Miss V Abbas v ISS Facility Services Ltd and Mitie Ltd: 8000744/2025
JUDGMENT
[1]The claimant’s claims of harassment related to race and/or sex having been withdrawn by the claimant are dismissed under rule 51 Employment Tribunal Procedure Rules 2024.[2]There were no remaining claims extant before the Tribunal and in particular no claim of victimisation had been made by the claimant. Therefore, her claim falls to be dismissed in its entirety.REASONS
[1]The case had been listed for an Open Preliminary hearing to determine applications by the respondents that the claims should be struck out. The claimant had been ordered to lodge a deposit in relation to her claims of harassment related to the protected characteristics of race and/or sex following a preliminary hearing on 4 June 2025. The claimant had made an application to set aside the deposit order in a letter of 16 June 2025 on the basis that she was withdrawing the claims to which the deposit order related. The claimant has already withdrawn a claim of ‘data breach’ in a letter of 18 May 2025 and she confirmed at the preliminary hearing on 4 June that she wished to withdraw her claim of whistleblowing which was then dismissed on 11 June 2025.[2]In the letter withdrawing the claims of harassment, the claimant stated “Evidence and details related to HMRC should be considered for victimisation claim.”[3]Both respondents wrote to the Tribunal making an application that the claimant’s claim should be dismissed following her withdrawal of the harassment claims. The second respondent stated in their letter “It is not within the remit of the claimant to now seek to add a completely new claim of victimisation.” The first respondent stated in their letter “the claimant is an experienced litigant ….and she was very clear at the hearing on 4 June 2025 that her claim was for harassment on the grounds of her race and sex only.”[4]At today’s hearing, the claimant confirmed that she had withdrawn her claims of harassment related to race and/or sex. Those claims are now dismissed. It was therefore necessary to determine whether there was a victimisation claim still live following the withdrawal of the harassment claims.[5]The claimant’s claim form in the box “Other types of claim”, stated “1. Harassment. 2. Blaming claimant. 3. Data Breach”. It did not refer to any claim of victimisation. In box 8.2, the only reference to victimisation was in relation to other claims the claimant had brought in 2024.[6]The claimant did refer to victimisation in the agenda document she completed in advance of the preliminary hearing on 4 June. In the related box, the claimant stated that the protected acts were “Both of respondents created hostile environment through their employee.”, the disadvantage was said to be “Mentally distress and harassed” and in response to the question as to why the claimant alleged this because of the protected act, she stated “Because I was already going through very serious employment tribunal proceedings.”[7]The Note following the preliminary hearing of 4 June 2025 made no mention of a victimisation claim. The note carefully set out the issues to be determined at any final hearing at paragraph 7. The issues related only to the claimant’s claim of harassment. The claimant did not write to the Tribunal thereafter to highlight that there was an error in that regard. Counsel for both respondents who had appeared at that preliminary hearing informed me that the only mention of victimisation at that hearing had been in relation to that being the subject matter of other claims the claimant had brought. I asked the claimant why she had not written to the Tribunal either to make an application to amend her claim or set out the basis on which the note of the preliminary hearing had incorrectly narrated her claim. She stated that she had understood that all she had to do was refer to the matter in the agenda document. In response the respondents’ position was that the claimant had experience of employment tribunal litigation and had previously pled a claim of victimisation and therefore she was aware of what was required. I did not accept that this had been the claimant’s belief at the time.[8]The claimant sent a written submission to the Tribunal on 18 August which did not set out the detail of any claim of victimisation or make any application to amend a claim.[9]I explained to the claimant that it did not appear to me that a claim of victimisation had been made by her either in her original claim, at the preliminary hearing or in any subsequent application to amend. I asked her to explain what claim of victimisation she had understood she had brought. She stated that the detriment she had been subjected to was that the respondents had a conflict of interest because they had worked together in the past. I asked what the protected act she had done was, and she stated that both respondents knew the claimant was of Asian background.[10]I explained to the claimant that on the basis of the papers before me and what had been said at this hearing there was no claim of victimisation made out by her and there was no outstanding application for amendment. I explained that in those circumstances, she would be required to lodge a fresh claim should she wish to make a claim of victimisation as there was no longer any claim to amend.[11]In addition, I explained that even if I was wrong in that and it could be said that there was a claim of victimisation, it had no prospects of success, and I would have struck it out on that basis. The claimant had not set out the necessary constituent building blocks to make out a claim of victimisation. I could not understand on what basis it could be said that a ‘conflict of interest’ between two respondents could amount to a detriment. In addition, the respondents’ knowledge of the claimant’s ethnic background could not amount to a protected act.[12]Counsel for the first respondent also drew my attention to submissions which had previously been lodged on their behalf in relation to the issue of judicial proceedings immunity. The essence of the claimant’s claim had appeared to relate to actions of agents during the course of preparations in relation to a previous claim brought by the claimant. Efforts had been made to determine whether the claimant’s schedule of loss in the previous case was accurate, and it became apparent that the claimant had applied for a role with the second respondent, albeit she subsequently indicated she did not want to accept the role.[13]I was referred to Parmar v East Leicester Medical Practice [2011] IRLR 641 as authority for the proposition a claim of victimisation which related to conduct in previous proceedings was not justiciable on the basis of the principle of judicial proceedings immunity. While that case had been an English case, reference had also been made to a recent Employment Tribunal judgment in Scotland which had found that the Tribunal was bound by judicial proceedings immunity and that the Tribunal had been bound by Parmar.[14]Therefore, I concluded that even if it could be said that there is a live claim of victimisation before the Tribunal or that the claimant’s claim should be amended to include such a claim, the claim would fall to be struck out against the first respondent on the basis of judicial immunity proceedings. There being nothing in the pleadings which suggested that the second respondent was aware of the claim which had been made against the first respondent at the relevant period, or that the constituent parts of a victimisation had been set out by the claimant, any claim in so far as it related to the second respondent would be struck out as having no prospects of success.[15]In all these circumstances, the claimant’s claim is dismissed.