Mr Abu Mamun v Maritime and Coastguard Agency: S/4112768/2018
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4112768/2018Venue AberdeenHearing 1 February 2019
Between
Mr Abu MamunClaimantMaritime and Coastguard AgencyRespondent
Before
Employment Judge Mr N M HosieMs A Hunter (instructed by Solicitor) for respondentDate 11 October 2019
JUDGMENT
The Judgment of the Tribunal is that: -(1) the unfair dismissal claim is dismissed; and(2) the Tribunal has jurisdiction to consider the discrimination claim.
REASONS
The Facts
[1]Mr Mamun claimed he was unfairly dismissed and that he had suffered discrimination on the grounds of his race and religion and belief. The claim was denied in its entirety by the respondent (“MCA”) and its solicitor also took E.T. Z4 (WR) the preliminary point that the claim was time-barred. The case came before me, therefore, by way of a Preliminary Hearing to consider and determine the time-bar issue. Unfair Dismissal Claim[2]To bring a “standard” unfair dismissal claim, an employee requires to have two years’ continuous service. Mr Mamun accepted at the Preliminary Hearing that he had been employed by the respondent for less than two years. I advised him, therefore, that the Tribunal did not have jurisdiction to consider his unfair dismissal complaint and he agreed that it should be dismissed, for want of jurisdiction. Time-Bar
The Evidence
[3]So far as the remaining discrimination claim was concerned, I heard evidence from the claimant in relation to the time-bar issue. A joint bundle of documentary productions was lodged (“P”) which included the claimant’s Chronology (P32-33).
The Facts
[4]Helpfully, in advance of the Hearing the parties had prepared an Agreed Statement of Facts, on the basis of which, the claimant’s evidence and the documentary productions, I was able to make the following findings in fact, relevant to the time-bar issue with which I was concerned.[5]The claimant commenced employment with the respondent on 12 April 2016.[6]He was employed as a Grade MS1 Marine Surveyor. He was based at the respondent’s Aberdeen office.[7]The claimant is a Bangladeshi National. He moved to the UK on or about 11 April 2016. At that time, he did not have a UK driving licence. He had a Bangladeshi driving licence.[8]The Driver Authorisation Form submitted by the claimant was approved by his line manager. The purpose of the Form is to authorise the employee to drive on official business. The claimant’s Bangladeshi driving licence, valid until 9 November 2025, and his International Driving Permit, valid until 14 May 2017 were attached. The Form was duly signed off on 19 March 2017.[9]On 16 May 2017, the claimant was asked by his line manager to travel to Shetland. He was there to carry out inspections of a number of fishing vessels. In order to carry out his duties, the claimant was driving a hire car.[10]On 19 May 2017 around 5.30pm, the claimant was driving to the airport. He was involved in a car accident.[11]The claimant was out of the office on extended leave from 6 June until 15 July 2017.[12]The claimant obtained a UK provisional driving licence in April 2017.[13]On 15 August 2017 the claimant was suspended on full pay. He was advised that allegations of gross misconduct were being investigated. The allegations against the claimant were:(i) driving on MCA time without proper licence and insurance;(ii) damaging a hire car while not licensed to drive; and(iii) continuing to drive to work while not properly licenced. The claimant was advised that these allegations may be considered to have brought the Agency’s reputation into disrepute and may be found to have breached the Civil Service Code, Agency Values, MCA Driving At Work Policy and various road traffic acts.[14]Ranjiet Vandra, Senior Finance Business Partner, was appointed to carry out the investigation.[15]In October 2017, the claimant obtained a full UK driving licence.[16]On 29 November 2017 an Investigation Meeting took place.[17]Mr Vandra prepared an investigation report, dated 18 January 2018. He concluded that there was a disciplinary case to answer in respect of all allegations, apart from the alleged breach of the Civil Service Code. The Investigation Report highlighted that there were potential mitigating factors which the Decision Officer might wish to consider.[18]The Investigation Report was passed to Glen Richardson, Assistant Director: Business Governance, who was appointed as Decision Officer.[19]On 13 February 2018, the claimant raised a grievance in respect of the investigation report. As the grievance related to the disciplinary process, which had not yet been completed, the respondent decided that it was appropriate to discuss the matters within the grievance at the disciplinary hearing.[20]A disciplinary hearing took place on 19 February 2018. Mr Richardson adjourned the meeting. When the meeting was reconvened, Mr Richardson confirmed his decision in respect of the allegations against the claimant. He decided that the claimant had committed gross misconduct in respect of the allegation of ‘continuing to drive to work while not properly licensed’. Mr Richardson confirmed that the claimant was being summarily dismissed for gross misconduct. The decision was confirmed in a letter, dated 26 February 2018 (P.63-66).[21]On 2 March 2018, the claimant raised a complaint that his grievance had not been handled at the disciplinary hearing.[22]On 12 March 2018, the claimant appealed the decision to dismiss him (P.67/68).[23]On 26 April, the Appeal Meeting took place. Julie-Anne Wood, Head of Maritime Operations, heard the Appeal. Following the Appeal Hearing, the claimant submitted a “right up” with details of his position.[24]The claimant’s Appeal was not upheld. Ms Wood wrote to the claimant to confirm her decision (P.80/81). Her letter was wrongly dated 9 April 2018. There was a dispute as to the date when the letter was sent. The claimant maintained that it was not sent until 15 May whereas the respondent maintained that it was sent on 11 May. I deal with this conflict below. The Employment Tribunal Process[25]The claimant gave his evidence at the Preliminary Hearing in a measured, consistent and convincing manner and presented as credible and reliable.[26]So far as the correct date of the Appeal outcome letter was concerned (P.80/81), he maintained that he did not receive it until 15 May, whereas the respondent’s position was that it was sent on 11 May. However, the claimant produced a copy of the envelope which contained the Appeal outcome letter and it is dated 14 May (P.82). On the basis of this and the claimant’s own evidence, I find in fact that he received the Appeal outcome letter on 15 May which was late as the claimant had been informed that the outcome would be communicated to him “within 5 working days” of the Appeal Meeting on 26 April (P.74). However, this did not have a material bearing on the time-bar issue.[27]On the advice of his trade union, the claimant completed the “Early Conciliation Notification Form” (“the Notification”) and tried to send it online to ACAS on 16 May, but he was unable to do so. He telephoned ACAS to inform them of his difficulty. As they could not detect a technical problem, they advised him to try again which he did the next day, on 17 May, again without success (P.53/54).[28]Accordingly, as advised by ACAS, he sent the Notification by post. On 17 May, he went to his local Post Office and arranged for the Form to be sent by Recorded Delivery to ACAS in Nottingham at 12.44pm (P.55).[29]The claimant maintained that he was advised at the Post Office that it would be delivered the following day, and he maintained that it had been as the ACAS office opened at 8am (P.83).[30]However, the respondent’s solicitor produced a “Track and Trace” of the “item” (P56-58) which she had instructed. This recorded that the Notification was delivered to ACAS and signed for at 07:44am on Monday 21 May, rather than Friday 18 May, as the claimant maintained.[31]ACAS sent an e-mail to the claimant on 21 May to confirm that the Notification had been received that day (P.85).[32]The ACAS “Early Conciliation Certificate”, which was issued on 21 June, also recorded that the Notification had been received on 21 May (P.18).[33]There is no guarantee that a recorded delivery letter will be delivered within 24 hours. Royal Mail does have a “guaranteed next day delivery service”, which can be tracked, but it is more expensive. The claimant chose to send the ACAS notification by Recorded Delivery. I was not persuaded that the claimant was advised at the Post Office that the letter would definitely be delivered the following day.[34]I was satisfied, on the evidence, that the EC Notification Form was received by ACAS on Monday 21 May 2018 and I so find, in fact. Early Conciliation Certificate[35]The Certificate records that it was issued by ACAS on 21 June (P.18). The claimant maintained that he did not receive it until 26 June. He telephoned ACAS that day to ask about the Certificate. He was advised that it had been sent to him by e-mail on 21 June and the ACAS Conciliator forwarded the email which had been sent to him (P.59).[36]The claimant submitted his claim form to the Tribunal and it was received on 25 July 2018.[37]The claimant had the benefit of trade union advice from around 1 September 2017 after he was suspended, and he had trade union representation at the Investigation, Disciplinary and Appeal Meetings. His trade union was not involved after the Appeal. He took further advice from the CAB and a solicitor thereafter but claimed that he was not advised of time limits.[38]On 15 May 2018, when he was advised that his Appeal had been unsuccessful, he was aware of the three-month time limit for notifying ACAS. He was aware that it ran from the date of dismissal on 19 February. This meant that it had to be received by ACAS no later than 18 May, but he thought that the date of posting was the correct date.[39]He maintained that he was unaware that he had one month to submit his claim form to the Employment Tribunal, from the date of issue of the EC Certificate on 21 June. Respondent’s Submissions[40]The respondent’s solicitor submitted that there were two issues to be considered: -(i) was the claim out of time; and(ii) if it was, should I exercise my discretion and allow the claim to proceed on the basis that it is “just and equitable” to do so.[41]In support of her submissions the respondent’s solicitor referred to the following cases: - Wall’s Meat Co. Ltd v. Khan [1978] IRLR 499 Porter v. Bandridge Ltd [1978] IRLR 271 Palmer & Another v. Southend-On-Sea Borough Council [1984] IRLR London Underground v. Noel [1999] IRLR 621 Consignia Plc v. Sealy [2002] IRLR 624 Apelogun-Gabriels v. London Borough of Lambeth [2002] IRLR 116 Robertson v. Bexley Community Centre (trading as Leisure Link) [2003] IRLR 434 Sodexo Health Care Services Ltd v. Harmer UKEATS/0079/08/BI Rathakrishnan v. Pizza Express (Restaurants) Ltd [2016] IRLR 278 Abertawe Bro Morgannwg University Local Health Board v. Morgan [2018] IRLR 1050.[42]The claimant does not accept that his claim was out of time. However, his discrimination complaints relate to his dismissal and it was not disputed that the effective date of termination was 19 February 2018.[43]The respondent’s solicitor submitted, with reference to the ACAS Certificate (P.18) and the Royal Mail “Track and Trace”, (P.56-58) that ACAS received the Notification on 21 May 2018.[44]The Notification required to be “presented” to ACAS within three months of the date of the act complained of, namely the dismissal on 19 February and this meant that it was out of time.[45]The respondent’s solicitor submitted, with reference to Consignia at para. 31, that “presented” meant the date on which ACAS received the form, not the date it was posted.[46]In any event, even if the date of presentation was the date of posting, in terms of Consignia the letter would be delivered “in the ordinary course of post” which in the case of first-class post is the “second day after it was posted” (para. 31(4)). Applying that principle, the claim is still out of time as the claimant posted the letter on 17 May and it would not have been deemed to have been received until 19 May, one day late.[47]The respondent’s primary position, therefore, was that the claim was out of time.[48]In any event, in terms of Rule 9(3) of the Early Conciliation Rules of Procedure, the ACAS Early Conciliation Certificate, if sent by e-mail is deemed to have been received on the day it was sent.[49]The Certificate in the present case was issued on 21 June (P.18) and sent by e-mail to the claimant on that date (P.59).[50]The respondent’s solicitor submitted, therefore, that even if the claimant was unaware of the e-mail, it is deemed to have been received on that date.[51]The claimant then had one month in which to present his claim form to the Employment Tribunal. It was not presented until 25 July 2018. It was therefore out of time. “Just and Equitable Extension”[52]The respondent’s solicitor then went on to address the issue of whether I should exercise my discretion and allow the claim to proceed, although out of time, on the basis that it was “just and equitable” to do so, in terms of s.123 of the Equality Act 2010. She submitted that I should not do so.[53]She reminded me, with reference to Robertson at para. 25 that, “the exercise of discretion is the exception rather than the rule” and that the onus was on the claimant to establish that the discretion should be exercised and that the exercise of discretion is the exception rather that the rule.[54]She referred to the following passage from the Judgment of the Court of Appeal in Abertawe at para. 19: - “That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).”[55]She submitted that, in part, the claim relates to a change in the “counter terrorism policy” in June/July 2017. However, the claimant did not complain at the time and the claim form was some ten weeks out of time.[56]The claimant had failed to give any explanation for the delay, apart from maintaining that it was in time; he offered no explanation of why it could not have been submitted earlier, particularly as he knew all the relevant facts required to bring the claim.[57]The claimant had the benefit of advice from his trade union, the CAB and a solicitor. He does not allege that he was misled by that advice. The respondent’s solicitor submitted that it was not credible that no one told him that he had one month to submit his claim from the date of receipt of the Early Conciliation Certificate.[58]The claimant’s position is that he did not know about the one-month time limit. It was submitted that this alleged ignorance was not reasonable. In support of this submission, the respondent’s solicitor referred me to the following passage from the Judgment of the EAT in Sodexo at para. 25: - “25. Had the Tribunal approached this case correctly, it would have gone on to ask itself whether, in the circumstances, the claimant was reasonably ignorant of the time limit in her case being due to expire on 4 March 2008. The only answer to that question was, no. The cause of her ignorance was assumption on her part which was not induced by any advice or information given to her about time limits and which was made in circumstances where she made no enquiries into the matter notwithstanding an awareness of the existence of the three month time limit. There was no basis on which the Tribunal could properly grant the extension she sought.” Ongoing Appeal[59]The respondent’s solicitor submitted, on the basis of Apelogun, that there was no principle that the just and equitable provision could be exercised as a consequence of an ongoing Appeal. Prejudice[60]It was accepted that were I to dismiss the claim for want of jurisdiction the prejudice to the claimant would be clear: he would be unable to pursue the claim further. However, were I to exercise my discretion and allow the claim to proceed, the respondent would have to continue to defend the claim and this would involve considerable time and expense. The respondent’s solicitor submitted that when considering the balance of prejudice, I should have regard to the apparent merits of the claim. In support of her submission, she referred to the Judgment of Judge Peter Clark in Rathakrishnan and his view that, when considering the balance of prejudice, the potential merit of the claim was a relevant consideration.[61]The respondent’s solicitor submitted the claim is lacking in specification. The claimant alleges a “cleansing operation” which was “targeted at Bangladeshi Muslims”. However, in his submission to the Tribunal, he accepts that the Policy applies to every person, not just Bangladeshi Muslims (P.32-39). It was submitted, that on the face of it, the claim has no merit and there may also be a time-bar point in relation to the complaint of indirect discrimination. Claimant’s Submissions[62]The claimant was unrepresented. His oral submissions at the Hearing were brief. He told me that there was no complaint about the standard of his work, as such and yet he was dismissed summarily. He had raised numerous points at his Appeal, but they went unanswered. He submitted that it was “clear from the body language of the Appeal Manager that she didn’t want to uphold his Appeal”.[63]However, there was included with the documentary productions, not only his Chronology (P32/33), but also his written submissions on the time-bar point (P34) and the merits of the claim (P36-49) where he referred to documents, (“Exhibits”), he alone had lodged.[64]The general rule is that claims of work-related discrimination under the Equality Act 2010 (“the 2010 Act”) must be presented to the Employment Tribunal within the period of three months starting with the date of the act complained of (s.123(1)(a)).[65]However, the Early Conciliation Regulations 2014 provide for the time limits for bringing relevant proceedings to be extended. In short, the clock stops running when ACAS receives the EC Notification Form and starts to run again the day after the claimant receives the EC Certificate. The claimant then has a further one month from the date of receipt of the EC Certificate to present the claim.[66]In the present case the “clock started to run” on 19 February 2018 when the claimant was dismissed summarily. This meant that the EC Notification had to be received by ACAS by no later than 18 May 2018.[67]I found in fact that the Notification was not received by ACAS until 21 May 2018. I was satisfied that the submissions by the respondent’s solicitor in this regard were well-founded. It is the date of receipt by ACAS which is significant and, in any event, even if the Notification is posted, as it was in this case on 17 May, the case law is clear that the calculation date is two days thereafter which meant that as the claimant posted the Notification Form on 17 May it would still have been out of time.[68]The EC Certificate narrates that the Notification was received on 21 May 2018. This was consistent with the “Track and Trace” which the respondent’s solicitor instructed (P.56-58) and of course, although the claimant posted the Notification on 17 May there was no guarantee that it would be delivered the following day.[69]On that basis alone, therefore, I was satisfied that the claim was out of time.[70]In any event, the claimant had one month from the date of issue of the Certificate to present his claim. Despite the claimant’s evidence that he did not receive the e-mail from ACAS, I was satisfied that it was sent to him by email on 21 June (P.59). It is clear from Rule 9 of the EC Rules of Procedure that an EC Certificate “will be deemed received – if sent by e-mail, on the day it is sent”.[71]The claim was also out of time, therefore, for that reason. “Just and Equitable Extension”[72]The remaining issue for me, therefore, was whether I should exercise my discretion to extend the time limit on the basis that it was “just and equitable” to do so, in terms of s.123(1)(b) of the 2010 Act.[73]The respondent’s solicitor referred me to the relevant case law.[74]I also found the guidance in British Coal Corporation v. Keeble & Others [1997] IRLR 336 to be helpful. In that case, the EAT suggested that Employment Tribunals would be assisted by considering the factors listed in s.33 of the Limitation Act 1980. That section deals with the exercise of discretion in Civil Courts in personal injury cases and requires the Court to consider various factors. Prejudice[75]When considering the balance of prejudice, were I to exercise my discretion and allow the claim to proceed the prejudice to the respondent would be that it would have to defend the claim and incur further expense and I was mindful that the claim would appear to be lacking specification and will require to be amended. However, the claimant would lose his right of action completely, as there will be no other remedy open to him. In my view the balance of prejudice favoured the claimant. Length of Time[76]The claim was several weeks out of time. However, with reference to Abertawe, I was of the view that this would not affect the cogency of the evidence and that it would still be possible to have a “fair trial”. There had already been a full investigation during the disciplinary process. Merits of the Claim[77]I accepted, with reference to Rathakrishnan, that this was a relevant consideration. However, I was hesitant, given the nature of the claim, to express any view on the likely outcome, based solely on the pleadings to date and bearing in mind that the claimant is not represented. While I was mindful that the claim is lacking in specification, there was included with the documentary productions the claimant’s written “submissions” which were extensive (P36-49). Also, the case law on discrimination claims makes it clear that such cases are “fact sensitive” meaning that in most cases the merits can only be properly assessed and determined by hearing evidence and will only be struck out as having no reasonable prospects of success, on the basis of the written pleadings alone, prior to a Final Hearing, in exceptional cases. Conduct of the Claimant[78]In my view, this was an important factor in the exercise of my discretion. The claimant presented as entirely credible and reliable when he gave evidence about his endeavours to initiate the claim. He was by no means inactive or casual. He was proactive and was clearly trying to do his best. He has no experience of Employment Tribunal proceedings. Some latitude must therefore be afforded to him, having regard to the “overriding objective” in the Rules of Procedure.[79]The claimant was aware of the three-month time limit and he did try to submit the ACAS Notification online at first on 17 May, within the time limit (P.53/54) but was unable to do so. There was no suggestion that he was at fault. He then telephoned ACAS and was advised that he should try to submit the Notification online again which he did the following day, still within the time limit but again unfortunately, without success. The following day, he arranged for the Notification to be sent by first class post in the belief that it would be received by ACAS the following day. However, there was no guarantee. He was mistaken and could have ensured “next day delivery” by paying more, but he thought he was in time as he had posted the Notification within the time limit.[80]I accepted his evidence that he did not receive the ACAS Certificate until 26 June (although it is deemed to have been received by him on 21 June). He still had sufficient time to present his claim, but he failed to do so. However, I accepted his evidence that he was not aware that he had one month in which to present his claim. That said, he could have discovered this by reasonable enquiry.[81]The claimant did have the benefit of advice from his trade union, the CAB and a solicitor and I had regard to this in arriving at my view.[82]I was also mindful, as the respondent’s solicitor drew to my attention the EAT made it clear in Robertson that the exercise of the just and equitable discretion “is the exception rather than the rule”. However, Robertson also makes it clear that Tribunals have a wide discretion to extend the time limit and the just and equitable escape clause is wider than that relating to unfair dismissal claims which require a claimant who has submitted a claim form out of time to show that it was not “reasonably practicable” to comply with the normal time limit.[83]The decision was a narrow one, but in all the circumstances and having regard in particular to the claimant’s proactivity, his unsuccessful endeavours to present his claim in time by which time he was not represented, the nature of the claim, and my view that the delay would not affect the cogency of the evidence, I decided it would be just and equitable to exercise my discretion and allow the discrimination claim to proceed, although out of time. Accordingly, the Tribunal does have jurisdiction to consider the claim. The claim for direct race discrimination. The claim for religious discrimination. The claim for victimisation. The claim for harassment. E.T. Z4 (WR)
The Facts
[1]The claimant in his ET1 sought findings that he had been unfairly dismissed from his employment as a Marine Surveyor (1) Engineer with the respondents.[2]The respondents denied that the claimant had been unfairly dismissed and also denied that he had been subjected to any discrimination on the grounds of either race or religion. Procedural history[3]The case proceeded to a preliminary hearing which was conducted by telephone conference call on 3 October 2018. I prepared and issued a Note following the hearing dated 9 October 2018. The respondents prior to the preliminary hearing set out a number of concerns about the claimant’s position in particular that the unfair dismissal claim was lodged out of time. Time-bar issues were also raised in relation to the discrimination claims.[4]Paragraph 10 of the Note I recorded: “It was agreed that the claimant will have 21 days from the date of the issue of this Note to lodge better and further particulars setting out why the unfair dismissal claim and the discrimination claim should be accepted late, the background to their lodging and also the legal basis on which the discrimination claim proceeds under the Equality Act.”[5]The Note contained an Order requiring the claimant in his better and further particulars to do the following: “(a) full details in chronological order of all the events or incidents upon which he relies in support of the case, including in particular: i) The nature of the discrimination complained about and its statutory basis. ii) the date of each event or incident, iii) the persons involved, and iv) what happened and what was done or said in each case; and (b) specification of: i) the act or acts complained of which are said to amount to less favourable treatment; ii) the identity of the person or persons with whom the claimant compares his treatment; and iii) the basis upon which the less favourable treatment is said to have occurred.”[6]Mr Mamun lodged two documents the first, a chronological sequence of events and the second a document setting out his position in relation to time bar and further information contained by way of background. Under the heading ‘‘Explanatory Notes’’ he made references to breaches of the Equality Act and to the change of policy over “CTC” (Counter Terrorism Check). He wrote: “130. Such a sudden change in policy with regard to CTC clearance created a disadvantageous condition for a small group of people, whether that is intended or not.131. In addition, there was no justifiable reason to explain this change in policy. Any change in policy should have a reason behind it. For a change in the Respondent’s security policy there should have been a perceived or a conceived threat from this small group of five 5 (five) officials. But, there was no such evidence which the Respondent can produce.132. As such it clearly implies a breach of s.19(1) of the Equality Act 2010.”[7]The respondents continued to be dissatisfied with the state of the claimant’s pleadings. A preliminary hearing was arranged for the 1 February to deal with time-bar.[8]The respondents issued a response to the submissions made by the claimant in an e-mail dated 21 November submitting that the claimant had not set out a valid basis on which the Tribunal should have jurisdiction to hear the claim for unfair dismissal, the statutory basis for alleged discrimination or the act or acts which he alleges amount to a less favourable treatment, the identity of the comparator being used by the claimant and the basis on which the less favourable treatment was said to have occurred.[9]The hearing was conducted by Judge Hosie who issued a judgment to parties on February 2019. He dismissed the claim for unfair dismissal and held that the Tribunal had jurisdiction to consider the discrimination claim. The judgment was not appealed nor was reconsideration of the judgment sought by the claimant.[10]A further telephone preliminary hearing was fixed on 8 March 2019 to consider the written pleadings, future procedure, any relevant matters and orders. It was conducted by Judge Hosie who prepared and issued a Note following that hearing dated 14 March. The focus of discussion at that hearing was the claimant’s pleadings. The claimant was advised that he had to provide fair notice of his case to the respondents and was given 21 days to provide better and further particulars. He was directed to set out under separate headings each of the complaints he wanted to pursue. Reference was made by the Judge to the burden of proof and the two-stage approach required by Section 136 of the Equality Act 2010.[11]The claimant prepared better and further particulars and lodged these (intimating them to the respondents) on 25 April. He set out his position in relation to race discrimination and religious discrimination. He also made further submissions in relation to the unfair dismissal and wrongful dismissal claims. I explained that I could not interfere with Judge Hosie’s earlier decision which the claimant would have to appeal or seek a review from the Judge. Those matters therefore do not concern us here.[12]In paragraph 43 he set out claims for discrimination (sections 13 and 14 and 39(2)(c) of the Equality Act, in direct discrimination section 19 of the Equality Act, harassment section 26 and 41(a) of the Equality Act, victimisation section 27 of the Equality Act. Little was added to the factual position nor did the claimant indicate how his treatment was less favourable to others nor did he specify who a comparator was.[13]In response the respondents e-mailed the tribunal on 7 May 2019 indicating that the unfair dismissal and wrongful dismissal claim should not be reopened They dealt once more with the issue of specification of the discrimination claims. In summary their position was they did not consider the claimant to have properly specified the claims although he had set out apparent legal claims he had not set out the factual basis for them nor how those facts engaged with the statutory claims being made.[14]The case came before Judge Hosie on 31 May by way of a telephone conference call. He reiterated that the unfair dismissal complaint was now dismissed and fixed a preliminary hearing to consider (one) whether the claimant requires to further amend his pleadings and if so, whether he should be allowed to do so, (two) whether any of the complaints comprising the claim should be struck out in terms of Rule 37(1)(a) on the basis that “it has no reasonable prospect of success”, (three), whether any of the complaints comprising the claim has “little reasonable prospect of success” and if so, whether the claimant should be required to pay a deposit not exceeding £1,000 as a condition of continuing with the complaint in terms of Rule 39. Preliminary Hearing[15]A preliminary hearing took place on 9 September 2019. Unfortunately, the claimant could not attend. He had warned the tribunal before the hearing that he was unable to attend. The tribunal e-mailed the claimant on 6 September indicating that his e-mail had been passed to me and although he was free to ask a friend to represent his interests as he requested he was warned that “unless fully conversant with all the facts and circumstances of your case, he may not be able to represent your interests properly and you will be prejudiced as a result.”[16]The tribunal was advised that a friend of the claimant Mr S M Marfat would attend the hearing which he duly did.[17]At the outset of the hearing I noted that Mr Marfat was not a solicitor although he explained to me that he had some experience of employment tribunal cases. He seemed knowledgeable about the claimant’s case and prepared. I then explained to him the purpose of the preliminary hearing and what was going to be discussed and considered. He indicated that he had a submission to present to the tribunal which had been prepared by the claimant. I allowed him to lodge this document and adjourned for a short period to allow Ms Hunter an opportunity of reading it.[18]On her return she observed that the document made reference to the unfair dismissal complaint and the wrongful dismissal complaint. I explained to Mr Marfat that as Judge Hosie’s judgment had not been appealed or reconsidered I could not deal with either of these matters as they were not “before me”. Mr Marfat indicated that he understood the difficulty I was in but urged me to consider the rest of the document which related to discrimination complaints which I confirmed I would. He reiterated that neither he nor Mr Mamun were legally qualified and he understood that Mr Mamun was struggling to put down in writing what was required by the law. He hoped that there was sufficient facts before the tribunal from which the tribunal could discern the basis for the legal claims that were being made.[19]We first of all looked at the various “submissions” that had been made starting with narrative in the ET1, the submissions submitted in November and the better and further particulars that had been lodged.[20]I explained to Mr Marfat the basis on which a strike-out application/deposit order could be made and the two tests that Judge Hosie had set out in his judgment. I invited Mr Marfat to ask, at any point for clarification of any matter if he required to do so.[21]In the event Mr Marfat contributed appropriately to the ensuing discussion. Ms Hunter set out the strike out application in essence expanding on the terms of the e-mail of the 7 May 2019. The remaining claims were for race and religious discrimination, harassment and victimisation. She took me to page 12 of the better and further particulars. She went through the various claims that were made there detailing the lack of factual basis for each of them. In particular she criticised the lack of any basis for the claim for indirect discrimination and for victimisation. There was no evidence she submitted of any protected act although it could be argued in fairness to the claimant that raising the issue of discrimination at the appeal stage could be a protected act but the alleged victimisation occurred prior to this.[22]Ms Hunter referred me to the case of Ahair v. British Airways [2007] Court of Appeal. In her view this was a case that met the high test required of the Tribunal to dismiss the claim. The claimant had not set out the primary facts (or a prima facie case) in which the tribunal could infer the discrimination. She made reference to Madarassy. In essence the unfair dismissal claim has been “shoehorned” into a discrimination claim. There was reference to some sort of ‘operation’ or conspiracy by the respondents to remove both people of the same ethnic background as the claimant but no basis for this proposition was set out nor any particular instances or instance given that might explain why the respondents were targeting Bengali citizens. If the tribunal did not agree that the claim should be struck out then her she sought deposit orders for each of the individual issues raised.[23]Mr Marfat confirmed that the claimant was Bengali. He hoped that there was enough to allow the claims to proceed to a hearing. The claimant felt aggrieved at what had happened and the dire consequences to him and his family of losing the employment with the respondents.[24]I explained to Mr Marfat that if I came to the view that a Deposit Order should be made I could properly take account of the claimant’s financial position. I questioned Mr Marfat in relation to this and he confirmed that he could give the Tribunal information. I noted from him that the claimant’s finances had been badly hit when he lost his job with the respondents having moved his family to the UK. His wife and daughter have now had to return to Bangladesh. The claimant has obtained employment (full employment as a librarian) but he is supporting himself and his son who is currently at University. He is struggling to support two households. Mr Marfat reiterated that he hoped that there were sufficient facts to allow the tribunal to identify the claims. Discussion and Decision[25]I first of all set out the terms of Rule 37 which deals with strike out and thr legal principles that should be applied. “37. Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) that it is scandalous or vexatious or has no reasonable prospect of success; …"[26]It has been recognised that striking out is a draconian power that must be exercised carefully. If exercised it would have the effect of preventing a party from having their claim determined by a Tribunal. The claims we are dealing with here are claims for discrimination. The legal principles applicable in relation to the striking out of discrimination complaints pursuant to this Rule are well-established. In the House of Lords case of Anyanwu & Ano v South Bank Student’s Union and Ano 2001 ICR 391. Lord Steyn said as follows: "24. … Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest. Against this background it is necessary to explain why on the allegations made by the appellants it would be wrong to strike out their claims against the university." And at paragraph 39 of the judgment Lord Hope of Craighead said as follows: "Nevertheless, I would have held that the claim should be struck out if I had been persuaded that it had no reasonable prospect of succeeding at trial. The time and resources of the employment tribunals ought not to [be] taken up by having to hear evidence in cases that are bound to fail."[27]The rule came under scrutiny again in the case of Ezsiasv North Glamorgan NHS Trust 2017 ICR 1126,CA , the Court of Appeal was considering a case involving public interest disclosure and held that a claim should not ordinarily be struck out where there was a: "29. … crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. … It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. …"[28]In the more recent case of Ahir v British Airways plc [2017] EWCA Civ 1392 , Underhill LJ said as follows: "16. … Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment, and I am not sure that that exercise is assisted by attempting to gloss the well-understood language of the rule by reference to other phrases or adjectives or by debating the difference in the abstract between 'exceptional' and 'most exceptional' circumstances or other such phrases as may be found in the authorities. Nevertheless, it remains the case that the hurdle is high, and specifically that it is higher than the test for the making of a deposit order, which is that there should be ' little reasonable prospect of success'."[29]One of the difficulties commonly faced by litigants in person is in adequately pleading a claim by setting down what is required by the terms of the section of the statute that is being founded upon. Tribunals are aware of such difficulties and often through case management ‘tease out’ sufficient information to satisfy the terms of the section in issue and to give the respondents fair notice of a claimant’s position. It is often apparent from the facts where a claim may lie.[30]However, one the problems that can arise, as in this case, is where a claimant has a strong belief that he or she has been badly treated and that belief then leads to claims being made for discrimination (sex, race or whatever) without there being something more that indicates that that the treatment complained of occurred because of the protected characteristic of race, sex or whatever.[31]This principle that unreasonable behaviour is not on its own sufficient was referred to by Judge Hosie in his Note dated 14 March 2019 in which he made reference to the case of Madarassy v Nomura International PLC (2007) ICR 867 particularly at paragraph 56. He also acknowledged, as do I, the difficulty facing unrepresented parties. A more full quotation is repeated here of the Judgment of Mummery.L.J : "54. I am unable to agree with Mr Allen's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her. This analysis is not supported by Igen Ltd v Wong [2005] ICR 931 nor by any of the later cases in this court and in the Employment Appeal Tribunal. … 56. The court in Igen Ltd v Wong [2005] ICR 931 expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicated a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. 57. "Could… conclude" in section 63A (2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and of the reason for the differential treatment. It will also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory "absence of an adequate explanation" at this stage (which I shall discuss later), the tribunal will need to consider all the evidence relevant to the discrimination complaint; for example, evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by section 5 (3) of the 1975 Act; and available evidence of the reasons for differential treatment. 58. The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of adequate explanation only becomes relevant if a prime facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate non- discriminatory explanation of the treatment of the complainant. If it does not, the tribunal must uphold the discrimination claim. …69. ... The only factor which section 63A (2) stipulates shall not form part of the material from which inferences may be drawn at the first stage is the "the absence of an adequate explanation" from the respondent.70. Although no doubt logical, there is an air of unreality about all of this. From a practical point of view it should be noted that, although section 63A (2) involves a two-stage analysis of the evidence, the tribunal does not in practice hear the evidence and the argument in two stages. The employment tribunal will have heard all the evidence in the case before it embarks on the two- stage analysis in order to decide, first, whether the burden of proof has moved to the respondent and, if so, secondly, whether the respondent has discharged the burden of proof.71. Section 63 A (2) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or the comparators chosen by the complainant or the situations with which the comparisons are made are not truly like the complaint or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant it was not on the ground of her sex or pregnancy.72. Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant's allegations of discrimination, there is nothing in the evidence from which the tribunal could properly infer a prime facie case of discrimination on the proscribed ground. As Elias J observed in Laing v Manchester City Council [2006] ICR 1519, para 64, it would be absurd if the burden of proof moved to the respondent to provide adequate explanation for treatment which, on the tribunal's assessment of the evidence, had not taken place at all. … 76. In my view, Mr Allen's submission goes further than Igen Ltd v Wong warrants. He argued for a presumed lack of an adequate explanation providing "a material premise" for the reversal of the burden of proof. The "absence of an adequate explanation" may, he said, be the only basis on which the tribunal could infer that a significant ground for the treatment of the complainant was a proscribed one. 77. In my judgment, it is unhelpful to introduce words like "presumed" into the first stage of establishing a prime facie case. Section 63A (2) makes no mention of any presumption. In the relevant passage in Igen Ltd v Wong … the court explained why the court does not, in the first stage, consider the absence of an adequate explanation. The tribunal is told by the section to assume the absence of an adequate explanation. The absence of an adequate explanation only becomes relevant to the burden of proof at the second stage when the respondent has to prove that he did not commit an unlawful act of discrimination. In Igen Ltd v Wong the court did not go so far as to say that there was "a statutory presumption that there was no adequate explanation" for the respondent's treatment of the complainant and that there was therefore discrimination on a proscribed ground and that this presumption alone caused the burden of proof to move to the respondent. … 79. I do not accept Mr Allan's submission on the construction of the expression "in the absence of an adequate explanation" or his criticisms of Elias J in Laing [2006] ICR 1519. It seems to me that the approach of Elias J is sound principle and workable in practice. This court should approve it. No alteration to the guidelines in Igen Ltd v Wong is necessary."[32]The background to the case was that the claimant was recruited from Bangladesh. He was working in Shetland and was told to hire a car which he did. He thought that he could legally drive on his Bangladeshi Licence. This proved not to be the case and he was dismissed for driving without a valid license and insurance. He was employed to carry out marine surveys and he could not do so independently until he was cleared to do so following the CTC check to which he refers.[33]Following the issue of Judge Hosie’s Note in March directed the claimant to lodge better and further particulars of his claim which we now have to consider together with the rest of the pleadings.[34]We now have a five-page statement or narrative from the claimant in the ET1 (Document1), an eighteen-page document headed ‘Submission to the Employment Tribunal’ (Document 2) and a 14 page ‘Better Particulars of Claim’ (Document 3). In these documents the claimant has set out with some considerable care and attention to detail the factual history of his employment with the respondents.[35]In considering the pleadings the Tribunal bore in mind the terms of Section 136 of the Equality Act which deal with the burden of proof of discrimination cases. Race and Religious Discrimination, Victimisation and Harassment[36]The first claim I will consider is for direct discrimination namely that the claimant was discriminated against because of his race. As I understand it the detriment or disadvantage claimed was not to put the claimant forward for a CTC check which if passed would allow him to survey vessels independently.[37]The claimant in his ET1 writes: “From the beginning of this case I felt that I was being discriminated by my line management as a foreign national in MCA, especially because of my religious identity. My line manager never talked or discussed with me clearly what was going on with regard to the car accident that I was involved in Shetland Islands up until the time of my suspension, except giving me some suspicious indications. Because, instead of looking into the incident that why it happened and how it happened, the line of query from my management side always indicated that there was a tendency to victimise me rather than showing any sympathy or reconciliation for an incident that happened on an official travel, which could have made me seriously injured or even could have endangered my life. The basis of my suspicion was mainly due to some of the comments made by the line manager on Monday, the 17th July 2017, when he called me to his office after I returned back from my annual leave. He mentioned that after the incident of Shetland Islands the MCA Head Office had decided not pursue our “Counter Terrorism Clearance (CTC)” after 18 months of our residence in UK, a waiver from the UK Government for MCA to apply for the CTC for the foreign nationals working within MCA instead of the usual 36 months applicable for other organisations in UK. I inquired with him that why and how my incident was connected in making such a change of policy which MCA enjoyed for long. He replied that no one in MCA Head Office wanted to take any risk by pursuing our early CTC. He also added that MCA HR dept considered it was a “mistake” to recruit me, because they were suspicious whether I would get a clearance even after 3 years of my stay in UK. When I asked him that why they were considering so and what could have prevented me from getting a counter terrorism clearance when I know that I had a clean background. He added that on this matter of CTC the Head Office was very much concerned about few of us like me who were yet to apply and get cleared with CTC, as we were not officially allowed to go for any survey independently till we had our CTC issued. So, he advised me to maintain a low profile and meantime he would try and find enough jobs for me in the office and would try and convince head office that I was fully engaged in my job without even going for any independent survey on board the ships. ……”[38]Document 2 adds little to this. At paragraph 9 (c) the claimant states that he could ‘visually feel a tendency to victimise’ himself and then he turns to the alleged comments made about his recruitment and CTC clearance. He then repeats the allegation of a ‘cleansing’ operation. In Document 3 the claimant adds background detail (paragraphs 31 onwards) He adds that after the car accident his line manager told him that his CTC check was not being pursued. This he believed to be unusual. The CTC check would have been carried out by the Home Office. The manager told the claimant to keep a low profile. In paragraph 61 the claimant alleges that the way the allegtions were brought makes it clear to him that he was ‘framed’.[39]In the ‘Explanatory Notes’ in Document 2 the claimant gives further detail about the car accident but seems to indicate that this was a general change in policy that affected more than just him. He points to other accidents involving staff leading to no action being taken against them in contrast to himself and alleges that this was direct discrimination in terms of Section 13 of the Equality Act (Paragraph 127). The claimant does not know the detail of these accidents or disciplinary actions or if he does they are not set down. Without such detail and a truly comparative exercise it is impossible to say that there was a disparity of treatment let alone that it was on the grounds of race or religious belief.[40]At paragraph 129 referring to what he believed is a change of policy around the CTC he writes that according to information he has five officials were affected by the change to the CTC and four out of five were Muslim and Bangladeshi. He gives no further detail.[41]I would observe that the focus of the claimant’s documents still seem to be the dismissal which took place because of the driving and licence issues.[42]The claimant does not explain why he thinks the change of policy was driven by racial prejudice although he makes reference to other Bangaldeshi’s being affected. He also makes reference to the comment from his manager that ‘Head Office’ thought it was a mistake to recruit him. He does not directly link these matters to his race or indeed religion nor does he speculate why it was a mistake to recruit him. These remarks were supposedly made on the 17 July. (Document1). Given the difficulties he encountered driving in Shetland in May the remark is obviously capable of having a number of innocent interpretations. The claimant, however, interprets these matters as evidence of discrimination as in his view there was no reason to otherwise link the CTC issue with the car accident. I am not convinced that a case has been set out making that link. He does not explain how they are linked or why if they are other Bangladeshi’s are being allegedly being targeted at this time in the so called ‘cleansing operation’.[43]Another difficulty with the claimant’s position is that it is not clear what the detriment or disadvantage the change in policy actually made given that his manager was telling him he would keep him occupied with other work meantime. He does not complain of any cut in salary. There was no clear detriment. The claimant wasn’t dismissed because he could not yet carry out independent marine surveys. It is also odd that the respondents in any event not want to prevent him carrying out the full role for which he was recruited.[44]Considering the matter in the round the claim for race discrimination is very weak and confused. The change in CTC rules must have affected any foreign national employed by the respondents in a similar position to the claimant and not just Bangladeshi employees. The claim is just too speculative. In these circumstances I have concluded that it has no reasonable prospects of success and is the sort of case that, despite it relating to allegations of discrimination, can properly be struck out.[45]The claim for religious discrimination is best set out in Document 2 at paragraphs 14 onwards. The claimant asserts that those of the Muslim faith were dismissed (‘singled out and sacked’) including himself. He once more refers to the change in CTC policy affecting him and others. He asserts that three other recruited at about the same time, I infer that they are also Muslim, were ‘under some sort of disciplinary procedure or targeted with an issue to bring a case against them’ (paragraph 15). Further he says that 4 out of 5 Marine Surveyors with foreign nationality (presumably Muslim Bangladeshi) were affected by the change in CTC checks. The details of the disciplinary incidents or evidence that they were bogus is not alluded to nor why the claimant believes that the disciplinary action was not justified. It is interesting to note that despite reference to the so-called cleansing operation the claimant only asserts that three colleagues (15(1)) were facing disciplinary action not that they were dismissed. He does then say that of the four affected by the CTC change two were dismissed along with a Pakistani national. The claimant does not say how the CTC change in any way impacted on the dismissals. The claimant alleges that these people were targeted to correct the mistake made in their recruitment. Indeed, he only alleged that his recruitment was a mistake (Paragraph 9(d)). The allegation boils down to the claimant asking the Tribunal to infer from the incidence of disciplinary action/ dismissal involving Bangladeshi Muslims recruited at the same as him is evidence of discrimination and by inference his dismissal was really on these grounds.[46]I came to the same view in relation to this claim that I did in relation to the race discrimination claim. This claim has no reasonable prospects of success and is struck out.[47]The same document deals with harassment at Paragraph 31. The Section reads as follows: “26 Harassment (1)A person(a) (A) harasses another(b) (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2) A also harasses B if— (a) A engages in unwanted conduct of a sexual nature, and (b )the conduct has the purpose or effect referred to in subsection (1)(b). (3) A also harasses B if— (a) A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b) the conduct has the purpose or effect referred to in subsection (1)(b), and(c) because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are—• age;• disability;• gender reassignment;• race;• religion or belief;• sex;• sexual orientation.”[48]It is not completely clear what the harassment was other than possibly the Decision Manager not discussing the claimant’s grievance letter and his behaviour at towards the claimant at a disciplinary hearing. There is no indication of why the claimant believes that this particular behaviour related to either his race or religion. It seems highly improbable that the Decision Makers actions could violate the claimant’s dignity or create a hostile, degrading, humiliating or offensive environment. This is insufficient, without much more, to constitute the sort of behaviour the section prohibits. The claim as stated had no real prospects of success.[49]Victimisation is dealt with at Paragraph 37. I reminded myself of the statutory requirements for such a claim contained in Section 27: “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.(3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith.(4) This section applies only where the person subjected to a detriment is an individual.”[50]The allegations seem to relate to the actions of the Appeal Manager. It is suggested that her failure to deal with the claimant’s grievance (which is commonly a separate process) at the appeal hearing was victimisation. The claimant does not say what the protected act was. It seems very improbable that refusing to clarify points in relation to a grievance or a failure to give a detailed decision, even if true and without something more, in itself could amount to harassment. This claim appears to have no merit and no reasonable prospects of success.