Ms. A C De Jesus Pereira v Oliver Bernard Ltd and 1 other — 2024

The claimant, a job seeker using the respondents’ recruitment services, pursued complaints under section 138 of the Trade Union and Labour Relations (Consolidation) Act 1992. At the outset of the hearing she confirmed that she had not made any written application to amend the case to add a Blacklists Regulations claim. The tribunal therefore dealt with the trade union complaints against Oliver Bernard Ltd and La Fosse Associates, and applied the strike out application under Rule 37(1)(a) of the Employment Tribunal Rules 2013. The tribunal also noted that the claimant had withdrawn her unfair dismissal and religion or belief discrimination complaints, and that her race discrimination claim remained capable of being pursued separately.

For the first respondent, the tribunal accepted that the claimant’s case depended on an assumed chain of communication between recruitment agencies and their employees, based largely on LinkedIn connections and what she described as gossip. The claimant accepted in oral submissions that she had no evidence that the first respondent knew of her trade union membership, and the tribunal found that the alleged chain of knowledge was speculative. It also found that the claimant had not shown that the first respondent refused services within the meaning of section 138, noting that the respondent had emailed her about vacancies and had explained on 21 August 2023 that she had not been put forward because more suitable candidates had been identified.

For the second respondent, the tribunal placed weight on the claimant’s earlier statement to Employment Judge Khan that she did not “honestly believe” the alleged adverse treatment by La Fosse Associates was connected with her trade union membership, and that she could not trace a link between Reply UK and the second respondent. At the hearing she relied on further LinkedIn connections, but the tribunal found that this still did not show knowledge of her trade union membership or a causal link between that membership and any refusal of services. Applying the “reason why” approach and the need for trade union membership to have a significant influence on the refusal, the tribunal concluded that the claim had no reasonable prospect of success.

The tribunal struck out both trade union complaints under Rule 37(1)(a). It considered strike out a severe step, but decided that this was one of the exceptional cases in which it was justified because the claims were entirely speculative and had no reasonable prospect of establishing knowledge, refusal of service, or causation. Having struck out the claims, the tribunal said there was no need to consider the alternative deposit order applications.