Mr Z Huang v Crown Prosecution Service: 6004396/2024
JUDGMENT
[1]The Tribunal allowed the respondent’s application to strike out the claimant’s claim in respect of allegations (CMO 17/7/2024 page 420): 33, 34, 36g, 36h and 36i. Those allegations are struck out as they have no reasonable prospect of success.[2]Striking out(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).(4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).[3]The Tribunal is required to consider Rule 3, the overriding objective, when deciding whether or not it is proportionate to strike out the claim.[4]It is accepted that striking out a claim or a response is a draconian power.[5]The claimant’s claim has been taken at it highest, based upon his pleadings.[6]The claimant’s own claim is that he became aware of the fact that as a Chinese national with refugee status in the UK, he was ineligible to work for the respondent and for the civil service due to Civil Service Nationality Rules.[7]It seems there was an error in his recruitment initially and whatever the cause of that error (and notwithstanding the claimant’s allegations of illegality and criminality by respondent and his accusations against the Director of Public Prosecutions, which are not a matter for this Tribunal), he discovered that on the 12 February 2024 he was not eligible for employment in the civil service.[8]It is to his credit that he brought that to the attention of the respondent and he recognised the ramifications and that he could lose his job as a result of making the respondent aware of this issue (PoC top page 185).[9]He was then suspended and his access to the respondent’s CMS account was deactivated.[10]Subsequently on the 1 March 2024 he was dismissed with notice (page 210).[11]He has attended a formal meeting on the 22 February 2024 at which the Civil Service Nationality Rules were discussed.[12]The claimant when the hearing resumed to give Judgment wished to address the Alien Certificate. He said that the respondent knowingly overlooked his nationality when applying the Civil Service Nationality Rules. That is not accepted. He does not accept there were UK nationals who could undertake his role. He also referred to privity of contract, between him and the respondent. He is correct on the latter point.[13]In an appeal meeting on the 23 March 2024 the Civil Service Nationality Rules regarding an ‘Alien Certificate’ were discussed. There are two routes for an Alien Certificate to be granted, neither of which applied. One is where the role is one of certain overseas posting. The other is where the employment of a particular individual in a specific service if no suitably qualified UK national is available or if the Alien possesses exceptional qualifications or experience for such employment. The claimant was informed that this would be an extremely unusual request and that his role was one where there would be a large number of UK nationals available to undertake the role. An Alien Certificate also requires the consent of the Minister for the Civil Service.[14]The claimant was employed as a Casework Assistant earning £21,930. There was another new started who started work at the respondent on the same day as the claimant. Without impugning the claimant, this indicates in reality that the role is at a relatively low level and that it could indeed be filled by a UK national. It was not a role that required it to be filled by the use of an Alien Certificate. Or to put it another way, if the claimant had applied for the role, knowing that he was not eligible under the Civil Service Nationality Rules and he had suggested that an Alien Certificate be applied for, the Tribunal is satisfied that the request would have been refused.[15]In those circumstances, whether or not the claimant has made a qualifying protected disclosure, the detriments claimed and the dismissal are not as a result of that disclosure or to put it another way; are not retribution for the claimant making the respondent aware of his ineligibility under the Civil Service Nationality Rules. The respondent had not option but to terminate his employment.[16]Indeed, the claimant makes accusations of criminal wrongdoing against various actors for the respondent and other personnel. If he is correct on that point, that criminal wrongdoing would be exacerbated by his continued employment.[17]The claimant seemed to contend for some sort of injunction to maintain his employment during the course of his response to the respondent’s application. The Tribunal does not have jurisdiction to order an injunction.[18]The Tribunal does have considerable sympathy for the claimant. He said, and it is correct, that it is not his fault that his contract was terminated. It seems that as a result of an error, he was offered and took up employment with the respondent. He then discovered that his engagement was in breach of the Civil Service Nationality Rules and it is to his credit that he immediately drew that to the respondent’s attention. As he anticipated, that did result in the termination of his employment. He mentioned that he had given up another role to undertake this role with the respondent. That is unfortunate. However his role with the respondent may not have worked out for other reasons and the claimant was dissatisfied with the role and intended to move on from 20 September 2024. He applied for other roles and was successful in securing an offer from the DWP which was then withdrawn as a result of the claimant being ineligible for employment. It was that withdrawal which led to the claimant’s employment with this respondent being terminated.[19]Although the Tribunal has no jurisdiction over any reference the respondent may provide to a prospective employer, it would be sensible for the respondent to explain the circumstances in which the claimant’s employment with it terminated and to highlight that he drew the ineligibility of his employment to the respondent’s attention, knowing the potential outcome. Approved by: