THE HONOURABLE MRS JUSTICE SLADE DBE
1.
A Preliminary Hearing (‘PH’) pursuant to EAT Practice Direction (2008)
paragraph 9.7 was held to determine whether the grounds in Miss Czikai’s
Amended Notice of Appeal of 21 April 2011 give her appeal a
reasonable prospect of success so that it should proceed to a full hearing.
2.
Miss Czikai seeks to appeal from the judgment of Employment Judge Lewzey
(‘the EJ’) on a Pre-Hearing Review (‘PHR’) entered in the Register on 1
September 2010 (‘the judgment’). By the judgment her claims alleging a failure
to make reasonable adjustments and harassment under the Disability
Discrimination Act 1995 (‘DDA’) were dismissed. The claims arose out of
Miss Czikai’s audition for Britain’s Got Talent (‘BGT’) and the subsequent
posting of her performance at audition on the internet. She had presented two
ET1’s. The EJ held that:
“i) The Claimant has withdrawn her claim under case number
2200299/2010.
ii) The claims under case numbers 2200299/2010 and 2202957/2010
were presented out of time and it is not just and equitable for any extension
to be granted and there is no jurisdiction to consider any of the complaints
under either claim.
iii) None of the Respondents was an employer of the Claimant,
these are not cases to which part II of the Disability Discrimination Act 1995
applies, and there is no jurisdiction for the Employment Tribunal to consider
them.
iv) Both claims are dismissed on the grounds that they have no
reasonable prospect of success under Rule 18(7) of the Employment Tribunals
Rule and Procedure [sic] 2004.
v) Leave to amend to include a claim under the National Minimum
Wage Act 1999 is refused.”
Miss Czikai does not seek to appeal the orders dismissing her
claims against the Fourth Respondent. References
to paragraph numbers are to those in the judgment of the EJ unless otherwise
indicated.
3.
On 16 December 2010 Underhill P ordered that Miss Czikai’s appeal in a
Notice of Appeal dated 12 October 2010 be set down for a PH. The Notice of
Appeal was amended on 21 April 2011. Following the PH, Miss Czikai wrote to
the Employment Appeal Tribunal (‘EAT’) asking leave to amend her Amended Notice
of Appeal to respond to an oral submission by Mr Thomas Linden QC on behalf of
the First, Second and Third Respondents that the appeal from the finding of the
EJ in relation to the Second Respondent was academic. The Respondents wished
to reserve their position on the new material raised should the appeal proceed
to a full hearing but made no formal objection to the amendment being
considered at this stage. Although the point sought now to be made by Miss
Czikai could have been raised by her orally in reply, since she was acting in
person exceptionally it will be taken into account for the purpose of
determining the outcome of the PH.
Summary relevant facts
4.
The relevant facts are clearly set out in the judgment of the EJ and
would not benefit from summarising:
“15. The First and Second Respondents are co-producers of ‘Britain’s Got Talent’ (‘the Show’) which is broadcast by ITV. The Third Respondent, Mr
Simon Cowell, and the Fourth Respondent, Ms Amanda Holden, are two of the
judges on the Show. The Show is a talent contest and is open to all members of
the public resident in the United Kingdom. Entrants compete to win the prize of
performing at the Royal Variety Performance and £100,000. The First Respondent
is responsible for the overall production of the Show, day-to-day running of
the Show, organisation of auditions, staffing of production, set design,
complete management of the entire series of the Show. The First Respondent
consults with the Second Respondent in relation to timings, schedule, editorial
and other major decisions. On some occasions the First Respondent consults with
Mr Cowell in relation to the look and feel of the Show.
16. The First Respondent received applications from 71,981
individuals for the third series of the Show representing 45,877 acts, of whom
Miss Czikai was one. Advertisements for people to apply for auditions were made
by an announcement at the end of the final second series Show on 30 May 2008.
Applications were made to the First Respondent.
17. All acts which applies were invited by the First Respondent
to audition at producer auditions. Following these auditions there were judge’s
auditions when the act performed in front of a theatre audience and the three
judges names Mr Cowell, Ms Holden and Mr Piers Morgan. Acts that would proceed
to the live studio semi-finals were selected by the three judges. There were
forty such acts which performed in front of the judges and a studio audience
and were broadcast on live television. Eight acts per night were broadcast and
two acts per night were selected by the public to proceed to the live studio
final. Ten acts appeared at the live studio final with the judges, studio
audience and the public voting for the winning act.
18. Miss Czikai gave evidence that she has cervical spine
neuritis, collapsed vertebrae in the cervical and thoracic spine and
fibromyalgia. She maintains that these are disabilities, but none are apparent
to the naked eye or have an outward manifestation. Miss Czikai also underwent
surgery on her arms on 8 September 2008 which she also relies upon. The
Respondents made no admissions that any of these conditions amount to a
disability and maintain that none of these conditions has an obvious effect on
the ability of a person to sing.
19. Miss Czikai attended a pre-screening audition on 26 October
2008... She received a telephone call on 14 December 2008 from Lily Wilson of
the First Respondent to advise her she had been selected to perform before the
judges.
20. On 25 January 2009 Miss Czikai attended an audition for the
Show in Birmingham. She was interviewed before the audition for which there are
transcripts... …..The manuscript note states
‘Diagnosed fibromyalgia (ME), amplification of pain, very
tired. Spinal injury – whiplash nursing.’
A note in the margin says “recovered”. The typed version states
‘…She’s always enjoyed singing but really took it up since
the mid nineties. It was at this time that she was diagnosed with fibromyalgia
(she says like ME – it’s an amplification of pain that makes her very tired).
Also spinal injury and whiplash – stopped her nursing… She recovered; it was
amazing – ‘by the grace of God’… She says it was a really hard mountain to
climb and now she is on top, walking on the straight path.’
21. Miss Czikai performed at the audition but her performance
was not a success. It was not well received by the judges or the audience. The
audition took place around 10pm. Miss Czikai attributes her poor performance to
her swollen arms and fatigue, the music being too loud, and the microphone
being unsuitable and not correctly adjusted to her. Miss Czikai did not proceed
to the next round.
22. After the audition Miss Czikai wrote to Mr Cowell on 26
September 2009… and to Mr Cowell, Mr Morgan and Ms Holden together on both 26
January 2009 and 28 January 2009... She wrote again to Mr Cowell on 25 February
2009… and to Mr B Thursby, an Executive Producer of the First Respondent on 14
March 2009... Mr Thursby agreed that Miss Czikai could do a recording which
would be shown on “Britain’s Got More Talent”.
23. The live audition on the Show was broadcast on 9 May 2009
and repeated on 10 May 2009 on ITV1 and shown on ITV2 on 9, 10 and 15 May 2009.
The performance in “Britain’s Got Mote Talent” was broadcast on 25 May 2009 and
repeated on ITV2 the same day and twice more on 26 May 2009.
24. The broadcast auditions for the Show were posted on the
Show’s section of the ITV website and on the official YouTube website for the
Show.
25. On 20 June 2009 Miss Czikai made a complaint to Ofcom... The
complaint was rejected by Ofcom in late 2009 and Miss Czikai’s requested a
review of Ofcom’s decision on 7 December 2009 which was rejected on 29 December
2007...
26. Miss Czikai presented the First Claim to the Employment
Tribunal on 14 January 2010. Following the Case Management Discussion on 28
April 2010, Miss Czikai wrote to the Employment Tribunal on 14 June 2010
…stating
‘I therefore rescind my claim number 2200299/2010 and I
notify the courts that it is my intention to concentrate solely on my second
claim for ongoing harassment.’
27. Subsequently by a letter to the Employment Tribunals dated 7
July Miss Czikai asks that the First Claim be allowed to continue… She states
‘Finally, I ask that case number 2200299/2010 be allowed to
continue BUT ONLY AFTER full and proper disclosure had taken place…’
28. The Second Claim was presented to the Employment Tribunals
on 6 June 2010.”
5.
All contestants for BGT enter a Release Form with the Second Respondent.
Paragraph 5 of the Release Form provides:
“I acknowledge that if I progress to the second or subsequent
stages of the Competition I may be required at Syco’s election in so far as it
does not conflict with any Existing Agreements (defined below) I may currently
be encumbered by and in consideration of the inclusion of my contribution in
the Programme to enter into the following agreement with Syco, its designees,
licensees, successors and assigns:
(a) if I am a musical performer, an exclusive worldwide
recording agreement (“the Recording Agreement…”)
(c) an exclusive touring/tour merchandising agreement.
(d) an exclusive management agreement…
(e) an exclusive agency agreement…”
6.
The PHR of claim 2200299/2010 presented on 14 January 2010 (‘the First
Claim’) and claim 2202957/2010 presented on 6 June 2010 (‘the Second Claim’)
was heard over two days on 21 and 22 July 2010. The issues for determination
at the PHR were set out in paragraph 3 of the judgment. In summary those which
are relevant to the grounds of appeal are as follows. In relation to the First
Claim, which was of failure to make reasonable adjustments for Miss Czikai’s
audition:
a) Was the
Claimant entitled to pursue the First Claim and/or a complaint of failure to
make reasonable adjustments having regard to her withdrawal of such claim;
b) Was any
complaint of failure to make reasonable adjustments in time or if not should
time be extended;
c) Does the
complaint fall within Part II of the DDA and, in particular, section 4(1) which
applies to applicants for employment.
i)
Has the Claimant at any material time been an applicant for employment
with the First or Second Respondent;
ii)
is the Claimant entitled to bring reasonable adjustment claims in the
Employment Tribunal against the First and Second Respondents and, if so, which
and on what basis.
In relation to the Second Claim, which in addition to the
complaint in relation to the audition was of harassment constituted by posting
footage of the audition for BGT on YouTube without linking it to footage of
Miss Czikai’s performance for Britain’s Got More Talent (‘BGMT’) or failing to
remove footage of the audition from You Tube-:
a) are the
harassment claims or any of them in time or if not should time be extended;
b) do the
complaints or any of them fall within Part II DDA and, in particular, section
4(3):
i)
has the Claimant at any material time been an applicant for employment
with a Respondent and, if so, which;
ii)
if so, insofar as the Claimant was subjected to harassment within the
meaning of section 3B DDA,
·
was it by such Respondent;
·
did any alleged act or harassment relate to employment by such
Respondent.
c) should an application by the
Claimant for leave to amend to bring a claim under the National Minimum Wage
Act 1998 (‘NMWA’) be allowed.
The judgment of the EJ
7.
The EJ held in paragraph 33 that Miss Czikai’s letter of 14 June 2010
was a clear withdrawal of the First Claim. Having regard to the judgment of
the Court of Appeal in Khan v Heywood and Middleton Primary Care Trust
[2007] ICR 204, per Wall LJ at page 44H, the EJ held that the First Claim could
not be revived. However the EJ dealt with the preliminary issues in relation
to the First Claim as well as the Second Claim.
8.
The audition in respect of which the claims for reasonable adjustments
were made took place on 25 January 2009. The First Claim was presented on 14
January 2010 and the Second Claim on 6 June 2010. The claims were presented
after the primary limitation period of three months starting when the act of
which complaint was made.
9.
The EJ considered whether, within the meaning of DDA Schedule 3
paragraph 3(3)(b), the audition was part of a continuing act which included the
postings on YouTube. The EJ referred to paragraph 52 of the judgment of the
Court of Appeal in Commissioner of Police of the Metropolis v Hendricks
[2003] ICR 530 and held at paragraph 40 that the complaint in relation to the
audition was a one-off act and not an act extending over a period. Accordingly
the claim relating to the audition did not fall within DDA Schedule 3 paragraph
3(3)(b) and was out of time.
10.
The EJ considered whether the actions of the Respondents brought them
within the scope of the DDA. She decided whether the claim in relation to the
audition fell within DDA section 4(1). She noted that Miss Czikai had conceded
that the First Respondent was not an employer in relation to contestants and
observed in paragraph 47:
“This is also clear from the evidence and from Ms Czikai’s
letter of 11 June 2010 …in which she says
‘But Freemantle Media are not employers, they are first
stage recruitment agents for the employers, Simco.’”
11.
The arrangements for the audition of which Miss Czikai complained were
made by the First Respondent. At paragraph 50 the EJ recorded that Miss Czikai
accepted that the First Respondent could not be regarded as a prospective
employer.
12.
In considering whether any of the other Respondents were employers
within the meaning of the DDA, the EJ assumed that at the end of the
competition individuals may be offered employment contracts within the meaning
of section 68 of the DDA. The EJ referred to the Release Form signed by
participants in BGT and the Second Respondent by which if they progressed to
the second or subsequent stages of the competition they agreed, at the Second
Respondent’s election, that they would enter into various agreements including
an exclusive touring agreement.
13.
The EJ held that the auditioning process was not undertaken for the
purpose of determining to whom employment within the meaning of DDA section 4A should
be offered. She held at paragraph 50:
“I have to consider whether this was a recruitment exercise. In
my view it was not. The purpose was not to decide who should be offered
employment. The purpose was to decide who would perform at the Royal Variety
Performance and win the cash prize. The audition release form gave the Second
Respondent rights to require a participant to enter into agreement but those
rights were in the Second Respondent’s discretion. This differs from an
employment situation which is based on normal contractual principles of offer
and acceptance. A potential employer cannot require an employee to accept a
contract. In addition, the rules of the competition… make no reference to the
possibility of any employment contract. There are other difficulties; the
arrangements for the audition were made by the First Respondent. Miss Czikai
has accepted that the First Respondent can not be regarded as a prospective
employer.”
14.
At paragraph 52 the EJ held that the claim against the Respondents in
respect of the audition was not a claim against an employer.
15.
The EJ held that the Second, Third and Fourth Respondents could not be
vicariously liable for the acts of the First Respondent which was responsible
for auditioning. She held that the First Respondent was neither an employee
nor an agent of the Second Respondent. They were co-producers undertaking different
responsibilities. Any failure to make reasonable adjustments in the audition
was by the First Respondent. The First Respondent was not an employer or
prospective employer of Miss Czikai and the Second Respondent was not
vicariously liable for their acts.
16.
The EJ observed at paragraph 45 that there was no evidence before her
that any of the Respondents were providers of employment services within the
meaning of DDA section 21A. The EJ held:
“The First Respondent is a producer of television programmes. As
part of its business it organises auditions, but it does not provide employment
services for members of the public. No vocational guidance is given. No
vocational training is provided and no services to assist a person to obtain or
retain employment or establish himself as self employed are provided. Similarly
the Second Respondent, Simco Limited is a co-producer of the show and receives
revenues from it. The Second Respondent may find successful acts but makes no
commitment to do so. There is no provision of vocational guidance or training
or services to the individual contestants. In my judgment none of the
Respondents are employment services providers within the meaning of section 21A
of the Disability Discrimination Act.”
Therefore the EJ concluded that neither the First nor the Second
Respondents were employment services providers within the meaning of the DDA.
17.
Since none of the Respondents was acting as employer or as an employment
services provider within the meaning of the DDA there was no jurisdiction to
consider the reasonable adjustments complaint in relation to the audition in
the First Claim or in the Second Claim.
18.
The EJ held at paragraph 50 that in any event the claim in respect of
failure to make reasonable adjustments for her audition could not succeed
because Miss Czikai could not demonstrate that she told any of the Respondents
that she required adjustments to take into account her disabilities.
19.
The EJ referred to the guidance in British Coal Corporation v
Keeble [1997] IRLR 336 in deciding whether it was just and equitable to
extend time to hear the Claims notwithstanding that that they had not been
presented within the primary limitation period. She noted that Miss Czikai’s
explanation for not bringing proceedings earlier was that she had made a
complaint to Ofcom on 20 June 2009 and that there was nothing in the Ofcom
procedures which precluded Miss Czikai from presenting a complaint to an
Employment Tribunal (‘ET’). The EJ also considered Miss Czikai’s further
contention that she could not issue her claim earlier because of an operation
on her arm on 21 November 2008. She referred to a letter from Miss Czikai’s
consultant surgeon in which he wrote that near constant pain and reduced use of
her arms during the recovery period from her operation would have affected her
writing and concentration.
20.
The EJ observed that Miss Czikai was able to produce a lengthy complaint
to Ofcom on 20 June 2009. This was drafted in clear reasoned terms in five
pages of close-typed script. She referred to the fact that the audition of
which complaint was made took place one year before the presentation of the
First Claim. The Respondents dealt with many hundreds of contestants and
recollections would be dimmed. They would be prejudiced by the delay. Further
the claims were unmeritorious and there was no public interest in their
proceeding. The EJ held that it was not just and equitable to extend time to
enable the claims in relation to the audition to be heard.
21.
In her Second Claim Miss Czikai claimed that the posting on the internet
of her audition for BGT without her performance for Britain’s Got More Talent
(‘BGMT’) and linking the two or not removing footage of the audition was an act
of harassment within the meaning of DDA section 3B.
22.
The EJ accepted the submission by Mr Linden QC on behalf of the First,
Second and Third Respondents that the claim in respect of the internet was
brought out of time. Time starts to run from the date of the act or deliberate
omission to act complained of. Once the footage of the audition for BGT had
been placed on the internet no further action was taken. This was not a
continuing act. The EJ noted at paragraph 68 that:
“Miss Czikai’s case is that the material should have been
removed at the beginning of June 2009. Nonetheless her claim was not presented
until 6 June 2010. It is out of time and for the reasons already given it is
not just and equitable for time to be extended.”
23.
As to whether this was a claim to which Part II of the DDA applied and
whether it had any reasonable prospect of success, the EJ held at paragraph 69
that:
“…the position in relation to the posting on the internet is the
same as in relation to the audition and the television broadcast which have
already been set out above.”
There was no reason to suppose that the reasons for the posting
of the audition on the internet or not linking it to footage of the performance
for BGMT were related to any of Miss Czikai’s conditions. The EJ held that the
claim of harassment in relation to posting footage of the BGT audition on the
internet or not doing so without linking it to footage of her performance for
BGMT had no prospect of success.
24.
Accordingly the EJ held at paragraph 70:
“In these circumstances it is my judgment that the claims are
out of time, it is not just and equitable to extend time, this is not a case
over which Part II of the Disability Discrimination Act applies and the
Employment Tribunal has no jurisdiction to consider the claim, and the claim
has no reasonable prospect of success. In these circumstances the First Claim
and the Second Claim are dismissed in their entirety.”
25.
Miss Czikai made an application to amend her claims to include a
complaint under the NMWA that she should have been paid for her work prior to
and in respect of her audition for BGT.
26.
The EJ considered the application in the context of the guidance in Selkent
Bus Company Ltd v Moore [1996] IRLR 661. She held at paragraph 73:
“This is a claim that has not been mentioned prior to the
Pre-Hearing Review. It relates to the audition on 25 January 2009, which is now
more than one year and five months ago. Miss Czikai has conceded that the First
Respondent is not her employer, and in the light of my findings that none of
the other Respondents were her employer, the claim has no reasonable prospect
of success. I accept the arguments made on behalf of all Respondents in
relation to proportionality and it is my judgment to refuse this application
for leave to amend.”
The contentions of the parties
27.
Miss Czikai produced a full skeleton argument and in her oral
submissions developed the following grounds of appeal. What follows are the
contentions advanced by Miss Czikai.
28.
(1) The EJ erred in failing to conduct a case management discussion
(‘CMD’) in respect of the Second Claim. If a CMD had been held in respect of
the Second Claim a disclosure order for all relevant contractual documents
could have been made at an early stage.
29.
(2) The EJ erred in holding at paragraph 68 that there was no ongoing
act of discrimination within the meaning of DDA Schedule 3 paragraph 3(3)(b)
regarding the posting on the internet of footage of her audition for BGT
without linking it to the performance for BGMT or failing to remove it. The EJ
failed properly to apply Hendricks. The EJ erred in failing to
consider that the lifting of the bar on publishing the internet footage in the United Kingdom was a new act for the purpose of the start of running of the limitation
period. She contended that this new act only came to light when she saw the
Respondents’ statements after the lodging of the second ET1.
30.
(3) The EJ erred in that she denied Miss Czikai the right to provide
evidence of ongoing harassment. The EJ refused her application to show the CD
of her performance on BGMT which she contended proved that she could sing very
well in a fair environment. This footage would have shown the Third Respondent
to have made a bad judgment which would have constituted a ‘blooper’. The
First Respondent would have breached clause 5.4 of the Third Respondent’s contract
with them by publishing material which would have shown him in a ‘bad light’. Miss
Czikai contended that the EJ gave concern for the Third Respondent precedence
over fairness to her.
31.
(4) The EJ failed to have regard to the Respondents’ breach of a
disclosure order. They only disclosed important documents including the
Release Form referred to in paragraph 49 of the judgment of the EJ, shortly
before the hearing. Miss Czikai contended that this document would have been
relevant to her First Claim. It supported the argument that the First
Respondent was a services provider.
32.
(5) The EJ erred in holding that Miss Czikai’s First Claim could not be
revived. By her re-amendment of 6 May 2011 she contended that if she were to
succeed in establishing that the EJ erred in holding that the First Respondent
was not an employment services provider, the EJ was in error in not permitting
her to revive her First Claim. Miss Czikai submitted that the late disclosed
Release Form established that the Second Respondents offered employment on road
shows to successful contestants. Therefore her claim in respect of the
audition made in the First Claim had a reasonable prospect of success not only
against the First Respondent but also against the Second Respondent as
vicariously liable for their acts. Accordingly she should have been permitted
to revive the First Claim.
33.
(6) The EJ erred in deciding that it was not just and equitable to
extend time for presentation of her claims. She failed to have any or any
proper regard to the evidence from Miss Czikai’s surgeon set out in paragraph
62 and failed to apply all the relevant criteria in Keeble.
34.
(7) The EJ erred in holding that the First Respondent was not an
employment services provider within the meaning of DDA section 21A, or were not
acting as agents for the Second Respondent. Miss Czikai contended that the
contractual arrangements in the Release Form for contestants who were filmed
and recorded included the possibility of engagement by the Second Respondent
for a road show if they progressed to the second or subsequent stage of the
competition. Engagement on the road show was employment. The First Respondent
was acting as agent of the Second Respondent within the meaning of DDA section
58(2) for the purpose of determining who was to be offered employment. The
Second Respondent was vicariously liable for the acts of their agent.
35.
By amendment to the grounds of appeal exceptionally permitted after the
conclusion of the hearing, Miss Czikai amplified paragraph 45.3(c) of her amended
grounds of appeal to contend that the document entitled ‘The Freemantle
Media/SyCo Deal Terms Summary’ in the section ‘Talent Exploitation’ showed that
the First Respondent was acting as agent for the Second Respondent for the
purpose of engaging employees to perform on their road shows. Miss Czikai
raised this point in response to Mr Linden QC’s argument that the ground of
appeal that the Second Respondent was vicariously liable for the acts of the
First Respondent was academic as the EJ had held that the Second Respondent was
not a prospective employer of Miss Czikai. Miss Czikai contended that this
ground of appeal would not be academic if she were to succeed in showing an
arguable case that the EJ erred in holding that the Second Respondent was not
an employer.
36.
(8) The EJ erroneously held in paragraph 63 that the Respondents would
be prejudiced by having to recollect the circumstances of Miss Czikai’s
audition which took place a year before the First Claim was submitted.
37.
(9) The EJ failed to arrange the start and finish times of the hearing
in accordance with her request to start at noon each day. In effect Miss
Czikai contended that the EJ’s decision to sit at 10am each day as recorded in
paragraph 6 was perverse. Miss Czikai contended that starting at 10am each day
and not at noon as she had required made it difficult for her to conduct her
case.
38.
(10) The EJ erred in failing to hold that the Second Respondent was an
employer within the meaning of the DDA. The road show contract referred to in
the Release Document was one of employment. The road show contract was signed
by all finalists.
39.
(11) The EJ erred in holding that the Second and Third Respondents had
no knowledge of Miss Czikai’s disability. The EJ failed to have regard to the
evidence from Lilly Wilson’s (of the First Respondent) notes, Miss Czikai’s
letter of 14 March 2009 to Mr Thursby, an executive producer of the First
Respondent which was copied to the Third Respondent, and the witness statement
of Mr Linares, Television Executive Producer with the First Respondent. Miss
Czikai alleged that Mr Thursby agreed that a recording of her proposed
performance for BGMT would be linked with footage on YouTube of the audition
for BGT.
40.
Miss Czikai contended in paragraph 26.2 of her skeleton argument of 22
April 2011 that the Second and Third Respondents had a ‘no knowledge’ policy
which meant that the judges would not know anything about the contestants other
than the answers they give at audition. .
41.
(12) The EJ erred in observing at paragraph 54 that Miss Czikai had not
argued that operation on her arms affected her ability to sing. She submitted
that the EJ should have asked her about the effect of the operation.
42.
(13) In refusing Miss Czikai’s application to amend her ET1 to add a
claim under the NMWA, the EJ erred in referring in her judgment to Selkent
Bus Company Ltd without giving the Claimant the opportunity to comment
on that case. Further Miss Czikai contended that the EJ erred in recording
that she had conceded that the First Respondent was not her employer. She only
conceded this point in relation to the BGT road shows. She did not make that
concession in relation to the audition.
43.
(14) Miss Czikai contended that under the NMWA she was entitled to a
stage fee for her audition.
44.
(15) Miss Czikai contended that the EJ erred in failing to hold the
Second Respondent vicariously liable for the acts of the First Respondent.
45.
(16) Miss Czikai submitted that there was a lacuna in the judgment of
the EJ in that she had failed to refer to the ‘no knowledge’ policy referred to
above.
46.
(17) Miss Czikai contended that the EJ erred in refusing to view the CD
of her performance on BGMT.
47.
Mr Linden QC for the Respondents submitted that the grounds of appeal
were not reasonably arguable. He considered the grounds in three groups:
1) the
limitation points;
2) whether
the claims were within the scope of DDA Part II;
3) whether
the claims were hopeless,
and contended that the EJ did not err in the conclusions she
reached on these points.
48.
Mr Linden QC pointed out that by paragraph 36 of her amended grounds of appeal
dated 21 April 2011 Miss Czikai made it clear that
“this appeal concerns the judgment in relation to claim
2202957/2010 and the first, second and third respondents and also the judgment’s
failure to consider the appellant’s complaints.”
Accordingly the appeal concerned the Second and not the First
Claim.
Limitation
49.
Mr Linden QC contended that the complaint of failure to make reasonable
adjustments regarding the audition was a one off act which took place on 25
January 2009. Both Claims were presented at least a year after the event. They
were presented out of time.
50.
The posting of footage of auditions on the internet was the First
Respondent’s responsibility. Once the footage was posted on the internet it
remained there. The posting on the internet was a one off act. The EJ found
at paragraph 65 that:
“By the end of May 2009 Miss Czikai knew that there had been no
linking of her audition broadcast and the more successful broadcast of ‘Britain’s Got More Talent’.”
Accordingly the latest time for presenting the harassment
complaint began to run from the end of May 2009. The EJ did not err in holding
in paragraph 68 that the claim of harassment made in the Second Claim was
presented out of time. It was presented a year after the events complained of.
51.
Mr Linden QC contended that the EJ did not err in concluding that it was
not just and equitable to extend time for presentation of the First and Second
Claims. There was nothing to prevent Miss Czikai from presenting her claims in
time. She made a written complaint to Ofcom on 20 June 2009. The EJ did not
err in concluding that the Respondents would be prejudiced by having to deal
with events relating to the audition which took place at least a year before
the presentation of the First Claim. Further, so far as posting on the
internet was concerned, Mr Thursby would have to recall what he agreed with
Miss Czikai regarding these postings on the internet. The Respondents would
have to recall why it was decided not to post the footage of the performance
for BGMT on the internet. The EJ did not err in concluding that Respondents
were prejudiced by the delay.
52.
Mr Linden QC submitted that Miss Czikai did not make it clear that once
she had seen the Respondents’ witness statement dealing with the lifting the
geographic bar on internet access to the audition footage she wished to contend
that time should run from the date of the lifting of the bar. Nor did she
apply to amend her claim to allege harassment by reason of lifting the bar. As
explained by the Court of Appeal in Chapman v Simon [1994] IRLR 124, an Employment Tribunal (‘ET’) can only deal with the complaints made in
the ET1. The claim relating to the lifting of the geographic bar was not before
the EJ. In any event there was no basis for suggesting that lifting the
geographic bar was related to Miss Czikai’s disability.
53.
The EJ did not err in holding the Second Claim to have been presented
out of time. Nor did she err in holding that it was not just and equitable to
extend time.
Employment
54.
Miss Czikai had conceded that the First Respondent was not her
employer. She was never going to be obliged to provide services to the First
Respondent. Her attendance at the audition was entirely voluntary.
55.
The EJ did not err in holding that the First Respondent was not an
employment services provider.
56.
Mr Linden QC contended that the claim against the Second Respondent was
purely academic. It was the First Respondent which was responsible for the
audition and postings on the internet.
Merits
57.
It was submitted that the Fifth ground of appeal (using the numbering
above) was academic. It was not raised in the Notice of Appeal. Further, the
EJ correctly applied the guidance of the Court of Appeal in Khan.
58.
Mr Linden QC contended that on the evidence the EJ was entitled to
conclude that Miss Czikai did not draw attention to any need to make
adjustments for her audition because of any disability. On her own case she
could not succeed in her complaint in relation to the audition.
59.
The act of harassment of which complaint was made in the Second Claim
was not putting footage of Miss Czikai’s performance on BGMT on the internet
linking it with the audition for BGT. In order to amount to harassment within
the meaning of the DDA section 3B, the EJ would have to be satisfied that the
failure to make the link between the two performances was related to Miss
Czikai’s disability. Miss Czikai drew attention to the ‘no knowledge’ policy.
On her own case there was no link between her disability and the actions of the
Second and Third Respondents. As for the suggestion that footage of the
performance for BGMT was not put on the internet out of a desire not to publish
‘bloopers’ relating to the Third Respondent, even if such a contention were
correct it had nothing to do with Miss Czikai’s disability. The filming of the
audition for BGT and the performance for BGMT and posting footage on the
internet was entirely the province of the First Respondent. The First
Respondent was neither Miss Czikai’s employer nor a services provider.
60.
There was no evidence linking Miss Czikai’s disability to the actions of
any of the Respondents in relation to the audition, its posting on the internet
or not posting the BGMT footage on the internet and linking it with the BGT
audition.
61.
As for Miss Czikai’s wish to amend her Second Claim to add a claim under
the NMWA in respect of work prior to and on the auditions, it was the First
Respondent who conducted the auditions in respect of which Miss Czikai sought
to bring her claim. They were not her employer.
62.
Mr Linden QC contended that the EJ was entitled to refuse the amendment
to make a claim under the NMWA. The judgment of the Court of Appeal in Stanley
Cole (Wainfleet) [2003] EWCA Civ 1046 paragraphs 31 and 34 illustrates
that she was entitled to take into account the merits of the proposed claim in
declining permission to amend.
63.
Dealing with the other grounds of appeal, Mr Linden QC pointed out that
it was apparent from Miss Czikai’s witness statement that she understood what
issues were to be dealt with at the PHR. A list of the issues was in any event
attached to his skeleton argument. There was to be a CMD on the reasonable
adjustments claim alone. When the First Claim was withdrawn, it was clear that
the PHR was to deal with limitation and employment issues which were to have
been dealt with at the CMD in respect of the First Claim.
64.
Mr Linden QC contended that the EJ did not err in holding in paragraph
51 that the Second and Third Respondents were not vicariously liable for the
acts of the First Respondents.
65.
As for the absence of a reference in the judgment to the ‘no knowledge’
policy, Mr Linden QC pointed out that the policy was not referred to in Miss
Czikai’s statement.
66.
The EJ did not err in law in dismissing Miss Czikai’s Claims. No
arguable grounds were raised in the Amended Notice of Appeal.
Discussion and Conclusion
67.
I will consider the seventeen grounds of appeal advanced by Miss Czikai
in the groups set out below, and determine whether they are reasonably arguable
and should be considered at a full hearing of the appeal.
1) Conduct of
the hearing by the EJ;
2) Refusal
to reinstate the First Claim and to permit amendment of the Second ET1 to add
a claim under the NMWA;
3) Primary
limitation periods including failure to treat the lifting of the geographical
bar on the internet material as a new act of harassment;
4) Refusal of
a just and equitable extension of time for presentation of the Claims;
5) Whether
the complaints were within the scope of Part II of the DDA;
6) Whether
the EJ erred in holding that the Claims were hopeless.
The conduct of the hearing by the EJ
68.
Regarding the complaint made by Miss Czikai of a failure to hold a CMD
before the PHR of the Second Claim, it is not necessary to hold such a
discussion in order to obtain an order for discovery. If a party considers
that there may be material documents in the possession of another party which
have not been disclosed they can request disclosure and if it is not forthcoming,
an order can be sought. Miss Czikai used this procedure in relation to the
Second Claim. It is not necessary to hold a CMD to obtain disclosure.
69.
Although not raised as a separate ground of appeal, Miss Czikai had made
complaint about feeling disadvantaged by the sitting hours of the hearing. Miss
Czikai requested that the start time of each day’s hearing be noon as it was to
be on the first day. This application was opposed by the Respondents. The EJ
set out in paragraphs 4 to 6 her reasons for keeping to a start time of 10am on
the second and any subsequent days of the hearing. In deciding that the
hearing should start at 10am on the second day the EJ took into account that
the Tribunal Service had offered to bear Miss Czikai’s costs of accommodation
and subsistence in light of her concern about travelling between Birmingham and London on a daily basis. The EJ also held that it was inconsistent with the
overriding objective for the Tribunal to sit only for half days whilst allowing
witness statements to be read out, as Miss Czikai wished.
70.
Miss Czikai sought leave to show the EJ a DVD recording of her
performance for BGMT. The EJ declined that application as she considered that
it was unnecessary to view the performance in order to determine the
preliminary issues before her. At paragraph 10 the EJ recorded that the
Respondents accepted that Miss Czikai sang better for BGMT than for BGT.
71.
Miss Czikai’s criticism of the EJ for not asking her questions about the
effect of her operation on her ability to write an ET1 is not well founded. It
is for the EJ conducting a hearing to decide whether they wish to ask any
questions
72.
Whether to hold a CMD, decisions on start times of hearings and the
evidence to be heard are case management matters for the EJ. The decisions of
the EJ can only be challenged if they are reached in error of law or are
perverse. The case management decisions of the EJ criticised by Miss Czikai
were neither of these.
Refusal of reinstatement of the First Claim and of amendment
to add a claim under the NMWA
73.
The EJ held that Miss Czikai’s letter of 14 June 2010 in which she wrote
“I therefore rescind my claim number 2200299/2010 and I notify
the court that it is my intention to concentrate solely on my second claim for
ongoing harassment”
was a clear withdrawal of the First Claim. The EJ relied upon
paragraph 74 of the judgment of Wall LJ in Khan to hold that the
First Claim could not be revived. The Court of Appeal in Khan
considered rule 25 of the Employment Tribunals (Constitution & Rules of
Procedure) Regulations 2004. Rule 25 provides:
“(2) To withdraw a claim or part of one in writing the claimant
must inform the Employment Tribunal Office of the claim or the parts of it
which are to be withdrawn. ….
(3) …. Where the whole claim is withdrawn, subject to paragraph
(4), proceedings are brought to an end against the relevant respondent on that date”
Wall LJ held at page 44H of Khan:
“……the words ‘brought to an end’ mean what they say. Those
particular proceedings have indeed been brought to an end, and cannot be
revived against a respondent. That does not mean, however, that, absent
dismissal, a fresh claim on the same facts cannot be made.”
The EJ did not err in holding that the First Claim had been
withdrawn by Miss Czikai. The judgment in Khan was binding on the
EJ and was correctly applied by her.
74.
The EJ refused an application made by Miss Czikai to amend her Second
Claim to add a claim under the NMWA. She wished to claim wages for her work
connected with and at the audition on 25 January 2009. Miss Czikai sought to
appeal from the refusal of permission to amend on the basis that she was not
given an opportunity to consider and comment on Selkent referred
to in paragraph 73 of the judgment.
75.
Even if Selkent was not referred to at the hearing, it is
apparent from paragraph 72 that counsel for the Respondents articulated
arguments relevant to the exercise of discretion to amend an ET1 some of which
are referred to in Selkent. In light of the conclusion of the EJ
that none of the Respondents was her employer within the meaning of the DDA,
which in context would lead to the conclusion that Miss Czikai was not a worker
for the purpose of NMWA sections 1(2) and 54, the lapse of time since the
audition and proportionality, it is not reasonably arguable that the EJ erred
in refusing the application to add a claim for wages under the NMWA in respect
of the audition. Such a claim had no reasonable prospect of success.
Primary limitation periods
76.
Pursuant to the DDA Schedule 3 paragraph 3(1) Miss Czikai’s claims
should have been presented before the end of the period of three months
beginning when the act complained of was done. Paragraph 3 provides:
“(3)(b) any act extending over a period shall be treated as done
at the end of that period; and
(c) a deliberate omission shall be
treated as done when the person in question decided upon it.
(4) In the absence of evidence establishing the contrary, a
person shall be taken for the purposes of this paragraph to decide upon an
omission-
(a) when he does an act inconsistent
with doing the omitted act; or
(b) if he has done no such
inconsistent act, when the period expires within which he might reasonably have
been expected to do the omitted act if it was to be done.”
77.
The claim alleging failure to make reasonable adjustments was made in
respect of Miss Czikai’s audition on 25 January 2009. The First Claim was
presented on 14 January 2010 and the Second Claim on 6 June 2010. The claim in
respect of the audition was outside the primary limitation period.
78.
The EJ did not err in her application of Hendricks to the
facts found by her in concluding that the audition was not part of a continuing
act including the posting of the audition for BGT on YouTube or doing so
without linking it to footage of Miss Czikai’s performance for BGMT.
79.
The act of harassment alleged by Miss Czikai in respect of which she
seeks to appeal is posting the internet of footage of her audition for BGT
and/or doing so without linking it to her better performance for BGMT. She
does not challenge the record in paragraph 68 of the case advanced by her
before the EJ that the footage of the BGT audition should have been removed
from the internet at the beginning of June 2009.
80.
Miss Czikai made a statement dated 20 July 2010 for the purpose of the
ET proceedings which she included in the bundle for the hearing before the EAT.
The EJ recorded in paragraph 11 that Miss Czikai gave evidence by means of a
written statement. At page 14 of the statement Miss Czikai complained that Ben
Thursby of the First Respondent had failed to honour a promise to make a link
between her BGT audition and her BGMT performance and that her performance on
BGMT had not been spliced into the internet clip of her audition. She stated:
“Naturally, I was deeply distressed when Ben Thursby did not
keep his promise and gutted when I eventually saw the clip of my audition that
had been shown to the public. I wrote to Mr Thursby but he ignored my letter
and so I complained to Ofcom on the 4th June 2009…”
By 4 June 2009 Miss Czikai knew that footage of her performance
for BGMT had not been put on the internet.
81.
On Miss Czikai’s own case, the footage of the BGMT performance should
have been taken down at the beginning of June 2009. By 4 June 2009 Miss Czikai
had formed the view that an alleged promise that footage of her BGMT
performance would be put on the internet was not being honoured. Applying DDA
Schedule 3 paragraph 3(4)(b), the EJ cannot be said to have erred in law in
concluding that her claims of harassment in relation to postings on the
internet were presented outside the limitation period.
82.
Miss Czikai contended that the EJ erred in not holding that time for
presentation of her harassment claim in relation to the internet ran from the
date of the lifting of the geographical bar on showing her BGT audition in the United Kingdom. In her written argument in support of the appeal from the finding that
there was no ongoing act of harassment within DDA Schedule 3 paragraph 3(3)(b),
Miss Czikai stated at paragraph 40.4:
“The appellant noted that at paragraph 14 of Miss Moreton’s
witness statement she alluded to a new act of harassment having taken place
sometime between 28 April 2010 and the hearing in progress when following
negotiations with YouTube an agreement was struck with the first respondents
whereby a geographical block could be removed to allow the opening of a new
window so that British viewers as well as overseas viewers could see the
auditions on the promotional channel.”
83.
Miss Czikai made no application to amend the Second Claim even at a very
late stage, to allege that the lifting of the geographical bar was an act of
harassment. It is a long established and important principle as explained by
the Court of Appeal in Chapman v Simon [1994] IRLR 124 that an ET
can only deal with claims made in an ET1. The EJ did not err in failing to
hold that Miss Czikai’s harassment claim was presented in time because a
geographical bar had been lifted in April 2010.
84.
Unless time for presentation of the Claims were extended on a just and
equitable basis under Schedule 3 paragraph 3(2), an Employment Tribunal (‘ET’)
would not have jurisdiction to hear it.
Just and equitable extension of time for presentation of
the complaints
85.
The EJ set out in paragraphs 61 and 62 of her judgment the reasons
advanced by Miss Czikai why she did not bring proceedings earlier. These were
that she had made a complaint to Ofcom. The complaint to Ofcom is dated 20 June
2009 and the outcome was known in November or December 2009. Whilst it is
recorded that she said that she believed that she could not issue a claim
because she had lodged a complaint with Ofcom, the EJ observed that there was
nothing in the Ofcom procedures which precluded Miss Czikai from bringing a
claim to an ET.
86.
The EJ also considered the second reason for delay advanced by Miss
Czikai: that her arm operations presented her from bringing her claim at an
earlier date. The EJ referred to a letter from Miss Czikai’s surgeon in this
regard but took account of the fact that Miss Czikai was able to produce a
lengthy complaint to Ofcom in June 2009.
87.
In respect of the claim relating to the audition, the EJ also took into
account the length of time which had elapsed since the audition of which
complaint was made and the large number of contestants who had been auditioned.
In those circumstances she considered that recollections would be dimmed and
the Respondents would be prejudiced by having to deal with events surrounding
the audition.
88.
The EJ took into account the guidance in Keeble on the
exercise of discretion to extend time for presentation of a complaint on a just
and equitable basis. Miss Czikai particularly relied on one of the factors
referred to in that case, ‘the extent to which the party sued had co-operated with
any requests for information’, in submitting that the EJ failed to give any or
any sufficient weight to the late disclosure of documents by the Respondents.
89.
The EJ found that Miss Czikai’s claims were unmeritorious and there was
no public interest in their proceeding. In all the circumstances the EJ held
that it was not just and equitable to extend time to enable them to be heard.
90.
Each case depends on its own facts. In Miss Czikai’s case the delay in
presentation of the complaints was considerable. The EJ could reasonably
conclude that the reasons advanced by Miss Czikai for the delay were not
persuasive and that the Respondents were likely to be prejudiced by it. Further,
the EJ did not err in taking into account her conclusion that the claims were
unmeritorious and had no reasonable prospect of success. For reasons set out
below such a conclusion was not reached in error. The EJ did not misdirect
herself in law and Miss Czikai’s appeal from the decision that it was not just
and equitable to extend time for presentation of her complaints falls far short
of surmounting the high hurdle of establishing that it was perverse.
Were the claims within the scope of DDA Part II
Relevant provisions of the DDA
91.
Section 3B provides:
“(1) For the purposes of this Part, a person subjects a disabled
person to harassment where, for a reason which relates to the disabled person’s
disability, he engages in unwanted conduct which has the purpose or effect of-
(a) violating the disabled person’s dignity…”
92.
Section 4 provides:
“(1) It is unlawful for an employer to discriminate against a
disabled person-
(a) in the arrangements which he
makes for the purpose of determining to whom he should offer employment;
…
(3) It is also unlawful for an employer, in relation to employment
by him, to subject to harassment-
(a) a disabled person whom he
employs; or
(b) a disabled person who has applied
to him for employment.”
93.
Section 4A provides:
“(1) Where-
(a) a provision, criteria or practice
applied by or on behalf of an employer,…
………
places the disabled person concerned
at a substantial disadvantage in comparison with persons who are not disabled,
it is the duty of the employer to take such steps as it is reasonable, in all
the circumstances of the case, for him to have to take in order to prevent the
provision, criterion or practice…having that effect.
(2) In subsection (1), ‘the disabled person concerned’ means-
(a) in the case of a provision,
criterion or practice for determining to whom employment should be offered, any
disabled person who is, or has notified the employer that he may be, an
applicant for that employment;
(b) in any other case, a disabled
person who is-
(i) an applicant
for the employment concerned…
(3) Nothing in this section imposes any duty on an employer in
relation to a disabled person if the employer does not know, and could not
reasonably be expected to know-
…
(b) in any case, that that person has
a disability and is likely to be affected in the way mentioned in subsection
(1).”
94.
Section 68 provides:
“(1) In this Act-
‘employment’ means, subject to any prescribed provision,
employment under a contract of services or of apprenticeship or a contract
personally to do any work, and related expressions are to be construed
accordingly.”
95.
Section 57 provides:
“(1) A person who knowingly aids another person to do an
unlawful act is to be treated for the purposes of this Act as himself doing the
same kind of unlawful act.
(2) For the purposes of subsection (1), an employer or agent for
whose act the employer or principal is liable under section 58 (or would be so
liable but for section 58(5)) shall be taken to have aided the employer or
principal to do the act.”
96.
Section 58(2) provides:
“Anything done by a person as agent for another person with the
authority of that person shall be treated for the purposes of this Act as also
done by that other person.”
97.
Section 21A provides:
“(1) In this Act, ‘employment services’ means-
(a) vocational guidance;
(b) vocational training; or
(c) services to assist a person to obtain
or retain employment, or to establish himself as self-employed.
(2) It is unlawful for a provider of employment services, in
relation to such services, to subject to harassment a disabled person-
(a) to whom he is providing such services
…
and Section 3B (Meaning of ‘harassment’) applies for the
purposes of this subsection as it applies for the purposes of Part 2.”
98.
Miss Czikai rightly accepted before the EJ that the First Respondent
could not be regarded as a prospective employer. On appeal she suggested that
the concession was made only in relation to the road show and not the audition.
99.
Miss Czikai gave evidence by means of her written witness statement. In
paragraph 3 Miss Czikai commented:
“I saw Britain's got talent as an employment services provider
for variety artists and Simco as a future employer.”
In her letter of
11 June 2010 to the Employment Tribunal, which was relied upon by the EJ, Miss
Czikai wrote of her First claim:
“1. Freemantle Media have breached the DDA per se, including
part 11, section 6, subsection 3.
2. But, Freemantle Media are not employers, they are first stage
recruitment agents for the employer Simco…’
…
‘Freemantle Media's input into this case should therefore only
be as an integral and witness and supplier of information.’
…
‘In conclusion.
I believe the Tribunal has jurisdiction over Simco who are the
correct and only Respondents to this present case…”
This evidence of her position explained to the Employment
Tribunal office and the EJ does not support Miss Czikai's contention that her
concession that the First Respondent was not her employer was made only in
relation to the road show and not in relation to the audition for BGT.
100. Even if
Miss Czikai had not conceded that the First Respondent was not her employer, an
argument that they were her employer would have failed. ‘Employment’ within the
meaning of DDA section 68 requires the existence of the contract between the
claimant and the putative employer. There was no evidence of a contract between
Miss Czikai and the First Respondent whereby the parties entered into mutual
obligations pursuant to which Miss Czikai was obliged to work. Miss Czikai attended
auditions voluntarily. No mutual obligations were entered into between the
First Respondent and Miss Czikai.
101. In determining
whether the First Respondent was within the scope of DDA as an employment
services provider within the meaning of section 21A(1), the EJ correctly
considered in paragraph 45 the elements which would bring them within the scope
of that provision. She did not err in law or come to a perverse conclusion on
the evidence in deciding that the First Respondent was not a provider of
employment services within the meaning of the DDA.
102. Mr Linden
QC accepted that engagement by the Second Respondent of Miss Czikai on a
contract for performing on a road show would have been employment within the
meaning of the DDA. This concession was correctly made as pursuant to such a
contract, which the Second Respondent could enter into at their option, there
would have been mutual obligations. The Second Respondent would agree to pay
Miss Czikai for performances which she would have been obliged to undertake.
103. Miss
Czikai contended that the EJ erred in holding that the First Respondent was not
an agent of the Second Respondent for whose acts they were vicariously liable.
On the evidence the EJ concluded that the First and Second Respondents were
co-producers collaborating and performing different aspects of the preparation
for the BG T show. This conclusion was open to her on the evidence.
104. By
amendment after the conclusion of the hearing before me, Miss Czikai contended
that, in addition to the matters previously raised by her, the EJ erred in
failing to take into account the ‘Talent and Exploitation’ section of the document
‘Syco/Freemantle Deals Terms summary – Got Talent’ in deciding in paragraph 45,
that the First Respondent was not an employment services provider within the
meaning of the DDA. By amendment. Miss Czikai asserted that the passage in
“the Freemantle Media/Syco deal terms summary, which states
under talent exploitation.
‘Option to us [Freemantle Media] for agency…”
was inconsistent
with the decision of the EJ on this point. The document does not provide that
‘us’ is Freemantle Media. Further, the document relied upon by Miss Czikai in
fact provides:
“parties to consult upfront what rights talent to give option to
us for, e.g. touring, agency, recording, with Syco having the final say…”
The document names ‘Freemantle’ and ‘Syco’ where one or other Respondent
is referred to. The summary does not show that the First Respondent was given
the option to enter into an agency agreement with the finalists. It does not
support Miss Czikai’s argument that the First Respondent was an employment
services provider or was acting as an agent of the Second Respondent for the
purpose of auditioning contestants or posting footage of their performances on
the Internet.
105. Having permissibly
found that the First Respondent was not an employer, an employment services
provider or an agent of the Second Respondent within the meaning of the DDA,
the EJ did not err in holding that the First Respondent was not acting in a
capacity which brought them within the scope of DDA.
106. Paragraph
5 of the Release Form signed by Miss Czikai and the Second Respondent provided:
“I acknowledge that if I progress to the second or subsequent
stages of the competition I maybe (sic) required at Syco's election insofar as
it does not conflict with any existing agreements (defined below) I may currently
be encumbered by and in consideration of the inclusion of my contribution in
the programme to enter into the following agreement with Syco, its designees,
licensees, successors and assigns:
…
(c) an exclusive touring/tour merchandising agreement.”
107. The EJ set
out in paragraph 50 her reasons for holding that BGT and in particular the
audition undertaken by Miss Czikai was not a recruitment exercise. On the
facts found by the EJ it is not reasonably arguable that she erred in holding
that by entering the BGT competition and auditioning to progress in it, Miss
Czikai was not applying for employment with the Second Respondent. The audition
gave her the opportunity to progress to further rounds in the BGT competition.
She would not have been an employee of the Second Respondent if she had
progressed to those rounds. Even if she had succeeded in reaching the final
round, Miss Czikai would not have been an applicant for employment with the
Second Respondent. She would have been in a pool from which, at their option,
the Second Respondent may have selected performers for their roadshow. The
purpose of auditioning was to progress in the competition. It was not an
application for employment.
108. It is not
reasonably arguable on the facts of Miss Czikai's case that the EJ erred in
holding that the Respondents were not acting in a capacity which brought them
within the scope of the DDA.
Were the claims hopeless?
109. Even if
the EJ erred in holding that the First or Second Respondents had not been
acting in a capacity which brought them within the scope of DDA, in order to
have any prospect of succeeding in her claims Miss Czikai would have had to
establish all the necessary elements to found liability.
110. To succeed
in the reasonable adjustments claim under DDA section 4A in respect of the
audition Miss Czikai would have had to establish that before or when they
conducted the audition the First Respondent knew that because of a disability she
was placed at a substantial disadvantage compared with others by the conditions
under which the audition was carried out. The EJ held at paragraph 54:
“In the present case, the disabilities upon which Miss Czikai
relies are not apparent to the naked eye. The disabilities that she relies upon
our cerebral neuritis, fibromyalgia and the operations on her arms. It has not
been argued that any of these conditions affect her ability to sing. For her
claim of failure to make reasonable adjustments to succeed, she would have to
demonstrate that she made it quite clear that the researcher, Lily Wilson of
the First Respondent, that she did have special needs arising from those
disabilities. On her own case, she did not make this clear.”
111. On the
findings of fact, the EJ cannot be said to have erred in concluding at paragraph
56 that Miss Czikai could not demonstrate that she told anybody from any of the
Respondents that she required some adjustments to take into account the
disabilities upon which she relied. In my judgment it is not reasonably
arguable that the EJ erred in holding that Miss Czikai's claim for failure to
make reasonable adjustments had no reasonable prospect of success.
112. In order
to succeed in her claims of harassment regarding not linking the BGT audition
with footage of her performance for BGMT or not removing footage of the BGT audition
from the internet, the EJ directed herself that DDA section 3B requires:
“that the harassment must be for a reason which relates to the
disabled persons alleged disability.”
In order for Miss Czikai to succeed she would have to demonstrate
that the harasser had knowledge of her disabilities.
113. On the
evidence before her, the EJ concluded that Miss Czikai
“has not demonstrated that the Second, Third, and Fourth
Respondents had any knowledge of her alleged disabilities.”
Further, there was no basis for supposing that the reason that
footage of the BGT audition was posted on and not removed from the internet or
was not linked to footage of her performance for BGMT was for reasons related
to any of Miss Czikai’s conditions. These conclusions were open to the EJ on
the evidence before her.
114. In my
judgment is not arguable that the EJ erred in holding that Miss Czikai's claims
had no reasonable prospect of success. It is not suggested that there was a
failure to comply with Rule 19(1) of Schedule 1 to the Employment Tribunals
(Constitution and Rules of Procedure) Regulations 2004 in dismissing both
claims.
115. None of
the grounds of appeal have any prospect of success. The appeal is dismissed.
