The Claimant was appealing against three related judgments and orders from the ET including the striking out of some of his claims and the order that the Claimant pay a deposit to pursue other claims. The appeals were permitted to proceed on the basis of the way in which those claims were dealt with fed into the question of unequal treatment; that is, between a litigant in person for whom English is not his first language and a professionally represented Respondent.

The EAT dismissed most of the claims but appeals from the deposit orders in respect of notice pay and nights out allowance were allowed. The Employment Judge had failed to take into account two timesheets which were before him showing additional days and nights which supported his claims.

_____________

Appeal No. UKEAT/0203/15/RN

UKEAT/0204/15/RN

UKEAT/0205/15/RN

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 25 & 26 February 2016

Judgment handed down on 18 May 2016

BEFORE

THE HONOURABLE MRS JUSTICE SLADE DBE

(SITTING ALONE)

UKEAT/0203/15/RN & UKEAT/0204/15/RN

COLLETTI (APPELLANT)

**

BOREALIS DRIVER SERVICES LMIITED (RESPONDENT)

UKEAT/0205/15/RN

COLLETTI (APPELLANT)

**

(1) ALCALINE UK LTD

(2) BOREALIS DRIVER SERVICES LTD (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR IAIN MITCHELL (One of Her Majesty's Counsel)
Direct Public Access

For the Respondents
MR ADAM SOLOMON (of Counsel)
Instructed by:
Thomas Mansfield Solicitors Ltd
35 Artillery Lane
London
E1 7LP

JURISDICTIONAL POINTS - Continuity of employment

CONTRACT OF EMPLOYMENT - Notice and pay in lieu

RACE DISCRIMINATION - Comparison

UNLAWFUL DEDUCTION FROM WAGES

PRACTICE AND PROCEDURE - Amendment

PRACTICE AND PROCEDURE - Striking-out/dismissal

PRACTICE AND PROCEDURE - Bias, misconduct and procedural irregularity

PRACTICE AND PROCEDURE - Review

The Claimant, an Italian HGV driver, based in England but driving to Europe brought multiple claims. At a Preliminary Hearing his race discrimination claim was struck out and he was ordered to pay deposits to pursue his claims for notice pay and pay for nights away from base. His unfair dismissal claim for making protected disclosures was ordered to proceed. His contentions about the identity of his employer and continuity of employment were rejected. His application to amend his ET1 to bring a claim in respect of pay for Bank Holidays was refused. His application for reconsideration and amendment of his ET1 was dismissed. His claims for notice pay and pay for nights away were struck out for failure to pay the deposits. His application for reconsideration of the strike out of those claims was dismissed.

Appeals from the findings on identity of employer and continuity of employment dismissed. Appeals from the deposit orders in respect of notice pay and nights out allowance allowed. The Employment Judge had failed to take into account two timesheets which were before him showing additional days and nights which supported his claims. Appeal from refusal of permission to amend the ET1 to add a claim for pay in respect of Bank Holidays rejected. Allegation of bias and failing to ensure as far as possible fair conduct of proceeding for an unrepresented Claimant rejected. Appeal from the refusal to reconsider the decision to strike out the claim of race discrimination allowed. The Employment Judge had misunderstood the basis of the claim. Other claims for reconsideration including refusal of amendment to the ET1 rejected. Appeal from rejection of the application for reconsideration of striking out of claims for notice pay and nights out allowed. The deposit orders have been set aside.

1. Mr Colletti appeals from three related judgments and orders of the Employment Tribunal ("ET"), Employment Judge MacInnes ("the EJ") sitting alone. By the first appeal Mr Colletti appeals from the judgment of the ET sent to the parties on 12 January 2015. By the judgment of 12 January 2015 the EJ held and ordered that:

"1. The Claimant's employer was the Second Respondent Borealis Driver Services Limited (Borealis).

…

2. The Claimant was employed by Borealis from 13 December 2011 to 31 July 2013 and from 18 August 2013 to 17 February 2014.

3. The claims of race discrimination and for unpaid holiday pay are struck out.

4. The Claimant is ordered to pay a deposit of £1,000.00 not later than 21 days from the date this Judgment and Order is sent to the parties as a condition of being permitted to continue to advance the allegation that the Respondent failed to pay his notice pay.

5. The Claimant is ordered to pay a deposit of £1,000.00 not later than 21 days from the date this Judgment and Order is sent to the parties as a condition of being permitted to advance the allegation that the Respondent made unauthorised deductions from his wages by failing to pay 16 nights out allowance in February 2014."

By the second appeal Mr Colletti appeals from the order of the ET sent to the parties on 2 February 2015 by which the EJ refused his application dated 23 January 2015 to reconsider the judgment of 12 January 2015 which included an application to amend his ET1. By the third appeal, Mr Colletti appeals from the judgment of the ET sent to the parties on 6 February 2015 striking out under the Employment Tribunal's (Constitution and Rules of Procedure) Regulations 2013 **Schedule 1 Rule 39(4) for failure to pay deposits which had been ordered, his complaints of failure to pay notice and making unauthorised deductions from wages.

1. Mr Colletti, the Claimant, was represented before me by Mr Mitchell QC and Borealis Driver Services Ltd, the Respondent, by Mr Adam Solomon. The Claimant appeared in person before the ET. The Respondent, then the Second Respondent, and the then First Respondent, Alcaline UK Limited, were represented by solicitors and counsel, Mr Adam Solomon, who appeared at both the EAT and the ET. The Claimant obtained legal advice before submitting his reconsideration application with his proposed amended ET1.

1. All three Notices of Appeal were originally rejected as disclosing no reasonable grounds for bringing the appeals. HH Judge Peter Clark in giving judgment on the Rule 3(10) applications at which Mr Colletti was represented by Mr Mitchell, held at paragraph 12:

"12. Whilst I may have reservations individually or collectively about those arguments in terms of standalone grounds of appeal, I see the force of Mr Mitchell's overall submission that the way in which those claims were dealt with feeds into the question of unequal treatment; that is, between a litigant in person for whom English is not his first language and a professionally represented Respondent. …"

Accordingly the appeals were permitted to proceed to a Full Hearing. Mr Colletti was given permission to add an allegation of bias against the EJ, amending the grounds of appeal in the first appeal. In light of differences between the relevant affidavit evidence of the Claimant and that of the solicitor for the Respondent and the written comments of the EJ, the Claimant and Mr Mansfield gave evidence at the hearing before me.

1. The Claimant is Italian, from Sicily. His command of English is poor although the papers include examples of long letters written in connection with his claims before the ET. The Claimant had the assistance of an interpreter both before the ET on 19 December 2015 and before me.

1. The Claimant was employed as a European/continental HGV driver. He alleged that he was continuously employed between 2 October 2012 and 17 February 2014. The Claimant brought a claim on 7 May 2014 against Alcaline UK Ltd and Lorenzo Zaccheo its Managing Director. He named Borealis Services Ltd and Alex Borlase (Transport Manager) as Second Respondent. The Claimant brought claims in breach of contract (deduction from wages) in respect of Sundays worked abroad, for night out allowances of £20 per night and for notice pay. Listed amongst the many days and nights in respect of which the Claimant alleged he was not paid was 1 January 2013. The Claimant also made claims of race discrimination and unfair dismissal. He claimed that he had been dismissed because he asserted that the Working Time Regulations 1998 had been breached and because he sought to draw health and safety issues to the attention of his employer. The Claimant alleged in his ET1:

"I accuse also that this dismissal is unfair and discriminatory against me. Because I always had to be available to the company, forced travel whole months abroad with lorry. … I was also been discriminated against as the rules apply to me, that are not applied to British drivers. …

… the rules are specific to the job, and they are applied on the basis of race and nationality of the driver: Italian drivers work in Italy from Monday to Friday (at most a few Saturday morning). The three Italians who make continental work, the Mr Giacomo, Mr Giuliano and Mrs Raffaella, they never done make the weekend in France or Italy. But they have the possibility on weekends to be free from work, the same treatment of the British. The British drivers (Colin, Bob, Peter, etc. …) working from Monday to Friday only exchanging trailers between France and Italy."

1. In their ET3 the Respondents contended that the correct Respondent was Borealis Driver Services Ltd, the Second Respondent. They also stated that there was a break in the Claimant's service between 31 July 2013 and 19 August 2013. The claims of unfair dismissal, race discrimination, for notice pay and deduction from wages were denied.

1. EJ Vowles held a case management hearing at Ashford on 19 September 2014 following which he made an Order that there be a Preliminary Hearing to determine certain issues including whether the Claimant's claims had any reasonable prospect of success and should be struck out under Rule 37(1)(a) or whether a deposit should be ordered under Rule 39. The issues to be determined at the Preliminary Hearing appear from the judgment of 12 January 2015 with references to paragraphs in the judgment of EJ MacInnes followed by paragraphs of the order of EJ Vowles. These were:

1. The identity of the Claimant's employer [ET paragraph 7; EJ Vowles paragraph 5];

1. The start and end dates of the Claimant's employment [ET paragraph 9, EJ Vowles paragraph 6];

1. The reason for the Claimant's dismissal [ET paragraph 10, EJ Vowles paragraph 7];

1. The claim of race discrimination [ET paragraph 12, EJ Vowles paragraph 8 and 9];

1. The claim for holiday pay [ET paragraph 16, EJ Vowles paragraph 10];

1. The claim for notice pay [ET paragraph 17, EJ Vowles paragraph 11];

1. The claim for unauthorised deduction from wages [ET paragraph 18, EJ Vowles paragraph 12].

1. On 28 November 2011 the Claimant approached EJ Vowles in a public car park in Ashford "to receive clear responses from him" as the Claimant wrote in an email of 9 December 2014 to the Tribunal. In the light of that approach the Preliminary Hearing was moved to a different EJ, EJ MacInnes in Croydon.

1. Set out below are the decisions and reasons given following the Preliminary Hearing which are relevant to the amended grounds of appeal.

1. The EJ held that the Claimant's employer was the Second Respondent, Borealis Driver Services Limited. The claims against Alcaline UK Limited were struck out. The EJ held at paragraph 7 that it was clear from the Claimant's contracts of employment and his payslips that his employer was Borealis Driver Services Ltd. He was paid by Borealis. At paragraph 7 the EJ held:

"7. … It was not disputed by the Respondents that the first Respondent, Alcaline UK Limited was an associated company to whom the second Respondent provided services. However, it was not the Claimant's employer."

The claims against the First Respondent were struck out.

1. The EJ decided the issue of the start and end dates of the Claimant's employment by reference to his contracts of employment and the P45s. The EJ held that first period ended on 31 July 2014 and that the Claimant was re-employed from 18 August 2013. For this finding the EJ referred to the unsigned contract at p 656 in the bundle before him.

1. The EJ directed that the Claimant give particulars of his claim that he was dismissed for asserting his statutory rights or for drawing health and safety issues to the attention of his employer.

1. As for the race discrimination claim, the EJ stated that the protected characteristic relied upon by the Claimant was his Italian nationality. The EJ stated at paragraph 13:

"13. We discussed the matter further. The Claimant again made it clear that his claim was that he had been treated differently to the Italian and British drivers. He agreed that the other Italian and British drivers had themselves been treated the same."

The EJ considered the guidance in Anyanwu v South Bank Students Union [2001] IRLR 305 regarding the importance of not striking out discrimination claims except in the most obvious circumstances as they are generally fact sensitive. However the EJ held:

"15. … as it was the Claimant's case that the other Italian drivers were treated the same as the British drivers (ie a fact that is not disputed) I find that his claim of race discrimination has no reasonable prospect of success and I strike it out."

1. When considering the claim for holiday pay, the EJ noted in paragraph 16 that the Claimant had raised a completely new allegation regarding Bank Holidays when giving further and better particulars of his holiday pay claim. The EJ held that this was a new claim sought to be brought ten months after the termination of his employment. The EJ held that the application to amend was out of time and that:

"16. … Having regard to Selkent v Moore this is not a relabeling of an existing pleaded claim. It is a new claim. The Claimant was well aware of his right to bring a claim to the Employment Tribunal and the time limit for doing so. He gave no reason why it was not reasonably practicable for him to have made this claim within the statutory 3-month period. I therefore do not allow the amendment. Therefore this claim has no reasonable prospect of success and I strike it out."

1. The EJ held that the claim for notice pay had little reasonable prospect of success as on his findings the dismissal took place within the probationary period of six months starting from the recommencement of employment on 18 August 2013 during which there was an entitlement to one week's notice. Looking at the pay slips and two timesheets for February 2014 the EJ concluded that the Claimant had been paid for 18 days but had worked for 13 days. Accordingly the Claimant had received a week's notice pay.

1. As for the claim for unauthorised deduction from wages, the EJ suggested to the Claimant that it was fanciful to suggest he was entitled to 16 nights' allowance in a month when his timesheets showed he had worked 13 days. The EJ concluded that the Claimant's assertion that he had not been paid night out allowance was unreliable and this claim had little prospect of success.

1. The EJ told the Claimant that he was considering making a deposit order in respect of the claims for notice pay and unauthorised deduction from wages (failure to pay nights out allowances). The EJ asked the Claimant to tell him what his means to pay were. The Claimant replied that he would not tell the EJ anything else. The EJ ordered the Claimant to pay a deposit of £1,000 within 21 days of the date of the order as a condition of continuing to advance his claim for unauthorised deduction from wages by failing to pay 16 nights out allowance. The Claimant was also ordered to pay a deposit of £1,000 in respect of his claim for notice pay.

1. By letter dated 23 January 2015 the Claimant applied for reconsideration of the judgment of 12 January 2015 and for permission to submit Amended Details of Complaint which were attached. He had legal assistance in writing the letter. The Claimant wrote:

"6. Pursuant to the overriding objective (rule 2) to deal with his claim fairly and justly including ensuring that the parties are on an equal footing, it would assist all parties to permit the Amended Details of Complaint to be submitted."

1. The Claimant sought a review (reconsideration) of the judgment of 12 January 2015:

"… on the basis that it is in the interests of justice to do so, in line with the overriding objective to ensure that both parties are on an equal footing, and in conjunction to submit the Amended Details of Complaint set out above."

1. The Claimant sought a reconsideration of the finding that Borealis and not Alkaline UK Ltd was his employer. It was said that James v Greenwich LBC [2007] IRLR 165 should have been applied. The basis of the request for reconsideration was that:

"… The Respondents are both owned or controlled by Lorenzo Zaccheo, use the same letterhead, are referred to interchangeably as employer. Both companies have the same representation and there is no material saving of time or cost to the Respondents by determining this as a preliminary issue."

1. A reconsideration of the finding that there was a break in service was sought on the basis that a temporary cessation of work did not break continuity and that as set out in the proposed Amended ET1:

"12. The Claimant was not (for example) issued his P45 or asked to enter into a new contract between temporary cessations. There was an expectation of ongoing work between the parties. …"

1. The Claimant applied for reconsideration of the striking out of the race discrimination claim on the basis of his clarification. In the letter of 23 January 2015 he wrote:

"… the Claimant distinguishes between Italian drivers resident in Italy and Italian drivers resident in the UK (including him). The comparison is between the Claimant, as the only Italian driver resident in the UK, and UK born drivers, who were also resident in the UK."

1. The Claimant contended that his claim for unpaid holiday should not have been struck but instead he should be ordered to produce a schedule of loss.

1. Regarding the order to pay a deposit in order to pursue his claim for notice pay, the Claimant contended that as he was not guilty of gross misconduct he was entitled to notice and his claim had a reasonable prospect of success. Accordingly he should not have been ordered to pay a deposit in order to pursue this claim.

1. The Claimant sought a reconsideration of the deposit order in order to pursue the unauthorised deduction from wages claim relating to the nights out allowance. He wrote that he had not yet been in a position to prepare a full schedule of loss but should be ordered to do so rather than to provide a deposit.

1. The Claimant asserted that:

"… the claims that can reasonably be deduced from the original ET1 are not limited to…"

the claim of unfair dismissal under sections 100 and 104 of the Employment Rights Act 1996.

1. In a decision notified by letter of 2 February 2015, save for correcting the start date of the Claimant's employment, the EJ refused under Rule 72(1) the application for reconsideration application of his judgment of 12 January 2015. Rule 72(1) provides that a reconsideration application shall be refused if the EJ "considers that there is no reasonable prospect of the original decision being revoked". Although not expressly referred to the EJ did not permit the amendment of the Details of Complaint. He said that the Claimant was simply seeking to re-argue/re-plead his case in the light of the judgment.

1. By a judgment of 6 February 2015 the complaints of failure to pay notice pay and of unauthorised deductions from wages were struck out under Rule 39(4) of the ET Rules as the Claimant had failed to pay the deposits of £1,000 which had been ordered in respect of each claim.

1. Mr Mitchell for the Claimant submitted that the core issue on these appeals was the failure of EJ MacInnes to address the inequality of arms between the Claimant who was acting in person and the Respondents who were represented by solicitors and counsel. The Claimant did not have legal advice until his application of 23 January 2015 by which the Claimant also applied to amend his ET1 attacking proposed amended grounds. Mr Mitchell submitted that to grant the application to amend would have redressed the previous inequality of arms.

1. Counsel submitted that it would have been apparent to the EJ from the Claimant's conduct that he was unfamiliar with the procedural requirements of making his case. The Claimant used intemperate language at the hearing on 19 December 2014 referring to some of the Respondents' documents as "toilet paper". This was because he believed them to have been prepared for the purpose of resisting his claims. A contract of employment which on its face stated that his employment commenced on 19 August 2013 did not represent the actuality and was not signed by him. Further the Claimant contended that the P45 also relied upon the Respondents and the EJ to show that there was a break in his service between 31 July 2013 and 19 August 2013 had not been given to him but had been made by them to defend proceedings brought by him.

1. The EJ referred at paragraph 2.2 of his judgment to the Claimant "name-calling". Mr Mitchell suggested that the approach by the Claimant to the proceedings on 19 December 2013 and to the Employment Judges was affected by cultural attitudes. In Italy there was an inquisitional system. The Claimant was unfamiliar with English legal procedure. Further, he came from Sicily which affected his view of the judicial system. He perceived bias and had made allegations of corruption.

1. Mr Mitchell pointed out that the written representations made by the Claimant were long and rambling. They demonstrated the inequality of arms.

1. Mr Mitchell submitted that in accordance with the overriding objective of dealing with a case fairly and justly by ensuring so far as practical that the parties were on an equal footing the EJ had an obligation to help the Claimant cope with the proceedings. Counsel submitted that the EJ did not have regard to the evidence which the Claimant relied upon to advance his case. The contract of employment which the Respondents relied upon to support their case that there was a break in continuity of employment which purported to show a start date of 19 August 2013 was not signed by him. There were two versions of the P45 which allegedly showed a termination date of 31 July 2013 and there were four not two timesheets showing the dates and places where the Claimant worked in February 2014. It was said that these showed that he had worked on 18 days in February not 13 as found by the EJ.

1. The Claimant gave evidence to the Employment Appeal Tribunal that he did not have the opportunity to say what he wanted. The Claimant alleged that the EJ was not respecting the ET Rules and that he pointed this out to him. When the Claimant explained the court Rules the EJ smirked at him.

1. Mr Mitchell submitted that these errors in the approach to the Claimant's evidence and what he saw as the EJ "smirking" at him gave rise to a perception that the EJ was biased against him. Whilst the EJ wrote in response to the allegation that he did not smirk and Mr Mansfield, the solicitor for the Respondents, when cross-examined did not recall him smirking, the Claimant stated he did.

1. Mr Mitchell contended that the alleged defects on the conduct of the hearing on 19 December 2014 could have been corrected if the EJ had acceded to the Claimant's application in the letter of 23 January 2015 to reconsider the judgment of 12 January 2015 and to allow the amendment of the ET1.

1. By paragraph 7.1 of the grounds of appeal against the judgment of 12 January 2015 the Claimant contended that the EJ erred in striking out his claim of race discrimination. In the reconsideration request of 23 January 2015, the Claimant wrote that his claim of less favourable treatment on grounds of nationality had a reasonable prospect of success. He stated:

"In particular there was a breakdown in communication when Claimant stated that he and Polish drivers were treated less favourably than Italian and UK born drivers. As you can see in the Amended Details of Complaint the Claimant distinguishes between Italian drivers resident in Italy and Italian drivers resident in the UK (including him). The comparison is between the Claimant, the only Italian driver resident in the UK, and UK born drivers, who were also resident in the UK."

1. Mr Mitchell submitted that if the EJ had properly understood the comparison the Claimant was making in advancing his race discrimination claim he would not have concluded that it had no prospect of success and should be struck out.

1. By paragraph 7.5(a) of the Notice of Appeal from the judgment of 12 January 2015 Mr Colletti challenges the decision that there was a break in his service between 31 July and 18 August 2013. It was contended that the EJ erred in basing his decision on continuity of employment solely on the documents produced by the Respondents. It is said that the EJ should have heard evidence including that on why the Claimant contended that the P45 were falsified. Further it was said that the EJ should have heard oral evidence in order to decide whether there was a temporary cessation of work during which continuity of employment was preserved.

1. Mr Mitchell contended that the EJ erred in deciding that the Claimant had been employed by the Second and not the First Respondent. Counsel submitted that this issue should have been decided at a Full Hearing. In any event the issue of whether the contract of employment with Second Respondent was a sham as discussed in James v London Borough of Greenwich [2007] ICR 577 at paragraph 30 should have been considered.

1. By paragraph 7.5(b) of the Notice of Appeal it is contended that the EJ erred in regarding the claim by the Claimant for pay for Bank Holidays was a "wholly new claim". It was said that such a claim was made in the ET1 as included in the list of dates for which pay was claimed 1 January 2013. Mr Mitchell submitted that it ought to have been obvious to the EJ from this that a claim was being made for Bank Holidays. Further, if this were a new claim the EJ failed to apply the test in Selkent Bus Co v Moore [1996] ICR 836 in refusing to allow the claim to proceed.

1. In paragraph 7.5(c) of the Notice of Appeal it is contended that the EJ erred in requiring a deposit to be paid as a condition of proceeding with the claims for notice pay and unpaid nights out. Mr Mitchell pointed out that the EJ based his decision that their claim had little reasonable prospect of success on two timesheets for February when four timesheets for that month were before him. Looking at only two timesheets, the EJ wrongly concluded that the Claimant had worked only thirteen days in February when in fact the complete set of timesheets showed that he had worked an additional five although one was at home base.

1. It was said that if the EJ had considered all four timesheets for February rather than only two he would not have concluded that the claim by the Claimant for notice pay of one week and for nights out allowance had little prospect of success. Accordingly no deposits in respect of these two claims would have been ordered to be paid.

1. By his second appeal, the Claimant appeals the Order of the EJ of 2 February 2015 refusing his application by letter of 23 January 2015 to reconsider the judgment of 12 January 2015 and to submit Amended Grounds of Complaint. It was contended that in pursuance of the overriding objective, the Claimant who had by then had obtained legal assistance, should have been allowed to amend his ET1. It was said that it was perverse and unreasonable of the Tribunal to characterise the amended complaint as an attempt to re-argue or re-plead his case. Further it was said that the judgment should have been reconsidered for the reasons set out in the letter of 23 January 2015.

1. By judgment of 6 February 2015 the complaints of the failure to pay notice pay and unauthorised deduction from wages were struck out as the deposits ordered had not been paid.

1. By his third appeal the Claimant contends that he should not have been required to provide deposits as a condition of pursuing his claims for notice pay and deduction from wages in respect of nights out allowance. Accordingly those claims should not have been struck out for failure to pay the deposits.

1. Mr Mitchell fairly recognised that if the deposit orders had rightly been made, striking out of the claims automatically follows by reason of Rule 39(4). However in light of difficulties faced by the Claimant in presenting his claims, Mr Mitchell asked for the striking out orders to be set aside as an act of "mercy".

1. Mr Solomon for the Respondent submitted that the thrust of the argument that there was an inequality of arms was that the Claimant was hopeless at representing himself. The procedure in Employment Tribunals complied with Article 6 of the European Convention on Human Rights and the Equal Treatment Bench Book. Litigants in person are usual in Employment Tribunals. Employment Tribunals are well used to dealing with unrepresented Claimants as the EJ in this case had himself commented. The Claimant had the ET Rules and said that the EJ was in breach of them. He could not say that he was unfamiliar with the ET Rules. Mr Solomon contended that the fact that one party is represented and the other is not does not establish inequality of arms. Something else must be demonstrated. The Claimant was allowed an interpreter. The Claimant's conduct is not basis for a claim of irregularity in the proceedings, much less of bias.

1. Mr Solomon submitted that the evidence of the conduct of the hearing before the EJ did not provide any foundation for an allegation of appearance of bias. The Respondents had asked for all the Claimant's claims to be struck out. Such an order was made on 12 January 2015 only in respect of one, the race discrimination claim. The only complaint about the conduct of the EJ at the hearing was that he smirked. This is denied by the EJ and not recalled by Mr Mansfield the Respondents' solicitor.

1. Mr Solomon referred to paragraph 46 of the judgment of Langstaff J and members in [East of England Ambulance Service NHS Trust v Sanders]() [2015] ICR 293 in which the EAT considered the approach of ETs to unrepresented litigants.

1. Mr Solomon contended that the EJ conducted the hearing on 19 December 2014 fairly and appropriately. Mr Mansfield gave evidence that the EJ was pleasant and calm. He did not accept that the Claimant was given little opportunity to speak as he asserted.

1. Mr Solomon pointed out that at a Preliminary Hearing on 19 September 2014 EJ Vowles had given the Claimant the opportunity to clarify his claims. Amongst the further particulars the Claimant was asked to give were the comparators for the purpose of his race discrimination claim. The Claimant had been given the opportunity to clarify his race discrimination claim. If he had failed to do so that was a matter for him.

1. Counsel submitted that it is clear from his judgment that the EJ considered the Claimant's documents. These were referred to in paragraph 9 of the judgment. The Claimant's case before the EJ was that the Second Respondent was a fictitious company. Mr Solomon contended that on the basis of the documents before him the EJ was entitled to find that the Second Respondent was the Claimant's employer and that there was a break in service from 31 July to 18 August 2013. In any event the break in service was not legally significant as even with continuity the Claimant would not have had sufficient service to bring an "ordinary" unfair dismissal claim.

1. Mr Solomon pointed out that the Claimant had accepted at the hearing on 19 December 2013 that his claim for holiday pay was hopeless. The Claimant accepted that he had been paid for the days he had particularised. He then tried to raise a claim in respect of Bank Holidays. To refuse an amendment to bring such a claim was entirely permissible.

1. As for the challenge to the making of two deposit orders, Mr Solomon pointed out that such orders were discretionary. There was no basis for a contention that the EJ's discretion was exercised perversely or in error of the law.

1. Referring to the second appeal, Mr Solomon contended that the EJ did not err in refusing the application to amend the ET1. The application was made after judgment had been given on the Preliminary Hearing. The Claimant had been ordered by EJ Voles on 19 September 2014 to particularise his case but had failed to do so. The Claimant had asked to amend his claim at the Preliminary Hearing on 19 December 2013 to add a new claim in respect of Bank Holidays. It was not perverse or an error of law to refuse an after the event request to amend the ET1. No good reason had been advanced for such a late application other than the Claimant had obtained legal representation. It was submitted that the EJ did not err in rejecting the application for reconsideration.

1. Mr Solomon submitted that as the deposit orders had not been complied with the claim to which they related were to be struck out under ET Rules Rule 39(4). Counsel referred to [Miss Richards v Manpower Services Ltd]() UKEAT/0014/13 which HH Judge Richardson pointed out at paragraph 21 that if a deposit order is not compiled with the claim to which it relates is to be struck out unless there is relief from sanction. In this case there had been no application for relief from sanction.

1. Mr Solomon contended that all three appeals should be dismissed.

1. The Employment Appeal Tribunal determines grounds of appeal which appellants raise in their Notice of Appeal. The Claimant obtained legal advice and representation before lodging his Notices of Appeal. Following the Rule 3(10) Hearing before HH Judge Peter Clark he was given the opportunity to amend his Notice of Appeal. This he did. It is the challenges to the decisions of the EJ reached in his judgment of 12 January 2015 which are to be considered in the first appeal. So too are the second and third appeals to be treated. This is not merely a technical matter of procedure it is natural justice. A party is entitled to know and have an appeal determined on the grounds raised by the Appellant in the final form of a Notice of Appeal.

Identity of Employer

1. Before the EJ and in submissions to this Employment Appeal Tribunal the issue of the identity of the Claimant's employer was raised. The EJ decided that the employer was the then Second Respondent, Borealis Driver Services Limited and not the First Respondent, Alcaline UK Limited as the Claimant alleged. No ground of appeal challenges this decision. However Mr Mitchell touched on this issue. Counsel referred to paragraph 60 of the judgment of the Employment Appeal Tribunal in James v Greenwich LBC [2007] ICR 577 in which the EAT held:

"It may be appropriate, depending on the circumstances, to conclude that the arrangements were a sham and that the worker and end-user have simply remained in the same contractual relationship with one another, or that even if the intention was to alter the relationship that has in fact not been achieved."

The EAT in James v Greenwich was considering the case of a Claimant who had been an employee of the Council who services were then provided to the Council by an employment agency. The EAT and the Court of Appeal considered the tripartite arrangement between the employee, the agency and the Council. The Court of Appeal held that the real question was whether it was necessary to imply a contract of service between the employee and the end user to explain the arrangements, and in very extreme cases by exposing sham arrangements. Even if a ground of appeal challenging the decision that the Claimant's employer was the Second not the First Respondent had been included in the Notice of Appeal it would not have succeeded. On the facts found the decision could not be challenged. A perversity argument was not and could not be raised without showing that contrary evidence, not mere accusation, was given to the EJ.

1. The matters set out in the reconsideration application of 23 January 2015 provide no basis for challenging the decision on 2 February 2015 that the decision to dismiss it was perverse or reached in error of law. James v Greenwich does not assist the Claimant. It is not applicable to the way in which he advanced his case. Nor is the fact that the First and Second Respondent were owned by the same individual relevant to the identity of the employer. The challenge to the dismissal of the reconsideration application in respect of the identity of the employer is dismissed.

Break in Service

1. By ground 7.5(a) of the Amended Notice of Appeal the Claimant challenges the decision that there was a break in his service between 1 and 18 August 2013. Even if there were no break in service the Claimant would not have had the requisite two years qualifying service to bring a claim of "ordinary" unfair dismissal. Whilst, if there had been no break in service, as an employee with more than one months' service but less than two years the Claimant would have been contractually entitled to two weeks' notice rather than the one week to which the Respondents asserted he was entitled as he was dismissed within an alleged probationary period, that was not the basis of the claim. The significance of whether there was a break in service was not explained by Mr Mitchell other than to say that the EJ wrongly rejected the Claimant's contention that there was no break in service. Some suggestion of maintaining continuity because any gap in service was caused by a temporary cessation of work was raised. This is a statutory concept found in Employment Rights Act 1996 sections 210-219. These apply to statutory not contractual rights. None has been suggested to have been affected in the circumstances of this case. It has not been said that the Claimant has been deprived of a particular statutory right by the finding of a break in service. In any event any suggestion of error in the EJ by not finding that continuity of employment was maintained because any break was bridged by application of the statutory provisions relating to continuity during a temporary cessation of work was not the case advanced by the Claimant to the EJ. The Claimant simply said that the P45 showing that his employment ended on 31 July 2013 was a forgery. The EJ did not accept this contention. An allegation of perversity was not made. It is simply asserted on the grounds of appeal that the EJ should have enquired into the Claimant's allegation of forgery or deferred the issue to a Full Hearing.

1. It is for a party to adduce evidence to support their case. If that evidence is adduced but wrongly disregarded an appeal based on perversity can be brought. However that is not the basis of the grounds of appeal on this issue in this case. The Claimant asserted that the P45 was a forgery or false. A basis for the assertion was that an address in Italy was written on it when he lived in England. The relevance of this to the issue of break in continuity is not apparent. It cannot be said that the EJ fell on the wrong side of the line referred to in paragraph 46 of East of England Ambulance Service NHS Trust v Sanders for the purposes of his race discrimination claim if he failed to make more enquiries into the allegation of forgery.

1. In his application of 23 January 2015 the Claimant asked for reconsideration of the decision that there was a break in his service between 31 July and 19 August. The reasons for the application were stated to be "as above". Reference was made to the proposed amended ET1. Paragraphs 10 to 12 of that document relate to continuity of employment. They do no more than assert continuity, state that the Claimant was not given a P45 or issued with a new contract between "temporary" cessations and summarise the provisions on continuity as they affect statutory claims. In my judgment these assertions do not form a basis for challenging the decision of the EJ not to reconsider his conclusion on break in employment as perverse or that he erred in law. The challenge to the dismissal of the reconsideration application in respect of the break in the Claimant's employment is dismissed.

Discrimination

1. By his order of 24 September 2014 EJ Vowles had required the Claimant to identify who were "the comparators, that is people he was treated less favourably than". The Claimant gave such particulars on 17 October 2014. In page 6 of 32 of a lengthy and not easily understood document the Claimant explained that named British drivers, Colin, Bob and Peter who live permanently in the UK are only required to work abroad from Monday to Friday and every so often half a day on a Saturday and are able to come home at the weekend. The Claimant who is Italian and also lived in the UK alleged that he was not treated the same. It is not clear from the particulars but the inference is that he was not able to return to the UK under the same arrangements as the UK resident English drivers. It appears, although again it is not entirely clear, that the Claimant said that Italian drivers were able to remain or return to Italy where they were resident. However their circumstances were different from his as they were resident in Italy whereas he, although Italian, was resident in the UK. His comparators were therefore English drivers who were resident in the UK.

1. The basis upon which the EJ struck out the race discrimination claim was explained on paragraphs 12 to 15 of his judgment. The EJ held:

"12. … He asserted that he had been less favourably treated, by the Respondent than other Italian and British drivers.

13. … He agreed that the other Italian and British drivers had themselves been treated the same.

…

15. … as it was the Claimant's case that the other Italian drivers were treated the same as the British drivers (ie a fact that is not disputed) I find that this claim of race discrimination has no reasonable prospect of success and I strike it out."

1. By the judgment and order of 12 January 2015 the Claimant's race discrimination claim was struck out. An EJ may strike out a claim under ET Rule 37 (1)(a) "if it has no reasonable prospect of success".

1. The EJ referred to the guidance in Anyanwu v South Bank Students Union [2001] 1 WLR 638 in which Lord Steyn at paragraph 24 expressed the importance of not striking out discrimination claims as an abuse of process except in the most obvious and plainest cases. Although the claim in Anyanwu was struck out for abuse of process it is not suggested that the observation of Lord Steyn was not also apply to striking out a claim as having no reasonable prospect of success.

1. The reason the EJ struck out the Claimant's race discrimination claim was that the Claimant alleged that he as an Italian was being treated less favourably than British drivers and other Italian drivers. However, the EJ appears to have understood that three Italian drivers were also permitted to return to their homes at weekends. On that basis the reason for the difference in treatment was not the Claimant's nationality and there could be no discrimination on grounds of race.

1. Mr Solomon pointed out that the Claimant had been required to identify his comparators. He had the opportunity to clarify his case both in writing before the hearing and orally at the Preliminary Hearing before the EJ. Mr Mitchell rightly accepted that the Claimant did not present his race discrimination claim clearly at the hearing. In my judgment on the basis of the unclear ET1 and the particulars before him it is understandable if the EJ believed that there were Italian drivers who were treated in the same way as British drivers. On this basis if there was no material difference in the relevant circumstances there could be no discrimination on grounds of race. As the EJ rightly recognised, a discrimination claim should only be struck out only in the most obvious and plain cases. However it was reasonable for him to conclude on the case apparently presented to him this was one such case. In my judgment the EJ did not err in striking out the Claimant's race discrimination claim on 12 January 2015.

1. In his application of 23 January 2015 for reconsideration of the judgment of 12 January 2015 and to amend the ET1 the Claimant wrote:

"In particular there was a breakdown in communication … As you can see in the Amended Details of Complaint the Claimant distinguishes between Italian drivers resident in Italy and Italian drivers resident in the UK (including him). The comparison is between the Claimant, as the only Italian driver in the UK, and UK born drivers, who were also resident in the UK."

The Amended Details of Complaint included at paragraph 40:

"40. Unlawful discrimination: The First and or the Second Respondent subjected the Claimant to less favourable treatment on the grounds of nationality by:

a. Requiring the Claimant (an Italian nation[al], resident in the UK) to be 'weekended' abroad whilst permitting comparable UK-born drivers resident in the UK to return to the UK for the weekend and spend the time at home."

1. The application of 23 January 2015 for reconsideration of the judgment of 12 January clarified the Claimant's claim of race discrimination. He made clear that the relevant comparison was between drivers resident in the UK. The Claimant asserted that he was the only Italian driver resident in the UK. The Italian drivers the EJ referred to as being treated the same as UK drivers were resident in Italy. The Claimant compared himself with UK nationals resident in the UK. The terms which applied to other Italians were not relevant as they were resident in Italy. The race discrimination claim is repleaded in the proposed amended ET1 but the material point as why the treatment of other Italian drivers is not relevant is made in the letter.

1. Mr Solomon is right to submit that a Claimant cannot seek a reconsideration of a claim which has been dismissed on a basis which he had not previously advanced. The Claimant had been given ample opportunity before and at the hearing to clarify his race discrimination claim but had failed to do so.

1. The challenge to the refusal of the EJ to reconsider his judgment including the striking out of the race discrimination claim is made on grounds of perversity. Mr Mitchell submitted that no reasonable EJ would either have refused to allow the amendment of the ET1 or to have found that there was no reasonable prospect of the original judgment being varied or revoked. Perversity is a high hurdle to surmount.

1. In my judgment the clarification of his race discrimination claim given by the Claimant in the reconsideration application of 23 January 2015 materially affected the decision whether the claim had any reasonable prospect of success. A comparison for the purpose of a direct discrimination claim under Equality Act 2010 section 13 requires, by section 23, that there be no material difference between the circumstances relating to each case. The comparison made clear by the Claimant, in his reconsideration application of 23 January 2015: that between drivers resident in the UK of Italian nationality, himself, and those of UK nationality was not a new comparison. It had been made, albeit not clearly on his ET1 and on page 6 of the particulars of 17 October 2014. The Claimant contended that he and his comparators were resident in the UK but of different nationality and were differently treated. The Claimant asserted that he was the only Italian driver resident in the UK. An appreciation of the allegation that Italian drivers resident in Italy were treated the same as UK nationals resident in the UK could not have supported a conclusion that the race discrimination claim had no reasonable prospect of success. Accordingly a conclusion that there was no reasonable prospect of the original decision in the judgment of 12 January 2015 to strike out the claim being revoked was perverse. The criterion for reconsidering a judgment in accordance with Rule 70 is that it is in the interests of justice to do so. In my judgment the comparison which is capable of supporting the race discrimination claim had been made before and at the hearing on 19 December 2014 but not made clearly and so not understood by the EJ. The clarification made in the reconsideration letter of 23 January 2015 gave a comparison capable of supporting a race discrimination claim.

1. Notwithstanding the significance of the clarification could an EJ nonetheless conclude that there was no reasonable prospect of the Claimant establishing that it would be in the interests of justice for the striking out of the race discrimination claim to be revoked? Notwithstanding that clarification in a reconsideration request may have a material effect on the decision originally taken by an EJ, the cases in which an application on that basis succeeds are likely to be rare. A party, even unrepresented, must put their case clearly to the ET. They will not be able to have a second bite of the cherry. There must be finality in litigation. However in this case the Claimant had sought to put his claim on a basis which, properly understood, would be arguable. That it was not understood was likely to be attributable to the fact that English is not the Claimant's first language albeit that he has written extensively in that language and had the assistance of an interpreter. This disadvantage was no doubt compounded by his lack of legal representation before and at the Preliminary Hearing. Many litigants before the ET are unrepresented. It should not be thought that lack of legal representation will give a party an advantage in applying for reconsideration of a judgment. However having regard to the significant effect of the understandable misunderstanding by the EJ of the case the Claimant had advanced in writing and was advancing at the hearing coupled with the disadvantage of the Claimant conducting proceedings in a language which was not his mother tongue, in my judgment the decision of the EJ that there was no reasonable prospect of the original decision to strike out the race discrimination claim being revoked was perverse and is set aside. The application to reconsider the race claim therefore remains to be determined.

1. If there is agreement between the parties that the Claimant was the only Italian driver resident in the UK it may be that they would by consent agree to the reconsideration of the setting aside of the striking out of the race discrimination claim.

Pay for Bank Holidays

1. I reject the contention made by Mr Mitchell that a claim for pay for Bank Holidays was included in or must have been appreciated from the ET1 as a claim was made for pay for 1 January 2013 which was a Bank Holiday. There is no indication in the ET1 that the claim in respect of 1 January was any different from the claims in respect of any other of the dates listed. The EJ was right to regard a claim in respect of Bank Holidays as a new claim.

1. Mr Mitchell contended that the EJ erred in law by failing to apply Selkent Bus Company Ltd v Moore [1996] ICR 836 to the application at the hearing on 19 December 2014 to amend the ET1 to add a claim in respect of Bank Holidays. Mummery J (as he then was) giving judgment of the EAT held at p 843F:

"(4) Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it."

It was said to be impossible and undesirable to list the relevant circumstances, however these included, first, the nature of the amendment, whether it was a relabeling of an existing claim or a new claim. The EJ considered this factor and reached the permissible conclusion that the claim for Bank Holidays was a new claim. The second factor, the applicability of time limits, was considered by the EJ. He rightly concluded that the new claim was sought to be brought well after the time for doing so. The third factor, the timing and manner of the application, was considered by the EJ. The EAT in Selkent held it to be relevant to consider why the application was not made earlier and why it was now being made. The EJ rightly observed that the Claimant gave no reason why his claim for Bank Holiday pay was not made earlier.

1. The approach of the EJ to the application to amend the ET1 clearly shows that he had in mind and applied the guidance of the EAT in Selkent. His decision not to allow the amendment was not made in error of law. A party who is not permitted to pursue a new claim may be disadvantaged by not being permitted to do so. This disadvantage does not trump the other relevant factors. The EJ did not reach a perverse decision in refusing an amendment to make a claim in respect of Bank Holidays. Ground 7.5(b) is dismissed.

Deposit Orders for Claims for Notice Pay and Nights Out Allowance

1. The appeals from the decision of the EJ to order deposits to be paid in order for the Claimant to continue with his claims for unpaid notice pay and for unpaid nights out are related. The Claimant contended that in calculating how many nights out he had worked in February the EJ considered only two timesheets when there were four covering the relevant period. Similarly with regard to notice pay, the EJ wrongly based his decision on the number of days worked in February on two rather than four timesheets. The EJ held that the Claimant had worked for thirteen days and been paid for eighteen. The EJ accepted Mr Solomon's submission that this was one week's notice pay. Similarly, the EJ held that it was fanciful to claim for sixteen nights when, on the basis of two not four timesheets, the Claimant had worked only thirteen days in February and had been paid night out allowance for twelve.

1. Included in the supplementary bundle for this appeal were four timesheets for February. They bear the numbering of the bundle before the ET, 568, 569, 570 and 571. The EJ based his decision in paragraph 17 that the Claimant had worked 13 days in February 2014 on two pages of the timesheets, 570 and 571.

1. The contention of Mr Mitchell that the EJ erred in not considering the additional two pages of timesheets for February 2014 is well made. If he had done so, the EJ would have seen that the Claimant had worked additional days in February, arguably five, making a total of eighteen. Accordingly if he was entitled to contractual notice which he contended was seven days, the Claimant has, at the very least, an arguable claim that the Respondent has not made a payment in lieu of notice.

1. As the decision of the EJ that the Claimant was not entitled to additional nights out allowance was based on incomplete figures it is strongly arguable that he also erred in holding that this claim too held little reasonable prospect of success.

1. A deposit order may be made under Rule 39(1) where the EJ considers that a claim has little reasonable prospect of success. As the EJ erred in failing to take into account all the relevant evidence in deciding whether the claims for pay in lieu of notice and for nights out allowance had little reasonable prospect of success both deposit orders are set aside.

1. As the deposit orders are set aside it follows that the appeal from the judgment of the EJ sent to the parties on 6 February 2015 striking out the complaints of failure to pay notice pay and unauthorised deductions from wages succeeds. Those claims are reinstated and will proceed to a Full Hearing.

Amendment Application of 23 January 2015

1. In addition to contending in the first Notice of Appeal that the EJ erred in refusing at the Preliminary Hearing to allow him to amend his ET1 to add a claim in respect of Bank Holidays, in his second Notice of Appeal the Claimant contended that the EJ erred in refusing to permit him to amend his ET1 in accordance with the draft submitted with his letter of 23 January 2015. It was said that to have allowed the amended ET1 to be submitted would have put the parties on an equal footing. The Amended Details of Complaint were prepared by a solicitor.

1. By the time the application to amend the ET1 in accordance with the draft submitted with the letter of 23 January 2015, the EJ had determined the issues which were to be decided at the Preliminary Hearing. Subject to reconsideration or appeal, the issues of the identity of the Claimant's employer, the length of his service and the race discrimination claim had been finally determined. Orders had been made in respect of other claims. The basis upon which it was said that the amendment should be permitted was that the Claimant had acted in person, English was not his first language. It was said that it was possible that the essential elements of his claim may have been lost in the detail of his written communications. Further, the Claimant felt that he had not been able to present his case effectively at the hearings at which he represented himself.

1. As Mr Solomon rightly submitted, the application to amend the ET1 came far too late. Subject to reconsideration or appeal the issues of the identity of the employer and the dismissal of the race discrimination claim had already been determined. The proper course which was taken was to apply for reconsideration or to appeal. Many litigants, not only litigants in person, may feel that their case had not been advanced clearly or that better points could have been made. Whilst the letter of 2 February 2015 dismissing the consideration application of 23 January 2015 does not expressly reject the application to amend the ET1 it has been understood in the second Notice of Appeal as doing so. In my judgment such a decision is implicit in the letter of 2 February 2015 in which reference was made to the Claimant seeking to re-plead his case. No complaint has been made that such a decision is outstanding. In my judgment the EJ did not err in the exercise of his discretion to refuse the amendment. As the judgment of 12 January 2015 shows, he was well aware of the need to apply the Selkent principles. He cannot be said to have erred in observing:

"… The Claimant is simply seeking to re-argue/re-plead this case in the light of Employment Judge MacInnes' judgment. …"

The appeal from the refusal of permission sought by letter of 23 January 2015 to amend the ET1 is dismissed.

Conduct of the Hearing on 19 December 2014 and Bias

1. In his affidavit of 21 August 2015 the Claimant wrote:

"6. During the course of the hearing I was given little opportunity to speak and I felt that the Judge was not listening to what I had to say. …"

The Claimant stated that whilst he was trying to explain something:

"6. … the Judge was smirking and did not let the interpreter finish translating what I had said. I felt that the Judge had made up his mind before entering the court and that he was not going to listen to me."

1. The Claimant asserted that the failure of the EJ "to hold a full evidential hearing" when he had the documents supporting his case was "further evidence of his bias". The Claimant stated that the EJ did not listen to his explanation of the days in February 2014 on which he had worked. He asserted:

"9. … in his decision it is clear that he had not listened to me and had not even looked at all the pages. …"

This affected his claims for notice pay and for nights out allowance.

1. Mr Colletti gave evidence before the Employment Appeal Tribunal. In cross-examination he said that he is not stupid and that he knows what is going on. He said that the EJ was breaking the rules and that he pointed this out to him. When the Claimant "explained the court rules to the Judge he smirked at me".

1. Mr Mansfield, solicitor for the Respondent, produced an affidavit sworn on 23 September 2015. He was of the view that the EJ gave the Claimant the opportunity to explain his case including that of race discrimination. Mr Mansfield stated:

"28. … The claimant was again given the opportunity to explain his case and the judge summarised the claimant's contention as being that Italian and British drivers only worked Monday to Friday and he and the Polish drivers have to work weekends. …"

Mr Mansfield pointed out in paragraph 35 that the Respondent was seeking to strike out all the claims but only the application in relation to that of race discrimination succeeded.

1. In his oral evidence to the Employment Appeal Tribunal, Mr Mansfield said that he did not recall the EJ smirking or that Mr Colletti was given little opportunity to speak.

1. In his comments to the Employment Appeal Tribunal EJ MacInnes wrote:

"4. Notwithstanding my comments to the Claimant at the start of the hearing he did continue to shout, wave his arms and use intemperate language towards the Respondent and its representatives.

I had to intervene on a number of occasions to ask him to desist and/or to try to get him to concentrate on the issues before the Tribunal.

…

6. I was an Employment Judge for 17 years and would not "smirk" in a hearing. …"

1. On the evidence before me I am not satisfied that the EJ smirked during the hearing. The Claimant alleges that this occurred when he was trying to explain the Employment Tribunal Rules to the EJ. During the course of hearing everyone's facial expressions change from time to time. It may be that the Claimant was under a mistaken impression that the EJ smirked. The evidence does not establish that he did.

1. The Claimant also alleged that the EJ failed to pay proper regard to his documents and submission. Paragraph 7.6 of the Notice of Appeal refers to the Equal Opportunities Bench Book 2013. It was said that the EJ appeared to be accepting uncritically the submissions made by counsel for the Respondents. Chapter 4 paragraph 48 of the Equal Opportunities Bench Book 2013 provides:

"48. It can be hard to strike a balance in assisting a litigant in person in an adversarial system. A litigant in person may easily get the impression that the judge does not pay sufficient attention to them or their case, especially if the other side is represented and the judge asks the advocate on the other side to summarise the issues between the parties.

…

c. Adopt to the extent necessary an inquisitional role to enable the litigant in person fully to present their case (but not in such a way as to give the litigant in person an undue advantage)."

Langstaff J explained this approach in East of England Ambulance Services v Sanders [2015] ICR 293 paragraph 46 that there is no conflict between a Tribunal treating an unrepresented party sensitively and assisting them both by their own questions and by controlling the questions asked by the other party and the accusatorial system. However he held:

"46. … It none the less requires a degree of care by a tribunal. In assisting one party, it should be cautious not to cross the line between impartiality (which it must maintain) and acting as an advocate (which it must never do). …"

1. Mr Mitchell explained that the Claimant said that the Claimant referred to the Respondent's documents as "toilet paper" because he believed they were useless or forged. Counsel said that because the Claimant was from Sicily he may have had a perception that Judges were corrupt and this affected his attitude. Further, in Italy courts have an inquisitorial role. The Claimant may have thought he should be asked questions by the EJ to elicit his case. Mr Mitchell said it may have required a feat of construction to read the Claimant's allegation about the P45s and "toilet paper" as his contention that the identity of his employer was a sham.

1. The Claimant alleges apparent bias on the part of the EJ. Lord Hope in Porter v Magill [2002] 2 AC 357 set down the test for apparent bias in paragraph 103:

"… the question is whether the fair minded and informed observer, having considered the facts would conclude that there was a real possibility that the tribunal was biased."

1. The EJ recorded in paragraph 2.2 of his judgment:

"2.2. … It is not helpful to the Tribunal for the parties to indulge in hyperbole and name-calling rather than to assert the facts upon which they rely. It was not, for instance of any assistance to the Tribunal for the Claimant to describe the Respondent's bundle as "toilet paper". …"

He told the Claimant to "desist from this practice". In the circumstances and in the absence of any evidence to establish that the documents were forgeries it cannot be said that the EJ gave the appearance of bias by basing his decision on the identity of the employer and whether there was a break in employment on the contracts of employment, pay slips and P45s.

1. It is apparent from the ET1, the Further Particulars of 17 October 2014 and the summary in paragraph 13 of the judgment of oral representations at the hearing that the basis of the Claimant's race discrimination claim was not clear. The observation of Mr Mitchell about the difficulty ascertaining the basis of an allegation, if it was being made, that P45s were not genuine in order to establish that the Claimant's alleged employment by the Second Respondent was a sham and that he was employed by the First Respondent, could also apply to the race discrimination claim. The EJ observed of the race discrimination claim in paragraph 13 of his judgment "We discussed the matter further".

1. I have found that the EJ misunderstood the basis of the Claimant's race discrimination claim. This is not surprising. It was not put clearly until the reconsideration letter of 23 January 2015. On the evidence I find that, as Mr Mansfield said in his written and oral evidence, at the hearing the EJ gave the opportunity to the Claimant to explain his case on race discrimination. That it was misunderstood is due to no failing on the part of the EJ.

1. I have found that the EJ erred in failing to take into account two timesheets for work in February in deciding that the Claimant's claims for notice pay and for nights out had little reasonable prospect of success. However there is nothing to suggest that this error was the result of bias. It did not reasonably give rise to the appearance of bias.

1. It must also be borne in mind that the EJ refused the application by the Respondent to strike out all the Claimant's claims except that of race discrimination.

1. Appeal grounds 7.6 and 7.7 are dismissed.

In Respect of the Judgment of 12 January 2015

1. The appeal from striking out the claim against the First Respondent, Alcaline UK Limited is dismissed.

1. The appeal from the decision that there was a break in service between 31 July and 18 August 2013 is dismissed.

1. The appeal from the striking out of the race discrimination claim in the judgment of 12 January 2015 is dismissed.

1. The appeal from the order to pay a deposit of £1,000 as a condition of being permitted to continue the claim for notice pay is allowed. The order to pay a deposit of £1,000 is set aside.

1. The appeal from the order to pay a deposit of £1,000 as a condition of being permitted to continue the claim for 16 nights allowance is allowed. The order to pay a deposit of £1,000 is set aside.

1. The appeal from the refusal of the application to amend the ET1 to add a claim in respect of Bank Holidays is dismissed.

In Respect of the Order of 2 February 2015

1. The appeal from the refusal on 2 February 2015 to reconsider the decision of 12 January 2015 to strike out the claim of race discrimination is allowed.

1. The appeal from the failure to allow the Claimant to amend his ET1 is dismissed.

In Respect of the Judgment of 6 February 2015

1. The appeal is allowed. The order striking out the complaints of failure to pay notice pay and making unauthorised deductions from wages in respect of nights out allowance is set aside.