R-M A Fullah v Lucinda Ellery Ltd: 6006967/2024 and Others
JUDGMENT
The judgment of the Tribunal is that: the claimant’s unfair dismissal claim in case number 6006967/2024 be struck out on the basis that the claimant does not have the required two years of continuous service and the Tribunal has no jurisdiction to hear the claim; the claimant’s whistleblowing claim in case number 6006967/2024 be struck out on the grounds that it has no reasonable prospect of success; the claimant’s claims in case numbers 6008289/2024 and 2224571/2024 on the grounds that they duplicate the claims in case number 6006967/2024 and, therefore, have no reasonable prospect of success.REASONS
Introduction and Background(1) A public preliminary hearing was held by CVP at London Central Employment Tribunal on 15 April 2025 where I decided to strike out a whistleblowing claim, an unfair dismissal claim and the claims in two further claim forms presented by the claimant following presentation of her first claim. The claimant requested written reasons for the decisions by email on 24 April 2025.(2) The claimant was employed as a hair studio assistant by the respondent between 24 October 2023 and her dismissal on 10 July 2024. By a claim form presented on 28 July 2024 (no. 6006967/2024), the claimant identified that she was bringing claims of unfair dismissal, race discrimination, whistleblowing, notice pay, holiday pay and other arrears of pay against the respondent. The claimant also brought a second claim against the respondent (no. 6008289/2024) on 12 August 2024 and a third claim against the respondent (no. 2224571/2024) on 4 September 2024. This was the second preliminary hearing in the case.(3) A preliminary hearing was held on 20 December 2024 before Employment Judge Hodgson. At that hearing, Employment Judge Hodgson had queried the claimant’s particulars of claim and the claimant’s understanding of the subject matter of the claims. He had made three unless orders, requiring the claimant to provide further information to the Tribunal by 24 January 2025 on the substance of the second and third claims, on her direct discrimination claim, and on her whistleblowing claim.(4) This hearing had been listed with the matters to be considered at the hearing being recorded as being at the discretion of the Tribunal and including the following: (a) to consider whether the second and third claims are an abuse of process or otherwise contain no claim with any reasonable prospect of success and if they should be dismissed; (b) to identify the remaining claims and thereafter to consider if all or any of the claims should be struck out pursuant to rule 37(1)(a) Employment Tribunal Rules of Procedure 2024 on the ground that any claim or part of it has no reasonable prospect of success; (c) to consider whether there are any claims of discrimination, or whistleblowing claims, and if so, whether they are sufficiently particularised, and if not whether they should be struck out on any of the grounds provided for in rule 37; (d) to consider, as a preliminary issue, whether the claimant has sufficient service to bring an unfair dismissal claim, and if not whether it should be dismissed.(5) The claimant was assisted at the hearing by her housing support worker, Ms Christina Wanogo. Ms Wanogo attended in the morning but was unavailable in the afternoon. I asked the claimant if she needed any adjustments for the hearing and she confirmed that she did not. That said, I ensured that frequent breaks were taken and I clarified matters of procedure for the claimant. The hearing was listed for two days. The claimant indicated that she would not be available on the second day. In any event, it was possible for me to deal with the required matters within one day. Factual background and submissions(6) The claimant’s first claim (6006967/2024) was presented on 28 July 2024. The claimant had ticked (at Box8.1 of Form ET1) unfair dismissal, race discrimination, whistleblowing, holiday pay, notice pay and arrears of pay. The particulars stated: On the last day of dismissal which was the 10 July I was assisting a colleague (Danilo) and got call by a member of the HR team (Bliss) to see her and then went with her where I got told by the HR manager (Kerry) that I was dismissed and should no longer come back. I was not even allow to get my stuff from staff room, rather instead said will get posted if denied to voice out the color or give a description of how they look like. This was said in a very disrespectful manner towards me. Both the HR decided to call another member of their office team to get me dismissed and will post my stuff if refused to tell them. I then told them one of the HR Bliss) went and get my stuff from the staff room before I vacate the building. Before the dismissal, I had a return to work meeting with a HR and the manager of the company, where they had a review of my work and fit for work after been off sick and advised by the doctor to have some rest before resuming back for work. I had no prior notice that I’ll be dismissed the following week. Unknowingly they might have had regular meetings where they might have had everyone’s opinions about how they feel about me (including those I might have not work with or assisted), that might have made them come into conclusion of what needs to be done with me the moment I come back from sick leave. With no prior notice from the first week worked after been off sick, it was so doubtful to have worked a whole week and a day of the second week of the month of dismissal month to make such decisions as I see as unfair to have done with no empathy towards me and no further explanation was emailed to the reason of dismissal after I have asked for them to do so in two separate emails. They have said to pay acrued holiday and owed pay but they have not done so yet and have asked them when it should be expected but no response was given to me. Whistleblowing was done unknowingly as colleagues voice opinions about me that did not reflect what they said or happened. At one time made an informal complaint to Chantelle the manager about feelings received from bullying and belittling of colleagues and no actions were taken to change behaviours of colleagues as they continued to recuperate with the bullying which I believe reason of dismissal stems from such blow. As they see me as threat as I decided to take a stance. I have been affected by it as they can no longer relate with me since most have refused to assist them.(7) The second claim (6008289/2024) was presented on 12 August 2024. The claimant had ticked (at Box 8.1 of Form ET1) unfair dismissal, race discrimination, whistleblowing, holiday pay, notice pay, arrears of pay and other payments. The particulars (at Box8.2 of Form ET1) read as follows: I faced a lot of challenges with work colleagues where it was made to my notice that they had problems with me that I am unaware off. I made an informal complaint regarding some form of behaviours made by most of the colleagues and repeatedly did the same thing to me after making a complaint. I then decided to speak up and take my own stance. In one occasion I was assisting a colleague and got called by the HR member to see me. Unknowingly is to tell me I have been dismissed with no further explanation of their reason to the unfair dismissal. I had just came from a sick leave with evidence to proof that I attended hospital and was advised to rest before resuming back for work (a pay that was also deducted from my main salary). I was asked to do things in a manner in which others were not asked in the same way they asked me. And that was the main problem I had that I made a complaint for where they repeatedly do not change their behaviours. I really want this case to be taken really seriously. Hoping to hear from you soon Kind regards Rosemarie(8) The third claim (2224571/2024) was presented on 4 September 2024. The claimant ticked unfair dismissal and race discrimination only at Box 8.1 of Form ET1. The particulars of claim (at Box 8.2 of Form ET1) read: Imitating way of working and talking about me to other fellow colleagues.(9) The claimant had sent an email to the Tribunal on 13 January 2025 setting out information in relation to the subject matter of the unless orders. I took the view that the claimant had materially complied with the terms of the unless orders.(10) I spent considerable time discussing the particulars of claim and the information provided in response to the unless orders with the claimant with a view to identifying the claims and producing a List of Issues. The List of Issues was appended to the case management orders issued after the hearing. In outline, the claims I identified following this process were for direct race discrimination, holiday pay, unauthorised deductions from wages and notice pay.(11) At the hearing, the claimant explained that she had worked for the respondent between 24 October 2023 and 10 July 2024. She further explained that there was a sixmonth probationary period beginning on commencement of her employment. She also confirmed that she did not work for the respondent at any point prior to 24 October 2023.(12) I asked her to clarify her race discrimination claim and asked a number of questions about the information in the claim forms and the further information supplied in the claimant’s email of 13 January 2025 with a view to seeking to understand the allegations being made. The claimant explained that a work colleague had spoken to her in a disrespectful manner in December 2023 and asked her where she had been that morning, following the claimant’s return from her lunch break. The claimant complained to the manager of the London studio and also to the HR manager. The claimant explained that she was told that she had a bad attitude, that she should not talk in front of clients and that HR could not do anything to resolve the situation. In January 2024, the claimant was told that she should not respond to others who spoke to her disrespectfully or bullied her. The claimant also expressed concern that in May or June 2024, her colleagues were talking about her in the workplace garden. The claimant said that every technician had an assistant, and she was often asked to perform the role of another technician’s assistant, in circumstances where the other assistants were not asked to do this. Following her return from sick leave, as a result of a workplace injury, she was given notice of termination on 10 July 2024, was not allowed to get her coat and bag, and was not given a reason for dismissal.(13) The claimant explained that when she complained to management, she complained about the behaviour of others but she said that she did not specifically mention race as she was conscious that she was working in a multicultural environment.(14) I asked the claimant about her whistleblowing claim and she explained to me that her understanding of the whistleblowing claim was that her colleagues had gone behind her back to voice certain things, without saying those things to the claimant. She said that this accorded with her understanding of the health and social care definition of whistleblowing.(15) The claimant’s claim for notice pay was for one week of notice pay. Her claim for unauthorised deductions from wages related to the fact that her salary had been increased in April 2024 but she said that she had not received any increase in monthly payments. Finally, her claim from holiday pay related to her understanding that she had accrued but unpaid holiday pay on termination of employment. Law(16) In order for a claimant to bring an unfair dismissal claim, it is necessary to have been continuously employed for a period of not less than two years ending with the effective date of termination (section 108 of the Employment Rights Act 1996).(17) The Public Interest Disclosure Act 1998 provides protection for workers reporting malpractices by their employers or third parties against any form of victimisation or dismissal. In order to qualify for protection a whistleblower must have made a qualifying disclosure. This involves a disclosure of information with the information relating to one of six listed issues, being: (1) that a criminal offence has been committed, is being committed or is likely to be committed; (2) that a person has failed, is failing or is likely to fail to comply with any legal obligation, (3) that a miscarriage of justice has occurred, is occurring or is likely to occur; (4) that the health or safety of any individual has been, is being or is likely to be endangered; (5) that the environment has been, is being or is likely to be damaged; or (6) that information falling within any one of the preceding heading has been, is being, or is likely to be deliberately concealed. In addition, the worker must have a reasonable belief that the information tends to show one of the relevant failures. The worker must also have a reasonable belief that the disclosure is in the public interest.(18) Rule 37 of the Employment Tribunals Rules of Procedure 2024 deals with striking out a claim or response. It provides as follows: 37(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 on any of the following grounds: that it is scandalous or vexatious or has no reasonable prospect of success; 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; for non-compliance with these Rules or with an order of the Tribunal; that it has not been actively pursued; that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(19) When deciding whether to strike out a claim or response, the Tribunal must first consider whether any of the grounds set out in Rule 37(1) has been established and then, having identified any established grounds, consider whether to exercise its discretion as to strike out. The second stage exercise is important as the discretionary element reduces the risk of claims or responses being struck out where they potentially have merit.(20) In deciding whether to order strike out, the Tribunal should have regard to the overriding objective of dealing with cases fairly and justly as set out at Rule 2 of the Employment Tribunals Rules of Procedure 2024.(21) For ‘no reasonable prospect of success’ to be applied successfully it requires a Tribunal to form a view on the merits of the case. The Tribunal is required to take the claimant’s case (or the respondent’s defence) at its highest and it is not permissible for the Tribunal to conduct a mini-trial of what should properly form part of a final hearing. In Cox v Adecco Group and ors UK EAT/0339/19/AT the Employment Appeal Tribunal provided guidance emphasising that if there are factual issues in dispute, it is unlikely that strike out would be appropriate. Analysis Unfair dismissal(22) The claimant is required to have two years’ service to bring an unfair dismissal claim. In the circumstances, the claimant has less than one year of continuous employment with the respondent. There was no dispute about the length of the claimant’s employment and the claimant had not worked for the respondent prior to 24 October 2023. The claimant did not provide any information, in the course of extensive discussion of the factual background to her claim, to indicate that she might have had a claim for automatic unfair dismissal. I explained to the claimant that the fact of her dismissal would operate as a detriment under her race discrimination claim and I have included it in the List of Issues. It is my view that, consequently, the claimant’s unfair dismissal claim does not have a reasonable prospect of success as the Tribunal does not have jurisdiction to hear it.(23) The Tribunal is required to exercise its discretion as to whether to strike out the unfair dismissal claim in connection with those grounds which have been established (being that it has no reasonable prospect of success on the basis of jurisdiction). In exercising this discretion, I am required to consider the overriding objective and the interests of justice. In the circumstances, I am not satisfied that it would be in the interests of justice for the Tribunal to consider a claim which it does not have jurisdiction to hear. Whistleblowing claim(24) It is my view that the claimant’s whistleblowing claim has no reasonable prospect of success. This is because it is premised on a misunderstanding on the part of the claimant as to the meaning of the term ‘whistleblowing’. The claimant understood the term ‘whistleblowing’ to refer to the fact that other people were talking about her behind her back, without informing her of what they were saying. There was nothing in the claimant’s narrative, or flowing from anything said by the claimant during the hearing, that indicated that she had made a protected disclosure to the respondent in accordance with the Public Interest Disclosure Act 1998. Her complaints to the respondent were general complaints about the way in which she had been treated by her colleagues. I explained to the claimant at the hearing that I had included her allegations about colleagues talking behind her back as part of the claimant’s direct race discrimination claim.(25) The Tribunal is required to exercise its discretion as to whether to strike out the whistleblowing claim on the grounds that it has no reasonable prospects of success. In exercising this discretion, I am required to consider the overriding objective and the interests of justice. In the circumstances, I am not satisfied that it would be in the interests of justice for the Tribunal to allow the claimant to proceed with a whistleblowing claim in circumstances where the allegations she has made do not fall within the legal definition of whistleblowing. To allow the claim to proceed would subject the respondent to time and expense in defending a claim based on a misunderstanding of the relevant law, would expose the claimant to the risk of further applications (for example, for deposit orders or costs) and would increase pressure on the Tribunal’s resources. Second and third claims(26) The claimant submitted three claims following her dismissal. Her claims related to the same period of time (being the period prior to her dismissal).(27) The particulars of claim for her first claim required discussion at the hearing in order to be clarify the claims made.(28) With the exception of the box entitled ‘other payments’, the claimant ticked the same causes of action at Box 8.1 of the second claim as those in the first claim. The particulars of claim for the second claim referred to the claimant having made an informal complaint about the behaviours of colleagues – this was also referred to in the particulars for the first claim which referenced the complaint to Chantelle. The particulars went on to provide information about the circumstances of the claimant’s dismissal, following a return from sick leave. Again, this information was provided in the particulars for the first claim. Finally, the claim form referenced the fact that the claimant felt that she had been treated less favourably than others as she was asked to do things in a different manner to others – this information formed the basis of the claimant’s race discrimination claim and was also referred to in the particulars of claim for the first claim.(29) The third claim only referred to race discrimination and unfair dismissal in the box at section 8.1 of Form ET1. The narrative was extremely brief and appeared to indicate that the claimant’s colleagues talked about her behind her back. Again, this information featured in the first claim.(30) Following discussion with the claimant in relation to the information contained in all three claim forms, and subsequent clarification of her claims, I came to the view that the second and third claims should be struck out on the basis that they duplicated the information in the first claim and, therefore, had no reasonable prospect of success. Were the second and third claims to have contained additional allegations to those contained in the first claim, I would have required them to be consolidated with the first claim. However, that was not the case in these circumstances. The second and third claims contain no additional information which would assist a Tribunal in considering the claimant’s case.(31) The Tribunal is required to exercise its discretion as to whether to strike out the claims in connection with those grounds which have been established (being that they have no reasonable prospect of success). In doing so, I am required to consider the overriding objective and the interests of justice. In the circumstances, I am not satisfied that it would be in the interests of justice to retain these claims. It involves an administrative burden on the Tribunal and a requirement for the respondent to defend them. The retention of the second and third claims provides no material advantage to the claimant and does not assist her as the information in those claim forms duplicates that in the first claim. When balancing these interests, the hardship to the respondent and the administrative burden on the Tribunal outweighs the hardship to the claimant of retaining these two claims. To that extent, I decided to strike out the second and third claims.