X v Sandwell and West Birmingham Hospitals NHS Trust and others: 1301470/2023

EMPLOYMENT TRIBUNALS

Case No 1301470/2023

Between

XClaimant

Sandwell and West Birmingham Hospitals NHS Trust and othersRespondent

Before

Employment Judge Harding

In person for claimant

Mr Webster (instructed by Counsel) for respondent

Mr K Webster (instructed by counsel) for respondent

Date 11 February 2025

JUDGMENT

[1]Complaint 13 on the list of issues, as amended, (that Mr Bellis instructed Ms Dhillon to send a letter to potential witnesses, and that she did so on 18 November 2022) has no reasonable prospect of success and is struck out. Case Number: 1301470.23 Note: written reasons will not be provided unless requested at the Hearing itself or in writing within 14 days of the sending of the written record of the decision, Rule 62(3).

[2]The respondent’s application to strike out the remaining claims on the grounds they have no reasonable prospect of success and/or for non-compliance with tribunal orders is refused. Employment Judge Harding Dated: 14 December 2023 Case No: 1301470/2023 10.2 Judgment - rule 61 February 2018 EMPLOYMENT TRIBUNALS Claimant: X Respondents: Sandwell and West Birmingham Hospitals NHS Trust Geoff Beddows Caroline Dawes Garry Higgins Esther Brennan Glen Bragnett Julie Lovesey Emma Lovesey Christine Jewkes Sylvia Powell Michelle O’Connor Nick Bellis Heard at: Birmingham On: 7 May 2024 Before: Employment Judge Edmonds Representation Claimant: In person Respondent: Mr K Webster, counsel

REASONS

[1]Today is day two of a 20 day trial.

[2]The claimant has not attended and yesterday we refused an application to postpone the hearing on medical grounds.

[3]In run up to this hearing the claimant made various applications to postpone on medical grounds that were been rejected. The context and basis for those refusals are succinctly summarised in the decision of Regional Employment Judge Jones of 29 January 2025. Having set out the background, within her rationale she explained how if postponed this claim that was first listed for this hearing in December 2023 and principally relates to events between July and Case Number: 1301470/2023 2 / 12 December 2022 would not be heard until 2026 at the earliest, that is some 4 years after the events concerned and absent medical evidence to support the claimant’s contentions about her state of health and in the light of the adjustments the tribunal would make for her if the claim proceeded it was essential in the interests of justice that the hearing dates were maintained.

[4]Amongst other matters the first respondent applied for 4.1. An unless order requiring the claimant to lodge a witness statement in the form ordered by Judge Edmonds on 07/05/24 [335] paragraphs 48- 54 (In that order Judge Edmonds also relayed some of the difficulties the claimant was having during that hearing in focussing, becoming tearful when she discussed parts of her claim as well as getting sidetracked. Judge Edmonds made clear that was not intended as criticism of the claimant as she expressed that the claimant was struggling in light of her various difficulties). 4.2. Applications for strike out

[5]The application for the unless order was refused by Regional Employment Judge Jones on 3 February 2025 on the basis that the claimant had been told she would not be permitted to give or call evidence at the hearing without the permission of the tribunal if she had not provided a witness statement in writing as ordered by the Employment Tribunal.

[6]Within her decision of 3 February 2025 Regional Employment Judge Jones also reminded the respondents that the application for strike out would be dealt with at the start of the hearing to allow the claimant to make oral representations.

[7]The Claimant made repeated applications over the days immediately prior to trial as we say, seeking a postponement on medical grounds. They were refused principally on the basis the medical evidence did not adequately address the effect the claimant’s conditions had on her ability to prepare for and attend this hearing. Case Number: 1301470/2023 3 / 12

[8]A further application made in writing by the claimant, the claimant not having attended, was rejected by this panel yesterday (oral reasons were given) the panel having first attempted to contact her. We then wrote to the claimant summarising our reasons and explaining to her that we would hear the first respondent’s strike out application, as previously directed, that afternoon but also setting out a number alternatives by which she could participate.

[9]We adjourned overnight to make a decision. Overnight the claimant has not sought to make a further application for more time, to provide her own representations on the issue or otherwise. Strike out

[10]The provisions concerning strike out are set out in rule 38 of Employment Tribunal Rules of Procedure 2024:- “(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) 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;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). Case Number: 1301470/2023 4 / 12 (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. …”

[11]The law on strike out is set out in Tesco 1 at paragraphs 33-44 so we do not propose to repeat it here in full.

[12]The Overriding Objective (r.3 Employment Tribunal Rules of Procedure 2024) requires Tribunals to deal with cases fairly and justly. That includes, so far as practicable— “(2)(a) ensuring that the parties are on an equal footing,

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues,

(d) avoiding delay, so far as compatible with proper consideration of the issues, and

(e) saving expense.”

[13]A Tribunal is required by r. 3(3) (“must”) to “seek to give effect to the overriding objective when it(a) exercises any power under these Rules, or

(b) interprets any rule or practice direction.”

[14]In addition it provides that “(4) The parties and their representatives must(a) assist the Tribunal to further the overriding objective, and

(b) co-operate generally with each other and with the Tribunal.”. [our emphasis] 1 Smith v Tesco Stores Ltd

[2023] EAT 11

Case Number: 1301470/2023 5 / 12

[15]So far as concerns us the test for strike out is threefold (per Bolch 2 approved in Blockbuster 3 ):- 15.1. Is the threshold in what is now r.38 Employment Tribunal Rules of Procedure 2024 met? 15.2. Is a fair trial possible? 15.3. Is strike out a proportionate response? That staged approach is how we intend to approach matters. Threshold

[16]The respondents asserts:- 16.1. There has been a continued failure to follow Tribunal orders by the claimant including the provision of a schedule of loss and witness statements 16.2. as to the latter the claimant failed to follow Employment Judge Edmonds’ order requiring her witness statement to be in date order with numbered paragraphs, at all 16.3. The respondents asserts that is required because many of the claimant’s emails are a stream of consciousness and thus it is difficult to discern what is being alleged and how 16.4. As to witness statements the claimant also failed to comply with exchange of her witness statement by 10 January 2025 which Judge Camp made clear in his order of 16 December 2024 at paragraph 9 [2117] was a “final opportunity” to give everyone an opportunity to prepare for the final hearing 2 Bolch v Chipman

[2004] IRLR 140

EAT 3 Blockbuster Entertainment Ltd v James

[2006] IRLR 630

CA Case Number: 1301470/2023 6 / 12 16.5. To provide medical evidence to show how her conditions supported her repeated applications to postpone the hearing and ancillary to that making a stream of last minute applications. The respondents state that was a consistent theme throughout the claim with the intention of delaying the claim. 16.6. It gives an example of one such application on medical grounds sent on Sunday evening where the medical evidence was dated some days before and it alleges it was thus unreasonable to leave it until Sunday evening. 16.7. The respondents asserts that those and other tactics were done to disrupt and delay. Amongst the other examples it gives are:- 16.7.1. the claimant’s failure to collect special delivery correspondence hard copies being required due to both practical and adjustments reasons 16.7.2. the claimant repeatedly disputing the contents of the bundle and/or documents within it – that the claimant has done that again in relation to the trial bundle – and that is something it says she should or does know is not required due to her involvement n previous claims 16.7.3. the claimant withdrawing the allegation against Ms Lovesey (respondent 8) on 16 December 2024 stating that she didn’t know it was in the list of issues when she had agreed that list of issues. Either way the respondents state is unreasonable. 16.7.4. the claimant’s failure to agree/comment on (as directed) and then seeking to reopen issues 16.8. The respondents point out that while the claimant failed to comply with the preparation for trial she was lodging new claims which they Case Number: 1301470/2023 7 / 12 suggests indicates she was able to action the very matters she alleges she cannot. 16.9. The claimant not only failed to attend this hearing, that in itself being unreasonable, but that it was also unreasonable for her to not inform the Tribunal of that intention

[17]We find that for elements of each part of the claim the claimant needs not only to set out what was said or done, by whom and when but why for example that creates the “proscribed consequences” for harassment namely(i) violating the other's dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for the other.

[18]Four examples from the issues illustrate the point :- 3(i) On 29 November 2022, did the Second Respondent’s eyes “look angry”? 10(f) On 29 November 2022, did the Ninth Respondent show “weird behaviour” towards the Claimant? 3(j) On 30 November 2022, did the Second Respondent look at the Claimant? 12(e) On 30 November 2022, was the Eleventh Respondent in main reception with the Seventh Respondent?

[19]What was the weird behaviour, why did the eyes look angry, what was the look, what was the relevance of the Eleventh Respondent being in reception, essentially what was the context to each and why did that create the proscribed consequences?

[20]Similarly for the direct discrimination and victimisation complaints the claimant does not identify any context or any linkage to the protected characteristic, here sex, or the protected acts. That is significant because she argues two different causes for the acts complained of. We remind ourselves that they are Case Number: 1301470/2023 8 / 12 not mutually exclusive. Both could materially influence the actions complained of. The point we make is that there is not only an absence of that detail but a repeated failure by the claimant to comply with the orders requiring that detail and indeed other orders.

[21]Similarly, the claimant has sought to reopen complaints that have been addressed (or seek to do so), not agreeing the bundle and failed to provide the evidence repeatedly ordered to support applications

[22]We are very conscious the claimant is vulnerable. The Maxwell Tribunal Judgment with reasons at paragraphs 266-270 [285-286] identifies the principles we must be conscious of. The objective of a Tribunal in such instances is to ensure that the claimant can effectively participate in the proceedings and where as here that is not possible the Tribunal must do what is reasonable and proportionate, to address and reduce or eliminate such difficulties, so as to ensure a fair trial.

[23]That aside we have also to take into account the parties’ convention rights. Principal amongst them in this context ARTICLE 6 – The right to a fair trial 1. In the determination of his civil rights and obligations …, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

[24]As to the latter elements of article 6 various anonymisation and restricted reporting orders have already been made in this claim. Case Number: 1301470/2023 9 / 12

[25]In forming the view we have to come to we have to set against the considerable weight that we attach to the claimant being precluded a remedy under law without a trial against what we consider is the substantial prejudice to the respondent that emanates from it not being able to defend itself properly due to the failure of the claimant to adequately set out her case and the effect on the cogency of evidence that any delay, will or has caused.

[26]The latter is highlighted here by the fact that one respondent who is a witness left the first respondent’s employ shortly after the period that concerns us began and that a witness order has had to be issued to another respondent and it is not clear if that has come to that witness’s attention.

[27]Despite the claimant’s vulnerability we have concluded that she has failed to engage as the overriding objective requires notwithstanding the warnings by various judges and the leniency given to her for her failure to comply previously.

[28]We find those repeated failures by the claimant render her conduct unreasonable and there is every likelihood that those failures to engage would be repeated should the trial proceed either now or at a future point. Is a fair trial possible?

[29]Two questions arise, in the alternative:- 29.1. is a fair trial possible at all and/or 29.2. is a fair trial possible within the trial window.

[30]In undertaking those assessments we note the object of any justice system is to get triable cases tried (Blockbuster), a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court (Arrow 4 ) that requires regard to be had to the consequences of delay (and in turn whilst 4 Arrow Nominees v Blackledge

[2001] BCC 591

Case Number: 1301470/2023 10 / 12 the memories of witnesses remain sufficiently intact to deal with the issues) and the costs for the other parties (Emuemukoro 5 ).

[31]We have no confidence given the repeated failure of the claimant to comply with tribunal orders to comply with any order that the tribunal were to give regarding the matters the tribunal are to decide or how the claim should be conducted. We are concerned that from what we have been told and can see from the tribunal file that there is a risk the claimant would seek to expand the issues, provide further detail and/or open up matters that have already been addressed.

[32]We have no confidence that should this hearing proceed that it could be properly managed or at all by whichever judge and panel was scheduled to conduct it.

[33]Given the absence of detail provided by the claimant about her claim in the form of a witness statement (or for that matter the losses she is seeking) in order for her to succeed should the trial proceed either now or at a later point she would need to provide examples of the type of which we give above. Whilst she has been given repeated opportunities and failed to do so, if she were to do that that would potentially cause considerable prejudice to the respondents by virtue of the effects of the delay on the cogency of evidence and in addition the issues we identify above concerning the willingness of witnesses to engage and/or the respondents to be able to contact them.

[34]Accordingly, we find it is not possible a fair trial can be conducted at all. Proportionality

[35]We are conscious of the repeated reminders from the appellate courts of the great care that should be taken before striking out a claim and that strike out of the whole claim is inappropriate if there is some proportionate sanction that may be appropriate. 5 Emuemukoro v Croma Vigilant (Scotland) Ltd

[2022] ICR 327

EAT Case Number: 1301470/2023 11 / 12

[36]Tesco tells us that anxious consideration is required before an entire claim is struck out on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant has been scandalous, unreasonable or vexatious and/or that it is no longer possible to have a fair hearing.

[37]We have considered if a sanction short of striking out the claimant’s claim is appropriate. We have concluded for the following reasons it is not.

[38]The claimant has been repeatedly warned about the need to comply with tribunal orders. She has not heeded them. We do not consider that further warnings would add anything to those given to date.

[39]For the reasons we give above a fair trial either within or without the trial window is not possible so relisting the hearing is not appropriate.

[40]For the reasons we also give above concerning the lack of detail and the necessity of that detail to enable a fair trial to take place we consider the trial could meaningfully proceed without it.

[41]We have also considered if the strike out of elements of the claim are an option but have also rejected that on the basis that the detail required for the reasons we give above relates to the complaints of all the forms of prohibited conduct. We remind ourselves the claimant has the initial burden of proof in all cases.

[42]In relation to other sanctions such as costs, whilst these can be ordered if the threshold tests are met the respondents may argue that they are entitled to such an order in any event and thus it is inappropriate to see that as an alternative to strike out.

[43]Strike out is a draconian step and a last resort; it deprives the claimant of her right to bring a claim. It is used only in exceptional circumstances. However we have to place that into the balance against the prejudice to the respondents.

[44]We have reluctantly and with great hesitation bearing in mind the claimant’s vulnerabilities come to the conclusion that a fair trial is impossible at all Case Number: 1301470/2023 12 / 12 because of the claimant’s unreasonable conduct, her failure to engage with her obligations and our conclusion that will continue.

[45]Having considered and rejected alternatives we have come to the conclusion that the circumstances here are exceptional and there is no alternative but to strike out the claimant’s claims in their entirety. Approved by me