Secretary of State for Education and Employment UKHL 2005 2 AC 246. Discussion and Decision

[52]The issue to be considered by the Tribunal in this case is whether the claimant’s support of Rangers Football Club amounts to a philosophical belief within the meaning of section 10 of the Equality Act 2010, and can be relied upon as a protected characteristic under the relevant sections of the Equality Act under which his claim is brought.

[53]I had regard firstly to the terms of section 10(2) of the Equality Act 2010 which is entitled Religion and Belief and which provides that:- “(2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief …”

[54]The 2010 Act does not define “philosophical belief”, but the Explanatory Notes to the Equality Act reproduce the guidance set out below from the Employment and Human Rights Commission Code of Practice on Employment. Chapter 2 of the Code outlines the characteristics which are protected under the Act and, under the heading Religion and Belief, it is stated: “2.52 The meaning of religion and belief in the Act is broad and is consistent with

Article 9 of the European Convention on Human Rights

(which guarantees freedom of thought, conscience and religion)”.

[55]The passage entitled “meaning of belief” sets out the following: “2.55 Belief means any religious or philosophical belief and includes a lack of belief. 2.56 “Religious belief” goes beyond beliefs about, and adherence to, a religion or its central articles of faith and may vary from person to person within the same religion. 2.57 A belief which is not a religious belief may be a philosophical belief. Examples of philosophical beliefs include Humanism and Atheism. 2.58 A belief needs not include faith or worship of a God or Gods, but must affect how a person lives their life or perceives the world. 2.59 For a philosophical belief to be protected under the Act:• it must be genuinely held;

• it must be a belief and not an opinion or viewpoint based on the present state of information available;

• it must be a belief as to a weighty and substantial aspect of human life and behaviour;

• it must attain a certain level of cogency, seriousness, cohesion and importance and

• it must be worthy or respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.”

[56]The guidance set out at paragraph 2.59 replicated the criteria set out in the Grainger case (above) as official guidance on what comprises a “religious or philosophical belief” for the purposes of the protected characteristic of religion or belief. In addition to this, I noted the Explanatory Notes to the Equality Act provide examples of religions for the purposes of the Act, and states that “beliefs such as humanism and atheism would be beliefs for the purposes of this provision, but adherence to a particular football team would not be”.

[57]I, in considering the issue to be determined by the tribunal, began by identifying the claimant’s belief. I had regard to the Court of Appeal case of Gray v Mulberry Co (Design) Ltd

2020 ICR 715

where it was said that “Precision in pleading is not equally important in every case heard by an employment tribunal, but in our view it is essential, before considering whether a belief amounts to a philosophical belief protected under section 10(2) of the Equality Act 2010, to define exactly what the belief is”.

[58]The claimant articulated his belief as support for Rangers Football Club, and there was no doubt the claimant is clearly an avid supporter. The term “supporter” is defined as “a person who is actively interested in and wishes success for a particular sports team”. The claimant’s description of his attendance at matches, his interest in pre and post-match information and his interest and enjoyment in all things Rangers, fell firmly within this definition.

[59]The claimant also told the tribunal he cared passionately about the UK (in terms of being a strong Unionist) and had allegiance to the Queen. He submitted the “vast majority” of Rangers fans held these views, also participated in some Orange Order involvement/marching and were traditionally described as Protestant Christians. I did not doubt the claimant held these views, but I was not persuaded, in the absence of any evidence, to find/accept that the “vast majority” of Rangers fans hold these views. I acknowledged some supporters will hold those views, but there will equally be many, many supporters who do not hold those views. I considered the “Everyone – Anyone Rangers FC Charter” emphasises the fact that everyone and anyone is a welcome supporter of the Club, and that the views referred to by the claimant are not a part of being a supporter; they do not define supporters and are not in any way a prerequisite of being a supporter. The claimant himself acknowledged that support for the Queen and being a strong Unionist were not prerequisites of being a fan.

[60]I concluded that whilst the above matters were important to the claimant, they were not matters which underpinned or explained what the belief in being a Rangers fan was about: they are not a component part, or a prerequisite, of being a Rangers fan. I decided the claimant’s belief is defined as being a supporter of Rangers Football Club.

[61]I next considered whether the claimant’s belief in being a supporter of Rangers was capable of being a philosophical belief within the meaning of section 10(2) of the Equality Act, and I considered each of the Grainger criteria.

[62]Firstly, it was not in dispute that the claimant’s belief in supporting Rangers was genuinely held. Ms Miller, for the first respondent, acknowledged the claimant was a devoted fan and Ms Finlayson, for the third respondent, acknowledged the claimant was an avid fan. I agreed.

[63]Secondly, the belief held must be a belief and not an opinion or viewpoint based on the present state of information available. I, in considering this factor, had regard to the Explanatory Notes to the Equality Act where it was stated that “beliefs such as humanism and atheism would be beliefs for the purposes of this provision, but adherence to a particular football team would not be”. The claimant argued that the law had moved on from this time, and that, as a general proposition, I would accept. However, it is still helpful to have regard to the Explanatory Notes because they assist in understanding the Act and its objectives.

[64]I also had regard to the McClintock case (above) where it was stated there needs to be a religious or philosophical viewpoint. Further, in the Grainger and McEleny cases (above) where it was stated that support for, or active membership of, a political party does not constitute a philosophical belief, and that there must be a belief in a philosophy or doctrine. This chimes with the submission of Ms Miller where she directed the tribunal to the definition of “support” (in the context of this case) as being “actively interested in and concerned for the success of” a particular sports team, contrasted with the definition of “belief” as being “an acceptance that something exists or is true, especially one without proof” or “an acceptance one accepts as true or real; a firmly held opinion”.

[65]The claimant is a supporter of Rangers in the same way as people may be supporters or active members of a political party. They wish their team (or party) to be successful; they enjoy reading about and informing themselves about their team (or party); they enjoy being a member of their club (or party) and they enjoy attending matches (or events). The claimant’s support for Rangers was akin to support for a political party which the cases referred to make clear does not constitute a philosophical belief.

[66]I concluded for these reasons that the claimant’s belief did not meet the second criterion.

[67]Thirdly, the belief must be a belief as to a weighty and substantial aspect of human life and behaviour. The cases to which I was referred (McEleny; Forstater and Casamitjana) demonstrate that what is required to satisfy this criterion is for the matter to be one of great seriousness and importance which influences decisions and behaviour (for example, national independence; gender critical beliefs and ethical veganism).

[68]I acknowledged the claimant’s evidence regarding buying a ticket for a game, enjoying the pre-match build-up, waking up “buzzing” on match days, engaging in the singing of songs at matches, but those are all matters personal to the claimant: they are subjectively important. They are things from which the claimant, and no doubt millions of other sports fans, derive enjoyment, but they do not represent a belief as to a weighty or substantial aspect of human life and have no larger consequences for humanity as a whole.

[69]The claimant made reference on several occasions to the Casamitjana case where it was decided that ethical veganism met all five of the Grainger criteria and was eligible for protection under the Equality Act. The tribunal in that case considered the concept was centered around the interaction of human and nonhuman species, with the primary aim being avoiding exploitation of the latter. It was found that this clearly related to a weighty and substantial aspect of human life and behaviour: it was a belief rooted in morality and was prevalent in all aspects of the employee’s life. The concept had attracted a following amongst businesses and individuals as it focused on aspects such as diet, clothing, consumption, travel and relationships. The relationship between humans and other creatures was of inherent importance to humanity.

[70]The claimant clearly sought to draw a parallel with the fact Rangers drew support from a large number of people all over the world. I did not doubt this, but there was nothing beyond this to demonstrate to the tribunal what weighty and substantial aspects of human life and behaviour were impacted by being a supporter of Rangers.

[71]I considered support for a football club to be akin to a lifestyle choice, rather than relating to a substantial aspect of human life and behaviour. In the Conisbee case (above) the employee argued that vegetarianism was a philosophical belief. The tribunal, whilst accepting the employee had a genuine belief in vegetarianism, and accepting there were many vegetarians across the world, identified the reasons for being a vegetarian differed greatly, without a single cohesive underpinning or belief. This was in contrast to veganism, where the reasons for being vegan appeared to be largely the same.

[72]I accepted the submission made by Ms Miller that this same reasoning applied to the claimant’s case insofar as there was a wide array of Rangers fans who would have varying reasons behind their support, and who would show their support in different ways.

[73]I concluded for these reasons that the claimant had failed to satisfy the third criterion.

[74]Fourthly, the belief must attain a certain level of cogency, seriousness, cohesion and importance. I acknowledged that for the claimant his support of Rangers was a serious and important matter: he described it as a way of life and that he strived to be the best, as Rangers did. I did not doubt the claimant’s evidence regarding the build-up to match days and his habits on the day of a match, or the fact it is a way of life for him, but these are all personal matters detailing what he does and how he likes to enjoy the pre-match, match and post-match. There was nothing to suggest fans had to behave, or did behave, in a similar way. The only common factor linking fans would be the fact they wanted their team to do well/win.

[75]The claimant did refer in his evidence to support for the Union and loyalty to the Queen but, as stated above, those factors are not prerequisites of being a supporter of Rangers. There will be many fans who do support those factors, and many fans who do not. There will be many fans who sing the songs referred to by the claimant in his evidence, but there will equally be many fans who do not. It is not these factors which link supporters of Rangers: it is the desire for the team to do well/win which links them.

[76]I had regard to case of Lisk (above) where it was held that the employee’s belief that people should pay their respects by wearing a poppy from 2 November to Remembrance Sunday was not a philosophical belief. The tribunal held that however admirable, the belief lacked the required characteristics of cogency, cohesion and importance and could not fairly be described as relating to a weighty and substantial aspect of human life and behaviour.

[77]I drew a parallel with this case and concluded that however fanatical the claimant’s support for Rangers, it lacked the required characteristics of cogency, cohesion and importance. I say that because support for Rangers has no larger consequences for humanity as a whole, nothing underpinning it beyond a desire for the team to do well/win and no impact on how people lived their lives.

[78]I decided the belief did not satisfy the fourth criterion for these reasons.

[79]Fifthly, the belief must by worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with fundamental rights of others. I acknowledged the claimant’s support for Rangers was worthy of respect insofar as it is for him to decide which football team he wishes to support. I was not persuaded however that support for Rangers Football Club invoked the same respect in a democratic society as matters such as ethical veganism or the governance of a country, both of which for example have been the subject of academic research and commentary.

[80]I concluded for these reasons that the belief of supporting Rangers did not meet the fifth criterion.

[81]I decided, for all of the reasons set out above, that support for Rangers Football Club does not amount to a philosophical belief within the meaning of section 10(2) of the Equality Act 2010, and cannot be relied upon by the claimant as a protected characteristic for the purposes of claiming discrimination under the