Miss G McPherson v Birmingham City Council: 1303044/2018 and 1301113/2019
EMPLOYMENT TRIBUNALS
Case No 1303044/2018, 1301113/2019
Between
Miss G McPhersonClaimantBirmingham City CouncilRespondent
Before
Judge BJ Doyle (President)In person for claimantMs E Hodgetts (instructed by Counsel) for respondentDate 21 July 2020
JUDGMENT
[1]The first claim as amended (1303044/2018) is struck out as having no reasonable prospect of success.[2]The claimant’s application to amend her claims is refused.[3]The remaining claim (1301113/2019) shall proceed to a final hearing as already listed to commence on 7 January 2020, subject to standard case management orders to be issued by the
REASONS
[1]This is a preliminary hearing to determine(1) the respondent’s application to strike out the claimant’s first claim as amended (1303044/2018) and/or for a deposit order in relation to it; and(2) the claimant’s application to amend her first and/or second claims (the second claim being 1301113/2019).[2]At her request, the claimant was provided with a high back chair at the start of the hearing. Case Nos: 1303044/2018 & 1301113/2019 2 Preliminary hearing before Employment Judge Richardson[3]There has been a preliminary hearing before Employment Judge Richardson on 29 April 2019 in relation to the first claim. That resulted in a reserved judgment with reasons sent to the parties on 27 June 2019.[4]For the purposes of the claimant’s disability discrimination complaints in the first claim, Judge Richardson found the claimant to be a disabled person in respect of certain conditions only (low back pain, repetitive strain injury and carpal tunnel syndrome). The judge found that her reliance on other conditions (and, in particular, bunions) did not amount to a disability. The judge further found that in the respect of the disabilities in respect of which the judge had found in favour of the claimant the relevant dates were from January 2019 and from March 2019. The judge also permitted the claimant to amend her first claim so as to include a complaint of disability-related harassment under section 26 of the Equality Act 2019.[5]That judgment has been the subject of an appeal by the claimant to the Employment Appeal Tribunal. The appeal has not yet been sifted. The second claim is listed to be heard by an Employment Tribunal over 5 days between 7 and 13 January 2020. Case management orders for that final hearing have not yet been issued and a case management hearing in November 2019 has been vacated. Reserved judgment and reasons[6]Taking all of those matters into account, I have considered it sensible to provide written reasons for my decision today and to do so by reserving my judgment. By that means, both parties will have written reasons for both my decision and, as already supplied, that of Judge Richardson, which may assist should the present appeal proceed further.[7]This is my reserved decision with reasons prepared in chambers immediately following this morning’s hearing. I had before me a two part bundle of documents prepared by the respondent (171 pages) and, with some duplication, a bundle of documents prepared by the claimant (170 pages). I received oral submissions from both parties. Application for strike out[8]The respondent’s application for a strike out order and/or an order for a deposit is dated 23 July 2019 [R86-87].[9]The claimant’s first claim was received on 11 June 2018 and was amplified by further and better particulars dated 18 February 2019. It contains complaints of disability discrimination only. Those complaints arise during the claimant’s employment, which subsequently terminated on 15 February 2019 when the claimant resigned. She presented her second claim on 14 March 2019, complaining of unfair dismissal and disability discrimination.[10]The respondent’s central contention is that, in the light of the reserved judgment of Judge Richardson that the claimant was disabled by virtue only of her back and hand impairments from January 2019 and March 2019 respectively, the Case Nos: 1303044/2018 & 1301113/2019 3 claimant was not disabled at the time when she presented her first claim on 11 June 2018 or any time before January 2019. Consequently, it is said, the claimant’s first claim containing complaints of disability discrimination has little or no reasonable prospect of success and should be struck out or made the subject of a deposit order.[11]I note in passing that an application of this kind was made before Judge Richardson and was refused, but that the application is renewed on different grounds following the reserved judgment in respect of the claimant’s disability and her status as a disabled person. No issue has been taken about this. I consider that the renewed application is on different grounds and may be heard. Respondent’s submissions: strike out[12]Ms Hodgetts, the respondent’s counsel, amplified the respondent’s application as follows.[13]She sought to strike out the first claim, as amended, and including the section 26 harassment claim. She took me through the essential points of Judge Richardson’s judgment. She contended that it represented a careful analysis of the medical evidence and the relevant legal principles. Ms Hodgetts invited me to conclude that the judge’s conclusions were open to the judge. She argued that the claimant’s reliance now on medical evidence does not assist her in resisting a strike out application because there is a judgment declaring the claimant not to be a disabled person at the relevant times covered by her first claim.[14]The respondent’s counsel referred me to the leading authorities on striking out in discrimination claims: Anyanwu v South Bank Student Union and anor [2001] ICR 391; Ezsias v North Glamorgan NHS Trust [2007] ICR 1126; and A v B and anor [2010] EWCA Civ 1378. She submitted that this was a case that was squarely within the ambit of a claim that was bound to fail. It was the clearest of examples of a case that should be struck out. Claimant’s submissions: strike out[15]In response, the claimant sought to take me to the medical and other evidence upon which she relied. I have noted the evidential points that she wished to make. I reminded the claimant that I was not assessing her case on its merits or revisiting Judge Richardson’s decision. The question for me was whether, in the light of Judge Richardson’s decision regarding her disability and her status as a disabled person, and the limitations of both time and scope that the judge had placed on that, her first claim had no reasonable prospect of success.[16]In a change of tack, the claimant advised me that her appeal to the Employment Appeal Tribunal against Judge Richardson’s decision had been acknowledged by it on 13 September 2019 (albeit it is not yet sifted). She wishes her appeal to be considered and she will then accept whatever the outcome is. In response to a question from me, she accepted that she was in effect asking me to defer a decision on the strike out application until the appeal had been determined. Discussion and relevant law: strike out[17]I have declined to defer a decision on strike out. It would be better, if the Case Nos: 1303044/2018 & 1301113/2019 4 appeal is to proceed further, that the Employment Appeal Tribunal should see how I have dealt with the applications before me. If the appeal against Judge Richardson’s decision were to be upheld, then my decision today will need to be revisited, either by me or by the Employment Appeal Tribunal. However, it is on balance better that I should deal with the applications before me and to do so now so that the litigation can be progressed to the final hearing as listed. Otherwise, the final hearing may be postponed fort some months and the present applications will remain unresolved.[18]I reminded myself that there must be more than a fanciful prospect of the claimant’s complaints being defeated by the respondent. Tribunals should be slow to strike out a claim brought by a litigant in person on the ground that it has no reasonable prospect of success. Strike out is a draconian step to take. A complaint of discrimination should not be struck out except in the most obvious of cases as they are generally fact-sensitive and require full examination to make a proper determination, especially when the central facts are in dispute.[19]I have also reminded myself that it is not my role today to undertake a review or reconsideration of Judge Richardson’s decision. The judge’s decision on the claimant’s limited status as a disabled person stands, unless and until it is considered otherwise on appeal by the Employment Appeal Tribunal. Until then, I cannot revisit it, either to strengthen the respondent’s application or to take a different view of the fundamental question of the claimant’s disability status as determined by Judge Richardson. Decision: strike out[20]In the light of Judge Richardson’s decision I am forced to the compelling conclusion that the first claim has no reasonable prospect of success. It contains only complaints of disability discrimination. Even as amended, those are complaints of matters that arose before or at the time of the presentation of the first claim on 11 June 2018. Judge Richardson has implicitly decided that the claimant did not satisfy the definition of “disability” and of “disabled person” as at that date. The judge explicitly decided that the claimant did not satisfy the definition of “disability” and “disabled person” before January or March 2019. Therefore, the first claim cannot succeed, even as amended so as to include a section 26 complaint. Indeed the judge could have dismissed the first claim as a result of the preliminary hearing in April 2019 or when the reserved judgment was reached in June 2019. Put very simply, the statutory underpinnings of a disability discrimination claim had been fatally undermined.[21]It follows that it is right that I should strike out the first claim as having no reasonable prospect of success. Application to amend the claim[22]I turn next to the claimant’s application to amend her claims. That application is contained in a letter dated 19 August 2019 [R99-100]. The claimant seeks to introduce three complaints (A), (B) and (C).[23]Complaint (A) refers to her first claim in which she informed the Tribunal that “I am a carer for 2 relatives and they (my employer) moved me into a stressful environment”. She asserts that she suffered a substantial disadvantage in that she Case Nos: 1303044/2018 & 1301113/2019 5 was treated less favourably because she is a carer; that this caused her insomnia; and then she was diagnosed with anxiety and depression. She says that she had no option but to resign. The claimant describes this complaint as being one of associative disability discrimination. Her contention is that she was treated less favourably than her colleagues by being instructed to work in a stressful environment (Newtown) even though she was caring for an elderly person (her father who has cancer) and her sister.[24]Complaint (B) is described as being harassment arising from disability. The claimant refers to unwanted conduct from her employer. She refers to her first claim form informing the Tribunal that “I took out a dignity at work against a member of staff who was moved to Newtown, and still currently working there”, at the time of an instruction to her to move offices. The claimant also characterises this as direct discrimination in that she suffered substantial disadvantage in being treated less favourably than her colleagues by being forced to work in a busy office and also a toxic environment alongside a colleague who had allegedly physically bullied her. She also seeks to say that this amounts to harassment arising from disability as this was unwanted conduct by her employer; she felt that her dignity and wellbeing were being ignored; and that this had the purpose of intimidating her.[25]Complaint (C) refers to the “gender pay gap”, although it appears to be an equal pay complaint. She asserts that she worked for the respondent for 33 years and that the respondent continues to pay men and women differently due to unconscious, conscious and institutionalised bias. Claimant’s submissions: amendment[26]In support of her application to amend the claim the claimant took me to her first ET1 claim form [R7]. She pointed to the reference to her transfer to Newtown and its toxic environment in the particulars of her first claim. The claimant relies on evidence of this at [C63] and she contends that nothing has changed. The respondent has to use temporary staff. At [C152] she points to the text between asterisks. She contends that none of her colleagues wanted to go to Newtown. She was put under stress and was prescribed sleeping tablets. She refers further to [C18] and [C21].[27]So far as the complaint of associative discrimination is concerned, the claimant relies on the reference in her first ET1 to being a carer and the fact that her father had cancer. She relies upon the principles in Selkent Bus Co v Moore [1996] ICR 836. In respect of direct discrimination, the claimant relies upon the second paragraph in section 8.2 of the first ET1 (“I was instructed …”).[28]As to the equal pay claim, the claimant says that she continues to belong to the UNISON trade union. She had not been aware that there were so-called “third generation claims” for equal pay. She became aware in August 2019 via her trade union. Once she had become aware she then wished to add an equal pay claim.[29]In general support of her application to amend the claim the claimant also took me to [C75] as evidence of the pressure she was under; to an email of 9 February 2019 as to her taking sleeping tablets; and asserted that the respondent could have allowed her to return to her original place of work (Erdington). Case Nos: 1303044/2018 & 1301113/2019 6 Respondent’s submissions: amendment[30]In response, the respondent’s counsel took me to the claimant’s application to amend [R99-100]. Three additional complaints are there identified. It was submitted that the first is an entirely new complaint, but could have been struck out as having no reasonable prospect of success had it been included in the first ET1 because of the findings as to the claimant’s disability status. The same is also said to be the case regarding the second complaint.[31]As to the third complaint, Ms Hodgetts submitted that that amendment falls to be decided by reference to Selkent Bus Co v Moore [1996] ICR 836 and the relevant Presidential Guidance on amendments. There is no reference in either claim to equal pay. This is an entirely new complaint. It is also inadequately pleaded and contains no dates and no comparators. It is insufficient to give rise to a complaint without further and better particulars.[32]As to the timing of the application to amend, Ms Hodgetts says that the claimant’s employment terminated on 15 February 2019. The application to amend was made on 19 August 2019. The application is made out of time and with no explanation for the failure to bring these complaints earlier. While the claimant is a litigant in person, she is nevertheless relatively experienced in the Employment Tribunal process.[33]It is submitted that the respondent is prejudiced by the application to amend because of the inadequate pleading of the amendments. The respondent will be put to cost in seeking and responding to further and better particulars. There will also be considerable passage of time. There is no prejudice to the claimant, in contrast, particularly as she can bring her equal pay claim in the county court.[34]So far as the associative discrimination complaint is concerned, Ms Hodgetts contends that such a complaint could be brought if it was the claimant’s case that she had been subjected to less favourable treatment because of the disability of another person. However, that is not how the claimant has put her complaint. She relies upon her treatment as a carer and not because of the disability of another person. She might be able to rely upon section 26 of the Equality Act 2010, but she is not doing so. Nor can she assert a failure to make reasonable adjustments because of associative discrimination. See Hainsworth v Ministry of Defence [2014] IRLR 728 CA. There might be an arguable case for indirect discrimination under section 19 of the 2010 Act because of developments in EU law (CHEZ Razpredelenie Bulgaria C-83/14), but that is not how her case is put. Discussion and relevant principles: amendment[35]There is a considerable body of (not always consistent) case law on amending an Employment Tribunal claim. I draw my understanding of the current state of the law from Harvey on Industrial Relations and Employment Law Division PI Section I(5)(b).[36]The key question in respect of each amendment is: Is this an amendment of a claim that(i) is merely designed to alter the basis of an existing claim, but without purporting to raise a new distinct head of complaint; or(ii) adds or Case Nos: 1303044/2018 & 1301113/2019 7 substitutes a new cause of action, but one which is linked to, or arises out of the same facts as, the original claim; or(iii) adds or substitutes a wholly new claim or cause of action which is not connected to the original claim at all?[37]So far as amendment (A) is concerned, this appears to relate to the claimant’s transfer to the Newtown office on 16 October 2017 and the raising of concerns about this on 8 September 2017 and 12 October 2017. The first claim form refers to the claimant being a carer for two relatives. The proposed amendment adds that this is less favourable treatment by instructing her to work in a stressful environment even though she was caring for an elderly person, her father (who has cancer), and her sister (whose disability status is unclear). That on its own would not be sufficient to support a complaint of direct associative disability discrimination.[38]I am not satisfied that at its highest the claimant is here alleging that she has been treated less favourably because of the disability status of her father or even of her sister. Her complaint is about her own status as a carer and her alleged treatment at the hands of the respondent as such. There is at present no broad-based, free-standing protection for carers in the Equality Act 2010. The Tribunal would have no jurisdiction to determine an amended complaint of the kind framed by the claimant. Thus, whether or not this is a type (i), (ii) or (iii) amendment – and I incline to the view that it is a type (ii) amendment – the Tribunal would have no jurisdiction in respect of it. For that reason, I refuse the application to make amendment (A).[39]If I am wrong about that, and assuming that it is an amendment to a claim that is in time, I would in any event refuse the amendment in accordance with the Selkent principles. The amendment is sought to be made some two years after the events in question, some 15 months after the presentation of the first claim (upon which it relies), some 6 months after the second claim, some 5 months after an earlier preliminary hearing at which the scope of the claim was considered and an application for an amendment of the claim was considered, and some 3 months before the final hearing. It is poorly pleaded and will require further and better particulars. While the claimant will be prejudiced if I do not permit the amendment, particularly as I am striking out the first claim in any event, the respondent will be prejudiced by having to respond to such a late complaint and in circumstances where the primary evidence is becoming stale.[40]The balance of hardship leans towards refusing amendment (A) and I so decide.[41]Amendment (B) is concerned with a dignity at work grievance that the claimant took out against a member of staff at Newtown. This is said to be unwanted conduct. The cause of action is described as harassment arising from disability and/or direct disability discrimination. However, by parity of reasoning employed in my decision on strike out of the first claim, this amended complaint has no legislative underpinning in the light of Judge Richardson’s findings in respect of the claimant’s status as a disabled person. The claimant seeks to anchor this complaint in her first claim form presented on 11 June 2018. Thus the events in question pre-date June 2018 and in circumstances where it has been decided that the claimant was not disabled at any time earlier than January 2019. Case Nos: 1303044/2018 & 1301113/2019 8[42]The Tribunal would have no jurisdiction to determine an amended complaint of the kind framed by the claimant as amendment (B). Thus, whether or not this is a type (i), (ii) or (iii) amendment – and I incline to the view that it is a type (ii) amendment – the Tribunal would have no jurisdiction in respect of it. For that reason, I refuse the application to make amendment (B).[43]If I am wrong about that, and assuming that it is an amendment to a claim that is in time, I would in any event refuse the amendment in accordance with the Selkent principles. The amendment is sought to be made some two years after the events in question, some 15 months after the presentation of the first claim (upon which it relies), some 6 months after the second claim, some 5 months after an earlier preliminary hearing at which the scope of the claim was considered and an application for an amendment of the claim was considered, and some 3 months before the final hearing. It is poorly pleaded and will require further and better particulars. While the claimant will be prejudiced if I do not permit the amendment, particularly as I am striking out the first claim in any event, the respondent will be prejudiced by having to respond to such a late complaint and in circumstances where the primary evidence is becoming stale.[44]The balance of hardship leans towards refusing amendment (B) and I so decide.[45]Proposed amendment (C) is very poorly pleaded, even allowing for the claimant being a litigant in person. The reference to this being a gender pay gap claim is misplaced. It must be an equal pay claim and presumably one based on equal work for equal value, although that has to be inferred from the bare bones of what the claimant says by way of proposed amendment.[46]The claimant’s employment ended on 15 February 2019. The time limit for an equal pay claim is 6 months and would begin to run from that date. The second claim was presented on 14 March 2019. There is no reference to pay or equal pay or the gender pay gap anywhere in either the first claim or the second claim. This is an entirely new complaint, advanced only at 19 August 2019, and advancing a substantial alteration and pleading a new cause of action. It is out of time and there is no proper basis for extending time. Although an application to amend may be made at any time, this application is made late in proceedings that were first commenced 15 months ago. The delay is said to be because the claimant only learnt through her trade union of “third generation” equal pay claims in August 2019, but the fact is that this respondent has been the subject of long-running equal pay litigation in which the claimant’s trade union has been very proactive. It is inconceivable that the claimant would not have been aware of the possibility of such a claim at a much earlier time. The balance of hardship does not disadvantage her, especially as she has the alternative of a claim in the county court or High Court with a much longer time limitation period.[47]The balance of hardship leans towards refusing amendment (C) and I so decide. Decision: amendment[48]The application to amend the claim(s) is refused for the reasons set out above. Case Nos: 1303044/2018 & 1301113/2019 9 Case management[49]The final hearing of the second and remaining claim is listed for 5 days commencing on 7 January 2020. A case management hearing listed for November 2019 has been vacated. There remains a possibility that the final hearing may have to be postponed if the claimant’s appeal in the first claim survives the sift at the Employment Appeal Tribunal. In those circumstances the parties are agreed that standard case management orders should be issued. I shall refer the file to the