Mr C D Oliveira v The Royal Blind Asylum and School and others: 8001301/2024
JUDGMENT
[1]The claims against the second and fourth respondents having been withdrawn, are dismissed.[2]The claimant not having two years’ service, the claim for “ordinary” unfair dismissal is dismissed following withdrawal.[3]By 8 November 2024, the claimant will provide to the respondent:(i) further information and supporting documentation which he will rely on to prove protected disclosures and detriment; and(ii) provide a schedule of loss.[4]By 19 November 2024 the respondent will provide to the claimant:(i) copies of all documents to be relied on at the final hearing.(ii) any response to the further information provided by the claimant, including amending the ET3 if so advised. ETZ4(WR)[5]By 3 December, the claimant will forward to the respondent copies of any additional documents to be included in the final volume of documents.[6]By 20 December 2024, the respondent will provide the claimant with a final joint paginated volume of documents to be relied on at the final hearing.[7]A notice of hearing will be issued listing this case for a final hearing in person on 13 to 24 January 2025. NOTE OF PRELIMINARY HEARING ON CASE MANAGEMENT ISSUES[1]The claimant lodged a claim in the Employment Tribunal on 25 August 2024 claiming unfair dismissal, detriment and unfair dismissal following public interest disclosure, and age, race and sex discrimination. The respondent resists the claims.[2]At this preliminary hearing I had the benefit of agendas prepared by both parties. Issues for determination by the Tribunal[3]We first considered the issues for determination by the Tribunal at any final hearing. Although Mr De Oliveira had lodged a very lengthy agenda setting out his claims in detail, we took time at this hearing to go through his answers and summarise what his claims are, to ensure that the respondent understood the claims being made and it is clear what issues the Tribunal will require to determine at the final hearing. Whistleblowing[4]On the matter of the alleged protected disclosures, when they were made and to whom (question 2.3 of the agenda), the claimant explained his position and confirmed that he will provide copies of the documents relied on. He will forward these to Ms McGaff by 8 November 2024, explaining why he says they are protected disclosures.[5]The claimant confirmed that he is relying on the following disclosures:(i) E-mail to the CEO Mr C Spalding believed to be 15 September 2023. The claimant will check his e-mails and confirm that, and he will explain why he believes this to be a protected disclosure;(ii) E-mails dated 30 May and 29 June 2024 to Ms Jamieson and Mrs Chalmers, which he believes to be protected disclosures;(iii) E-mail to Mr Spalding on 3 July 2024, again asserted by the claimant to be a protected disclosure;(iv) E-mail dated 14 July 2024 to Mr Spalding. Ms McGaff was not aware of this e-mail but once she has seen it she will advise whether she can agree that it amounts to a relevant disclosure; and(v) The ET1 which was lodged on 25 August 2024 with the Tribunal and directed to Mr Spalding.[6]On the question of which failures these tended to show (question 2.4), he confirmed that he believes that these disclosures tend to show that a criminal offence has been committed, and/or that a person has failed to comply with a legal obligation, and/or that the health or safety of an individual is or is likely to be endangered. This relates in particular to his allegation that service users had been subjected to physical harm, and that there was a failure to report or investigate the circumstances and an attempt to cover up the injuries.[7]The claimant’s position is that the reporting and investigation of physical harm to service users is in the public interest.[8]The respondent does not accept that these are protected disclosures, so that is a matter which will require to be determined by the Tribunal.[9]With regard to the disadvantages the claimant says that he suffered as a result of making the disclosures (question 2.6), the claimant relies on the following allegations:(i) Being forcibly removed from the workplace and suspended from work in the presence of other colleagues on 29 June 2024;(ii) Being dismissed on 23 August 2024;(iii) Refusal to deal with his verbal and written requests to Mrs Gill and Mrs Coleman for flexible working (the claimant will provide the respondent with copies of the relevant e-mails); and(iv) Being bullied, harassed and pestered by other co-workers, sometimes in the presence of clients, as narrated in his ET1 and agenda.[10]As there is a dispute about this, the Tribunal will require to decide whether the claimant suffered the disadvantage he alleges, and if so, whether any of the treatment was because he had made any protected disclosures. Unfair dismissal[11]After discussion, the claimant confirmed that he does not have two years’ service with the respondent. He accepted that this means that he cannot claim “ordinary” unfair dismissal. His claim for automatically unfair dismissal for making a protected disclosure will however proceed. Discrimination[12]The claimant confirmed that he is making claims of race, sex and age discrimination against the first respondent (his former employer) and the third respondent, Mr Cowan, who was his line manager.[13]With regard to his claim for race discrimination against the third respondent Mr Cowan, and also the first respondent (who are liable for the actions of Mr Cowan), this relates to comments made by Mr Cowan, as set out in the e-mail dated 7 October 2024 responding to the rule 27 notice and order.[14]The claimant confirmed that he had made no mention of Ms Evis or Mr Watson in that e-mail response, but in any event, during the hearing he confirmed that he is not pursuing any claims against Ms Evis or Mr Watson. Accordingly those claims are withdrawn and dismissed.[15]The claimant is also pursuing a claim for age and sex discrimination. This relates to his allegation that he was less favourably treated than older female colleagues in regard to the rota. He alleges in particular that those older female colleagues were allowed to work less hours and on preferred days and shifts because of their age and/or sex. While he has forwarded to the respondent copies of the rotas which he relies on to support this claim, he confirmed that his comparators include a Mrs Niven, a Mrs Brecking and a Mrs Evis.[16]The claimant also alleges that his flexible working application was refused because of his age and sex, but also because of his race (as well as because he made a protected disclosure).[17]These are matters in dispute which the Tribunal require to hear evidence about and to determine whether the claimant has suffered direct discrimination because of any one of these protected characteristics. Listing for final hearing[18]We then moved to discuss the fixing of a final hearing when these matters in dispute can be determined by the Tribunal.[19]We discussed the fact that both the claimant and the respondent had included in their agendas a long list of witnesses whom they proposed to call.[20]The claimant remains of the view that the 13 witnesses he has listed are all relevant witnesses. As I understand it, many if not most of the witnesses on that list are still employed by the respondent. Accordingly, the respondent is invited to consider whether they will call any of those witnesses, and if not, to ask those witnesses still employed by them whether they are prepared to be called by the claimant to give evidence on a voluntary basis.[21]Depending on the response, the claimant should reconsider his position and if he remains of the view that these witnesses are relevant, then he will be entitled to make any applications to the Tribunal for witness orders as appropriate. He should explain why the witnesses are necessary to prove his claims, and any applications will be considered by an employment judge who will decide whether or not the witness orders should be granted on the basis of the claimant’s submissions.[22]The respondent has also listed 12 witnesses (with some overlap with the claimant’s list). Ms McGaff will consider her position now that the claimant’s claims have been clarified and assess whether all of those witnesses might be required.[23]Following discussion, and in the expectation that those lists will reduce for the final hearing, it was agreed that it was appropriate to list this case for 10 days.[24]Mutually convenient dates were identified as 13 to 24 January 2025. The hearing will take place in person (face to face) before a full panel, that is a three member Tribunal.[25]For the avoidance of doubt, witness statements will not be used and the final hearing will cover both liability and remedy. Documents[26]Ms McGaff agreed that the respondent will take responsibility for providing sufficient copies of the files of productions for the final hearing.[27]She will forward to the claimant copies of all of the documents which the respondent intends to lodge for the final hearing by 19 November 2024.[28]The claimant will then forward to Ms McGaff copies of any additional documents which he wishes to be included in the final volume of productions by 3 December 2024.[29]A final joint paginated volume of productions will be forwarded to the claimant by 20 December 2024, with the requisite copies forwarded to the Tribunal shortly before the first day of the hearing. Schedule of loss[30]The claimant agreed to provide a schedule of loss by 8 November 2024. He was advised that a style or template is available from organisations such as the CAB and gov.uk, and these can be found by searching the internet.[31]The schedule of loss should also include what the claimant has done since he was dismissed with a view to limiting (or mitigating) his losses by seeking alternative employment. He should forward documents to support that to be included in the file of documents for the final hearing. Judicial Mediation[32]Both parties are interested in judicial mediation. This claim will be referred to the Vice President who will decide whether judicial mediation should be offered. Both parties indicated that they wanted that to take place face to face (and not by video). Parties will be advised separately about the arrangements for judicial mediation if it is approved.REASONS
[1]The claimant submitted a claim to the Tribunal on 25 August 2024.[2]At a preliminary hearing for case management before Employment Judge Robison, it was identified that the claimant brought complaints that he was subjected to detriments and unfairly dismissed as a result of making protected disclosures, as well as complaints of direct discrimination on the grounds of sex, age and/or race. A final hearing was fixed to take place from 13-17 & 20-24 January 2025 inclusive, and the claimant was ordered to provide further information and supporting documentation in relation to his complaints of detriment and unfair dismissal as a result of making protected disclosures.[3]On 10 December 2024, Employment Judge d’Inverno concluded that the claimant had not complied with EJ Robison’s order and directions, and issued an unless order.[4]On 16 December 2024, the claimant applied for a postponement of the final hearing.[5]On 19 December 2024, the respondent applied for strike out of all of the claimant’s complaints, failing which that the claimant be ordered to pay a deposit as a condition of proceeding with his complaints. The basis for their application was set out in detail in an email extending to 5 pages, when printed. In summary, they asserted that: 5.1. The claimant did not comply with the unless order, so his complaints of detriment and unfair dismissal as a result of making protected disclosures should be treated as dismissed on the date of non-compliance; 5.2. The complaints (or such complaints which remain) have no prospect of success, so should be struck out. Failing which they have little prospect of success, so there should be a deposit order; and 5.3. The manner in which the proceedings have been conducted by the claimant is unreasonable, so all of the complaints (or such complaints which remain) should be struck out as a result.[6]On 27 December 2024 EJ d’Inverno determined that: 6.1. The final hearing should be converted to a two day open preliminary hearing to consider the respondent’s application, to be held on 13 & 14 January 2025, commencing at 10:00; and 6.2. The remaining dates which the final hearing was previously listed on should be vacated as hearing days.[7]A letter was sent to the claimant, dated 27 December 2024, confirming this.[8]A Notice of Hearing was sent to the parties on 30 December 2024. This confirmed that the preliminary hearing, to consider the respondent’s application for strike out, would take place on 13 & 14 January 2025, commencing at 10:00.[9]On 31 December 2024, the claimant submitted an appeal to the Employment Appeal Tribunal, seeking to challenge a number of issues, including the decisions made by EJ d’Inverno on 27 December 2024.[10]On 2 January 2025, the claimant sent an email asking for the decisions made by EJ d’Inverno on 27 December 2024 to be reconsidered. That application was refused on 8 January 2025. Correspondence was sent to the claimant confirming this and stating that the claim would proceed to ‘the open Preliminary Hearing set down to proceed in the case on 13 January 2025 at 10am’.[11]By letter dated 7 January 2025, as a result of concerns raised by the respondent regarding the scope of the preliminary hearing, the Tribunal confirmed that ‘the Open Preliminary Hearing listed for 13-14 January 2025 will consider the respondent's application to pay a deposit order as well as the application for strike out of the claimant's claim.’[12]On 10 January 2025, the claimant applied for a postponement of the preliminary hearing set down for 13 & 14 January 2025, on the basis that he had three outstanding appeals regarding his claim. That application was refused by Employment Judge Eccles. A letter was sent to the claimant on Friday 10 January 2025 at 12:00 confirming this and the reasons for that decision. The letter concluded by stating ‘The claimant’s application to postpone the hearing on 13 and 14 January has therefore been refused and the hearing will proceed.’[13]The claimant did not attend the Tribunal on Monday 13 January 2024 at 10:00. The Tribunal’s clerks attempted to contact him on the mobile telephone number provided by him in his claim form. He did not answer. Voicemails were left asking that he urgently return their calls. He did not do so. An email was sent to him at 10:19 asking him to urgently contact the Tribunal. He did not do so. The case called at 10.30 and was adjourned to 13:00. At 11:07 a further email was sent to the claimant, headed ‘Very Urgent’. Attached to the email was a letter stating that: ‘In accordance with the Notice of Hearing dated 30 December 2024, the claim was listed for a preliminary hearing on 13 & 14 January 2025, commencing at 10am. The claimant did not attend this morning and has not contacted the Tribunal, or responded to the call and email from the Tribunal. In these circumstances, the preliminary hearing has been adjourned to 1pm. The claimant must attend at that time. If he does not, the Tribunal will take a decision at that time as to whether the claim should be dismissed, or whether the Tribunal should proceed with the hearing in the claimant’s absence, in accordance with Rule 47 of the Employment Tribunal Procedure Rules 2024.’[14]The claimant was not present when the hearing resumed at 13:00. He had not made any contact with the Tribunal to explain why he was not present.[15]In considering the information available to the Tribunal, as outlined above, the Tribunal noted that the claimant had been informed of the date and time of the preliminary hearing on numerous occasions. The Tribunal was entirely satisfied that the claimant was aware that the preliminary hearing was due to take place on 13 & 14 January 2025, and was due to start at 10:00. The claimant did not attend and provided no explanation for his absence. The Tribunal attempted to make enquiries by telephone and email regarding the reasons for the claimant’s absence, but were unable to contact the claimant. The hearing was adjourned for 3 hours to give the claimant the opportunity to respond to the voicemails and emails sent to him, or to attend the Tribunal. He did not do so.[16]In these circumstances, the Tribunal decided it was appropriate to dismiss the claim, in accordance with Rule 47 of the Employment Tribunal Procedure Rules 2024, on the basis that the claimant had failed to attend or be represented at the preliminary hearing.