Tennis coach has recruitment discrimination claim against university struck out after tribunal found he was offered job

Claimant Raymond Joseph initially alleged that the University of Aberdeen failed to follow a fair procedure, but later amended his claim to add a further allegation of discrimination on grounds including age, sex, religion, and marriage. The claimant also sought to add the Lawn Tennis Association, which partly funded the post, as an additional respondent to the proceedings.

The case was heard by Employment Judge Lucy Wiseman, with the claimant appearing in person and the respondent represented by N Maclean, solicitor.

Could not prove

In September 2023 the claimant applied for the post of University Tennis Co-Ordinator and was interviewed the following month. A dispute arose between the parties as to whether he was offered the position, with the respondent averring that the claimant did not respond to phone calls and emails offering him the job which resulted in the withdrawal of the offer and re-advertisement of the post. However, the claimant’s position was that he was never offered the job and the documentation on which the respondent relied to establish the offer had been fabricated.

On 12 January 2024, the claimant contacted the respondent to enquire about any updates in relation to his interview. He was advised that it had been assumed he did not wish to accept the offer that had been made to him and invited to re-apply for the role. He declined to do so and instead indicated he wished to make a formal complaint.

In attempting to join the LTA to proceedings as an additional respondent the claimant highlighted that the LTA was the 50 per cent co-funder for the post and that he would have to attend for training and accreditation by the LTA were he successful in obtaining the role. The respondent’s solicitor submitted that it was not unusual for universities to obtain external funding for roles, and the respondent would have been the sole employer.

The respondent applied to strike out the claim, submitting that the claimant’s argument that the respondent wanted to run “an inclusive tennis programme” and thus he, a white Christian male, had been discriminated against was flawed in that he had in fact been offered the role. At interview, he demonstrated a strong understanding of diversity and inclusion and how it impacted on the role, and there was no suggestion at the time that the claimant found questions on this topic to be harassing.

In response, the claimant submitted that the terms used in the LTA’s inclusion strategy meant that white, heterosexual males were not to be included in the strategy. He accepted he could not prove that the emails offering him the job were not sent, but nonetheless insisted that the respondent had gone out of its way not to give him the job because of his protected characteristics.

Fundamentally flawed

In her decision, Employment Judge Wiseman said of strike out applications generally: “The tribunal acknowledged that it will only be in an exceptional case that a claim will be struck out as having no reasonable prospect of success when the central facts are in dispute. The issue for the tribunal was whether this was just such a case because, as the respondent argued, in order to succeed in showing he was not offered the job the claimant would have to show all of the documents had been fabricated and he would have to disprove all contemporaneous correspondence.”

She continued: “The claimant, whilst asserting he did not receive the emails of 1 and 6 December from Mr Rae, cannot bring forward or rely upon any documentation to support that position. That is not a criticism of the claimant because he has made every effort to obtain documentation from Google. The respondent acknowledged that, taking the claimant’s case at its highest, the claimant may not have received the emails. The key point, however, was that the claimant had no reasonable prospect of overcoming the fact the emails were sent, to the correct address, and received by Google’s mail server.”

On the strike out application, Employment Judge Wiseman concluded: “The tribunal acknowledged striking out the claim is a draconian measure and also acknowledged the claimant will feel a great sense of injustice. However, the premise of the claim (that he was not offered the job) is fundamentally flawed and the claimant has no reasonable prospect of success of showing he was not offered the job. In those circumstances, the tribunal considered this was one of the exceptional cases where strike out of the claim was appropriate.”

Considering the application add the LTA as a respondent, the judge added: “The claim brought by the claimant is that the University discriminated against him when it did not offer him the job. All of the alleged acts of discrimination are against the respondent and the fact the LTA provided 50% of the funding for the position, does not alter the fact the claimant would have been employed by the respondent, and the respondent would have been liable for paying his salary.”

The tribunal therefore refused the application to join the LTA as a respondent and struck out the claim in its entirety.