Mr J Ellis v GB & I Ltd and Global Business & Investment LLP: 1601753/2018
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ReasonsCase Number: 1601753/2018 1 EMPLOYMENT TRIBUNALS Claimant: Mr J Ellis Respondent: GB&I Ltd (Company Number 11438226) Heard at: London South (Croydon via CVP) On: 30/9/2024 - 3/10/2024 Before: Employment Judge Wright Ms J Cook Mr T Harrington-Roberts Representation: Claimant: Mr J Frater - consultant Respondent: Mr N Smith – counsel REQUEST FOR WRITTEN REASONS Oral judgment having been given on the 4/10/2024 and further to the claimant’s request for written reasons on the 17/10/2024, these written reasons are provided. WRITTEN REASONS It was the unanimous Judgment of the Tribunal that the claimant’s claim of unauthorised deductions from wages under Part II of the Employment Rights Act 1996 (ERA) and of unlawful discrimination contrary to the Equality Act 2010 (EQA) s. 15 and s.26 were not well founded. They therefore fail and were dismissed. Case Number: 1601753/2018 2 The claim under s.1 ERA was dismissed upon withdrawal. 1. The claimant presented a claim form on 3/12/2018 following a period of early conciliation which started on 7/10/2018 and ended on 23/10/2018. The claimant’s engagement with the respondent ended when he resigned without notice on 11/9/2018. 2. The respondent was incorporated on 28/6/2018. For the reasons set out in the Judgment of Employment Judge Millns, the claimant was therefore only engaged by the respondent between the 28/6/2018 and 11/9/2018. 3. There were preliminary hearings on the 12/4/2019 and 24/4/2020. There was then a substantive public preliminary hearing on 6/10/2020. The claimant had applied to join additional respondents. That application was refused and it was reconsidered on the 8/2/2021. The claimant appealed that decision to the Employment Appeal Tribunal and that appeal was dismissed on the 12/12/2022. 4. A case management preliminary hearing took place on 30/11/2023 and that resulted in an agreed list of issues to be determined by this Tribunal. Those issues were: time limits (any act before 19/8/2018 was out of time, subject to any extension of time); discrimination arising from disability; harassment related to disability; and unauthorised deduction from wages. Any other matters raised in the list of issues had fallen away. 5. The issues were recorded as (page 78): [The issues were not numbered in the Order of the 30/11/2024 and for ease of reference, numbers have been inserted here.] Issues for the final hearing The following issues are for the final hearing. References in square brackets are to the paragraph of the amended claim considered by EJ Cheetham at the hearing in October 2020. 1 Time limits Such claims have to be brought within three months of dismissal (i.e. three months less one day) plus any time spent in early conciliation. Here, the relevant dates are as follows: Case Number: 1601753/2018 3 The dismissal took place on 11 September 2018 Early conciliation began on 7 October 2018 Early conciliation ended on 23 October 2018 The claim was submitted on 3 December 2018 The time spent in early conciliation was therefore 16 days. But for this period of early conciliation, any act or omission which took place before 4 September 2018 would have been potentially out of time (3 months less one day from 3 December). 1.1 Adding those 16 days, any act or omission which took place before 19 August 2018 is potentially out of time. To pursue any earlier acts of discrimination, Mr Ellis must either prove that: the discrimination was in fact conduct extending over a period of time and ending after this last act, or it would be just and equitable to extend the normal time limit. 2 Harassment on grounds of disability Did the company or any of its employees engage in unwanted conduct as follows: 2.1 from about March 2018, during weekly conference calls, require a breakdown of all his costs and expenses [39] 2.2 requiring him to “beg and plead” for his salary and/or expenses to be paid [66] 2.3 in August 2018 saying that he was in the gutter and bankrupt [67] 2.4 informing clients that he had left due to ill health. Was the conduct related to his disability? Mr Ellis says that he needed his salary or expenses to be paid so that he could obtain urgent medical treatment. Did it have the purpose or effect of violating Mr Ellis’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him? 3 Discrimination arising from disability Case Number: 1601753/2018 4 This involves unfavourable treatment because of something arising in consequence of Mr Ellis’s disability, cancer. (There is no issue that the respondent was aware of his condition.) 3.1 What unfavourable treatment did he receive? He relies on: the respondent stalling on his salary, which forced him to consider sleeping in his car whilst undergoing cancer treatment and to cancel his health insurance policy [120] his dismissal. 3.2 Can Mr Ellis prove that the company treated him unfavourably because of the “something arising” in consequence of his disability, namely his need for medical treatment, his need to be in the UK to receive that treatment, and his ability to travel to and from Dubai to the UK The respondent is considering its position in relation to any justification defence and may address this in any amended response. Statement of employment particulars When these proceedings were begun, was the company in breach of its duty to give Mr Ellis a written statement of employment particulars or of a change to those particulars? If so, absent exceptional circumstances, the tribunal must award two weeks’ pay and may award four weeks’ pay. Unlawful deduction from wages Mr Ellis says in the claim form that he was owed over £60,000 in salary and expenses at the time of his resignation. The main issue will be whether this sum or any sum was properly payable. Time limit issues may also arise, depending on when payments were due. Remedies If he wins his discrimination claim he may also be entitled to compensation for injury to feelings interest and/or a declaration or recommendation. Case Number: 1601753/2018 5 6. It should be noted that the Order of 30/11/2023 contained the standard paragraph (43 on page 77) that if the list of issues was incorrect, the parties had 14 days to say so. 7. As a result of a public preliminary hearing before Employment Judge Millns on 12/6/2024, the claimant was found to be a worker within the meaning of s.230(3)(b) of the Employment Rights Act 1996 (ERA 1996) and that he fell within the definition of “employment” within s 83(2)(a) of the Equality Act 2010 (EQA 2010) in that he was engaged in a “contract personally to do work” during the Relevant Period. 8. As a result of that decision, EJ Millns recorded that the claimant had withdrawn his claim of constructive unfair dismissal. 9. It was also raised with the parties that as the claimant was found to be a worker and not an employee, he could not pursue his claim for a failure to provide written employment particulars. The parties agreed and that claim is dismissed upon withdrawal. 10. At the outset of the hearing, Mr Smith raised the issue of matters which had found their way into the claimant’s schedule of loss, which had not been pleaded (a claim for holiday pay, ongoing losses and personal injury). He also referred to the findings of EJ Millns with the result that the claimant could not bring a claim for unauthorised deduction from wages. The basis of that submission was that as EJ Millns had found the payments to the claimant to be ‘Monthly Payment and expenses were provided as a loan on account of profit’, the claimant was precluded from pursuing that claim due to s.27(2)(a) ERA. 11. It was surprising that none of these points had been raised earlier between the representatives and were now being canvassed after the hearing had started, for the first time. The parties were invited to have a discussion during the adjournment for the Tribunal to read the papers. Upon resumption, Mr Smith reported that Mr Frater had not contacted him. It was considered these matters could be addressed in submissions. 12. The Tribunal heard evidence from the claimant and for the respondent from: Mr Paul Wong (director); Mr Michael Hughes (director); and Mr Richard Kingston (Project Manager). 13. There was a 300-page electronic bundle. Mr Frater applied to adduce four additional documents on the first morning of the hearing. Again, the parties had not had a prior discussion. In due course, Mr Smith said he did not see the relevance of the documents, but did not object. Mr Smith made an oral submission; Mr Frater declined to do so. Both representatives provided written submissions. All submissions made were considered. Case Number: 1601753/2018 6 14. The respondent accepted the claimant is a disabled person by reason of having been diagnosed with cancer in May 2018. The Tribunal however had seen no medical evidence in respect of this. 15. The following findings of fact were reached by the Tribunal, on the balance of probabilities, having considered all of the evidence given by the witnesses during the hearing. It included the documents referred to by the witnesses and took into account the Tribunal’s assessment of the evidence. 16. Only relevant findings of fact pertaining to the issues and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced in the witness statements/evidence. Findings of fact 17. At the time this claim was presented in late 2018, the claimant was unfortunately diagnosed with cancer. Nothing in this Judgment undermines the seriousness of that, the impact of it upon him and it does not lessen any sympathy anyone involved has for the claimant. 18. This claim however is not about the claimant’s cancer. Cancer is a deemed disability for the purposes of the EQA (schedule 1 part 1 paragraph 6(1)). That does not mean the claimant’s allegations are automatically linked to his cancer; he must demonstrate causation. Apart from an unauthorised deduction from wages claim (s.13 ERA) which the claimant cannot pursue; this claim is about money. In particular, the claimant’s lack of money and his indebtedness. The claimant claims to have been offended by the use of the term ‘bankrupt’ towards him. The Tribunal makes a finding on that below, however, in applying a colloquial definition of that word (rather than a technical legal definition) or indeed in using the word insolvent (again in the non-legal sense) that was an accurate description of the claimant in the period of time he was engaged with this respondent. 19. The claimant’s engagement with the respondent’s predecessor commenced on 1/1/2016. For the reasons set out in the Judgment of EJ Millns, any claim against this respondent can only have taken place from the 28/6/20218, when the respondent was incorporated and is subject to the relevant time limit. 20. EJ Millns also found that the claimant’s monthly payment and payment of expenses; was a loan on account of profit (paragraph 90 a and b page 101). The result of that is that the payments made to the claimant were not Wages and are excluded from being such under s.27(2)(a) ERA. Case Number: 1601753/2018 7 21. Even if that finding had not been made by EJ Millns and the claimant was able to pursue his unauthorised deduction from wages claim, it is not sufficiently pleaded in order for him to do so. The claimant has simply set out that he was owed over £60,000 in salary and expenses at the time of his resignation1. That is not enough information for the respondent to know the case it has to answer. Furthermore, it is not enough for the Tribunal to determine any claim. When does the claimant say the money/monies were due? Was it a single deduction. Does he allege there were several deductions; if so when? Although pleadings in the Tribunal are less formal than in other jurisdictions, there must be sufficient particularity for the respondent and the Tribunal to know the claim the claimant is advancing. It is noted the claimant took legal advice prior to his resignation; which resulted in a seven-page letter-before-action dated 11/9/2018 (page 269). He was also legally represented from at least the preliminary hearing on the 12/4/2019 by his current representative. 22. An important finding of EJ Millns is that the claimant’s visa and health insurance had been provided in Dubai by a company called Blue Ocean under a ‘barter’ type agreement; i.e. that in return for his visa and health insurance the claimant provided unpaid work for Blue Ocean (paragraph 32 of that Judgment page 87). It was recorded that Mr Wong and Mr Hughes agreed that the claimant would continue with this arrangement and that it was beneficial to all. As setting up a Dubai-based company to provide the work visa would be costly. The Judgment of EJ Millns was not appealed. 23. The claimant’s allegations were based upon him saying that he had to cancel his health insurance policy. There was however no documentary evidence of this provided. It is not accepted that the claimant did cancel his health insurance policy; as EJ Millns had found it was provided by Blue Ocean. 24. The claimant’s remaining allegations are vague. They are not dated and do not set out for example, who said that he was in the gutter and bankrupt (allegation 2.3). 25. The claimant was asked to date his allegations and that resulted in a skeleton argument produced by his representative on the first day of the hearing. Harassment s.26 EQA 26. The first allegation is that the respondent or any of its employees ‘from about March 2018, during weekly conference calls, required a breakdown of [the claimant’s] costs and expenses’ (page 79) (allegation 2.1). 1 It is accepted the claimant has set out a series of sums and a short description on page 19/20 and that the total is just over £60,000, however he has done no more than that. Case Number: 1601753/2018 8 27. The way the allegation was captured, was taken from the amended and undated particulars of claim (paragraph 39 page 50). 28. In evidence-in-chief the claimant said it was Mr Wong on several occasions who had his monthly expenses scrutinised (paragraph 27). This was under a heading July 2018 in his witness statement. This was not withstanding that on 1/11/2016 the claimant had proposed to Mr Wong ‘options to talk through to substantial reduce costs’ from 1/1/2017 and that proposal included a suggestion that his wife and children could return to the UK to save on accommodation costs and school fees. That was in addition to him relocating to the UK and spending half his time in the UK and Dubai (page 185). The email went onto say that the rental payment for his Dubai accommodation for the final quarter was due to be paid on the 1/10/2016 and this was becoming a pressing problem. He referred to ‘holding off on this as long as I can and pushing it into November’. He set out in figures the proposed savings per month in respect of his proposals. 29. On the 16/2/2017 the claimant sent Mr Wong a cash flow projection in which he set out his personal expenditure (page 188). The covering email requested a loan of £6,200 (page 187). He also referenced that ‘things’ were ‘difficult’ with the rental part payment still outstanding from 2016 and the full repayment had been due on 1st of January. That was notwithstanding payments made to the claimant on account of his rent of £10,704 on 7/9/2016, £10,668 on 9/9/2016 and £10,500 on 14/11/2016 (page 291); by the respondent. The claimant’s 2017 cashflow forecast showed his rent as £11,400 per quarter. 30. On the 2/3/2018 the claimant sent a four-page email to Mr Wong and in it he set out six options, which included his family returning to the UK and reduced accommodation costs, with figures/costings (page 192). 31. This demonstrates that not only were the claimant’s finances an issue from the outset of his engagement with entities connected to the respondent (‘This is the immediate request for transfer of funds…Transfer of eldest daughter’s school fees… Transfer of 2,000 GBP which is to be deducted from salary once paid later for January’ on 19/1/2016 page 111); but that it was an ongoing issue. It also demonstrates that the claimant was forthcoming about his financial difficulties, his proposed figures to reduce costs and in respect of his financial matters generally. 32. The problem for the claimant is that if he dates this allegation as July 2018 as per his witness statement, it falls outside the time limit. 33. That is not rectified by the skeleton argument then dating this allegation as the respondent requiring detailed breakdown of the claimant’s costs and expenses on the 21/8/2018, 22/8/2018 and 23/8/2018. The obvious Case Number: 1601753/2018 9 advantage of relying upon these dates is that they bring the meetings within the time-limit. 34. There is no evidence-in-chief in respect of these meetings from the claimant. 35. There is no doubt meetings took place. Mr Kingston’s evidence was (paragraphs 11-20): ‘11. On 15 August 2018, Paul Wong sent me a summary of John’s personal finances and asked me to have a look at it and consider what the costs implications would be of John relocating back to the UK. I understood that Paul and John had been discussing this. Paul asked me to look at this because I was familiar with the way of life in Dubai, I had previously set up a number of businesses there, one of which was my own, and I was aware of how procedures worked there and also what the costs of living and of relocation would be (having recently relocated myself and my family back to the UK). 12. I started to work through this, and on 21 August 2018, Paul and Mike Hughes asked me to work with John to review his current financial situation and the debts that he had incurred. We held a meeting with John to discuss this, and after the meeting I spent the afternoon with John working through the details of his finances, debts and financial needs. 13. The following day, on 22 August 2018, I again sat with John to go through his debts and each line of his anticipated expenditure for his life in Dubai to the end of 2018. A screenshot of the debts John had with one bank in the United Arab Emirates, which he showed us at the meeting is at [225]. 14. I also went through the cost with John of relocating his family to the UK, including what the costs of relocation and transition would be [224]. We discussed that at the rate of his earnings with GB+I, which consisted of his monthly remuneration of £8,450 (as the business was still not making additional profits which would allow him to be paid more), his lifestyle in Dubai was simply unsustainable and I gave him my view that he really did need to consider relocating back to the UK to get his finances under control. 15. We worked out that the cost of living in Dubai for 1 month would be about the same as living in the UK for around 4.5 months. The costs I went through with him showed that if he was to stay in Dubai, he would need approximately £17,000 during August 2018, £19,000 during September, and £16,000 from October-December. This was far in excess of what GB+I could pay him and would still leave him with his UAE credit cards, UK and UAE bank overdrafts, UAE car finance and a substantial HMRC debt outstanding. 16. On 23 August 2018, Paul and I sat down with John again, and went through a number of options with him for how GB+I could help him to rebuild his life. These consisted of him returning to Dubai, his family returning to Dubai while he stayed in the UK, his family staying in Brighton (where they had a property) while John stayed in Cardiff (where GB+I is based, and Case Number: 1601753/2018 10 where he was having the cancer treatment which GB+I had helped him to arrange), or him and his family moving to Cardiff. These options were all analysed and rejected by John. During all of these discussions, John kept saying that none of this was possible because things were “very complicated” with regard to his wife and the debts that he had incurred. He repeatedly said he just needed money and “very fast”. 17. I also spoke to John about his house in Dubai and offered him help to find a smaller place to live, as I had contacts in Dubai who would be able to help him with that, which would bring his costs down. John again declined that offer as he said his family wanted to stay on the Palm. 18. On 24 August 2018, Paul, Mike and I again met with John to discuss his situation. Paul set out a “rescue” package which GB+I was willing to offer him. This consisted of the following offer: a. GB+I would rent short-term accommodation for John and his family for a period of two weeks, commencing on 24 August. We gave him a sample of AirBnB properties which I had researched [226]. This would enable John and his family to be together and to start looking at longer-term property arrangements. b. GB+I would assist John in finding a rental property, which the company would rent and pay for utility costs for one year. Again, I researched some property options for this and emailed them to John [239]. c. GB+I would rent a car for John and cover the running costs. d. GB+I would continue to help John in whatever ways possible during his recovery from his cancer. e. GB+I would provide John with a living allowance during this period. f. The cost of all of this would be set against future profits which John would help to bring into the company, so would be repaid before he started to receive a profit share. g. GB+I would contact John’s landlord and banks in Dubai and try to negotiate a longer repayment plan for his debts. 19. I thought that this was a generous offer, as it involved a lot of financial commitment and risk on Paul and Mike’s part. However, John rejected the assistance on the basis that if the money was coming out of his future profit share then he didn’t want it, and just wanted to be given money. Paul asked John a number of times whether he was rejecting the offer of help and John responded each time that he didn’t want the help as his family had to return to Dubai, despite the water, electricity and AC being shut off. 20. However, as it seemed that the main barrier for John was asking his wife to leave her and her daughters’ life in Dubai, I invited John to my house to discuss this further, to look at the styles of properties available in Cardiff and Case Number: 1601753/2018 11 to discuss his wife’s concerns. I then took John out for dinner with my own wife, and we agreed that both of our wives (who were both Russian- speaking, and my wife had friends in the local Russian community to whom she could introduce John’s wife) would have a chat to allay any fears John’s wife might have about relocating to Cardiff. However, John said that he could not remember his wife’s phone number and that his phone was out of charge so this was not arranged.’ 36. By the summer of 2018 the extent of the claimant’s debts had come to light and were in excess of, as far as the Tribunal can ascertain £500,000 (see below). 37. The Tribunal finds that far from being malevolent the respondent was seeking to support the claimant and made very generous offers of assistance to him. The problem was, that the claimant did not want offers of accommodation or even for his bills to be paid directly; he wanted cash. Mr Wong had offered the claimant free accommodation (page 237) and to make payments directly to the claimant’s debtors (page 253); all of which were rejected by the claimant. 38. The meetings with Mr Kingston were nothing at all to do with the claimant’s disability and they were entirely motivated by the claimant’s financial mismanagement. That financial mismanagement pre-dated the claimant’s cancer diagnosis and pre-dated the claimant’s engagement with the respondent and its predecessor entities. The Tribunal cannot begin to envisage how the claimant could owe HMRC circa £65,000, if he were not UK based and was not earning any income in the UK. That is a fantastic sum of money for the claimant to be indebted to. 39. The second allegation was that the claimant was required to ‘beg and plead’ for his salary and expenses to be paid (page 79) (allegation 2.2). 40. This was an ongoing theme with the claimant and the example of 19/1/2016 above is referred to (page 111). Even if the claimant had not been paid his expenses by his previous employer/entity he was working for he was, 19 days into a new role, requesting an advance of £6,114; against (at that time) drawings of £8,450. 41. It is also noted that in that email, the claimant refers to ‘visa renewal costs which I pay for’. EJ Millns had found that Blue Ocean provided his visa (paragraph 32 page 87). 42. In the skeleton argument (paragraph 20), these requests are dated 2/8/2018, 28/8/2018, 7/7/2018, 18/7/2018, 4/8/2018, 28/8/2018 and 5/9/2018. 43. The claimant frequently requested cash urgently from the respondent. If anything, it was the respondent which was pestered to make payment to the Case Number: 1601753/2018 12 claimant. Again, the reason for this was the claimant’s financial mis-management. It pre-dated his cancer diagnosis and it was evidenced from the outset of his engagement. 44. The Tribunal observes that on the 30/3/2016 the claimant noted he would need help in April to cover accommodation and school fees (page 137). On the 27/5/2016 he complained that a payment in the previous month took six days to come through and that the result was all standing orders and direct debits at the end of the month defaulted (page 147). He sent a further email on 29/5/2016 referring to the previous month’s transfer taking six days and said that the same day transfer had not arrived and asked Mr Wong to check it (page 151). On the 16/2/2017 he asked for a ‘temp loan of 6,200’, to be immediately paid back within the month (page 187). On the 5/1/2018 he asked for funds to be able to pay school fees in order that his daughter was not banned from school (page 189). On the 30/4/2018 he asked for a transfer to pay two invoices which he attached (page 200). Finally on the 8/5/2018 he requested a transfer to his UK bank account (page 204). 45. All of these interactions pre-dated the claimant informing the respondent of his cancer diagnosis in late May 2018 and demonstrate a history of his financial incapacity. That resulted in him requesting funds for various reasons, well in advance of his cancer diagnosis. There was no causative link to any disability. 46. This is the only allegation which the claimant seeks to link to his disability by reference to Was the conduct related to his disability? Mr Ellis says that he needed his salary or expenses to be paid so that he could obtain urgent medical treatment. The claimant was not prevented from obtaining medical treatment and he did so on the 6/8/2018 (he was admitted as a day patient for one month to the Newport Proton Beam Therapy Cancer Hospital witness statement paragraph 33). This pre-dated any failure to pay salary and there is no causal link between that failure and the claimant seeking medical treatment. Indeed, the claimant has not provided any evidence to show that he needed to fund medical treatment that he was undertaking in Newport. 47. The third allegation was that in August 2018 the respondent or any of its employees stated the claimant was in the gutter and bankrupt (page 79) (allegation 2.3). 48. This allegation was denied by the respondent. In cross-examination the claimant said that it was Mr Wong who had used this phrase and dated it as the meetings on 21/8/2018 and 23/8/2018. 49. In his evidence-in-chief, the claimant referred to the incidents which took place on the 6/8/2018 ‘around this time’ (paragraph 38). He then in paragraph Case Number: 1601753/2018 13 45 went on to recount events from ‘late August’. He did not refer to this allegation in the late August 2018 meetings. 50. Mr Wong denies referring to the claimant being in the ‘gutter’. He said that he cannot recall referring to bankruptcy or insolvency (in the general sense, not the strict legal sense), however if he did use that phrase, it was factually accurate. Mr Wong’s understanding was simply that the claimant’s income was not enough to meet his outgoings/debts. 51. Mr Wong was compassionate and sympathetic to the claimant’s entire predicament: his health and his financial situation. He offered support: he shared with the claimant’s his father’s diagnosis, treatment and as his father was four weeks ahead of the claimant in terms of treatment and how his father was fairing. He was able to provide the claimant with positive feedback of his father’s treatment. 52. Mr Wong generously offered the claimant ‘free accommodation for Cardiff’ on the 3/8/2018 (page 237). Mr Wong explained he had an investment property which was vacant and he offered it to the claimant during his cancer treatment (witness statement paragraph 43). The claimant turned this down due to the location and due to having an unlikely and unevidenced ‘contagious disease’ (the Tribunal accepts the claimant said to Mr Wong he would not shake hands, however he attended the office for a meeting). There was also the extremely generous ‘rescue’ package Mr Kingston put forward to the claimant in late-August 2018, which was also rejected. There was no money in the respondent company at this stage and therefore, this would have been funded by Mr Wong and Mr Hughes. It is noted that Mr Kingston suggested to the claimant that he make a counter proposal on the 6/9/2018, which he declined to do (page 263). 53. The Tribunal finds that Mr Wong did not use the words ‘in the gutter’. On the balance of probabilities, he did not use the word ‘bankrupt’. At the most, he may have referred to the claimant’s, frankly, disastrous financial position. To the extent that he did so, it was a factual reality. It was by no means related to the claimant’s disability. 54. The fourth and final allegation is that the respondent informed clients the claimant had left due to ill-health (page 79) (allegation 2.4). 55. In his evidence-in-chief, the claimant said (paragraph 51) that in late-September 2018 he discovered that the respondent had informed clients he had been removed from office because of ill health. The claimant’s skeleton argument dated this as around the 14/9/20218 as the claimant did not have the exact date. Not having the exact date does not matter on this occasion from a time limit point of view as the event post-dates the termination of the Case Number: 1601753/2018 14 claimant’s engagement and pre-dates the commencement of early conciliation with Acas. 56. The respondent denies referring to the claimant’s ‘ill health’. It agreed a ‘few people’ were told he had left, simply saying ‘he had left’ and did not refer to ill health. The Tribunal was told that very little was going on in terms of generating business at that time and that business had been going downhill since 2017. 57. The respondent’s solicitor’s letter of 13/9/2018 referred to (page 276): ‘our client will now take steps to inform clients and other third parties of their business that your client has exited his consultancy with them.’ 58. This is the extent of this allegation. There is no documentary evidence, such as an email or message from the respondent to a client. The claimant was clearly still on good terms with clients as he said once ‘his’ clients became aware he had left the respondent, they contacted him directly to ‘hear it from the horse’s mouth’. 59. If such evidence existed, the claimant could have provided it. In any event, based upon the balance of probabilities, the Tribunal finds that Mr Wong and Mr Hughes acting as the respondent; were reasonable, caring and empathetic men. They would have been mindful of privacy matters and would have said no more than is necessary; which was that the claimant had left. 60. In his written submissions, Mr Frater asserted that Mr Wong only admitted to contacting the respondent’s clients at all when under cross-examination, in contradiction with this witness statement. Reading paragraph 56 of Mr Wong’s witness statement in its entirety, the Tribunal finds there is no such contradiction. He had been consistent in saying that he did contact the clients, simply to let them know the claimant had left the business. There is no criticism of him for doing so. Discrimination arising from disability s.15 EQA 61. The claimant said the unfavourable treatment was ‘the respondent stalling on his salary, which forced him to consider sleeping in his car whilst undergoing cancer treatment and to cancel his health insurance policy [120] his dismissal’ (page 79) (allegation 3.1). 62. The reference to ‘[120]’ is a reference to the claimant’s undated amended particulars of claim (page 59). 63. The claimant dates this unfavourable treatment as 6/8/2018 when he was admitted as a day patient for one month at Newport Proton Beam Therapy Case Number: 1601753/2018 15 Cancer Hospital (witness statement paragraph 33). He says (witness statement paragraph 36): ‘I was going to live in the hospital car park as the treatment started early in the morning as I could not afford to pay any rent or stay in a hotel and I felt it was still close enough to the office to be able to get into work after the treatment each day.’ 64. There are several problems with this evidence. Firstly, Mr Wong had offered the claimant ‘free accommodation’ on the 3/8/2018. It is inconceivable that the claimant would decline such an offer, even if the location was not suitable, to consider sleeping in his car. Secondly, one of the reasons the claimant gave for rejecting the offer of free accommodation in lieu of a hotel (it seems provided by the Hospital as the claimant said Macmillan Cancer Support could not assist him) was due to (as the claimant was reticent in setting out the specifics, Mr Wong did so (by reference to his father)): the need to take an enema in advance of his treatment, to evacuate his bowels and the potential consequent diarrhoea. It is inconceivable, the Tribunal finds, if this were the treatment (enema/evacuation/potential diarrhoea), that the claimant would choose to sleep in his car and not take up the offer of free accommodation. 65. The claimant also referred to his cancelling his medical insurance policy. As with the visa costs, this seems to be double accounting by the claimant. EJ Millns found these costs were met by Blue Ocean. Yet the claimant continued to state, when requesting a loan from the respondent that he was liable for his visa costs. In particular the Tribunal was told the visa costs were prohibitive and that was the reason for the arrangement with Blue Ocean. On at least two occasions, the claimant said that he was meeting the visa costs himself. Right at the outset on 19/1/2016 (page 111) and on 2/8/2018 (page 217) the claimant expressly referred to funding his own ‘health insurance, medical fees visa and expenses. 66. The finding of EJ Millns was that Blue Ocean was funding his health insurance (page 87). Yet on the 5/4/2016 (page 146) and 2/8/2018 (page 217) the claimant said he was funding his own health insurance. 67. There was no evidence whatsoever that the claimant’s insurance had been cancelled. The Tribunal finds that in view of the compassionate approach the respondent had taken up to the time he resigned, if he had told Mr Wong and Mr Hughes that there was a risk his health insurance would be cancelled (the claimant had said the cost was £848 on 5/9/2018 on page 253); they would have ensured it was paid in order that his treatment continued. 68. Even if that cost was also to be a loan against future profits, the Tribunal finds that the respondent would have paid it in order that the claimant’s treatment continued. It is not clear however, that the claimant was undergoing private medical treatment, as he appeared to be being treated by the NHS. Case Number: 1601753/2018 16 69. The Tribunal therefore rejects in its entirety that the unfavourable treatment the claimant contended for occurred. 70. The ‘something arising’ is his; need for medical treatment; need to be in the UK to receive that treatment; and ability to travel to and from Dubai to the UK (page 79) (allegation 3.2). 71. The ‘something arising’ as a consequence of the claimant’s disability; namely the need for medical treatment is accepted. There must only be very few conditions which amount to a disability under the EQA which do not require medical treatment. 72. The need to be in the UK to receive that treatment and the ability to travel to and from Dubai to the UK are lifestyle choices of the claimant. The claimant referred to having medical treatment in India and in Dubai. He chose to have medical treatment in Wales and that was facilitated by the respondent (Mr Wong referred the claimant to his contact at the Velindre Cancer Hospital in Cardiff who saw the claimant quickly and referred him to the Rutherford Centre in Newport). 73. In any event, there was no unfavourable treatment. 74. In respect of allegations 2.1, 2.2, 2.3 and 3.1, all of which related to either the claimant’s expenditure or payments to him from the respondent; he had the following debts. He was in debt to the respondent to the sum of £99,443 and to Lee Wakemans Ltd of £5,037 as at 27/9/2018 (page 289). That must have been roughly the sum owed by July/August 2018 as the last payment of expenses paid to the claimant by the respondent was on the 1/5/2018 (page 291). 75. Mr Kingston’s spreadsheet in respect of living costs in Brighton and Cardiff showed, under the heading, ‘debts’; monthly payments to HSBC under a settlement plan of £1,250 and under a settlement plan to Standard Chartered of £1,250. In respect of both there is a comment ‘will negotiate with credit card company to agree a short settlement’ (page 223). 76. Under Mr Kingston’s spreadsheet dated 21/8/2018 titled John Ellis personal financial plan Family to Dubai, then live in Brighton & JE in Cardiff (page 224); shows two payments of £600 due in respect of a car loan, with a note ‘two payments remaining, repossession order issued’. It records that the utilities will be cut off at the end of August and in respect of the claimant’s Dubai mobile telephone will lose number if not paid – ‘disaster’. In respect of the driving license and fine the note was ‘monthly fines have to be paid on late renewal of license’. The claimant was in arrears on school fees of AED 32,180 (based upon an historical exchange rate at the time approximately Case Number: 1601753/2018 17 £6,757 , the claimant having been paid an advance of school fees of £6,720 on 15/9/2017 and £6,350 on 1/5/2018). The claimant’s screenshot of his HSBC Dubai bank, showed his current account being in debit of AED 15,000, his credit card balance being a debit of AED 63,369 and a hire purchase loan of AED 6,169 (page 225). 77. To stay in Dubai, Mr Kingston calculated that the claimant would need approximately £17,000 in August 2018, £19,000 for September and then £16,000 for October to December. That would still leave him with his HSBC UAE credit card, his UAE car finance and his UAE and UK bank overdrafts outstanding (witness statement paragraph 15). 78. The claimant also owed HMRC approximately £65,000. 79. This was in addition to Mr Wong’s evidence that the claimant told him in late August 2018 that he was getting 30 telephone calls per day from debtors in Dubai. 80. On the 5/9/2018 the claimant said he needed (page 253): ‘394 DU ( 1,874 AED ) home phone and communications 355 DU (1,671 AED) mobile bill 848 PPP Health Insurance 426 Life Insurance 198 Empower ( 1,020 ) AC Bill 800 Car repairs due to thermostat , brake pads and discs and RTA ( more complicated than what thought ) 382 Food and Misc. costs [wife and daughter] 200 Food and Misc. costs John 250 Fuel and replacement battery for car cost 3,853 Total There are other costs than the above but these are the most pressing and most urgent.’ 81. The respondent was incorporated on 28/6/2018. One of the reasons for this was that when operating as an LLP, Mr Wong and Mr Hughes incurred a personal tax liability of £15,000 each, due to the loans the LLP received from Lee Wakemans Ltd, which were used to fund the claimant. Mr Wong and Mr Hughes did not make any profit at all out of the respondent. 82. The economic reality of that was that the respondent could no longer rely upon Lee Wakemans Ltd to provide loans; even if Lee Wakemans Ltd was willing to provide such funds. As the respondent was struggling financially, there was a corresponding impact upon any income which could be provided to the claimant. As it was put to him on several occasions, if there are no funds to make payment, there will be no payment forthcoming. Case Number: 1601753/2018 18 83. The explanation for any monetary related allegations is simply that the claimant needed cash to fund his lifestyle and although the respondent did what it could and was compassionate; ultimately, it called time on the black hole of money it was contributing to the claimant. Even then, the respondent did not cut the claimant loose and it proposed a ‘rescue’ package, to provide the claimant with accommodation for a year, a vehicle, to assist him wherever possible in his recovery from cancer and a living allowance; set against future profits the claimant could produce. The claimant was confident in his ability to produce profits in the short-term and was convinced he was on the cusp of £500,000 commission being paid. If his confidence was well-placed, it was nonsensical for him not to accept the respondent’s offer and instead to instruct solicitors. Mr Kingston had wisely cautioned the claimant against going down that route. Time limits 84. The claimant did not advance any evidence-in-chief in respect of the time limit, which was specifically referenced by EJ Fowell in his Order of 30/11/2023 (page 78). All that was submitted on behalf of the claimant in the skeleton argument in respect of the harassment claims, was that they continued until he left. 85. Similarly in respect of discrimination arising from disability, the claimant contends that it is just and equitable to extend time in the skeleton argument. He refers to his living conditions, dealing with the issues that arose in respect of the payments the respondent paid to him and his cancer treatment. 86. In respect of accommodation, on the 3/9/2018 (page 252) the claimant said he ‘will have to cover [his] own hotel costs in Wales this month when visiting’. Then on the 5/9/2018 (page 254), he said ‘There is also no need to reserve any funds from the 20th August for renting accommodation in Cardiff. In the future I will live in Brighton and cover my own hotel costs in Cardiff.’ 87. In light of those comments, it is not clear what accommodation difficulties the claimant had in September 2018. 88. Furthermore, the address the claimant gave in his ET1 was his address in Brighton. 89. The claimant’s issues with payments were historic. It may be that they became more acute in August 2018 when the respondent was no longer able to seek loans from Lee Wakemans Ltd as it had done in the past. Of course, the claimant then resigned on 11/9/2018 which further impacted upon his income. Case Number: 1601753/2018 19 90. That said, that did not prevent the claimant borrowing money to instruct a solicitor in September 2018. The claimant said that the meeting on the 11/9/2018 took 3-4 hours. Furthermore, there is no explanation for the delay between his solicitor’s letter before action of the 11/9/2018 (page 269) and the claim being presented on the 3/12/2018. 91. The claimant had had the benefit of legal advice and had had the opportunity to present his claim much earlier. 92. On the claimant’s own evidence, his treatment was ‘as a day patient daily for one month’ (witness statement paragraph 33). He dated this as 6/8/2018. Therefore this treatment would have concluded by the first week of September. That treatment did not prevent him spending several hours with a solicitor on the 11/9/2018. There was simply no evidence from the claimant and certainly no medical evidence to show any incapacity during the period September to December 2018 which would prevent him presenting his claim sooner, in order that the earlier allegations were in time. 93. There is no evidence at all, in respect of the claimant’s circumstances between him instructing his solicitor in early September 2018 and the delay in presenting his claim on the 3/12/2018. The Law 94. S.136 EQA provides: (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. … (6) A reference to the court includes a reference to- (a) an employment tribunal;… 95. S. 123 EQA provides: (1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. Case Number: 1601753/2018 20 … (3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period; 96. In Madarassy v Nomura International plc [2007] ICR 867, CA, Mummery LJ stated that: ‘The bare facts of a difference in status and a difference in treatment only indicates a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent has committed an unlawful act of discrimination’. 97. If a claimant establishes a prima facie case of discrimination, then the second stage of the burden of proof test is reached, with the consequence that the burden of proof shifts onto the respondent. According to the Court of Appeal in Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases [2005] ICR 931, CA, the respondent must at this stage prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever based on the protected ground. 98. S.15 EQA discrimination arising from disability provides (1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. 99. S.26 EQA provides: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. Case Number: 1601753/2018 21 (2) … (3) … (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect… 100. In respect of violating a person’s dignity: ‘[n]ot every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended’ (Richmond Pharmacology v Dhaliwal 2009 ICR 724, EAT). 101. The EAT also observed that ‘the word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence’ (Betsi Cadwaladr University Health Board v Hughes and ors EAT 0179/13). 102. In respect of the vagueness of the allegations, it is important that to establish that the treatment was because of a protected characteristic it must be shown that a named individual (or a number of individuals) who subjected the claimant to a detriment was consciously or subconsciously influenced by the protected characteristic. Unless the claimant identifies the alleged discriminator(s), that exercise cannot be conducted and the claim will fail Reynolds v CLFIS (UK) Ltd [2015] IRLR 562. Conclusions 103. The Tribunal concludes allegations 2.1, 2.2 and 2.3 had no relevance or were not related to the claimant’s disability. His dire financial position was reflected in him needing to budget as according to Mr Kingston’s calculations, he needed an income of double that he was receiving to cover his living costs. Furthermore, those calculations did not address his debts. For example, his debt to HMRC of £65,000 and to the respondent/Lee Wakemans Ltd of over £105,000. Some of this debt was historic and pre-dated the claimant’s involvement with the respondent. 104. That debt was the reason the respondent attempted to assist the claimant with his budget and led to him providing a breakdown of his finances. He had also previously done so voluntarily on 1/11/2016 (page 185). He provided a breakdown of his expenditure on 16/2/2017 (page 188) and he Case Number: 1601753/2018 22 provided a further breakdown of his finances on 2/3/2018 (page 192). All of these communications pre-dated the claimant’s cancer diagnosis. 105. Put simply, the claimant set out his expenses when he was requesting money from the respondent. When Mr Kingston became involved, the only motivation was to assist the claimant. It seems the claimant did not appreciate the extent of his own debts. 106. There was no evidence of ‘weekly’ requests being made. 107. Furthermore, there was no link to the claimant’s disability. The reason for providing the information was due to the claimant’s financial situation. 108. The claimant did not beg and plead for his salary and other expenses. He sent regular emails requesting cash. Again, there was no link to his disability. 109. The Tribunal robustly concludes that Mr Wong did not use the words ‘in the gutter’. It also finds that he did not call the claimant ‘bankrupt’ in a derogatory or offensive manner. If a term was used to indicate insolvency, then it was factually correct. Had Mr Wong wanted to be offensive towards the claimant, he could have used other more pejorative terms. All Mr Wong was doing was supporting the claimant. 110. Even so, the words described by the claimant are not related to his disability. 111. The claimant has not transferred the burden of proof in respect of these allegations. 112. Allegation 2.4 does have a causal link to the claimant’s disability and is in time. The Tribunal however concludes that other than the claimant’s say-so, there was no reference to ill-health. 113. In respect of the discrimination arising from disability, the unfavourable treatment is not made out. Certainly by the 6/8/2018 the July monthly payment of £8,450 had been paid (page 291). Payment could only be paid to the claimant if the respondent’s bank account was in credit. 114. The claimant saying he was being forced to consider sleeping in his car is simply not accepted as having any credibility whatsoever in the circumstances. 115. EJ Millns has already found that Blue Ocean was responsible for the claimant’s health insurance. Case Number: 1601753/2018 23 116. As there was no unfavourable treatment, there was no ‘something arising’. In any event, the Tribunal would accept the respondent’s justification defence (page 70). 117. Finally, on time limits, this was specifically flagged up as an issue by EJ Fowell. In respect of the allegations which were out of time, the claimant seems to have assumed that any extension of time will be granted if he refers in a skeleton argument to continuing acts and it being just and equitable to extend the time limit. He led no evidence to support his assertion and provided no documents. Due to the findings the Tribunal has made, allegations 2.1, 2.2 and 2.3 were not allegations of harassment within s.26 EQA and therefore there can be no continuing act. Allegation 2.4 is in time, but is rejected as harassment. The Tribunal was not prepared to exercise its discretion to extend the time limit. 118. Such as it is, the allegation of discrimination arising from disability has been dated as 6/8/2018. It is out of time. It is not just and equitable to extent the time limit and in any event, there was no unfavourable treatment to amount to a breach of s.15 EQA. 119. For those reasons, the claimant’s claim is not well-founded and is dismissed. 9/12/2024 Employment Judge Wright
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