Miss P Panton v Birmingham City Council and Holte School Employment Schools Relations: 1303349/2018

EMPLOYMENT TRIBUNALS

Case No 1303349/2018

Between

Miss P PantonClaimant

Birmingham City Council and Holte School Employment Schools RelationsRespondent

Before

Employment Judge Dimbylow

In person for claimant

Ms E Hodgetts (instructed by Counsel) for respondent

Date 20 May 2019

JUDGMENT

[1]The claimant’s claim for unfair dismissal has no reasonable prospect of success and is struck out pursuant to Rule 37.

[2]The claimant’s claim for direct race discrimination has no reasonable prospect of success and is struck out pursuant to Rule 37.

[3]The claimant’s claims for direct disability discrimination have no reasonable prospect of success and are struck out pursuant to Rule 37.

[4]The claimant’s claim for damages for breach of contract over the respondents’ alleged failure to give notice or make a payment in lieu thereof has no reasonable prospect of success and is struck out pursuant to Rule 37. Signed by JUDGMENT having been sent to the parties on 18 April 2019 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]The background to the claim and this hearing. The claimant brought claims of:(1) unfair dismissal,

(2) race discrimination,

(3) disability discrimination, and

(4) damages for breach of contract over failure to give notice or payment in lieu thereof in a claim form presented on 3 July 2018. The response form was lodged on 19 July 2018 and the claims were disputed. The claimant had obtained an Early Conciliation Certificate from ACAS and the two dates on it were 7 June 2018 and 11 June 2018. The tribunal adopted the usual practice of listing the case for a Closed Preliminary Hearing (CPH) upon receipt of the claim form and this was done by notice dated 5 July 2018 fixing the CPH to take place on 30 January 2019 at 2pm with a time estimate of 2 hours. The response form contained an application for there to be an Open Preliminary Hearing (OPH) to consider striking out the claimant’s claims or in the alternative for her to pay a deposit to continue with the claims. These applications were also mentioned in a separate letter from the respondents to the tribunal dated 17 July 2018. The respondents’ applications were placed before me (coincidentally, when I was the Duty Judge) on 3 October 2018. I directed that they should be rejected at that stage as they were premature; but I did order the claimant: (i) to give full particulars of her discrimination claims by 25 October 2018, and (ii) to disclose her medical records and provide an impact statement by 8 November 2018. The claimant supplied the impact statement on 7 November 2018. Stated shortly, the claimant did not then and still does not accept now that she had or has a disability. As she told me today, her disability discrimination claim arises out of the fact that the respondents perceived her to be disabled. On 13 November 2018 the claimant filed another statement giving more information about her discrimination claims. The CPH on 30 January 2019 was conducted by Employment Judge Findlay and she set out the background and issues, as then understood, in the preamble to her case management order. She also listed this OPH to deal with the respondents’ strike out and deposit applications, giving directions for such hearing.

[2]The issues. Stated shortly, at this OPH I must decide the following matters:2.1 Should any of the claims be struck out as having no reasonable prospect of success?

2.2 Should any of the claims be subject to deposit orders as having little reasonable prospect of success? At the start of the hearing the claimant explained to me precisely the claims that she was bringing were as follows.

[1]In relation to the unfair dismissal claim, she confirmed that the act of suspending her was unfair and was carried out by Karen Hollick (HR Officer of BCC) and Christine Hardy (Vice-Chair of the Governors). She disputed that she was dismissed for capability, because the true reasons were discriminatory.

[2]The dismissal amounted to direct race discrimination. The claimant described her own ethnicity as African Caribbean. The perpetrators of such discrimination were Ms Hollick and Ms Hardy.

[3]In relation to disability discrimination there were 3 issues.(i) Mr Errol Robinson (who is also African Caribbean) perpetrated acts of direct disability discrimination because of his perception that the claimant was disabled when he referred her to Occupational Health on 15 April 2015 and again on 18 June 2015.

(ii) The claimant asserts that she was suspended by Mr Robinson on 26 March 2015 because he thought she was schizophrenic, and again this is an act of direct disability discrimination.

(iii) The dismissal also amounted to direct disability discrimination by Mr Robinson. She submitted that he told her: “I am dismissing you because you are schizophrenic.” The claimant once again asserted that she was not and is not disabled.

[4]The breach of contract claim arises in this way. The claimant says that she was paid until 30 April 2018; but was not told that she was going to be dismissed until June 2018. Therefore, she has not been given proper notice or payment in lieu thereof. 3. The evidence. I received oral evidence from the claimant about her means, informally during her submissions. Ms Hodgetts was prepared to accept the information given and did not require to cross-examine the claimant. The parties relied on submissions only. I received a number of documents which I marked as exhibits in the following way: C1 Claimant's bundle C2 Claimant’s skeleton argument R1 Respondents’ bundle (58 pages) R2 Respondents’ skeleton argument 4. The law on striking out a claim and/or ordering a deposit. Rule 37 (1) of the Employment Tribunal Rules 2013 provides that all or any part of a claim or response may be struck out if it has no reasonable prospect of success or there are other specified grounds established. Tribunals always give special consideration to striking out a claim of discrimination. In the case of Anyanwu and another v South Bank Students’ Union and another

[2001] ICR 391

, the House of Lords highlighted how important it was not to strike out discrimination claims except in the most obvious cases, because they are generally fact sensitive and require a full examination to enable a proper determination of the issues. Such a cautious approach to striking out claims of discrimination has been emphasized in subsequent cases, such as Ezsias v North Glamorgan NHS Trust

[2007] EWCA Civ 330

. This has given rise to the proposition that it is unfair to strike out a claim where there are crucial facts in dispute and there has been no opportunity for the evidence in relation to those facts to be considered. It is a draconian measure and one which I would not entertain lightly. My starting point is that I will not strike out a claim. If I were to consider that any specific allegation or argument in a claim had little reasonable prospect of success I may make an order requiring the claimant to pay a deposit as a condition of continuing to advance that allegation or argument. This power stems from Rule 39 (1). It is important that I arrive at a decision which is just, fair and proportionate, having regard to the overriding objective, as more particularly described in Rule 2: “Overriding objective 2. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (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; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall cooperate generally with each other and with the Tribunal.”

[5]The submissions. Ms Hodgetts went first and spoke to her skeleton argument R2 and there is no need for me to repeat it all here. A significant feature in this case is the fact that there have been previous proceedings issued by the claimant against the respondents which culminated in a 14-day hearing in July and August 2017 before Employment Judge Woffenden and 2 lay members. Ms Hodgetts took me to various places in the reserved judgement and reasons, which were sent to the parties on 9 November 2017, to demonstrate support for her submissions over:(i) cause of action estoppel,

(ii) issue estoppel and

(iii) abuse of process and the rule in Henderson v Henderson. The same tribunal also made a costs order against the claimant on 13 November 2018 and gave a written reserved judgment with full reasons which were a detailed assessment, but that has yet to be completed.

[6]I then heard oral submissions from the claimant. She also spoke to her written submissions document, exhibit C2. There is no need for me to repeat everything she said here. She gave a brief account of her financial circumstances. She does not own any property and lives alone rent-free in accommodation that she used to share with a former partner. She has no stocks, shares, premium bonds or savings. She is in receipt of state benefits in the form of Universal Credit and receives £292 every 5 weeks, and this is her only income. Her living expenses take up her income. The only asset that she has is a car (a Mercedes CLK 200) which she values at some £3,000 to £4,000; and it is not subject to any finance. The claimant spoke briefly in rebuttal of some of the things advanced by Ms Hodgetts. The respondents also had an opportunity to speak in rebuttal of some of the claimant’s submissions.

[7]My conclusions and reasons. I deal with the breach of contract claim first. The respondents produced to me in their bundle a good data trail demonstrating the background and history of the claimant’s suspension, the reference to OH and subsequent dismissal. The claimant denies receiving the letter of dismissal dated 31 January 2018. However, I find that she received a copy of it via an email of the same day (p.42 of R1). Not only did she receive it; but also did her legal adviser, a barrister who had been instructed to act on her behalf from 15 December 2017. On that day the claimant had asked the respondents not to email her again; but send correspondence to her barrister, Mr MK Mukulu (p.34). The correspondence from the school made it plain the reasons for the dismissal and confirmed that her contract of employment was terminated with notice. She was told that she was entitled to 12 weeks’ notice and the termination date would be 30 April 2018. She was advised that salary payments would be made to her until that time, and she was paid. This claim has no reasonable prospect of success and is dismissed under Rule 37. Had I been wrong about that, and not struck it out, then I would have ordered a deposit of £5 as I would have found the claim had little reasonable prospect of success. It is just, fair and proportionate that this part of the claim is struck out.

[8]I then deal with the claims in relation to direct disability discrimination concerning the 2 references to OH and suspension. They are all out of time. They could be background facts. However, very significantly, they have been dealt with in the previous case brought by the claimant. There are multiple references to them in the issues, in the fact-finding and the decisions made. The claimant has fallen foul of estoppel and the rule in Henderson v Henderson. It is an abuse of process. I asked the claimant during the hearing to explain why she had repeated them in these present proceedings. She simply replied: “I brought the claims before.” The only interpretation I could place on this approach is that the claimant was dissatisfied with the previous outcome and wanted another bite of the cherry. This is not permissible. Therefore, these claims are struck out as having no reasonable prospect of success. Had I been wrong at that point, and not struck out the claims, I would have ordered a £5 deposit to be paid for each of the 3 discrete claims.

[9]I now turn my attention to the dismissal. This is a new claim. Again, the documentation is clear and simple. The claimant was subject to a medical suspension on 26 March 2015 and was sent to an OH adviser who prepared a report dated 25 June 2015. The Consultant Occupational Physician concluded that the claimant was not fit to teach, pending a further psychological assessment. The report confirmed that although the claimant reported no psychological problems, she displayed some inappropriate behaviour during the consultation which suggested possible problems. It was thought the claimant could undergo disciplinary and grievance processes. Finally, the consultant in answer to the question as to whether the claimant was able to adequately safeguard pupils in her care, came to this conclusion: “I would not currently advise that.” The claimant was off work for some 3 years before dismissal, during which time she was paid her normal salary. She failed to cooperate with the process of obtaining additional medical information about her, and which may have helped her. She would not give her consent to further reports. At the time of dismissal, the OH advice was still highly relevant and unchanged. When it came to the capability procedure the claimant did not appear at the hearing or engage with the respondents in any constructive way during the process leading up to it. There was ample reason for dismissal, set against a background of justifiable concern on the part of management. Another relevant factor taken into account was that the claimant was dealing with pupils that had special needs.

[10]The claimant advanced no argument that there were any procedural failures on the part of the respondents. The ACAS code of Practice appears to have been complied with. The respondents are likely to establish a potentially fair reason for dismissal, as it advanced in correspondence and confirmed in the letter of dismissal. On the information available to me the tribunal will conclude that the respondent acted reasonably at every stage and that dismissal was within the range of reasonable responses. Therefore, this part of the claim is struck out as having no reasonable prospect of success. Again, had I been wrong about that or did not strike it out, I would have ordered a deposit of £5 to be paid.

[11]The claims for dismissal because of race and disability, I deal with together. They are both asserted to be acts of direct discrimination. The claimant has brought multiple claims of discrimination previously and failed on all of them. Her credibility as a witness has been assessed in detail in the previous case. It is very much an understatement for me to say she does not come out of it very well. I do not propose to recite everything which was said about her here. The claimant did not advance any argument as to an actual comparator in the present case. The likelihood is that the hypothetical comparator would have been treated in exactly the same way as the claimant. I conclude that the claimant has no reasonable prospect of demonstrating that she was dismissed because of her race and/or because of any disability and/or any perception of disability. The claimant has no reasonable prospect of being able to reverse the burden of proof on either claim. If she did, then the respondents are likely to be able to demonstrate that the dismissal was untainted by discrimination. I strike out both claims as they have no reasonable prospect of success. If I was wrong at this stage, and not struck out the claims, I would have ordered a deposit of £5 on each of the 2 claims as they would have had little reasonable prospect of success.

[12]In coming to my decision I have accepted and adopted the arguments put forward by Ms Hodgetts on behalf of the respondents. She accurately set out the law, and I have not had to recite it all in these reasons. The claimant did not come over well during this hearing and her thinking was not open and transparent. In her skeleton argument she used rather strange language and adopted wide-ranging criticism of all and sundry. She said this: “… I am disgusted to my heart and filled with pain at the corruption breeding within the education system and the courts. The universe is equally in pain and vomiting the hate and racism caused by the perpetrators.” And later: “Their corruption goes up to the heavens and is stink before the Almighty God of which they are not afraid.” Finally, she stated this: “It is clear that the school has lied and have been able to get the help of officials seal and sign even to endorse what they do perverting the course of justice.” The submissions reflected the fact that the claimant cannot focus on the issues involved in her case and the applications before me. She has a lack of insight into the way in which her conduct effects other people, and the unfavourable interpretation that can be placed upon it. The claimant had every opportunity to engage in the capability process leading up to her dismissal but failed to do so. In much the same way that the previous tribunal found the claimant lacking in credibility I came to the same conclusion. The claimant was not open and honest with me, for example when she tried to limit the remit of her barrister’s involvement in the case. Her argument was easily overturned by Ms Hodgetts who was readily able to turn to documentary evidence in support for her counter argument.

[13]I did stand back at the end, bearing in mind the disadvantage to the claimant in this draconian measure, and looked at the whole picture. However, I concluded that the outcome was just, fair and proportionate. This was one of those rare but obvious cases. The interpretation of the facts advanced by the claimant was unlikely to be established as it was not credible. Signed by