Case No. 10/09
THE EMPLOYMENT TRIBUNAL
BETWEEN:
Claimant:
Respondent:
Anthony Adenaike
Paddy Power Online Limited
DECISION OF THE EMPLOYMENT TRIBUNAL
In the matter of the Application of the Respondent dated 15th September 2011 to strike out
the Claimant's Claim ('the Strike Out Application,) and in the matter of the Application of the
Claimant to strike out the strike out claim ('the Claimant's Application').
ON:
HELD AT:
Douglas
CHAIRPERSON:
Dr Sharon Roberts sitting alone
8th December 2011 , 12th & 13th
January 2012
I dealt with one aspect of the Strike Out Application by verbal decision on the 12th January
2012 and this written decision incorporates that verbal decision and all other matters
relevant to the application.
REPRESENTATION
The Claimant represented himself.
The Respondent was represented by Mr C. Arrowsmith, Advocate assisted by Mr P. Rogers,
Advocate.
BACKGROUND
1.
The Claimant filed his claim against the Respondent for "unfair dismissal on
grounds of race and in respect of unlawful deduction from pay" on the 1st February
2010 ('the Claim Form').
2.
It is useful to reiterate here the brief summary of the facts giving rise to the claim
as set out by the Claimant in the Claim Form:"(a)
comment made by Mr Simon Bacon during the first week after I started
working for Paddy Power Online Limited on the Isle of Man saying that:
"Nigerians are known to carry out credit card frauds and scams" and asking:
"why do they do that?" and then saying: "So, you won't be given access to
some systems."
(b)
Deliberate exclusion from company/business related tasks pertaining to the
role I was recruited for on at least three different occasions.
(c)
The way I was treated by Mr Simon Bacon: For instance, deliberate refusal to
give me the information I asked for and needed to complete tasks assigned
to me, even though he would happily give the same to another (new)
employee who started with Paddy Power a week after I started.
•
(d)
Cutting me off or ignoring me altogether, etc. ..
Unfounded allegations made against me:
For instance, that I brought down web sites during Apache upgrade after Mr
Bacon instructed me to copy the Apache binaries he had compiled himself to
about 22-30 other servers.
•
That I am aggressive, etc. ..
(e)
Mr Bacon called me a fucking nigger twice.
(f)
Refusal to pay all the cost I incurred in visiting the Isle of Man before finally
moving/relocating to the Isle, etc. .. "
3.
No documents accompanied the Claim Form.
4.
I will call each of the aforesaid paragraphs Paragraph (a), (b), (c), (d), (e) and (f)
respectively from now on in this decision.
5.
The Claimant commenced his employment with the Respondent on the 30th
November 2009 and the employment ceased on the 18th January 2010. The
Claimant's job title was "IT Systems Administrator". At the time the Claimant filed
the Claim Form on the 1st February 2010 he was resident in the Isle of Man. This is
no longer the case. Although not specifically stated in the Claim Form it is a fact the
Claimant is black. Nothing in this paragraph is challenged by the Respondent as
being untrue.
6.
The Respondent filed its Response to the Claim Form on the 24th February 2010
('the Response'). The Claims in the Claim Form were denied. It was stated inter alia
that;
(a)
The contract of employment between Claimant and Respondent contained a
provision that the first six months of employment were to be a probationary
period and during that probationary period the contract of employment could
be terminated by either party giving one weeks' written notice to the other.
(b)
On the 18th January 2010 the Claimant was advised his employment was
being terminated due to his "under performance". All sums required to be
paid to him in terms of the contract together with 5 weeks' salary as a
gesture of goodwill were paid.
(c)
The Claimant was given £2000 by way of relocation expenses when he took
up his employment with the Respondent. In terms of his contract that sum
was repayable if the employment contracted was terminated within 3 months.
The Respondent has not sought to reclaim any of the £2000 and has paid all
additional sums which the Claimant claimed by way of expenses. The
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Claimant had not detailed what other sums he claimed by way of unlawful
deductions from pay.
(d)
Paragraph (a) and paragraph (e) are denied in their entirety and the Claimant
put to proof as to when the alleged remarks were made and where.
(e)
Paragraph (b) is denied and the Claimant put to proof as to the dates, times
and location of where the alleged acts took place.
(f)
Paragraph (d) is denied. The Claimant claims he was blamed for bringing
down web sites during an upgrade called 'Apache'. Two separate incidents
occurred and the Claimant was not held responsible for either of these. It is
the Claimant himself who was aggressive at times and on leaving the offices
of the Respondent he attacked a member of staff which at the time of the
Response was the subject of a pending police prosecution.
7.
Attached to the Response was a statement by Mr Simon Bacon ('Mr Bacon') the head
of LT. for the Respondent in the Isle of Man. He accepts the Claimant was denied
access to certain systems but this was because he was a new employee and
introduction to such systems would have been phased in as the Claimant's
experience and competence increased. Mr Bacon denies the allegations the Claimant
made in the Claim Form and stated the Claimant was dismissed for
underperformance and inability to perform certain elements of his role.
Other statements from other employees of the Respondent were also attached to the
Response which supported what Mr Bacon had stated in his statement.
S.
On the 24th May 2010 the Respondent filed an application seeking;
(a)
the directions of the Tribunal for the progression of the matter.
(b)
an order that the further and better particulars which the Respondent had
requested from the Claimant be provided within 14 days or the claim be
struck out in default ('the Further and Better Particulars,).
(c)
that any claim by the Claimant for discovery be stayed pending provision of
the Further and Better Particulars.
(d)
that the substantive hearing be stayed pending the determination of the
pending criminal proceedings against the Claimant ('the 24th May Application
of the Respondent').
9.
On the Sth June the Claimant, by letter to the clerk to the Tribunal, requested an
order for discovery of thirty two items. With it was an explanation of why they were
requested.
10.
On the 24th June 2010 the Claimant wrote to the clerk to the Tribunal setting out 40
items of discovery he requested accompanied by reasons and opposing a stay as set
out in the 24th May Application of the Respondent.
11.
On the 2Sth June 2010 a directions hearing was held. The Claimant attended as did
Mr Arrowsmith, advocate for the Respondent.
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12.
Prior to that the Respondent had prepared written submissions as directed by me.
13.
Following the directions hearing on the 28th June 2010 orders were made ('the 28th
June Order').
14.
In the discovery process ordered by the 28th June Order the Respondent set out its
objections to certain of the discovery items requested by the Claimant. The Claimant
itemised these under cover of letter of 8 pages of August 31 st to the clerk to the
Tribunal essentially seeking orders for discovery. On the 31 st August the Claimant
wrote 3 separate letters to the Tribunal all seeking orders for discovery.
15.
On the 27'h July 2010 the Claimant provided a witness statement as a 'fully
particularised account of claim as ordered by me'.
16.
On the 3'd September 2010 the Claimant was found guilty of assault against Mr
Bacon. It is accepted by all that the assault occurred after the cessation of the
Claimant's employment with the Respondent.
17.
On the 2nd September 2010 the Respondent provided the Tribunal with an extensive
Summary of Outstanding Particulars arising out of the Order for Further and Better
th
Particulars which formed part of the 28 June orders and seeking an order that the
Claimant file the outstanding particulars ('the Summary of 2 nd September').
nd
The Summary of 2 September acknowledged that the Claimant had filed a witness
statement dated the 27'h July 2010 and further witness statements also dated the
27'h July 2010 in response to the witness statements filed by the Respondent with its
original Response but that despite that, the Respondent claimed in the summary that
many of the requests for Further and Better Particulars remained outstanding.
18.
On the 10th September 2010 a further directions hearing was held which dealt with
all the outstanding discovery items the Claimant sought. The order ('the Discovery
st
Decision') made on the 21 October 2010 is comprehensively worded dealing with all
40 requests for discovery. The same order ordered the Claimant to file and serve on
the Respondent all the outstanding particulars he had failed to serve in accordance
with its request summarised on the 2nd September 2010. These were to be filed and
served by the 30 th November 2011.
19.
The Claimant was granted (by consent) an extension of time to the 8th January 2011
in which to comply with the order made in the Discovery Decision to supply further
particulars of his claim. The email to the Claimant from the clerk to the Tribunal is
worth repeating here:" Dear Mr Adenaike
In response to your letter dated 14th December 2010 and the subsequent submission
from the Respondent (attached herewith for your information) the Chairperson has
agreed to extend the time in which you have to comply with her previous order until
the 8th January 2011.
However Dr Roberts has asked me to inform you that there will be no further
extensions granted and the matter may be listed for further consideration with a
view to a possible Strike Out if you do not comply."
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20.
The Claim was set down for substantive hearing for two days on the 20th and 21 st
April 2011.
21.
On the 2 March 2011 the Respondent filed an amended Response. The Respondent
filed 2 further witness statements both dated 4th March 2011. One from Mr Bacon
and one from a Mr Paris another employee of the Respondent who worked in the Isle
of Man office with the Claimant and Mr Bacon.
22.
On the 8th March 2011 the Claimant sought a review of the Discovery Decision in
relation to 4 items where discovery had not been ordered the grounds being cited as
'the interests of justice require such a review:
23.
On the 25 th March the Respondent filed a Response to the Claimant's application for
review dated 8th March 2011.
24.
On the 29 th March the criminal appeal lodged by the Claimant in respect of his
criminal conviction was dismissed. The Claimant indicated he was going to appeal to
the Privy Council on 30th March.
25.
On the 5th April 2011 orders were made following a review on the 16th March 2011 of
the Discovery Decision. It was 132 days after the last date in which the Claimant
could file for a review of the Discovery Decision. The Claimant stated he had recently
had some legal help and there is a ploy to deprive him of information. I declined to
review the Discovery Decision as there was no convincing reason why the application
had been submitted so late in time. Furthermore there was no specific provision in
the Rules to apply for a review of the Discovery Decision.
26.
On the 24th April the Claimant filed a notice seeking discovery of the same items of
discovery which had been refused under the order of the 21 st October 2010.
27.
On the 31 st August 2011 the Claimant filed a document in 3 parts. The first part
sought discovery in respect of items for which discovery had been refused on the 21 st
October 2010.
The second made a submission that '4 white people have ganged up to give false
witness statements' against him to the Employment Tribunal in regards to
performance or lack of it, accusations of being aggressive. "These lies were told
against (sic) in order to make a case for the unlawful termination of my employment
based on my race and ethnic background".
The third stated concerns of the handling of his claim by me in relation to "fairness,
justice, unnecessary disadvantaging, the bringing of his claims properly before the
tribunal, fairness and justice on the Isle of Man".
The document sought a review meeting in relation to the Discovery Notice dated the
24th April 2011.
28.
On the 15th September 2011 the Respondent filed its application to strike out the
Claimants claim. It is that which is part of the subject of this decision.
29.
On the 28 th and 29th October 2011 the Claimant made an application for an order
that the Tribunal dismiss (strike out) the Respondents application to strike out the
Claimant's claim. It is cited a failure on the part of the Respondent to file a document
with the Tribunal within the time limit stipulated by me on the 29th September 2011
namely a bundle of documents and skeleton argument pursuant to its strike out
nd
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application. I dismissed the Claimant's application to strike out the strike out on
those three grounds as the required documents were not very late in submission (3
days including a weekend) and there had been no prejudice to the Claimant as a
result.
30.
The Claimant also claimed the strike out application was unreasonable in itself. It had
no merit and that the Respondent referring to the criminal proceedings re Mr
Adenaike's assault was wrong.
31.
Due to a most unfortunate error on the part of the Tribunal administration office Mr
Adenaike was forwarded the wrong disc containing the contents of the hearing on
the 29 th September 2011. Although the Respondent had had the correct disc
transcribed and given Mr Adenaike a copy of that transcript on or around the 28 th
October 2011 Mr Adenaike sought an adjournment on the 8th December 2011 (which
was the date fixed to hear the strike out application and Mr Adenaike's application to
strike out the strike out). I agreed with Mr Adenaike that in the circumstances the
hearing for the strike out could not proceed that day.
32.
Mr Arrowsmith successfully argued that rather than lose that whole day on the 8 th
December 2011 one aspect of the Strike Out Application could still proceed and that
was set out in paragraph 47 of his skeleton argument (I shall call it the Paragraph 47
Argument from here). The arguments in relation to that Paragraph 47 Argument
th
commenced on the 8 December 2011 but were not able to be concluded on that
date and were adjourned to the 12th and 13th January 2012.
33.
I had the benefit of the skeleton argument dated the 28th October 2011 of the
th
Respondent at the hearing on the 8 December 2011 and prior to the hearing on the
12th January 2012 I had a supplemental skeleton argument from the Respondent
dated the 20th December 2011 and a transcript of the hearing on the 8th December
2011.
34.
th
At the hearing on the 8 December 2011 I ordered the Claimant to file a skeleton
argument and the skeleton argument I received ('Mr Adenaike's Skeleton Argument')
said the following for all of its 68 paragraphs save for 3;
"The Claimant's submissions will be based on and around mostly and for all the
written submissions that the Claimant has filed with the Employment Tribunal and
the Respondents to date; and any other oral submissions that the Claimant (including
any authorities, other Employment Tribunal cases and other materials that may need
to be cited or introduced that the Claimant may need to put forward based on any
written and/or oral submissions that have been or may be put forward by the
Respondent during any future hearings."
The other paragraphs simply said "no further comment necessary at this time".
35.
It is self evident this is not a skeleton argument or even an attempt at one. The
Claimant is in breach of my order in this respect but luckily for the Claimant I have
chosen not to engage with Mr Adenaike on it at this stage other than to point it out.
36.
The Claimant obviously thought better of it and on the 4th January 2012 filed a
second skeleton argument of more substance.
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37.
Before moving on to the substance of paragraph 47 I must make reference to
comments I made at the hearing on the 12th January. It appeared to me that on
more than one occasion Mr Adenaike had suggested that I was not understanding
the case and that I was favouring the Respondent and generally that Mr Adenaike
had doubts as to my capability. I have broad shoulders and although considering
whether it would be appropriate for me to recuse I had reached the conclusion I
would not do so. I invited Mr Adenaike to comment on the issue of recusal and his
response was that that was a matter for me.
38.
I now move on to consideration of the Paragraph 47 Argument. It is a short
paragraph. I will repeat it in its entirety;
"47. The Claimant was interviewed and accepted shortly before his commencement
of employment with the Respondent when his race, nationality, ethnic origin and skin
colour were all known to the Respondent. The Claimant commenced employment on
the 30 th November 2009 which was ended around 6 weeks later on the 18 January
2010 well within his probationary period. The Claimant can only be suggesting that
the Respondent became racist in that 6 week period. It is not credible."
39.
Mr Arrowsmith expanded on that argument at the hearing. He stated that Mr
Adenaike was interviewed for the job on 4 occasions. Both Mr Bacon and Mr Noonan
interviewed him. Mr Adenaike's argument is that Mr Bacon was one of the main
protagoniSts in getting him dismissed even though only 6 weeks earlier Mr Bacon had
been one of the interviewers.
40.
Elaborating on that point it must be borne in mind that although the Respondent
might have more than one office, the job Mr Adenaike was to do was in an office in
the Isle of Man of only 4 people including himself with Mr Bacon as his manager. In
those circumstances Mr Adenaike's argument is untenable argues Mr Arrowsmith.
41.
Mr Adenaike's arguments put to me at the hearing can be summarised as follows;
1)
2)
3)
4)
5)
6)
7)
8)
9)
It is his word against four other people as to his alleged aggression and his
competence. These are Mr Bacon, Mrs Gosnell, Mr Paris and Mr Noonan ('the
Other Employees'). It is a David and Goliath situation. That in itself is unfair.
It is credible to become racist within a period of six weeks.
The Other Employees are lying. He was sacked because he was black. They
'dress up' rascism as incompetence.
Racism can be covert as well as overt and is not always easy to see.
It is not credible that he was interviewed four times, two of which involved
skills tests, found to be the best candidate and then six weeks later found to
be incompetent. That being the case there can be no other reason for the
sacking except race.
Mr Bacon is not competent to comment effectively on his work in his
speCialised area. The fact he has tried to do so must be racially motivated.
Mr Noonan's statement is littered with hearsay. It is only what Mr Bacon tells
him as Mr Noonan is not working in the Isle of Man office. Hearsay is not
sufficient to prove anything in this case.
He was told he was slow to learn. Mr Paris was told he was a quick learner.
Mr Paris was preferred because he was white.
It is well known people tend to gang up against others. Four white men are
ganging up against the one black man.
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10)
11)
12)
13)
14)
15)
16)
The dismissal meeting was a sudden matter. He had no warning of the
content of the rneeting, no tirne to prepare and no opportunity to bring a
union representative or colleague or friend for help and support.
(Mr Arrowsrnith strongly disputes this, pointing out a letter written warning
Mr Adenaike what the meeting was going to be about, giving him time to
prepare and inviting him to bring someone with him.)
Mr Paris was paid for his telecom line at home but Mr Adenaike was refused
like payment. It is an example of preferring Mr Paris who was white.
Mr Paris is not competent enough to comment on Mr Adenaike's competence,
neither is Mrs Gosnell. Mrs Gosnell made a staternent in the criminal
proceedings saying Mr Adenaike had never, before the assault on Mr Bacon,
shown aggression. That remark did not appear in her statement to the
tribunal. That is another example of dressing up a case of racism as
incompetence.
He was blamed for bringing down a system called Apache which is simply not
true. If he is allowed a full hearing he can prove he did not underperform and
there was no reason to sack him.
The allegation of incompetence which was the grounds for his dismissal are
fact sensitive and require a full and proper hearing to explore whether what is
being alleged is true. It requires findings of fact found after evidence is given
and tested. The case law supports this especially in cases of race
discrimination.
Before his dismissal meeting Mr Adenaike was very aware of an atmosphere
in the office. No one appeared to be speaking to him and there was
sniggering behind his back. This was because they all knew he was going to
get the sack and is a good example of them all ganging up against him
because he was black.
Mr Arrowsmith challenges this strongly, pOinting out in the transcript of the
criminal assault proceedings Mr Adenaike said there was nothing untoward in
the office before his sacking. All was calm.
Mr Adenaike referred to a case of Frost French v Aba Yankah which is a UK
case where it was found a worker was sacked because of race and that the
Respondents had not made out a successful case for her dismissal on any
other grounds. Mr Adenaike argues that the facts only came out because
there was a full hearing. Just so in his case. It is necessary.
(I will call all these points "Mr Adenaike's Points").
THE LAW IN RELATION TO STRIKE OUT APPLICATIONS
The Employment Tribunal Rules 2008 C'The Rules") set out provisions in relation to
strike out.
The relevant parts of Rule 23 states as follows:23. (1) This rule applies to a judgment or order (a)
[not relevant]
(b)
striking out or amending all or part of any claim or response on the
grounds that it is scandalous or vexatious or has no reasonable
prospect of success; (hereinafter called by me "The First Ground")
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(c)
striking out any claim or response (or part of one) on the grounds
that the manner in which the proceedings have been conducted by
or on behalf of the claimant or the respondent (as the case may be)
has been scandalous, unreasonable or vexatious; (hereinafter called
by me "The Conduct Ground'')
(d)
striking out a claim which has not been actively pursued; ("The Not
Actively Pursued Ground'')
(e)
striking out a claim or response (or part of one) for non compliance
with an order (hereinafter called by me "The Non Compliance
Ground',)
(f)
striking out a claim where the Chairman or Tribunal considers that it
is no longer possible to have a fair full hearing in those proceedings;
(hereinafter called by me "The No Fair Tribunal Ground'')
(g)
[not relevant]
Rule 10 1 (b) also has relevance. It states that, subject to the following rules, the
Chairman may at any time either on the application of a party or on his own
initiative make an order in relation to any matter which appears to him to be
appropriate. Such orders may be any order to which rule 23 applies subject to the
requirements of rule 23.
Turning to the First Ground the case of Anyanwu and anor v South Bank
Students Union and anor (2001) 1CR 391 ("The Anyanwu Case'') stated that where
the case is one of discrimination the power to strike out should be used on the
grounds of there being no reasonable prospect of success only where there is the
very clearest case so to do - where it can be said the claim is bound to fail. Such
cases tend to be fact sensitive.
As to the meaning of scandalous within the First Ground the case of Jones v Wallop
Industries Ltd ET 17182/81 stated that it means irrelevant and abusive of the other
party. In that case the Claimant argued he had been unfairly selected for
redundancy and alleged fraud, mismanagement, misrepresentation, criminal
conspiracy, intimidation and 'other torts' against the employer. The Tribunal found
that Mr Jones was "hell bent on causing the Respondent Company and a number of
individuals as much inconvenience, distress, embarrassment and expense as
possible."
As to the meaning of vexatious within the First Ground the case of ET Marler Ltd v
Robertson (1974) ICR 72NIRC found it to be a claim which is not pursued with the
expectation of success but to harass the other side or out of some improper motive.
It has also been used more widely so as to include an abuse of process.
In the case of Ashmore v British Coal Corporation (1990) ICR 45 the Court of Appeal
stated that the categories of conduct rendering a claim vexatious or an abuse of
process were not closed but dependent on the relevant circumstances of the
particular case, public policy and the interests of justice being very material
9
considerations. Circumstances constituting an abuse of process are not limited to
claims that are a "sham and not honest and not bona fide."
The case of North Glamorgan NHS Trust v Ezsias (2007) EWCA CIV 330 ("The North
Glamorgan Case") stated that, as a general principle, cases should not be struck out
on the ground of no reasonable prospect of success when the central facts are in
dispute. The Court of Appeal in that case stated it would only be in exceptional
cases that it would be appropriate such as where the facts sought to be established
by the Claimants were totally and inexplicably inconsistent with the undisputed
contemporaneous documentation.
Turning to the Conduct Ground, it is stated in Harvey on Employment Law (at
paragraph T.647) ("Harvey") that the purpose of this ground is to provide a means
for dealing with litigants (or their advisors) who conduct their cases in a disruptive
and unruly manner or refuse to obey the directions of the Employment judge but
whose cases could not be struck out on other grounds. It is not directed solely to
conduct of the hearing but may apply to conduct at any stage of the proceedings.
The case of Blockbuster Entertaining Ltd v James (2006) EWCA CIV 684 ('The
Blockbuster Case") set out two "Cardinal Conditions" for the exercise of the power
to strike out as the Conduct Ground namely that the unreasonable conduct has
taken the form of a deliberate and perSistent disregard of required procedural steps
or the conduct has made a fair trial impOSSible. The Blockbuster Case also
considered unreasonableness and stated that as to whether a case had been
conducted unreasonably being difficult overzealous and uncooperative does not
necessary constitute sufficient grounds for striking out. The Tribunal must be open
to the difficult as well as the compliant so long as they do not conduct their cases
unreasonably.
The use of the word 'unreasonable' provides a means for dealing with litigants who
conduct their cases in a disruptive and unruly manner or refuse to obey the
directions of the Tribunal but whose cases could not be struck out on either of the
other grounds. It is not directed solely to conduct at the hearing but may apply to
conduct at any stage. The unreasonable conduct must either take the form of a
deliberate and persistent disregard of required procedural steps or it has made a
fair trial impossible.
The case of Zanicchi v Post Office ("The Zanicchi Case") EAT 290/01 held that
where a Claimant has persistently failed to put his case in an intelligible manner and
has failed to comply with orders designed to ensure a fair trial, a Respondent is
entitled to seek a striking out of the proceedings. This is so even if the Claimant's
failures were not the result of deliberate defiance but flowed from a lack of
understanding on the part of a litigant in person provided those failures were of
such magnitude and significance so far as the fair conduct of the proceedings was
concerned.
Pill, L. J. stated that he made the general observation that he did not accept that
conduct is incapable of being scandalous or frivolous such as to justify a strike out
within the meaning of the rules only if there cannot eventually be a fair trial
notwithstanding that conduct. There is conduct which no Court or Tribunal with the
necessary concern for the proper administration of justice could tolerate. Courts
and Tribunals must be concerned to do justice they must, in doing that have regard
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to the interests of litigants in general to the proper use of court time and to the
need to ensure respect for Courts and Tribunals in the community ("The Lord
Justice Pill Statement"). In the same case it is stated that where the applicant has
persistently failed to put the case in an intelligible manner and had failed to comply
with orders designed to ensure a fair trial a respondent must at some stage be
entitled to seek an order striking out the proceedings were failures are of such
magnitude and significance so far as a fair conduct of the proceedings are
concerned it seemed to the Appeal Court that the decision to strike out was well
within the Tribunal's discretion.
If the condition is fulfilled then the Tribunal must go on to consider whether striking
out is a proportionate response to the misconduct in question. As Sedley, L. J. put
it, the power to strike out on the Conduct Ground is a Draconic power not to be
readily exercised.
In the case of Bennett v London Borough of Southwark (2002) ('the Bennett Case')
EWCA CIV 223 it was observed by Sedley, L.J. that the Conduct Ground was
directed to the Conduct of Proceedings in a way which amounts to an abuse of the
Tribunal's process, abuse being "the genus of which the three epithets scandalous,
frivolous and vexatious are species." "Scandalous is not a synonym for "shocking" it
embraces both the misuse of the privilege of legal process in order to vilify others
and giving gratuitous insult to the court in the course of such process or be
offensive.
The Bennett Case also indicated that even if the conduct was scandalous it must be
such that strike out is a proportionate response.
Not all scandalous, vexatious or unreasonable conduct will be sufficient to justify the
premature termination of a claim or defence.
The case of De Keyeser Ltd v Wilson (2001) IRLR 324 EAT in conSidering strike out
on the Grounds of Conduct stated it is crucial to take into account whether a fair
trial is still possible.
There is a helpful summary of what is required to be decided by a Tribunal before
making a striking out order on the Conduct Grounds in the case of Bolch v Chipman
(2004) IRLR 140 EAT.
Four matters are to be addressed:
1) a conclusion by the Tribunal not simply that a party has behaved scandalously,
vexatiously or unreasonably but that the proceedings have been conducted by
or on his behalf in such manner - not necessarily limited to matters taking place
within the cartilage of the Tribunal.
2) the reaching of the conclusion that a fair trial is no longer possible
3) even if a fair trial is not considered possible the Tribunal must consider what
remedy is appropriate which is proportionate to its conclusion
4) even if a strike out order is the correct deCision, the Tribunal must consider the
consequences.
In relation to the Non Compliance Ground in the Blockbuster Case it was stated that
the Tribunal is required to make a structured examination in order to see if there is
"a less drastic means to the end for which the strike out power exists." Sedley, L.J.
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stated "Proportionately .... is not simply a corollary or function of the existence of
the other conditions for striking out. It is an important check, in the overall
interests of justice upon their consequences."
In relation to the Not Actively Pursued Ground in Harvey it is stated there are two
distinct situations. The first is where there has been an intentional and
contumelious default by the Claimant. In the case of Rolls Royce pic v Riddle
(2008) IRLR 873 Lady Smith indicated that it was quite wrong for a Claimant to fail
to take reasonable steps to progress the claim in a manner that shows he has
disrespect or contempt for the tribunal and/or its procedures. Although striking out
is a severe thing to do that does not mean it should never be done.
The second situation in relation to the Not Actively Pursued Ground it must be
shown there has been inordinate and inexcusable delay on the part of the Claimant
and that such a delay will give rise to a substantial risk that it is not possible to have
a fair trial and it is likely to cause severe prejudice to defendants.
THE LAW IN RELATION TO RACIAL DISCRIMINATION IN AN
EMPLOYMENT CONTEXT.
Section 125 of the Employment Act 2006 ("The Act") applies. It states as follows:125.
(1)
Where an employer dismisses an employee -
(a)
in circumstances in which the employee is treated less favourably than he or
she would have been treated if he or she had been of another racial group;
or
(b)
because the employee does not meet or has not attained a standard which
applies equally to employees who are not of the employee's racial group, but
(i) which is such that the proportion of persons of the employee's racial
group who can meet or attain it is considerably smaller than the
proportion of persons not of that group who can do so, and
(ii) which the employer cannot show to be justifiable irrespective of the
colour, race, nationality or ethnic or national origins of the person to
whom it is applied, and
(iii) which is to the employee's detriment because he or she cannot meet or
attain it;
The dismissal shall be regarded as unfair for the purposes of this Part.
(2)
In this section "racial group" means a group of persons defined by reference
to colour, race, nationality or ethnic or national origins, and references to a person's
racial group are to any racial group into which he or she falls.
Section 132 of the Act states that the 1 year employment period required for some
other unfair dismissal claims does not apply in a claim made per section 125 of the
Act.
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The employee has the burden to show prima facie there is an issue which warrants
investigation and which is capable of establishing the racial discrimination he is
alleging - prima facie, did the dismissal occur because of race.
Once that is established by the employee the burden shifts to the employer to prove
on balance what was the reason for the dismissal.
Reasonableness of a decision to dismiss in cases of race, discrimination, if it is
established a reason for dismissal was race then the Tribunal must find it unfair.
It is necessary to focus on whether race was a reason or the principal reason for
dismissal - what was the real problem underlying the dismissal.
An employer must never be influenced by race when deciding to dismiss even if the
employee's conduct is such as to justify dismissal.
DECISION ON PARAGRAPH 47 ARGUMENT
42.
I have considered all the arguments put before me and I am mindful that striking out
a claim is a draconian step. Mr Adenaike is out of time to bring another claim in the
Employment Tribunal.
43.
I have also to consider the overriding objectives in the Rules and of course the law
as I have just detailed.
44.
The Paragraph 47 Argument sets out a very discrete argument in an unusual case.
45.
Mr Arrowsmith's argument is simple. It is simply not credible to interview someone to
work with you in a small office and decide to employ that person and yet six weeks
later sack them because they are black. Why would one employ the black person in
the first place if one was prejudiced against black people?
If Mr Bacon had not been prejudiced when he employed Mr Adenaike what happened
within that six week period to change his attitude so completely so as to sack Mr
Adenaike just because he was black.
46.
I am attracted by the argument. However, I am also attracted by Mr Adenaike's
argument that it is not credible to interview him four times, two of which included
skills tests, choose to employ him above all other candidates and then within six
weeks find him incompetent.
47.
Mr Adenaike's argument is not so strong as Mr Arrowsmiths I feel as it seems to me
possible that once someone is actually on the job imperfections and shortcomings in
their skill set become evident which may not have been evident during interviews
and tests.
48.
The Anyanwu case indicates a claim should not be struck out on the grounds of no
reasonable prospect of success only where there is the very clearest case so to do.
The North Glamorgan case requires a total inconsistency between undisputed
contemporaneous documents and the facts sought to be established. There is
documentation in this case in the form of the communications between Mr Noonan
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and Mr Bacon but I cannot find these to be totally inconsistent with the facts sought
to be established by Mr Adenaike. They do not rule out a Possible racist motivation.
49.
In all the circumstances I find there are insufficient grounds within the Paragraph 47
Argument standing in isolation as an argument to strike out the claim.
50.
The decision now considers all the other arguments put forward by the parties. I
should pause at this point to indicate the Claimant sought an adjournment part way
through the second day of the hearing; that is the 13th January 2012.
51.
Mr Adenaike sought an adjournment, or stay as he termed it. The ground was that
(a) he had not received a copy of my letter of the 6th January 2012 which advised
him I would not agree to aspects of his criminal case not being referred to by Mr
Arrowsmith at the strike out hearing and therefore he was not ready to, or prepared
to deal with that aspect of the strike out hearing.
He had, he said, some 5000 pages of evidence and documents he would wish to
refer to in relation to the criminal matters Mr Arrowsmith sought to raise. Mr
Adenaike's stance was that nothing in relation to the criminal matters was relevant to
his claim in the Tribunal as the assault occurred after his dismissal.
52.
Mr Arrowsmith's stance was that he wished to refer to the transcripts of the
magistrates' court hearing decision and the Staff of Governrnent hearing in relation
to the criminal matters to elaborate on things said and not said at those times by Mr
Adenaike. They were relevant to the Strike Out Application.
Mr Adenaike's response to that was essentially, that he had had an incompetent
advocate at the Magistrates Court hearing who had failed to raise matters which Mr
Adenaike required to be raised. The incompetence was an ongoing matter at the
Advocates Disciplinary Tribunal at this present time.
I refused a stay on this ground on the basis that I had told Mr Adenaike at the
hearing on the 8th December 2011 that I would not agree to his request that there be
no reference to criminal matters. I could not decide whether these were relevant
until I heard what Mr Arrowsmith had to say about them at the Strike Out Application
hearing in the Strike Out Application and the Claimant's Application. Mr Adenaike was
th
also aware on the 8 December that if the Paragraph 47 Argument was not
successful for Mr Arrowsmith I would be proceeding immediately to deal with all
other matters. Mr Adenaike should thus have been prepared and ready to deal with
all aspects of the Strike Out Application on the 12th and 13th January.
53.
54.
The second ground on which Mr Adenaike sought an adjournment or stay was that
he wanted to get legal advice. This was also denied on the basis that Mr Adenaike
had had plenty of time to obtain legal advice and in accordance with the overriding
objectives matters must be progressed expeditiously.
55.
The third ground was that I had refused to grant a case management hearing as
requested so that the matter of the inclusion of the criminal proceedings could be
considered. I refused this ground. I had refused a case management hearing. The
matter of the Strike Out Application needed to be dealt with and some finality on that
issue reached.
56.
Mr Adenaike continued to argue that he was not totally prepared to respond to the
Strike Out Application, in particular the reference to criminal matters. I indicated that
Mr Adenaike knew the points on the criminal matters as Mr Arrowsmith had set them
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out in his skeleton of the 28th October 2011 which also included a bundle containing
a full transcript of the proceedings at the Magistrates court and the Staff of
Government Division when the appeal was considered. Thus he had more than
sufficient time to prepare.
57.
I decided that the Strike Out Application hearing should continue. Mr Adenaike
complained about the unfairness and interrupted strongly when I spoke. Mr Adenaike
then chose to leave whilst the hearing was ongoing. Mr Arrowsmith made the
statement that should Mr Adenaike leave he, Mr Arrowsmith, would make that
leaving as another factor in support of his Strike Out Application. I asked Mr
Adenaike, who was noisily packing up his electronic equipment and files at the time,
had he heard what Mr Arrowsmith had said. Mr Adenaike turned his back on the
tribunal and continued to pack totally ignoring my request that he respond. I will call
Mr Adenaike's behaviour "the Leaving Court Behaviour".
58.
The hearing then continued in the absence of Mr Adenaike. Mr Arrowsmith had
almost finished putting his arguments with only some 10 minutes more being taken
by him.
59.
Mr Arrowsmith made a number of points. He referred to cases to which I have
already referred in the section on the Law. He emphasised the Zanicchi case
particularly the point that Pill LJ. stated that there is conduct which no court or
tribunal with the necessary concern for the proper administration of justice could
tolerate. Courts and Tribunals must be concerned to do justice and in doing that
have regard to the interests of litigants in general, to the proper use of court time
and the need to ensure respect for courts and tribunals in the community.
CONDUCT OF MR ADENAIKE IN COURT
60.
Mr Arrowsmith argued that the Leaving Court Behaviour in isolation was sufficient to
warrant a strike out of the proceedings. Additionally in his Skeleton Argument Mr
Arrowsmith refers to other conduct - conduct of Mr Adenaike towards the
Respondent's legal representatives. Attacks on the Respondent's legal
representatives had been made at prior interim hearings of the Tribunal in this
matter.
a)
At a hearing on the 29 th September 2011 Mr Adenaike stated they are
"playing hide and seek because when people are trying to hide the truth they
go to all lengths to do all sorts of trouble of things".
b)
At the same hearing Mr Adenaike said "There has been a discrimination case
in this case and what I would like Mr Arrowsmith to talking about is is my
conduct. What conduct (inaudible) again it is cat and mouse".
c)
At the same hearing Mr Adenaike accuses Mr Arrowsmith's team of carrying
out a ploy on two occasions and nine occasions on the 8th December.
d)
At the hearing on the 13 th January 2012 Mr Adenaike indicates he wished to
complain about the conduct of Mr Arrowsmith but is unable to formulate what
that complaint is.
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Mr Arrowsmith raised more pOints on the topic arising at the hearing on the
8th December 2011 when Mr Adenaike on more than one occasion accused
the Respondent's advocate of victimising him. Mr Arrowsmith argues it is a
serious allegation and entirely without merit. Mr Adenaike threatens "other
proceedings" in this respect but the basis, content or purpose is not made
clear.
COMPLAINTS OF CONDUCT ON THE PART OF THE CHAIRMAN
61.
Mr Arrowsmith points out Mr Adenaike has questioned my fairness and integrity. By
way of example Mr Arrowsmith refers to the hearing on the 29th September 2011
where Mr Adenaike indicates that the Chairman (i.e. me) is a concern for him as is
the handling of the matter by the Chairperson (i.e. me).
62.
At the same hearing Mr Adenaike states I have taken "as gospel" what the
Respondent says about Mr Adenaike's alleged underperformance and that he has
concerns about fairness and justice on the Isle of Man.
63.
At the same hearing Mr Adenaike infers race prejudice on my part. He states " ... you
believe what this lying white people say because who is lying it is the black man or
the white people .. "
CONDUCT IN THE TRIBUNAL
64.
Mr Arrowsmith believes Mr Adenaike has exhibited an aggressive attitude at the
Tribunal in addition to the Leaving Court Behaviour. These include disrespect and/or
contempt for the Tribunal and its processes. For example Mr Adenaike said to me at
the hearing in September 2011 "Maybe you don't get it" and in correspondence that
his applications for discovery had fallen on "deaf ears". On more than one occasion I
had had to ask Mr Adenaike to be quiet whilst I was speaking as there was a
tendency to interrupt.
65.
On the 8th December 2011 I was accused of not grasping the issues, that I had not
read his submissions and by stating at the end of the hearing in a loud voice "It is a
joke".
66.
I am also mindful of the letter of the 31 st August 2011 from Mr Adenaike to the
Tribunal in which he claims to be "unnecessarily disadvantaged" by actions on my
part. On occasions Mr Adenaike did not allow me or Mr Arrowsmith to finish what
was being said before interrupting.
ABUSE OF PROCESS
67.
Mr Adenaike was not accepting of some of my refusals in relation to his discovery
applications. Mr Arrowsmith indicated Mr Adenaike continued to challenge the
decision and continues to challenge it. For example he tried to reaffirm his
application for discovery by application of the 31 st August 2011 and at the hearing on
the 8th December 2011 and 1th January 2012. Mr Adenaike referred to these
refusals repetitively. Mr Arrowsmith argues this is an abuse of process, a direct
attempt to re-Iitigate matters that have already been decided. In Mr Adenaike's
application of the 24th April 2011 for discovery (as reaffirmed in his 'Discovery Notice'
dated the 31 st August 2011) three out of the nine documents requested had been
16
th
previously requested on the 19 May 2010. In October 2010 following a discovery
hearing I ordered no discovery in respect of these items. Irrespective of that they
were requested again in April 2011 and at the hearing on the 12'h January.
68.
The same repetition in respect of discovery exists in respect of the qualifications of
Mr Paris which were in fact disclosed but not to the satisfaction of Mr Adenaike.
69.
Mr Arrowsmith makes the point that Mr Adenaike appears obsessed about the issue
of his performance at work and that such issue has no relevance in these
proceedings in that the Respondent is perfectly entitled to dismiss the Claimant in
the probationary period whether or not he underperformed. Indeed it is
acknowledged that not all the work Mr Adenaike did could be called
underperforming. References to his performance at work were widespread at the
hearing.
MR ADENAIKE'S CONDUCT AT THE CRIMINAL PROCEEDINGS
70.
Mr Arrowsmith, by reference to the transcript of the Staff of Government hearing
states that Mr Adenaike's behaviour there was scandalous, descending into vilification
of the Judge of Appeal Tattersall Q.c. stating amongst other things "I am
speaking ... you can't just talk to me as if I am your dog." This followed a request by
Deemster Tattersall that Mr Adenaike sit down. At that same court Mr Adenaike
refused to make submissions in respect of sentence as he did not accept the decision
that court had just made refusing his appeal to overturn his conviction for the assault
on Mr Bacon.
A further example is indicating that the Deemsters may not have 'got' what he was
saying and saying he had a right to speak and he was going to speak and "It has to
do with the fact that I am black", "Sentencing is unfair it has to do with part that I
am black".
MR ADENAIKE'S CONDUCT IN RELATION TO THE APPEAL AGAINST
CONVICTION
71.
Mr Arrowsmith argues Mr Adenike pursued the appeal when there was no grounds
and little or no prospect of success as evidenced by the Staff of Government court
findings.
72.
I should pause at this point to indicate Mr Adenaike argued in the strongest terms
that it was his right to appeal if he so wished. This is so of course.
ALLEGATIONS OF BIAS
73.
Mr Arrowsmith pOinted to several instances of allegations of bias made by Mr
Adenaike in respect of the criminal matter the most stark of which can be found at
the conclusion of the Staff of Government hearing when Mr Adenaike stated "White
people shame on you people".
INCONSISTENCIES
74.
I have already referred to two inconsistencies raised earlier in this decision by Mr
Arrowsmith (not given time to prepare or warned about the dismissal hearing and
there being an 'atmosphere' in the office on the day of Mr Adenaike's dismissal).
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Mr Arrowsmith also raises the issue that at the criminal hearing before the
Magistrates Mr Adenaike's defence was self defence. Mr Bacon hit him and thus he
needed to defend himself. That being the case it was very surprising to find Mr
Adenaike did not choose to make a case that the other three white people in the
office had ganged up against him because he was black and that he had been
treated differently and disadvantaged because he was black. He did not do so. Such
arguments would have bolstered his self defence claim - that was why Mr Bacon hit
him. Even if Mr Adenaike argues, as he seems to be doing, that it was the fault of his
advocate for not raising these issues, that argument cannot apply at the Staff of
Government hearing as Mr Adenaike represented himself. Even there there is scant
reference to racism and its first appearance as a point is shown at page 91 of the
transcript where he states that the white people colluded against him.
75.
In this Tribunal case of course racism is the main, indeed only thrust. No other is
open to Mr Adenaike it would appear from the information before me.
76.
In his Claim to the Tribunal the Claimant demonstrates the allegation of racism by
reference to Mr Bacon calling him a 'fucking nigger'. In his skeleton argument the
Claimant avers this offensive and racist remark was made by Mr Bacon after Mr
Adenaike had been dismissed and during the fight between them. Furthermore that
alleged remark was not referred to in the criminal proceedings by Mr Adenaike.
FINDINGS
77.
I am concentrating on the conduct ground for reasons which will be obvious on
reading this decision. I have taken careful account of Mr Adenaike's points as they
apply equally to all these decisions as well as the Paragraph 47 Argument.
78.
I have again taken careful account of the skeleton arguments put forward by the
parties as already referred to, what the parties have had to say at this hearing and
all the documentary evidence produced in the bundle of documents.
79.
How the proceedings been conducted by Mr Adenaike in a scandalous, unreasonable
or vexatious manner?
Has Mr Adenaike conducted his case in a disruptive and unruly manner or failed to
obey the directions of the Tribunal either at a Tribunal hearing or otherwise?
Has his conduct been such that a fair trial is impossible?
Has Mr Adenaike persistently failed to put his case in an intelligible manner and are
his failures of such magnitude and Significance so that fair conduct of the
proceedings cannot take place?
80.
Mr Adenaike is of course allowed to make submissions but not in an offensive
manner. Unpalatable submissions can be made but must be done in a civil manner.
Insult or offence must not be given and courtesy maintained (Bennett Case).
81.
I have no hesitation in finding that Mr Adenaike has not behaved in this Tribunal
courteously or civilly. He has been insulting on many occasions and offensive. I have
stated several instances of these in this decision under the hearings 'Conduct of the
Chairman' and 'Conduct in the Tribunal'.
These are indisputable I heard them myself. A transcript of the hearing will bear this
out. The Leaving Court Behaviour was particularly extreme and occurred because I
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would not accede to Mr Adenaike's wishes. Turning ones back and ignoring a person,
any person, is plainly lacking in courtesy or civility.
82.
I have no hesitation in finding that Mr Adenaike has conducted his case in an
unreasonable, disruptive and unruly manner. He has perSisted to a point almost
beyond the patience of anyone in reiterating his desire for discovery of items which
have clearly been denied him by order of the Tribunal a long time ago. It is a huge
over focusing on Mr Adenaike's part, something which he is quite simply denied by
order. Endlessly repeated requests for the same thing at hearings not set for such
purpose is unreasonable and disruptive and an abuse of process. It seems that at
any hearing for whatever purpose Mr Adenaike believes an invitation is extended to
reiterate disgruntlement about discovery.
83.
A further example of Mr Adenaike's failure to, or wilful refusal to, understand the
importance of court decisions is demonstrated in his contention that the criminal
proceedings should not be referred to in the Tribunal. At the hearing on the 8th
December 2011 I made it clear I would not be prohibiting reference to them at the
hearing on the 12th and 13 th January 2012. Despite that, three letters were written by
Mr Adenaike requiring a case management hearing to consider the matter. He had
his own recording of the hearing of the 8th December 2011 and was at liberty to
remind himself of what I said on the matter. At the hearing on the 12th January he
again raised the matter. He said he had not received my letter which once again
made it clear I would not prohibit reference to what was said at the criminal hearing
as his emails were temporarily blocked. Despite being told on the 12'h January that I
would not prohibit reference to what was said at the criminal hearing, on the 13th
January Mr Adenaike once again raised the issue and said he wanted an
adjournment. That being refused resulted in the Leaving Court Behaviour.
84.
Mr Adenaike was given considerable leeway by the Tribunal by virtue of the fact he
was a litigant in person. This resulted in lengthy repetition and digression into such
realms as Nelson Mandela, Martin Luther King and President Clinton.
85.
I find that Mr Adenaike has used the Tribunal to vilify others namely the advocates
for the Respondent. There is no doubt he accused them of conduct, ploys, playing
cat and mouse, playing hide and seek and victimising him. I do not find any evidence
of a ploy, victimisation or cat and mouse games on the part of the Respondents'
advocates.
86.
I find that not only has Mr Adenaike behaved scandalously, vexatiously and
unreasonably, but that he has conducted the proceedings in such a manner as well.
87.
At the hearing on the 8th December I made an order that Mr Adenaike file a skeleton
argument. Reluctance to do so was clearly evident to the point where Mr Adenaike
inquired of me the penalty for not complying.
88.
As I have already indicated Mr Adenaike's skeleton argument was not a skeleton
argument at all. To use Mr Arrowsmith's expression 'it cocks a snook' at the Tribunal.
That is scandalous and certainly unreasonable.
89.
I have already referred to the extensive applications made by Mr Adenaike for
discovery of items already refused by order, clearly an example of conducting the
proceedings in an unreasonable manner.
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90.
Mr Arrowsmith made play of the inconsistencies in what Was said in the criminal
proceedings and the Tribunal proceedings about racism. I do not make much of
these in relation to the Application to Strike Out. It seems to me these may be
capable of explanation at a full hearing.
91.
I find Mr Adenaike loses sight at the hearing of the nature of his claim which is that
his dismissal was motivated by race. He dwells on the alleged favouritism towards Mr
Paris by praising him above Mr Adenaike. That is not necessarily motivated by race.
That all are lying about his competence. That is not necessarily motivated by race
either.
92.
Mr Adenaike repeated arguments about his abilities, his degree qualifications, his
experience a great deal at the Strike Out Hearing. He seemed incapable of producing
any argument as to how race had been the motivating factor in getting him sacked.
His colleagues and employer may not have liked him and they may have ganged up
on him, but that doesn't necessarily mean they did these things (if indeed they did)
because of race.
DECISION
93.
I am drawn to the conclusion and decision that the Claim of Mr Adenaike to strike
out the strike out application does not succeed. There is ample reason to make a
strike out application. It is not frivolous or vexatious and neither is it an abuse of
process. I dismiss the Claimant's Application to strike out the Strike Out Application.
94.
Turning to the Strike Out Application my decision is that the Claim of Mr Adenaike
against the Respondent (Claim lO{O9) shall be struck out.
95.
I have taken all my findings into consideration and I have also considered whether a
fair trial might still be possible and whether a strike out is a proportionate response. I
find a fair trial would not be possible. Even if a different Chairman were to be
involved in the substantive hearing the Respondent's advocates would remain the
same and I have found that Mr Adenaike has vilified them.
96.
Furthermore the findings I have made about Mr Adenaike's conduct make it clear
that there can be no other way of dealing with the matter other than a strike out. Mr
Adenaike's conduct is too extreme in all the respects I have found to warrant any
other course of action. I am mindful of the Lord Justice Pill statement in this respect.
97.
Other arguments have been put forward as to grounds for striking out and Mr
Adenaike has pointed out that there are fact sensitive issues. I have not considered
these as the findings and decision aforesaid make this unnecessary.
Signed:
~~ ............ .
Date: 20th day of January 2012
Dr Sharon Roberts - Chairperson
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Sent to parties on:
20th January 2012
Entered in Register:
20th January 2012
~~Q::.?::. .......... .
Clerk to the Tribunal: ...
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