Case 4112526/2021 · Employment Tribunal
(sitting alone) Mr C G d Oliveira v Represented by: Self The City of Edinburgh Council — 2022
- Case reference
- 4112526/2021
- Decision date
- 9 August 2022
- Jurisdiction
- Scotland
- Judge
- Employment Judge A Strain
Parties
2 namedClaimant
(sitting alone) Mr C G d Oliveira
Key findings
Tribunal's reasoningAt the open preliminary hearing on 1 July 2022 before Employment Judge A Strain sitting alone, the tribunal dealt with the respondent's strike out application and the claimant's application to amend. The claimant, who represented himself, had presented an ET1 alleging race discrimination and detriment following protected disclosures, and the tribunal had earlier required further particulars and clarified the issues in a later preliminary hearing.
The tribunal allowed the respondent to update its ET3, but refused the claimant's application to add direct age discrimination. Applying Selkent and the overriding objective, it held that the proposed age claim was a new claim based on the same alleged failure not to report or dismiss named employees after the events of 12 September 2020, that it was significantly out of time, and that no just and equitable extension should be granted because the proposed claim was a truly hopeless case with no reasonable prospect of success.
All pleaded claims were then struck out under rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The tribunal held that the whistleblowing claim based on the alleged failure to report or dismiss employees was misconceived because those omissions predated the alleged protected disclosure of 14 November 2021 and could not amount to a detriment to the claimant. It struck out the race discrimination claim because the claimant had not been reported to the SSSC or dismissed and therefore had not shown less favourable treatment.
The tribunal also struck out the later whistleblowing and victimisation claims relating to the email of 24 January 2022 about the claimant's SSSC status. It accepted that SSSC registration was required for the post and held that asking about that registration could not amount to a detriment, even if the email had been motivated by the protected disclosure or by the bringing of tribunal proceedings. Having struck out all claims, the tribunal did not need to consider the deposit order.
Claims and outcomes
5 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Whistleblowing | Section 47B ERA 1996 claim based on alleged detriment arising from the respondent's failure to report named employees to the SSSC and failure to dismiss them after the events of 12 September 2020. The tribunal held that those omissions pre-dated the alleged protected disclosure of 14 November 2021 and could not amount to a detriment to the claimant, so the claim had no reasonable prospect of success. | Struck out | — | — |
| Race discrimination | Direct race discrimination claim under section 13 EA 2010 based on the same alleged failure to report or dismiss named employees after the events of 12 September 2020. The claimant said he was Brazilian Latino and that the comparators were white British, but the tribunal found he had not been reported to the SSSC or dismissed and therefore had not been treated differently. | Struck out | Race | — |
| Whistleblowing | Section 47B ERA 1996 claim based on the respondent's decision to investigate the claimant's SSSC status and the way the issue was raised in the email of 24 January 2022. The tribunal accepted that SSSC registration was required for the post and held that raising the registration issue could not amount to a detriment, even if it was motivated by the earlier disclosure. | Struck out | — | — |
| Victimisation | Section 27 EA 2010 claim based on the decision to investigate the claimant's SSSC status and the email of 24 January 2022 after he had brought tribunal proceedings on 28 November 2021. The tribunal held that, because SSSC registration was required for the post, the email did not amount to a detriment, even if it had been motivated by the protected act. | Struck out | — |
Legal tests applied
21 references- Rule 37(1)(a) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013
- Cox v Adecco and Others 2021 ICR 1307
- Malik v Birmingham City Council UKEAT/0027/19
- Equal Treatment Bench Book
- Kaur v Leeds Teaching Hospitals NHS Trust 2019 ICR 1
- Cavendish Munro Professional Risks Management Ltd v Geduld 2010 ICR 325
- Kilraine v London Borough of Wandsworth
- Darnton v University of Surrey 2003 IRLR 133
- Korashi v Abertawe Bro Morgannwg University Local Health Board
- Phoenix House Ltd v Stockman and anor 2016 IRLR 848
- Chesterton Global Ltd (t/a Chestertons) v Nurmohamed [2017] EWCA Civ 979
- Shamoon v Chief Constable RUC [2003] IRLR 285
- Ministry of Defence v Jeremiah [1980] QB 87
- Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87
- Royal Mail Group Ltd v Efobi [2021] UKSC 33
- Glasgow City Council v Zafar [1998] IRLR 36 (HL)
- Selkent Bus Company Ltd v Moore [1996] IRLR 661
- Arney Services Ltd and another v Aldridge and others UKEATS/0007/16
- Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686
- British Coal Corporation v Keeble & Others [1997] IRLR 336
- Mensah v Royal College of Midwives UKEAT/124/94
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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