THE
HONOURABLE LADY SMITH
Introduction
1.
This case concerns a claim of race discrimination by a contract cleaner
supplied to the Respondents, most of which was dismissed as time barred. Insofar
as it was found not to have been time barred, it was struck out as having no
reasonable prospects of success.
2.
These issues were determined by an Employment Tribunal sitting at
Edinburgh, Employment Judge I McPherson, in a judgment registered on 14 December 2011 after a Pre-Hearing Review at which evidence was given on oath by
witnesses for both parties.
3.
I will, for convenience, continue to refer to parties as Claimant and Respondents.
4.
The Claimant raised proceedings before the Employment Tribunal in an ET1
which was presented on 15 July 2011 alleging that he had been
discriminated against on grounds of race. He made no other complaint. The Claimant
was represented by Mr B McLaughlin, solicitor, before the Tribunal and
before me. The Respondents were represented by Mrs B Murrie,
solicitor, before the Tribunal and before me.
The Claimant’s Form ET1
5.
In his form ET1, the Claimant complained of an incident on 18 February
2011 involving remarks made by Mr Rae on a charity day in relation to the
hat he was wearing, of an incident on 7 March 2011 when Mr Rae and Mr Baron
were making disparaging remarks about their employer employing foreigners, of
him being singled out for being searched by the manager as from the week of 7 March,
of an incident on 12 March when Mr Rae asked the Claimant if he had a
problem with the Scottish, in the week of 14 March when Mr Rae kicked
the Claimant’s dustpan and when someone had drawn a penis beside his name on
the duty worksheet, of an incident involving Mr Rae refusing to sell him
cigarettes (which was averred to be in the same week as the date 13 April
2011), and of an incident on 18 April when Mr Rae was alleged to have
told a customer that he wished the Portuguese cleaner would go home, that he
was coming here to steal jobs and cause trouble and could not take a joke. He
made a general allegation that the conduct of Mr Rae and Mr Baron was
brought to the attention of managers and they had done nothing about it; they
were allowing him to be subjected to treatment that he found to be humiliating
and degrading.
6.
The claimant’s complaint was presented under reference to section 41(1)(d),
41(2) and 41(3)(b) of the Equality Act 2010 (“EA”),
which applies to contract workers and provides that the “principal” (in this
case, the Respondents) must not discriminate against a contract worker by
subjecting him to detriment, must not harass a contract worker and must not
victimise him by not allowing him to do or to continue to do the work. No
reference is made to section 109 of the EA which provides for the
vicarious liability of an employer of a person who contravenes its
anti-discrimination provisions nor to section 110 which provides for
liability of any individual employee who does so.
Respondents’
Form ET3
7.
In their form ET3, the Respondents denied the allegations made and
added:
“All alleged incidents relied on by the Claimant with the
exception of that on 18 April occurred more than 3 months prior to
the date on which his claim was presented to the Employment Tribunal, 15 July 2011. The allegations are denied, but in any event, in the absence of any
ongoing course of conduct, or of a course of conduct the last act of which
occurred prior to 16 April 2011, the claim will have been made out of
time.”
Case Management Discussion
8.
A CMD was held on 22 September 2011 and it was agreed that two
issues would be determined at a Pre-Hearing Review, namely whether that part of
the claim other than the allegation regarding an incident on 18 April 2011
was time barred and whether or not any surviving part of the claim should be
struck out as having no reasonable prospects of success.
Pre-Hearing Review
9.
It was inevitable, given the time bar aspect of the PHR, that the
Employment Judge would hear evidence on oath and require to make findings in
fact. He did so. He made the following findings in fact which are relevant
for present purposes:
Findings in Fact
10.
The Claimant was employed by Mitie Cleaning and Environmental Services
as a cleaner. He was supplied by Mitie to the Respondents to work for 20 hours
each week at their North Berwick store from 10 February 2011 to 19 April 2011. He worked alongside Denis Baron and Robert Rae, who
were employed by the Respondents. He was subject to the supervision of another
Mitie employee, Ms Jessica Riddell.
11.
On 8 April 2011, there was an incident between the Claimant and
Robert Rae which involved Mr Rae refusing to sell cigarettes to the Claimant
from a kiosk in the store. It was reported by Ms Riddell to the Respondents’
store manager, Lisa Prentice, as was a complaint by the Claimant that he
thought that Mr Rae and Mr Baron did not like him and an allegation
that, on an occasion, his dustpan had been kicked away. That was the first
report to her of any incidents or problem involving the Claimant. She
investigated the matter.
12.
Lisa Prentice ascertained that Mr Rae had refused to sell
cigarettes to the Claimant because it was during working hours; anyone else
working in the store would have, similarly, been refused the sale of cigarettes
during working hours since that was company policy. The allegation about the
dustpan was denied.
13.
Lisa Prentice relayed her findings to the Claimant – arrived at
after her having interviewed Mr Rae and Mr Baron - the same day, 8 April 2011. She also told him to bring any further concerns that he had to her
attention; she reassured him that any allegations would be taken seriously. He
did not, however, raise any further concerns with her at any time prior to 19 April
when he finished working at the Co-op. He made no complaints of having been
discriminated against prior to raising the present proceedings.
14.
The Claimant’s partner undertook the handling of the Claimant’s claim.
She attended the Citizens’ Advice Bureau (“CAB”) on 21 April 2011. She saw Mr Stevenson, an employment law specialist, there. He was not able to meet
with Ms Veitch again until 6 or 8 weeks later, on or about 16 June
2011 (at which time he advised her to try and document what had happened to the
Claimant; she did so, by writing up a diary at that time i.e. the entries it
contained were not contemporaneous and were hearsay of the Claimant). When she
saw Mr Stevenson on that occasion, he also gave her a list of employment
law solicitors. She gave no explanation of what had been happening in the 6-8 weeks
between her first and second meetings with Mr Stevenson. No suggestion
was made of her or the Claimant being ignorant of time limits or that she could
not, for instance, have accessed the Employment Tribunal website for the Claimant
and completed the form ET1 for him without waiting for a further
appointment with Mr Stevenson.
15.
Mr McLaughlin, solicitor, was instructed, there was a meeting with
him on 2 July 2011 and, as above noted, a form ET1 was presented for
the Claimant on 15 July 2011.
16.
The Claimant and his partner gave evidence that there had been other
incidents in addition to the above but the Employment Judge did not find, on
the evidence led, that they had taken place. Having heard evidence from the Claimant,
his partner Karen Veitch, Mr Rae, and Ms Prentice, the
Employment Judge was satisfied that the above were the only findings in fact
that, on that evidence, could properly be made.
Observations on Evidence
17.
The Employment Judge unusually but understandably in the circumstances,
set out in his reasons what evidence had been given by the witnesses and what
he had made of it. Of particular note is that the Claimant had a very limited
ability to communicate in English
and that the Employment Judge plainly found him to be a wholly unsatisfactory
witness. He explains:
“11(c) The claimant’s recollection of events appeared clear and
concise but he was unable to state, with any certainty, dates of incidents or
to recall the sequence of the various incidents complained of by him. In cross
examination he advised that he was “not really sure of any dates”…
…
(f) While I am sure the claimant was doing the best he could to
give his evidence, the simple fact remains that his evidence was vague and
uncertain as to the dates of the various acts complained of in his ET1 claim
form. As such, while not doubting his credibility I have had cause to have
serious doubts about the reliability of his evidence given to the Tribunal. He
was not a confident or compelling witness.”
18.
He points to various aspects of the Claimant’s evidence which were
unsatisfactory.
19.
For instance, the Employment Judge explains that the Claimant sought to
claim that the “diary” written up by Ms Veitch, was in fact a record
compiled by the Mitie supervisor, Ms Riddell. That was, clearly, quite
incorrect.
20.
Further, when it came to the allegation about being searched, the Claimant
had given evidence that he was searched every day for about a week but the
Employment Judge found his evidence about that matter to be “unconvincing and
frankly unbelievable”.
21.
Regarding the allegation about the drawing on the worksheet, he conceded
that he was not sure if it was in fact intended for him.
22.
Whilst the Claimant alleged that his supervisor, Ms Riddell, had
heard some of what was said to him by Mr Rae and Mr Baron, she was
not called as a witness for the Claimant.
23.
It is also clear from the Employment Judge’s record of the Claimant’s
evidence that the Claimant did not assert that there was a discriminatory
culture within the Respondents’ workplace or discriminatory policies or
practices. Despite the indication in the ET1 that it was at least a part of
his case that the Respondents were in breach of the EA by doing nothing about
his complaints of discrimination and allowing him to be subjected to
discriminatory treatment, the complaints made by him in evidence were confined
to individual incidents and were principally about particular acts by Mr Rae.
He also complained about a single act by Mr Baron and a single (repeated)
act i.e. searching him, by Ms Prentice, the store manager.
24.
The Employment Judge noted that Ms Veitch could give no direct
evidence about the events complained of. As above noted, her “diary” was
hearsay of the Claimant and was not contemporaneous.
25.
Mr Rae gave evidence. He had denied that he had racially abused
the Claimant. He denied having kicked his dustpan and the other specific
allegations regarding what he was alleged to have said to and about the Claimant.
His evidence was accepted as being credible and reliable. The Employment Judge
stated: “I found his evidence to be clear and equivocal and I had no
difficulty in finding him to be a clear and reliable witness.” (paragraph 3(u)).
26.
Ms Prentice also gave evidence and the Employment Judge accepted
her account that the only complaints made to her were about the allegations
about the cigarette kiosk and the dustpan kicking incidents and that nothing
was intimated to her by way of complaint after 8 April 2011. Whilst her investigation was limited to questioning the two Co-op employees and she did
not interview the Claimant, he accepted her evidence that the explanation for
her failure to do so was her own lack of experience – he did not draw any adverse
inference from it. In particular, he did not infer that she failed to do so
because of any discriminatory culture that was in operation at the relevant
time.
The Tribunal’s Judgment
27.
The last event alleged by the Claimant was said to have taken place on
or around 17 April (not 18 April) and was that Mr Rae had
referred to the Claimant as a “shit person” when speaking to two customers. Parties
were at issue as to whether that was the last event in “conduct extending over
a period” (EA s.123(3)(a)) or an event that was separate from the earlier acts
complained of. At paragraph 13(g) and (h), the Employment Judge
records the case for the Respondents which was to the effect that the Claimant’s
allegations were of specific and separate acts, under reference to the
authority of Hendricks v Commissioner of Police for the Metropolis
[2003] IRLR 96. At paragraph 12(m), he records the Claimant’s case
which was to the effect that Mr Rae’s conduct was a continuing act. Contrary
to what was trailed by the averments in the ET1, there does not appear to have
been any submission to the effect that there was any allegation of a
discriminatory culture, policy or practice on the part of the Respondents.
28.
At paragraph 29, the Employment Judge turns to the issues for
determination by him:
“29. The first issue for consideration by the
Tribunal is whether or not there has been a continuing act, or separate acts. It
is clear from the evidence led at the Hearing that the last act complained of
by the claimant must have occurred – if it did occur – on 17 April 2011,
rather than 18 April 2011, as originally pled in the claimant’s ET1 claim
form.
30. The acts complained of, prior to that last act, are said by
the claimant, as per the detail provided in his ET1 claim form, to have
occurred on separate dates (although, on the evidence there is some confusion
as to exactly what dates), and to have involved either Mr Rae and/or Mr Baron,
or, as regards the alleged searches, Ms Prentice. There is no complaint
of a continuing discriminatory policy or practice adopted by the respondents
against the claimant.”
29.
He concluded that the acts complained of were separate and distinct,
accepting Ms Murrie’s submissions, and said that there was nothing in
between them to vouch a continuing state of affairs (paragraph 31). That
meant that the complaint in respect of the allegations other than that relating
to 17 April 2011, was prima facie time barred (EA s.123).
30.
The Employment Judge then considered whether or not it was just and equitable
to consider the complaint notwithstanding the time bar (see: EA s.123(1)(b))).
He was not persuaded that the Claimant – on whom the onus lay - had shown that
it would be just and equitable for him to so, essentially because the Claimant
had had the opportunity to seek advice, had done so, via the CAB but had taken
no action for a significant time. He did not consider that the time taken for
the CAB to afford him a follow up appointment with Mr Stevenson and refer
him on to a solicitor demonstrated that it was just and equitable to allow the
claim to proceed. At paragraph 40, he said:
“40. The apparent limited resources of the Citizens Advice
Bureau, as alluded to by Mr McLaughlin, and the time taken for the Bureau
to refer the claimant on to Mr. Stevenson, their employment law specialist,
and for him, in turn, to refer him on to Mr. McLaughlin for legal advice, all
as prayed in aid by him in his closing submission (for the Tribunal heard no
direct evidence from the Citizens Advice Bureau) even if established in
evidence before the Tribunal, are indeed unfortunate, but they cannot, of
themselves, be a good reason to allow a late claim to proceed further.”
31.
He alludes to responsibility lying both with CAB and with the Claimant.
At paragraph 41, he states:
“41. If a claimant chooses to use such an advice agency to
present a claim, then they must accept the consequences of their agent failing
to do so timeously. Further, there was no evidence led before the Tribunal to
explain why the claimant could not, himself, or perhaps, given his difficulty
with English, through his partner, Ms Veitch, have lodged a Tribunal
complaint as regards the alleged discrimination within 3 months of the
occurrence of those events, based on the initial advice received from the
general advice worker at the CAB on or about 21 April 2011.”
and he concluded that the Claimant had not discharged the onus of
explaining why it was not possible for him to present his claim within the
three month time limit. Even if he had done so, it would not have been
reasonable to sanction the further delay of almost two months from first
consulting with the CAB that occurred.
32.
Regarding the second issue, the Employment Judge was persuaded that the
claim ought to be struck out. He did so under reference to his conclusions about
the problems with the Claimant’s evidence. He said, at paragraph 55:
“On balance of probability, I felt that the claimant’s evidence
was just not cogent or clear enough to establish a prima facie case
requiring explanation by the respondents, in terms of the shifting burden of
proof in terms of Section 136 of the Equality Act 2010.”
33.
The Employment Judge had regard to the case of Anyanwu v South
Bank Student Union [2001] ICR 391 and their Lordships’
statements to the effect that where discrimination is alleged, strike out
should be ordered only in the most obvious and plain cases and stated in terms,
at paragraph 50, that he realised that strike out was a draconian measure.
He also referred to the rule on deposit orders, indicating that he was aware
that the test for strike out was not simply whether there were ‘little’
reasonable prospects of success; he had to be satisfied that there were no
reasonable prospects.
Relevant Law
34.
The Claimant had three months within which to present his claim (EA section 123(1)(a).
Where a complaint is in respect of “conduct extending over a period” (EA 123(3)(a)),
the three month period is to be taken as running for all the incidents
within that extended period of conduct, from the end of that period. Thus, if
all the acts complained of by the Claimant fell to be regarded as “conduct
extending over a period”, the claim was not time barred as time ran only from 17 April 2011.
35.
If, however, the act alleged to have occurred on 17 April was not
an aspect of conduct extending over a period, given that all the other acts
complained of were prior to 15 April 2011, only that act could
survive the time bar.
36.
Whether or not an act is part of conduct extending over a period is,
essentially, a question of fact. It is not necessary to show that the conduct
complained of was part of the Respondents’ policies, practices, schemes,
regimes, culture or suchlike (Hendricks paragraph 52);
that is to put matters too highly albeit that if the conduct is shown to
be an aspect of such prevailing circumstances, it will, no doubt, not to be
difficult to meet the requirements of section 123(3)(a). Where individual
acts are at issue, the Claimant has to establish that the particular acts
complained of are linked to one another so as to show a continuing
discriminatory state of affairs (Hendricks paragraph 48).
Separate and distinct acts will not do.
37.
Turning to the matter of strike out, strike out is a remedy which is
available at a PHR and an Employment Judge may grant it if satisfied that a
claim or part of it has no reasonable prospects of success (see: ET Rules, rule 18(7)(b)).
However, it is rarely exercised, particularly in discrimination claims, which
are recognised as being particularly fact sensitive (Anyanwu). The
use of strike out was recently discussed by the Inner House in the case of Tayside
Public Transport Company Limited (t/a as Travel Dundee) [2012]
CSIH 46 where, at paragraph 30, the Lord Justice Clerk
said:
“[30] Counsel are agreed that the power conferred by
Rule 18(7)(b) may be exercised only in rare circumstances. It has been
described as draconian (Balls v Downham Market High School and
College [2011] IRLR 217, at para 4 (EAT)). In almost every case the
decision in an unfair dismissal claim is fact-sensitive. Therefore where the
central facts are in dispute, a claim should be struck out only in the most
exceptional circumstances. Where there is a serious dispute on the crucial
facts, it is not for the Tribunal to conduct an impromptu trial of the facts (ED
& F Mann Liquid Products Ltd v Patel (2003) CP Rep 51,
Potter LJ at para 10). There may be cases where it is instantly
demonstrable that the central facts in the claim are untrue; for example, where
the alleged facts are conclusively disproved by the productions (ED & F
Mann Liquid Products Ltd v Patel, supra; Ezsias v North
Glamorgan NHS Trust, supra). But in the normal case where there is
a "crucial core of disputed facts," it is an error of law for the
Tribunal to pre-empt the determination of a full hearing by striking out (Ezsias
v North Glamorgan NHS Trust, supra, Maurice Kay LJ, at
para 29).”
38.
Thus, if there is a “serious dispute on the crucial facts” the
circumstances will require to be exceptional before the claim can properly be
struck out. The Inner House did not, however, state that strike out could
never be appropriate in such circumstances.
The Appeal
39.
The first ground of appeal was that the Employment Judge had erred in
failing to find that there was a continuing act of discrimination. Mr McLaughlin
said that the “inescapable inference” was that the acts referred to by the Claimant
were linked. They were, he said, part of a climate of racial abuse (not that
that was what he appears to have submitted to the Tribunal – he did not
there argue that this was a policy, practice or culture case nor, in fairness,
did he seek to develop that line in submissions before me). He referred to
paragraphs 51 and 52 of Hendricks and submitted that
the Employment Judge had been wrong to “focus” on whether or not there existed
a discriminatory policy or practices at the end of paragraph 30; that
showed he had erred in law, given the guidance in Hendricks. He
also asserted that the Respondents had allowed a discriminatory state of
affairs to continue, a submission which seemed to be made under reference to Ms Prentice
not having taken a statement from the Claimant but Mr McLaughlin
ultimately appeared to accept that he had to recognise that the Tribunal had
found that there was an innocent, non-discriminatory explanation for her
failure in that regard and did not press the point.
40.
Also under the first ground of appeal, Mr McLaughlin submitted that
the Employment Judge had not given adequate reasons.
41.
Although this first ground of appeal was, in the Notice of Appeal,
presented as one of perversity, that was disavowed by Mr McLaughlin. He
specifically deleted the perversity element and did not argue it.
42.
The second ground of appeal also related to time bar and was to the
effect that the Employment Judge had erred in his findings at paragraph 41.
He was, he said, wrong to have visited the fault of the CAB on the Claimant.
43.
The third ground of appeal, as presented in the Notice of Appeal was
that the Employment Judge’s decision to strike out the claim was perverse
because Ms Prentice’s evidence should not have been accepted; her note
from her interview of Mr Rae stated that the Claimant had made accusations
of being bullied because of his race yet she had said the Claimant had not made
a complaint. She, accordingly, was not in fact shown to have been a credible
witness.
44.
What, however, Mr McLaughlin sought to argue was rather different.
It was that, as a generality, the Employment Judge was not entitled to strike
out the claim because this was a PHR and it would be better to consider all the
evidence at a full hearing “in the round” before an Employment Judge and
members. His attention having then been drawn by me to the Inner House decision
in the Tayside case (which, surprisingly, was not in the bundle
of authorities), he added that this had been an example of an impromptu trial
of facts and that was an error of law.
45.
For the Respondents, Ms Murrie submitted that the appeal should be
dismissed.
46.
The Employment Judge had been entitled on the evidence and on the
authority of Hendricks to find that the Claimant’s allegations
were of separate acts. As for reasons, they were plainly Meek
compliant and also met the requirements of rule 30(6) of the ET Rules.
She referred in that regard, to the case of Fisher v Hoopoe Finance Ltd
UKEAT/0043/05/LA and observed that the discriminatory acts alleged to
have been carried out by Mr Rae were separate and different from the
allegation about Mr Baron and from that about Ms Prentice.
47.
Regarding the second ground, she relied on the Claimant and Ms Veitch
having given no explanation of what was happening for 7 weeks or so. The
whole circumstances entitled the Employment Judge to take the view that he had
not been given an adequate explanation and ought not, accordingly, to relax the
strict time limit. Time limits were, on the authority of Robertson v
Bexley Community Centre t/a Leisure Link [2003] IRLR 434 strict
and relaxation was the exception not the rule.
48.
Regarding the third ground of appeal, perversity was not, she submitted,
made out. The ground of appeal was misleading; there was no question of Ms Prentice’s
evidence being contradicted by her note. The position was, simply, that she
was not saying that there were no complaints; it was that she said that complaints
had not been made to her. Mr McLaughlin did not, I should add, take any
issue with that when given the opportunity to respond. As for the guidance in Tayside
this could, she submitted, be seen as an exceptional case. The Employment
Judge had, because of the time bar point, heard the Claimant’s evidence and
found him to be wholly lacking in reliability. This was a case where it was
open to the Employment Judge to strike out the claim at a PHR and his decision
was not susceptible to being interfered with.
Discussion and Decision
Time Bar
49.
I am readily satisfied that there is no merit in this aspect of the
appeal. The mainstay of Mr McLaughlin’s argument was that when
considering whether or not it had been established that the acts complained of
were “conduct extending over a period”, the Employment Judge had erroneously
focussed on whether or not it had been shown that the Respondents had
discriminatory policies or practices. If he had done so, that would indeed,
standing the wording of section 123(3)(a) and the discussion in Hendricks,
have been an error. Mr McLaughlin’s submission proceeds, however, on a
misunderstanding of the Employment Judge reasons. First, the Employment Judge
is obviously noting that notwithstanding the averments in the ET1 to the effect
that the Claimant was complaining of a generally discriminatory attitude on the
part of the Respondents, no such case was in fact presented at the PHR. Secondly,
it is clear from a reading of the whole of paragraphs 30 and 31 of
his reasons that he asked himself whether or not it had been established that
the individual acts complained of amounted to what he refers to as “a
continuing state of affairs”. Whilst that is not, word for word, the same as
the statutory terminology, it shows that he had the correct test in mind. The
sense is, to all intents and purposes, the same as “conduct extending over a
period”. As for the reasons why the Employment Judge found that the acts
complained of were separate and distinct, it is clear from a reading of his
judgment as a whole that he found them as a matter of fact to be so. There are
no findings in fact which could be interpreted as providing a link between them.
The fact that they were largely carried out – allegedly – by the same
person does not of itself require a conclusion that they were all links in a
chain of the continuing conduct. Further, the Employment Judge makes it clear
that he accepted the Respondent’s submissions, which are recorded, and rejected
those of the Claimant to the opposite effect. I agree with Ms Murrie that
the reasons given are Meek compliant.
50.
Turning to the second ground of appeal, I am not persuaded that it is of
any merit. If the Employment Judge’s entire reasoning is considered it is
clear that he did not decide as he did because he was “visiting the failures of”
the CAB on the Claimant. That reasoning demonstrates that he began, correctly,
by noting that time limits in tribunals are jurisdictional, that they are
strict, that there is no presumption that they should be relaxed and that it is
for the party seeking an extension to satisfy the tribunal in a discrimination
case that it is just and equitable to extend the time limit. Mr McLaughlin’s
submission took the reference to the use of an advice agency (at the beginning
of paragraph 41) out of context and failed to have regard to the
Employment Judge making it clear that the essential difficulty for the Claimant
was his failure to provide an explanation for nothing having been done in
relation to his claim for a significant length of time – some 7 weeks –
when it would, on the face of matters, have been possible for him or his
partner to have presented an ET1 to the Employment Tribunal.
51.
In these circumstances, insofar as the appeal is against the Employment
Judge’s finding that all the complaints apart from the allegation that Mr Rae
made disparaging remarks about the Claimant on 17 April were time barred,
it does not succeed.
Strike out
52.
I turn then to the question of whether or not the Employment Judge erred
in law in determining that that one allegation that survived the time bar fell
to be struck out as having no reasonable prospects of success. As explained in
the Tayside case, if there is a serious dispute of critical fact
it will not normally be appropriate for the Employment Judge to strike out the
case; it will only be in rare and exceptional circumstances that he will be
justified in doing so. The question is, accordingly, was this one of those
cases?
53.
The Employment Judge evidently thought that it was such a case. Whilst
his decision pre-dated that of the Inner House in Tayside, it is
plain that he was well aware that strike out was not something to be considered
lightly, particularly in a discrimination case (see paragraphs 49 and 50),
that not every case in which it appears there are no reasonable prospects of
success should be struck out (paragraph 51), that the test was one of ‘no’
reasonable prospects not simply ‘little’ reasonable prospects, and that it was,
in the event he thought the case had little prospects of success, to
deal with weakness in the claim by imposing a deposit order under rule 20(1)
of the ET Rules. However, because of his conclusions about the Claimant’s
evidence, reached thoughtfully and carefully on the basis of all the evidence, he
decided that there were no reasonable prospects of success and that the claim
should be struck out.
54.
Was the Employment Judge entitled so to conclude? I have reached the
view that he was. This was an exceptional set of circumstances. The Employment
Judge heard evidence from witnesses about all the allegations, on oath –
parties were free to call whatever witnesses they considered relevant – at
the Pre-Hearing Review. He had to do so principally because of the time bar
challenge. He could not have determined whether or not there was a conduct
extending over a period without doing so. He was, however, entitled to have
regard to that evidence and his findings in respect of it when considering the
issue of strike out. This was not an “impromptu trial” of the evidence where
all that was at issue was an application for strike out. Nor was it a decision
reached purely on an assessment of documents such as precognitions (as had
occurred in the Tayside case).
55.
The Claimant’s allegations regarding Mr Rae’s conduct on 17 April
was that he allegedly said things - in English - to customers, about
him which were discriminatory. If he could not establish that Mr Rae had
said what he alleged him to have said his case was bound to fail. He was the
primary source of evidence on that matter. However, the Claimant had, through
his solicitors, made it clear to the Tribunal that he had but a poor command of
the English language and needed an interpreter. The job of the interpreter
would, of course, have been not only to translate what the Claimant was saying
to the Tribunal but, just as importantly, to translate to the Claimant what was
being said in the course of the hearing, in the English language, by others. It
was not suggested that the Claimant was anything other than as much in need of the
latter as he was of the former. The reliability of what the Claimant had to
say about the words articulated by Mr Rae on 17 April was immediately
called into question. It is not surprising that the Employment Judge begins
his consideration of the Claimant’s evidence by flagging up the difficulties he
had with the English language; it would, in the circumstances, have been
surprising if he had not done so. There were other problems which were, on the
face of matters, not going to go away, namely that the Claimant’s vagueness and
lack of certainty about dates, his incredible account of being searched on a
daily basis at one point and his seeking initially to insist that his partner’s
diary entries were made by his supervisor meant that he came across as a vague
and uncertain witness when giving evidence on oath – so much so that the
Employment Judge was unable to accept that any of the events complained of
(other than the cigarette kiosk event, for which there was a straightforward
explanation) had actually taken place. Whilst it was not, of course, for him
to pre-empt an assessment of the facts by the Tribunal at a full hearing if it
was simply a matter of his own view of what, on balance, the facts might turn
out to be, his reasons went well beyond that. There was a real problem with
the Claimant himself as a witness and if there was no reasonable prospect of
his evidence being accepted, his case was doomed to failure. That was an
assessment which, in the unusual circumstances of this case, the Employment
Judge who saw and heard the Claimant give evidence, was entitled to reach.
56.
For these reasons, this part of the appeal also fails.
Disposal
57.
In these circumstances, I will pronounce an order dismissing the appeal.
